PN549

JUSTICE ROSS: Can I deal with some preliminary matters first. First to Ai Group, I had cause to be sent to you an email that might be regarded as critical in relation to the findings of fact. I apologise for that. I was between hearings and had only glanced at the second page which looked remarkably like your submissions but I do have - so you can take it that the document does satisfy the request. I had two issues I wanted to raise though, well three. The last one is with the other parties. One of the matters, I take it, if I go to 23 - - -

PN550

MR GOTTING: Your Honour, can we just clarify, are you talking about the submissions or the findings?

PN551

JUSTICE ROSS: I'm talking about the findings.

PN552

MR GOTTING: Thank you.

PN553

JUSTICE ROSS: I'm glad you've raised that, Mr Gotting, because I'll come back to some confusion about the submissions in a moment. I take it 23 is not really a factual finding but that's going to be your argument?

PN554

MR DIXON: It is obviously a fact which one draws from the instrument, your Honour.

PN555

JUSTICE ROSS: But isn't that really just a legal conclusion that - - -

PN556

MR DIXON: It is.

PN557

JUSTICE ROSS: It's just the meaning of the - - -

PN558

MR DIXON: It is, your Honour.

PN559

JUSTICE ROSS: I just wasn't sure if you were saying that was how it was applied.

PN560

MR DIXON: No.

PN561

JUSTICE ROSS: All right. The second - and look - - -

PN562

MR DIXON: Your Honour, may I just say - - -

PN563

JUSTICE ROSS: Sure.

PN564

MR DIXON: - - - we did not regard your Honour's comments as criticism. We understood that your Honour wanted some assistance and there was no difficulty from our point.

PN565

JUSTICE ROSS: No, no, all right, thank you. The other issue about the findings, and this is a matter that is particularly directed to the SDA and RAFFWU, is that by ‑ it would assist the Bench if we know which findings are contested. You've got Ai Group's document and in your closing submissions you can address whichever ones you don't agree with but for the moment, by say 12.00 noon on Wednesday, we seek from each of you and copied to Ai Group by reference to the paragraph numbers in their document which of the findings you contest, and that's really all what - we don't need an argument, we just want to know what the scope of the contest is and that might focus the submissions on the Thursday. Do each of you understand what is requested of you?

PN566

MR BRUNO: Yes, your Honour.

PN567

MR CULLINAN: Yes.

PN568

JUSTICE ROSS: All right. Can I just go - and, look, this may be in one of the Ai Group's submissions at some point, but you will recall, Mr Dixon and Mr Gotting, that during the penalty rates case there was some debate about whether fast food employees are regarded as low paid employees for the purpose of the modern awards objective. You ran an argument and we found that they were - the Bench found that they were. Is that an issue that's agitated here or is it accepted that the conclusion reached in the penalty rates case is the one that we should be looking at here?

PN569

MR DIXON: That is correct, your Honour.

PN570

JUSTICE ROSS: Okay.

PN571

MR DIXON: It's not an issue.

PN572

JUSTICE ROSS: All right. Can I hand each of you a document. It's just that when I went to look at all the submissions in this matter, they filled two volumes because there has been a range of preliminary stuff. I just want to check. Now, I make this comment particularly to the SDA and to RAFFWU. There are earlier submissions that go to, for example, the SDA's proposition that the flexibility claim is beyond jurisdiction. I'm not touching on those at the moment. We have made a decision about that. We will publish that in due course. Nor am I touching here in this list on the previous debate about whether RAFFWU is in or not.

PN573

Here I just want to focus on what do we need to have in front of us. Obviously we have got the witness evidence - don't trouble yourself with that - but in terms of the submissions of the parties that go to the question of merit and the two claims, is this it? with Ai Group, I'm told that in (2) there was an initial document and then that was amended, so is it the later one that we have regard to?

PN574

MR GOTTING: Yes, your Honour.

PN575

JUSTICE ROSS: All right. So it 12 July, not 26 June?

PN576

MR GOTTING: That is so.

PN577

JUSTICE ROSS: Okay. Thank you.

PN578

MR GOTTING: Just to be clear, in light of the Commission issuing the industry profile document, we're relying upon that document rather than the Hossain affidavit. The amendments that are reflected in the outline of submissions, as well as the outline of submissions in reply, reflect that change in emphasis.

PN579

JUSTICE ROSS: Thank you.

PN580

MR GOTTING: I apologise that wasn't marked up.

PN581

JUSTICE ROSS: No, but I think you - that was on the first page, I think in the fifth or something - so it was fairly clear what you were doing.

PN582

MR GOTTING: It might have extended to the second page as well, your Honour.

PN583

JUSTICE ROSS: Okay. All right. Thank you.

PN584

MR GOTTING: In terms of the document that you just handed down, item 3 under the Ai Group submissions refers to a document filed 9 July. That was updated on 12 July.

PN585

JUSTICE ROSS: That was, yes.

PN586

MR GOTTING: We rely on the 12 July version, not the 9 July version.

PN587

JUSTICE ROSS: Okay. When the SDA and RAFFWU are looking at the findings issue, it's the document of 12 July.

PN588

MR GOTTING: Thank you. Otherwise, the document handed down is accurate.

PN589

JUSTICE ROSS: Thank you very much. Can I go to the SDA. There are two submissions of yours that go to the merits. Is that right? Are there more?

PN590

MR BRUNO: That's right. The Commission has correctly identified those two under the heading "SDA submissions 1 and 2".

PN591

JUSTICE ROSS: Okay. Thanks. Mr Cullinan, are they are your two?

PN592

MR CULLINAN: Thank you, your Honour. Number 2 is actually our submissions in reply to the question of being granted appearance - - -

PN593

JUSTICE ROSS: So we don't have to have regard to that.

PN594

MR CULLINAN: That's right.

PN595

JUSTICE ROSS: The only one we have to have regard to is the submission filed on 9 March?

PN596

MR CULLINAN: That's correct, your Honour.

PN597

JUSTICE ROSS: All right. Can I also encourage you in any written material to put the date on the front. There is no date on yours and it can make it difficult for other parties just to track what they're replying to, okay?

PN598

MR CULLINAN: Thank you.

PN599

JUSTICE ROSS: All right. Thank you. Are we still, by agreement between the parties, looking at Agostino, Anderson, Hossain is out, then Montebello, Hunter? Is that the order?

PN600

MR GOTTING: The order, your Honour, is Anderson, then Agostino, then Montebello, Hunter.

PN601

JUSTICE ROSS: Okay. All right. Thank you. Anything else in a preliminary way before we call the first witness?

PN602

MR BRUNO: The only small thing is, your Honour - and the horse might have bolted - I haven't formally sought leave to appear on behalf of the SDA. I didn't appear on the 29th, but I make that application now, your Honour.

PN603

JUSTICE ROSS: Is the application opposed?

PN604

MR DIXON: No.

PN605

JUSTICE ROSS: Having regard to the complexity of the matter, you think it would be dealt with more efficiently?

PN606

MR BRUNO: That's correct.

PN607

JUSTICE ROSS: You ask us to make that finding and grant permission?

PN608

MR BRUNO: Yes, your Honour.

PN609

JUSTICE ROSS: We grant permission on that basis. Thanks, Mr Bruno.

PN610

MR DIXON: May it please the Commission, may I call Annabel Sarah Anderson for the Ai Group, the first witness for the day.

PN611

THE ASSOCIATE: Please state your full name and address.

PN612

MS ANDERSON: Annabel Sarah Anderson, 21‑29 Central Avenue, Thornleigh.

<ANNABEL SARAH ANDERSON, AFFIRMED [9.43 AM]

EXAMINATION-IN-CHIEF BY MR DIXON [9.43 AM]

PN613

MR DIXON: Ms Anderson, are your full names Annabel Sarah Anderson?‑‑‑Yes.

PN614

You are a senior employee relations advisor employed by McDonald's Australia Ltd. Is that correct?‑‑‑That's right.

PN615

In that capacity you have prepared two affidavits, affirmed on different dates, for these proceedings?‑‑‑That's correct.

PN616

Is it correct that the first of those affidavits was affirmed on 23 February 2018, consisting of some 94 paragraphs and four annexures?‑‑‑That's correct.

PN617

In relation to the first affidavit, I understand that you have done some calculations and as a result - your Honours, we do not seek to read paragraphs 42 and 43, but seek leave for Ms Anderson to provide the updated and amended corrections to those paragraphs; 42 and 43 on page 9.

PN618

JUSTICE ROSS: Any objection?

PN619

MR BRUNO: No, your Honour.

PN620

MR DIXON: May I show you a document, please, Ms Anderson. Do you identify the document that I have shown you, Ms Anderson?‑‑‑Yes.

PN621

Can you tell the Commission what that is?‑‑‑It's amendments to my calculations in paragraphs 42 and 43 of my first affidavit.

PN622

You have recalculated what was in paragraphs 42 and 43, and is it correct you've set out in that document the basis of your calculations?‑‑‑That's right.

PN623

Can you affirm that the contents of that document are true and correct to the best of your knowledge and belief?‑‑‑I can.

PN624

May I tender the affidavit of 23 February 2018, if the Commission pleases.

*** ANNABEL SARAH ANDERSON XN MR DIXON

PN625

JUSTICE ROSS: We will mark that exhibit Ai Group 3.

EXHIBIT #AI GROUP3 AFFIDAVIT OF ANNABEL ANDERSON AFFIRMED 23/02/2018 PLUS ANNEXURES

PN626

MR DIXON: May I also tender the note or document that was identified by Ms Anderson a moment ago, consisting of some six paragraphs, one page.

PN627

JUSTICE ROSS: Thank you. I'll mark that exhibit Ai Group4.

EXHIBIT #AI GROUP4 ONE-PAGE DOCUMENT CONTAINING ANNABEL ANDERSON'S AMENDMENTS TO CALCULATIONS

PN628

MR DIXON: Ms Anderson, do you have a copy of a supplementary affidavit with you, consisting of some eight paragraphs and affirmed on 22 June 2018?‑‑‑I have that, yes.

PN629

Does your signature appear on the last page of that document?‑‑‑Not on the version that I have in front of me.

PN630

Would you then, please, state that the contents of that affidavit are to the best of your knowledge true and correct?‑‑‑They are.

PN631

I tender the supplementary affidavit, if the Commission pleases.

PN632

JUSTICE ROSS: Ms Anderson, can I take you to the last page of the affidavit. That's just an error in the date, is it? That should be 2018?‑‑‑Yes, it should.

PN633

Okay, that's fine.

PN634

MR DIXON: Sorry, your Honour, I overlooked that.

PN635

JUSTICE ROSS: No, no, that's fine. The correct date is on the front so that's fine. So, no objection - I'll mark that exhibit Ai Group 5.

EXHIBIT #AI GROUP5 WITNESS STATEMENT OF ANNABEL ANDERSON

PN636

MR DIXON: That is the evidence in chief, if the Commission pleases.

*** ANNABEL SARAH ANDERSON XN MR DIXON

PN637

JUSTICE ROSS: Thank you, Mr Dixon.

PN638

MR DIXON: Sorry, may I just put on the record that Mr Agostino is not in court. He's outside of the tribunal at the moment.

PN639

JUSTICE ROSS: All right, thank you.

CROSS-EXAMINATION BY MR BRUNO [9.48 AM]

PN640

MR BRUNO: Ms Anderson, if I could just ask you to please have your first affidavit in front of you, I just wanted to ask you some questions about that affidavit firstly. It's the case that for McDonald's restaurants, at the time that you affirmed that affidavit there were 972 restaurants?‑‑‑That's correct.

PN641

And it's the case that the majority of those restaurants are what's termed franchisee restaurants, rather than corporate restaurants?‑‑‑That's right.

PN642

Can I ask you to look at the two paragraphs - paragraphs 13 and 14? I just wanted to ask you some questions by way of clarification in relation to both of those paragraphs. At paragraph 13 you say that 693 of the McDonald's restaurants were open between 5 am and 6 am Monday to Friday. When you say they're open, in that paragraph are you referring to them being open to trade?‑‑‑That's correct.

PN643

Then if I ask you to go down to paragraph 14, where you say, "As at 2 February 2018 201 of the McDonald's restaurants were not open between 5 am and 6 am Monday to Friday" - I won't read out the remainder of that sentence for now - but there are you saying by them not being open that they're not trading in some capacity?‑‑‑They're not trading.

PN644

If you could just help me with the maths if that's okay? When I've added up the 693 and the 201, I come to not 972 restaurants but a smaller figure. I come to 894. Is that an error or is there an explanation as to why the figures don't add up?‑‑‑Could you say that again, please?

PN645

Yes, so when I look at paragraph 13, what you're saying there - I'll put the question a bit differently to try and assist you, Ms Anderson - is that 693 restaurants were open between 5 am and 6 am to trade?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN646

In the next paragraph you say 201 were not open and I as I understand it, to trade between 5 am and 6 am. When I've added the 201 and the 693 together I've come to 894 rather than the total number of restaurants which you've referred to earlier at paragraph 11 and in your evidence this morning, which is 972?‑‑‑I think the 693 overlaps with some of the 599 as well.

PN647

By the 599 you're referring to - - -?‑‑‑So restaurants that traded 24/7, some of them would also be the ones that are open between 5 am and 6 am.

PN648

I'm a bit confused by the - they're either open or they're not open in terms of those statistics. I'm just wondering if you could clarify what you mean by the overlapping?‑‑‑Well, so 693 restaurants were open between 5 am and 6 am.

PN649

Yes?‑‑‑599 were open 24/7.

PN650

Yes, so a smaller number are open 24/7?‑‑‑That's right.

PN651

JUSTICE ROSS: Sorry, is it 572 of the 693 restaurants that trade between 5 and 6 are open 24/7? Is that what you're putting?‑‑‑599 trade 24/7, 693 trades between 5 am and 6 am but that would also include the 599.

PN652

Right.

PN653

MR BRUNO: Yes, okay - in terms of your understanding in relation to paragraph 13, is it the case that for McDonald's between 5 am and 6 am that the majority of restaurants are actually trading in some capacity?‑‑‑Of the 693?

PN654

Out of all restaurants - out of the 972?‑‑‑Most of them would be, yes.

PN655

That figure or the percentages broken down or it's contained in paragraph 13 of your affidavit where you say it's 71.29 per cent?‑‑‑Yes.

PN656

Therefore you would accept as a proposition that the majority of staff working at a McDonald's store are not doing preparatory work to trade. Would you accept that?‑‑‑Out of all of the restaurants, yes, yes.

PN657

Yes. In fact only around 20.68 per cent would be doing what might be called preparatory work to trade?‑‑‑For those that aren't open between 5 and 6 am but start trading at 6 am, yes.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN658

But that figures represents about 20.68 per cent of all of the 972 restaurants, am I right?‑‑‑That's right - out of those restaurants.

PN659

I take it that McDonald's values the work that employees - the work of employees doing preparatory work in that 20.68 per cent of all stores?‑‑‑It values the work of the employees, yes.

PN660

Yes, yes - it's equally important to the business as work which is being undertaken by employees when they're directly engaged in trade?‑‑‑What do you mean by, "equally as important?"

PN661

Well, McDonald's doesn't seek to distinguish between preparatory work which happens before the store opens and the work that the employees do when the store is actually open?‑‑‑No.

PN662

That is the case because without the preparatory work you wouldn't be able to trade?‑‑‑That's correct.

PN663

At paragraph 51 if I could ask you to turn over a few pages, there you've described some observations that you made when you visited a store at Hay Street, Perth - it's a McDonald's store. Now, that store - when you visited you were there at 5 am to 6 am?‑‑‑Yes.

PN664

With the list of things that you've observed through paragraphs A through to L in paragraph 51, would you accept that some of those items might be preparatory, some of those items might be preparatory or it might happen when trade is actually occurring?‑‑‑Out of that paragraph?

PN665

Yes?‑‑‑Some of it would also happen while the store was trading but a lot of things would also definitely need to be done by a particular point in time when the restaurant is opening as well.

PN666

Yes. It's the case that McDonald's corporate stores and also the franchisee stores operate not under the award but under the McDonald's Australia enterprise agreement of 2013 that's varied?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN667

At paragraphs - I'll get you to move to page 10 - paragraphs 45 and 46. There you describe some differences between clause 25.5A of the award in relation to evening penalty rates with the agreement at paragraph 46. In essence you note in paragraph 46 that employees at McDonald's stores under the agreement don't receive a penalty after 5 am?‑‑‑That's right.

PN668

I gather you're generally familiar with the conditions or the pay conditions, sorry, of the agreement?‑‑‑Yes.

PN669

Would you accept that when you compare the pay conditions with the McDonald's agreement and the award, when you compare the two, it's not an apples for apples situation, there are differences?‑‑‑In what respect?

PN670

Particularly in relation to the base rate of pay. Would you accept that under the agreement employees obtain a higher hourly rate than an employee under the equivalent provision or equivalent classification, sorry, under the award?‑‑‑Yes.

PN671

At paragraph 25, paragraph 25(c) I'll take you to that paragraph - if you just bear with me, I've just got to find the reference that I'm referring to. Yes, sorry, I'm on the wrong page. It's page 6. So 25(c), you might already have that in front of you. You've said that:

PN672

The majority of McDonald's employees are 18 years of age or younger. Most attend some kind of study and it's common that they have restricted availability. They cannot work during all of the operating hours of the business.

PN673

Are you able to say how many McDonald's employees attend university or other tertiary study and how many attend secondary school?‑‑‑No.

PN674

At paragraph 54 there you refer to a conversation that you had with some employees at the Bexley McDonald's restaurant and you talked to them about working from 5 am and there in paragraph or subparagraphs (a) through to (c) you describe the various responses you received. How many employees did you speak to?‑‑‑There was about three.

PN675

And those responses, would they each be a separate response from those three employees or is that a summary that you've created?‑‑‑I can't remember.

PN676

Where you've said:

PN677

They've preferred commencing work from 5 am because (a) they have university commitments and starting work at 5 am allows them to attend university after their shift ends.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN678

And then you say at paragraph (b):

PN679

Commencing their shift at 5 am means they conclude working earlier in the day leaving them with leisure time for the rest of the day.

PN680

That can't apply at paragraph (b) to the university student, could it?‑‑‑Well, they might have university on one day but not the other day, so I think it could.

PN681

Potentially. But did any of them raise that specifically with you?‑‑‑Which specifically?

PN682

What you have just said. So they might have university on one day but they might not on another day?‑‑‑No, they didn't raise that specifically.

PN683

Would you accept as a general proposition given the fact that the majority of McDonald's employees are students that they might have difficulty working during business hours, so nine to five for example?‑‑‑If they were university students they could.

PN684

And what about the school students?‑‑‑They would have difficulty unless it was school holidays.

PN685

And that's because the school day starts slightly earlier, is that your view about than compared to university?‑‑‑No, but it's on during the day from Monday to Friday.

PN686

Yes?‑‑‑So school's full‑time.

PN687

And university can be as well, depending on the course someone's doing?‑‑‑That's right.

PN688

And when they're scheduled to attend university?‑‑‑That's right.

PN689

Would you accept that employees, or McDonald's employees therefore have an incentive to make themselves available either before or after their study commitments?‑‑‑They've got an incentive because they've got benefits for working.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN690

Well, not in terms of benefits but just in terms of limited availability to work during the day. Would you accept that they've got an incentive to put their hand up to work in the early hours of the morning or in the evenings?‑‑‑Some of them might do.

PN691

At paragraph 58 you say that individual flexibility arrangements would create - well, I'm summarising here - would create an administrative burden for McDonald's, and can I summarise this; is this essentially because you say all of the things involved in creating the agreement will take some time?‑‑‑In creating the IFA?

PN692

Yes?‑‑‑Yes.

PN693

Sorry the individual flexibility agreement, yes?‑‑‑Yes.

PN694

And you've calculated 10 minutes?‑‑‑That's right.

PN695

Per person. It's currently the case that McDonald's doesn't need to do this under the enterprise agreement?‑‑‑Not - I'm not aware of them needing to do it, no. There might be a need to do IFAs in other circumstances.

PN696

In other contexts?‑‑‑Yes.

PN697

In this specific context there isn't a need?‑‑‑No.

PN698

And when you provide the statistics in - it's now updated paragraphs 42 and also 43, those statistics where you calculate the number of IFAs, they're based on the sample or four stores that were sampled by having a look at their rosters which you set out in paragraph 40. Have I understood that right?

PN699

JUSTICE ROSS: Could you just put the question again?

PN700

MR BRUNO: Yes, so the statistics that you refer to in paragraphs 42 and 43, so the numbers, so there you refer to a figure and I will just have a look at the updated information that you've provided. You arrive at a figure of 2,830 employees are required to work between 5 am and 6 am and you say:

PN701

I have arrived at this number by multiplying the average number of employees rostered Monday to Friday for 24/7 stores.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN702

And that's three by the number of 24/7 stores. That's 599. When you've come to the three, that's based on if you look at paragraph 40 those two sample rosters, if I can call it that. It's probably not an accurate term, but for the four stores Monday to Friday. So you've got two week periods where that has been calculated?‑‑‑Yes.

PN703

Why such a low sample size?‑‑‑I don't think it necessarily is low.

PN704

There's 972 stores, that's correct?‑‑‑Yes.

PN705

And there's four stores which have been looked at for the purposes of working out the numbers of employees working between 5 am and 6 am?‑‑‑Mm‑hm.

PN706

Do you say that four stores is not a low sample size for 972 stores?‑‑‑Not when they were picked as being two typical 24/7 and two typical non 24/7 stores.

PN707

In terms of typical and non-typical, how was that determined?‑‑‑There was nothing to make them unusual. It was - - -

PN708

Were they just a random selection?‑‑‑They were just a random selection.

PN709

Would you accept that if there was say 10 per cent of the stores that were surveyed it might provide more meaningful data?‑‑‑It would provide more data. I wouldn't necessarily say that it was more meaningful.

PN710

The figures might be different?‑‑‑They could be. I don't know.

PN711

Do you accept that the burden of complying with an individual flexibility arrangement might be less for a franchisee than for McDonald's corporate?‑‑‑No.

PN712

There are 151 McOpCo stores, so they're the corporate stores. That's correct isn't it?‑‑‑Yes.

PN713

And then there's a hundred and eight - sorry, 821 franchisee stores?‑‑‑Yes.

PN714

In terms of a single operator franchisee, do you not accept the proposition that the burden for that franchisee to enter into individual flexibility arrangements is not that large?‑‑‑Because there's less.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN715

Yes?‑‑‑Yes, okay, yes.

PN716

What we're talking about here is that, and correct me if I'm wrong, it's McDonald's corporate is the entity that might need to, if it wanted to use an individual flexibility arrangement process, enter into multiple agreements?‑‑‑It would have to enter into multiple agreements but the licensees would also need to enter into multiple agreements.

PN717

If they wanted to, do you accept that?‑‑‑If they wanted to, yes.

PN718

Yes. When you've put forward the 10 minutes as an estimate, would you accept that there's some degree of speculation when you've arrived at 10 minutes?‑‑‑Yes, and I think that's probably a low estimate.

PN719

But have you conducted any surveys in respect of completing individual flexibility arrangements or agreements in other contexts?‑‑‑No, I haven't conducted any surveys.

PN720

You don't have a basis either way to say whether it's slightly less than 10 minutes or slightly more than 10 minutes?‑‑‑I've preferred IFAs before.

PN721

Yes?‑‑‑Yes.

PN722

Would McDonald's corporate have a standardised agreement for an IFA?‑‑‑I don't think it does.

PN723

One could be developed?‑‑‑That's correct.

PN724

That's because McDonald's would be looking at ways to streamline its processes and look for efficiencies?‑‑‑Most likely.

PN725

The time that would be taken in relation to an individual flexibility agreement would include, and tell me if you agree with this or not, printing out an agreement or developing an agreement?‑‑‑That would be part of it.

PN726

Some time would also need to be taken in relation to thinking about how the employee would be made better off overall under that agreement?‑‑‑That would be part of it.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN727

The agreement would then need to be provided to the employee?‑‑‑That would be part of it.

PN728

If the employee was a child, so under the age of 18 years of age, the agreement would need to also be provided to the guardian?‑‑‑Correct.

PN729

The agreement would then come back to McDonald's?‑‑‑Yes.

PN730

The agreement would either be accepted?‑‑‑Yes.

PN731

Or not accepted?‑‑‑Yes.

PN732

If it was accepted, the outcome would be recorded on one of McDonald's systems, it's either metime or the other one, is that right?‑‑‑I think you're talking about myRestaurant but I'm not sure how - - -

PN733

Yes?‑‑‑I'm not sure how it would be recorded because we don't have that system in place.

PN734

Right. Remaining on this topic about what you say is the administrative burden for complying with individual flexibility arrangements, would you accept as a very basic proposition that there is an administrative burden in complying with all award conditions?‑‑‑Correct but this is something that would require specific development.

PN735

What about paying wages? That's probably an obvious example but there's an administrative burden in setting up systems to ensure that an employee is paid?‑‑‑Yes.

PN736

There'd need to be forms to fill out to capture the employee's bank details?‑‑‑Yes.

PN737

Sometimes employees might want to change their account details?‑‑‑Yes.

PN738

That would need to be entered into one of McDonald's systems?‑‑‑Yes.

PN739

Providing a uniform's another example?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN740

Forms need to be filled out for that?‑‑‑I'm not sure.

PN741

I won't ask you about that then. Let's turn to the administrative burden that might be there if there was a facilitative provision. You're familiar with the facilitative provision which Australian Industry Group have submitted for determination in this proceeding?‑‑‑I am.

PN742

Would you accept that even complying with that provision, if McDonald's chose to do that, that there would be some burden in complying with that provision?‑‑‑Yes, but it would be a lot less in entering into IFAs.

PN743

Well, let's unpack that a little bit, Ms Anderson. There'd be a process at the very least, wouldn't there, where the majority of employees concerned would need to vote?‑‑‑Vote or - I don't know if there's some other method.

PN744

For McDonald's corporate restaurants, that wouldn't be a small task to ascertain what the majority of employees concerned, what their intentions were, whether they agreed to it or not?‑‑‑I don't know.

PN745

McDonald's would want to ensure that the vote, if a vote was taken, to ensure that the wishes of the employees concerned, that that was accurate, it was transparent and properly recorded?‑‑‑Yes.

PN746

I presume forms of some sort would be created in this process to record and capture the agreement of the majority of employees concerned?‑‑‑Possibly, I don't know.

PN747

It would be best practice, would you accept, for McDonald's to do that, to record the agreement reached by the employees?‑‑‑Yes.

PN748

Would you accept that employees would need to be provided with some information about this and the process that McDonald's was going to undertake to capture their agreement or disagreement?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN749

What you say in your affidavits is that, and correct me if I get the figures wrong and I don't mean to do that intentionally, but it's somewhere between 10,000 and 12,000 where you might be able to help me with the figure, of potential individual flexibility agreements that would need to be entered into, it's that same figure, whatever that is, of the employees who you say their wishes would need to be ascertained?‑‑‑Can you repeat that again, sorry.

PN750

Yes, I was very muddled, I'm sorry about that, Ms Anderson. I'll break it down a bit differently. You've said that there's a figure, and I haven't got it in front of me right now, but it's between 10,000 and 12,000, individual flexibility arrangements would need to be entered into?‑‑‑12,545.

PN751

Is that the figure?‑‑‑Yes.

PN752

Thank you, and those same employees, or that same number in your evidence, would need to be asked whether they would want to forego the penalty rate under the award for the hours 5.00 am to 6.00 am?‑‑‑They would need to be but it would be a lot simpler a process in entering into IFAs.

PN753

Just trying to work that out with you at the moment, Ms Anderson, but McDonald's would need to ask those same employees - - -?‑‑‑Yes.

PN754

- - - about that and I think you've said that presumably information would need to be provided to those employees?‑‑‑Some sort of information, yes.

PN755

It would be best practice to record that information, for McDonald's to record that information in some way?‑‑‑Yes.

PN756

McDonald's would presumably want to engage the guardians of any employees under the age of 18 years of age?‑‑‑Yes.

PN757

That would take some extra time as well?‑‑‑Extra time in addition to that particular process of going for the facilitative provision.

PN758

It's part - no, I don't mean that. Just it would be added to the time that would be required for McDonald's to implement this provision?‑‑‑Are we talking about the facilitative provision or the IFAs?

PN759

We're talking about the facilitative provision?‑‑‑Yes, yes.

PN760

Would you accept that McDonald's would need to continuously monitor the agreement of the majority of employees concerned who wished to forego the 15 percent penalty?‑‑‑I don't know.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN761

Proceed on this basis, assume that that is the correct interpretation, and I'm not asking you to agree with me that this is the correct interpretation. Let's just assume that McDonald's would need to do that. How would McDonald's go about trying to work out whether the expressed wishes of employees had changed or not?‑‑‑I don't know.

PN762

Would you accept that the employees at McDonald's - they come and go?‑‑‑Typically.

PN763

Yes, so the composition of employees might change over time?‑‑‑Yes.

PN764

How would McDonald's try and ascertain whether any new employees had agreed to forgo the penalty rate?‑‑‑I don't know.

PN765

Would you accept that, looking at all of that, there is administrative burden for McDonald's either way, in complying with an individual flexibility arrangement or by using the facilitative provision which is proposed by Ai Group?‑‑‑There would be an administrative burden either way but I think IFAs would be harder and more difficult.

PN766

Would you accept that in a vote or however it happens, where the wishes of the majority of employees concerned is ascertained, that there would be a category of employees who would say, "Yes, I'm willing to forgo the penalty rate", and there would be a category who would say no?‑‑‑Potentially, unless they all said yes or they all said no.

PN767

Yes, but you would expect that you wouldn't have even - well, all of the employees in one camp and it would be divided in some way, whatever that proportion is?‑‑‑There would also be employees who didn't vote.

PN768

If the employees that didn't vote - how would McDonald's know what their wishes were?‑‑‑I don't know.

PN769

Would you accept that if there are a category of employees who don't vote, who vote in favour of forgoing the penalty rate or vote against it, would you accept that that might create some disharmony in the workplace?‑‑‑I don't know - not necessarily.

PN770

Are you familiar with the components of clause 7 under the award, which is the individual flexibility arrangement or agreement clause?‑‑‑I am but - - -

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN771

You haven't got it in front of you?‑‑‑Yes.

PN772

I'll ask you a very directed question and I'll read out from the award. Are you aware or do you recall that clause 7.3B states that the agreement between the employer and the individual employee - now, that's the individual flexibility agreement - must result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to?‑‑‑Yes.

PN773

Do you recall that?‑‑‑Yes.

PN774

Are you aware that the proposed facilitative provision in the application to amend clause 25.5A of the award doesn't require the employee to be better off over all?‑‑‑It doesn't require it, no.

PN775

Do you accept that employees who are captured by the facilitative provision - and by that I mean employees whose - where the majority of employees concerned who vote are in favour of forgoing the penalty rate - do you accept that what that would mean for the employee is that they get a slightly reduced level of pay for that hour?‑‑‑Yes.

PN776

Would you accept that for employees who are students and be it school or university that that pay might be significant for them?‑‑‑I don't know.

PN777

But it provides nothing in return for them, does it, this facilitative provision?‑‑‑Well, working between early morning, some students like that. But in terms of - yes, so it might benefit them because they will get more hours if they work between 5 to 6. There will be more shifts offered.

PN778

But that's not entirely right, is it, Ms Anderson, because McDonald's needs these employees there at 5 am to 6 am in any event?‑‑‑For best practice?

PN779

To prepare the store?‑‑‑Yes.

PN780

I have no further questions, your Honour.

PN781

JUSTICE ROSS: Mr Cullinan.

*** ANNABEL SARAH ANDERSON XXN MR BRUNO

PN782

MR CULLINAN: Thank you, your Honour.

CROSS-EXAMINATION BY MR CULLINAN [10.22 AM]

PN783

MR CULLINAN: Hello, Ms Anderson?‑‑‑Hi.

PN784

SO just to start with your statement, the statement itself reflects your views about the issues that are part of these proceedings?‑‑‑Yes.

PN785

You haven't left anything out that you consider particularly material?‑‑‑No.

PN786

Can you explain to us how many franchisees you spoke to in preparing your statement?‑‑‑Approximately seven to 10 - sorry, it was probably approximately six licensees - six to seven licensees and two to three restaurant managers from McOpCo.

PN787

Of those six licensees, how many stores did they operate?‑‑‑In total?

PN788

Yes?‑‑‑Sorry, I'm just doing calculations in my head - like a rough estimate, but around 28.

PN789

Around 28 - and was that in relation - obviously we're particularly concerned with the part-time arrangements rather than the 5 to 6 am issue - did you talk to all of those six licensees and two to three restaurant managers from McOp about the part-time issue as well?‑‑‑Yes.

PN790

With the six licensees, which states were they in?‑‑‑New South Wales and Western Australia.

PN791

The two to three restaurant managers?‑‑‑New South Wales.

PN792

How many full-time employees in store did you speak with?‑‑‑Full-time?

PN793

Full-time, yes?‑‑‑I don't know.

PN794

How many part-time employees?‑‑‑I don't know.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN795

Did you talk to any?‑‑‑I spoke to employees. I don't know if they were full-time or part-time. I can't remember.

PN796

How many casual employees?‑‑‑I can't remember.

PN797

How many employees in store did you talk to all together?‑‑‑Probably about six.

PN798

Did you conduct any survey of the views of part-time or casual or full-time employees?‑‑‑No.

PN799

If you go to paragraph 15 of your statement, here you refer to the agreement applying since July 2013 to a number of classifications. How many workers are covered by the award at McDonald's?‑‑‑The fast food award?

PN800

Yes?‑‑‑Not many, if any.

PN801

Do you know if there are any?‑‑‑I don't know.

PN802

Just for your benefit, the paragraph here says that since July 2013 it has applied to all employees of McDonald's?‑‑‑Yes.

PN803

Franchisees - - -?‑‑‑It would apply to all employees. I was just wondering if there was potentially someone who does work in a different classification but, yes, it would be the enterprise agreement.

PN804

If there was someone it would be a separate classification to what the agreement covers?‑‑‑Yes.

PN805

How many delivery drivers at McDonald's are part-time?‑‑‑I don't know.

PN806

Do you know how many delivery drivers there are?‑‑‑No.

PN807

When did the delivery drivers become covered by the award - by the agreement, sorry?‑‑‑2016.

PN808

About February?‑‑‑I'm not sure.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN809

So they weren't actually covered in July 2013, were they?‑‑‑No.

PN810

So from July 2013 to early 2016 or some date in 2016, the delivery drivers were covered by the award?‑‑‑I don't know.

PN811

Have you conducted any investigations into - I take it you haven't conducted any investigations into whether they were covered by the award and what arrangements applied to them, then, before that?‑‑‑No.

PN812

Do you accept that if the variation in 2016 included delivery driver for the first time it's likely they were covered by the award before that time?‑‑‑I don't know.

PN813

At paragraphs 20 to 25, you explain some of the characteristics of employees. There is one group that seems to be missing here - or two groups that I just wanted to ask you some questions about. The first one is about the group that are 18 years or younger. We understand that 63 per cent of workers are 18 years or younger. Do you know what proportion of that group are casual?‑‑‑No.

PN814

Have you ever heard of the phrase "learn or churn"?‑‑‑No.

PN815

Have you ever heard anyone at McDonald's use the phrase "churn" in relation to staff?‑‑‑No.

PN816

Do you know what proportion of level 3 staff are non‑casual?‑‑‑No.

PN817

Do you know what proportion of level 4 staff are non‑casual?‑‑‑The majority, but I don't know the percentage.

PN818

Is it safe to say that there is a higher proportion of level 2 staff that are casual than levels 3 or 4?‑‑‑Yes.

PN819

Are you aware of, or does McDonald's consider, having staff paid junior rates an important part of the business model?‑‑‑I don't know.

PN820

If we go to paragraph 29, here we are talking about the availability of employees and how it's recorded by McDonald's. Does the request to change availability get submitted by an employee on the application?‑‑‑No, it's through the myJob application.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN821

So they do that through an app?‑‑‑Yes.

PN822

To McDonald's?‑‑‑Yes, once they have made a request to change the availabilities.

PN823

So that request is then made in writing in the app?‑‑‑No, it's entered in through the myJob application electronically.

PN824

Who controls the myJob app?‑‑‑What do you mean, who controls it?

PN825

Who actually enters it?‑‑‑They enter a request to change their availability.

PN826

So it's the employee doing that?‑‑‑Yes.

PN827

On their myJob app?‑‑‑Yes.

PN828

They put in the request?‑‑‑Yes.

PN829

What then happens to it? Does the manager have to agree on the same app or how does the manager agree?‑‑‑They get it through the myRestaurant app.

PN830

So it goes from myJob app - their availability request goes into there. It comes up in the myManager?‑‑‑myRestaurant.

PN831

myRestaurant app. The manager sees it there?‑‑‑Yes.

PN832

They accept it?‑‑‑For part‑time and full‑time employees, not for casuals.

PN833

So what happens with casuals?‑‑‑They can change their availability at any time, so it's just automatically updated.

PN834

How often does a manager disagree with the request for availability change?‑‑‑I don't know.

PN835

JUSTICE ROSS: Are you referring to a full‑time and part‑time employee?

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN836

MR CULLINAN: Yes. Thank you, your Honour.

PN837

If we go ahead now to paragraph 68, does each store have a rostering manager?‑‑‑I don't know.

PN838

So how did you make this statement in relation to the statement in the first sentence?‑‑‑Based on my conversations with licensees and restaurant managers.

PN839

In relation to that then, in relation to all this statement, is it based on what you were told by those licensees and restaurant managers that you said at the start?‑‑‑Yes, and based on experience I've gained in my role generally, as well.

PN840

Sure, but in relation to paragraphs like this where it's - "The crew rosters are prepared on a weekly basis, primarily by the rostering manager"?‑‑‑Mm‑hm.

PN841

We are to take it it's from the conversations with the six or seven licensees? I should be clear?‑‑‑Also I was aware of that more generally based on conversations and matters I've worked on throughout my time.

PN842

But you don't know if every store has a rostering manager. Do you know what proportion - - -?‑‑‑The vast majority do. I can't say for sure that every single store has one.

PN843

That's okay. It says here:

PN844

The rostering manager takes into account things such as employees' availability and past sales in preparing the crew rosters.

PN845

Do they take into account the cost of a staff member?‑‑‑Sometimes.

PN846

What would be the occasions that they do that?‑‑‑I don't know.

PN847

Is it part of the process of a rostering manager to look at how much filling that hour is going to cost?‑‑‑It can be a factor that they take into account.

PN848

Do they use software to do that; to do the crew roster?‑‑‑I don't know.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN849

You don't know if they have got software which identifies someone that is available, that's capable and that is the cheapest?‑‑‑I don't know if it's all in the same - they would have, you know, software that said how much people are paid and their availability. I'm not aware of it all being in the one system, but it could be. I don't know.

PN850

Do you accept that the licensee will be trying to staff their store with the most capable, available and least expensive staff?‑‑‑Those would be the three main factors.

PN851

Thank you. In paragraph 70, it says here:

PN852

In preparing the crew roster, the restaurant managers use the myRestaurant system, which includes the availability from myJob.

PN853

Just to go back to the answer a few questions ago, the myAvailability, the myJob app, I think it's myRestaurant and the rostering itself, are all interlinked in being able to facilitate the rostering manager to get the roster published - - -?‑‑‑Can you list all those things again?

PN854

I've got here myAvailability, myJob and myRestaurant. I don't know if I've made up myAvailability?‑‑‑Yes, myAvailability isn't a software.

PN855

Isn't a thing?‑‑‑Isn't a thing.

PN856

So it's myJob?‑‑‑myJob.

PN857

Which you put your availability into and it gets accepted at myRestaurant?‑‑‑Yes.

PN858

So those tools assist the rostering manager to prepare the roster?‑‑‑Yes, the crew rosters.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN859

Yes. Thank you. At paragraphs 71 and 75, you refer back to availability changes at 29 to 32. I want to just jump back to paragraph 29 to 32, just to make sure that we've got this correct. This is the structure where a worker who is a full‑time or part‑time worker, not a casual, will put in a request for a change to their availability and it gets accepted at the other end by a manager, and casuals just make changes to their availability and they don't need acceptance. That whole structure has been a process adopted by McDonald's, hasn't it?‑‑‑Can you say that again, please.

PN860

That structure of using myJob, myRestaurant, expressing an availability, having it accepted, that structure is a McDonald's structure, isn't it?‑‑‑Yes.

PN861

That is standardised across all stores?‑‑‑Yes.

PN862

Franchisees are required to apply that process?‑‑‑I'm not sure if they're required to, but they do.

PN863

It's not mandated by the agreement?‑‑‑I don't know.

PN864

You don't know if there is a provision in the agreement that provides for all this?‑‑‑I don't know.

PN865

It's not mandated in the award?‑‑‑In the enterprise agreement?

PN866

Yes?‑‑‑Is there a process, anything in the enterprise agreement that makes restaurants follow - use those systems?‑‑‑No.

PN867

And it's not mandated in the award?‑‑‑No.

PN868

And it's a system which by its very nature provides for a recording in writing of availability, isn't it?‑‑‑Electronically.

PN869

Yes?‑‑‑Yes.

PN870

So at all times every store has a written record of an employee's availability?‑‑‑Yes.

PN871

And if it's a temporary change it's still requested in writing?‑‑‑Yes.

PN872

Permanent changes are requested in writing?‑‑‑Yes. Electronically, but yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN873

Yes, and what happens once the roster comes out and someone needs a change to their roster?‑‑‑For the part‑time?

PN874

Yes, a part‑time employee?‑‑‑So they can either try and swap the shifts themselves or the - one of the managers will call around employees and try and replace the shift.

PN875

And when a worker requests that change to their roster how do they request it to their manager?‑‑‑They could put it in through myJob.

PN876

Just the same tool is allowed to be used?‑‑‑Yes. After the roster's been posted they'll have to speak to the manager directly.

PN877

Yes?‑‑‑Yes.

PN878

And will the manager then say "Okay, put it into myJob"?‑‑‑If it's approved, yes.

PN879

And the whole structure of that availability and roster changes, the benefit of all that is it ensures that there's a record of the request doesn't it? It's a benefit that there's a record of request?‑‑‑It's one of the benefits.

PN880

It ensures that the record of the content, what the actual request is, not just that there's a request, that there's some content to it?‑‑‑It's one of the benefits.

PN881

It facilitates the making of a response?‑‑‑Potentially.

PN882

And it avoids doubt or uncertainty about what the request is, doesn't it?‑‑‑Yes.

PN883

In paragraph 73 to 77 you talk about predictable demand and you start by saying:

PN884

I understand that throughout the year events occur that are likely to increase demand.

PN885

Can you explain to us what your data source is for these paragraphs 73 to 77?‑‑‑It's based on my conversations with licensees and restaurant managers as well as my experience more broadly.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN886

You don't hold yourself out to be an expert though in relation to these matters do you?‑‑‑No.

PN887

If workers had a set roster there wouldn't need to be as many availability changes would there?‑‑‑There would because people's personal circumstances will still always change.

PN888

But if you know when you're going to work every week surely - - -?‑‑‑Study committees can still change. Family commitments can still change. Uni timetables still change.

PN889

Yes?‑‑‑So there would still be the request.

PN890

As many requests?‑‑‑I'm not sure but I - there would still be a lot of requests.

PN891

The big difference at the moment though is that they're rostered in their availability rather than having set hours, isn't it?‑‑‑And also the fact that you need to get a written agreement each time they work additional hours.

PN892

No, but in terms of someone's availability changing, if someone knows they work every evening during the dinner shift from six till nine five days a week, then they can plan their lives around that can't they?‑‑‑Not always because their personal circumstances will often change as well.

PN893

And do you have any data on that?‑‑‑Based on my conversations with licensees and restaurant managers and things I've observed more generally. Also my own experience when I was a student.

PN894

And those conversations with restaurant managers and licensees, do they have set rosters?‑‑‑No.

PN895

So how can they give you a view about the difference?‑‑‑Because they know employees' personal circumstances and how often they change their availabilities.

PN896

And how many employees did you speak to in preparing your affidavit?‑‑‑About six.

PN897

At paragraph 73 you say managers - sorry, at paragraph 74 you say:

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN898

Managers will offer part‑time employees extra hours during the period of increased demand that comes from these events.

PN899

?‑‑‑Yes.

PN900

How do you know that they won't offer them to casuals?‑‑‑I don't. I think they would offer them to casuals too.

PN901

Irrespective of whether the award applies or the agreement applies, if the restaurant manager or the rostering manager wants to offer part‑time employees extra hours they still have to offer them the hours, don't they?‑‑‑Yes.

PN902

And so they have to check the roster first, the manager?‑‑‑Yes.

PN903

And they have to contact the employee and say "We've got these extra hours. Can you work them?"?‑‑‑Mm‑hm.

PN904

By telephone, email, face to face. Are there any other systems used by McDonald's?‑‑‑I don't know.

PN905

In any event that they have to contact the employee before the change is made?‑‑‑That's right.

PN906

And that's done before compiling the roster?‑‑‑Yes, unless there's a reason to change it after the roster's been posted.

PN907

Yes, I'll get to that in a sec. Yes, and that would all then be recorded in writing, that there was an agreement, that there would be rostered hours that would be published, the hours that are then being worked?‑‑‑Yes.

PN908

At paragraph 78 then you start talking about unpredictable increases in demand. You say in the first sentence that:

PN909

The hours worked by a part‑time employee often differ from the rostered hours of the employee.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN910

What does in relation to often differs, what evidence or what data have you used to make that assertion?‑‑‑Conversations with licensees and restaurant managers.

PN911

And that's the six licensees and the two or three restaurant managers?‑‑‑Yes.

PN912

And did they give you actual data?‑‑‑No.

PN913

Did they say how often it happens?‑‑‑Often.

PN914

Did you understand that to be every part‑time employee every week, or?‑‑‑I don't know.

PN915

And then once the roster is up, the changes to it are only by agreement, is that correct?‑‑‑That's correct.

PN916

And if there's going to be a change the manager has to look at the roster and the staff list and identify an available employee?‑‑‑So we're just talking about full‑time and part‑time not casuals.

PN917

No, let's talk about casuals as well. So the roster goes up. It has got casual hours allocated in it. what happens then if the casual doesn't want to do a shift?‑‑‑They'd have to let the restaurant know but they don't have to get the restaurant's consent.

PN918

So they contact the restaurant - - -?‑‑‑To change their - - -

PN919

- - - and they say "I'm not able to do this shift"?‑‑‑Yes.

PN920

And their name is removed from that shift?‑‑‑Yes.

PN921

Are there any consequences for them for that?‑‑‑It's potentially a performance issue if they don't give enough notice.

PN922

Do they have to give more than one hour's notice?‑‑‑No.

PN923

So why would it be a performance issue?‑‑‑No shows are a performance issue. If they don't show up.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN924

Yes, okay and so whether it's a part‑timer who has requested it or a casual who has notified it, it's necessary for the manager to look at the roster and the staff list and identify someone who's available?‑‑‑And the availability reports as well.

PN925

Yes?‑‑‑Yes.

PN926

They need to call the first employee when they're not consequently and ask them if they're willing to work those hours despite not being on the roster?‑‑‑Yes.

PN927

That person may say yes and they may say no?‑‑‑Yes.

PN928

If they say no, they have to call the next employee?‑‑‑Yes.

PN929

At the end of that they inform the worker and they agree on the additional hours that are being worked?‑‑‑Yes.

PN930

The only difference between that and the current award situation is that under the current award situation, at the end of that, if they don't record an agreement in writing, it has to be paid overtime, is that correct?‑‑‑No.

PN931

How is that not correct?‑‑‑Because - can you say it again, sorry.

PN932

At the end of that process someone's agreed with their manager that they're not going to work, or the casual's just notified they're not going to work, at the end of that process someone's eventually found, under the award, if that's not agreed in writing as a contract variation, overtime rates will apply?‑‑‑But it's not agreed in writing, the first way. It's just having a conversation not negotiating an agreement.

PN933

The conversation is "Can you work these hours?" and the person says yes, isn't that an agreement?‑‑‑But it's not a written agreement.

PN934

No, I understand that. There's an agreement, it's just not in writing?‑‑‑Yes.

PN935

Does McDonald's record that in writing eventually?‑‑‑I don't know.

PN936

Are the hours allocated to that worker?‑‑‑In - for that particular roster?

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN937

Yes?‑‑‑I don't know.

PN938

Are they paid for those hours worked?‑‑‑If they worked those hours, yes.

PN939

Yes, so at some point it has to be reduced for a payroll person to be able to pay them but the written agreement of a contract variation doesn't exist?‑‑‑Well, they could just clock on or clock off, yes.

PN940

Just coming back to where I finished there before, the difference between that structure and the award is that under the award, if it wasn't agreed in writing, overtime rates would apply?‑‑‑Yes.

PN941

Paragraph 82 and 83, well we just went through. I'll keep moving. Paragraph 85, here you make reference to the regular use of annual leave and personal carer's leave. Is that from the same conversations that you'd know that?‑‑‑Yes, and also just in general.

PN942

What does that mean?‑‑‑So in my role, when I work on particular matters, it's - comes up often that part time employees use their annual leave and personal carer's leave, same with full time employees.

PN943

Maybe I had misunderstood your role, so senior employee relations advisor, what does that role entail?‑‑‑So I look after - there's an employee relations hotline where licensees and employees can call up and get advice, so I look after that team and I also manage employee claims, help them, provide advice with investigations or employee matters or - - -

PN944

Thank you. Do you know how much personal carer's leave part time employees use?‑‑‑No.

PN945

Even on a macro level? You don't know the average used by part time employees across the - - -?‑‑‑I don't know. Yes, I don't have any specific data on that.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN946

If we go ahead now to some of the specific concerns at the end of your statements, just starting at 90 in the primary concern, it's the agreement in writing for additional hours worked. At 91 you make the assertion that, or you give evidence that, if McDonald's was required to pay overtime for additional hours worked, it would decrease the number of part time employees and increase the number of casual employees. Has there been any analysis conducted of the difference, any cost analysis conducted?‑‑‑I don't know.

PN947

These issues here about reducing to writing, if McDonald's was able to implement a system of written agreements for contract variations, all of these issues would be avoided wouldn't they?‑‑‑Sorry, say that again.

PN948

If McDonald's was able to implement a system of written agreements to vary hours, all of these issues would be avoided wouldn't they?

PN949

MR DIXON: What issues (indistinct)?

PN950

MR CULLINAN: At paragraph 91?‑‑‑Sorry, I'm just reading it. No, because that system could be operationally very difficult itself.

PN951

The system of written agreements?‑‑‑Yes.

PN952

If there was a way of implementing a written agreement system though?‑‑‑Well, that way might not be - that way that you're talking about could be administratively difficult because I don't know what the system is, so.

PN953

Sure. Here your evidence is that, from what is written in paragraph 91, is that if McDonald's was required to pay overtime for additional hours worked or rostered hours different from worked hours, that McDonald's would employ casual staff instead of part time staff?‑‑‑Yes.

PN954

What I'm asking is if McDonald's had a system of written agreements in place that allowed for it to change contracts as needed, offer the worker ordinary rates, wouldn't that avoid the need to employ casual staff instead of part time staff?‑‑‑It depends on how well that system works.

PN955

Yes. If you look at paragraph 93(a), here you say in a week there can be 2767 requests. Can you explain to us where the 2767 came from?‑‑‑There was a report.

PN956

Of?‑‑‑Which - the employee requests are stored in the myRestaurant system and so we got a report which shows the number of part time employees availability change requests.

PN957

Did that change? It says there can be, so - - -?‑‑‑That was the average.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN958

Who prepared that report?‑‑‑It came from Kyle Barton who's a software architect at McDonald's.

PN959

I think you refer to him in your statement?‑‑‑Yes.

PN960

There's 2767 on average requests by part time employees in a week to change their availability and that's managed through the myJob app?‑‑‑So if they're current employees, yes, they would put it in through the myJob app which would then get sent to the myRestaurant system.

PN961

If they're not current employees?‑‑‑If they're applying for a job, then it's through the application process.

PN962

For the 2767?‑‑‑No, that would be from current employees, you're right, yes.

PN963

That uses the myJob app?‑‑‑Yes.

PN964

Which is an application in writing?‑‑‑Which is an electronic system, yes.

PN965

They're approved in writing?‑‑‑They're approved electronically, but yes.

PN966

There's no actual availability requests in the award are there?‑‑‑What do you mean?

PN967

Here you say "Under the award this change would have to be recorded in writing"?‑‑‑That's right, it would have to be recorded in writing.

PN968

Does the award currently refer to availability?‑‑‑It refers to setting up a roster when you first commence employment.

PN969

Yes?‑‑‑Yes.

PN970

That's not an availability though, is it?‑‑‑No.

PN971

So here when you say, "Under the award this change would have to be recorded in writing" - - -?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN972

- - - what change?‑‑‑The change to their availability.

PN973

But there is no availability recorded in the award?‑‑‑Well, it would be any hours that are worked outside the roster, which is agreed upon when they first start employment.

PN974

But that's not what this is referring to, is it? You're suggesting that the rostered hours - the set rostered hours - would require a change?‑‑‑Yes.

PN975

But the 2,767 requests aren't changes to the set rostered hours of part-time employees, are they?‑‑‑They would be hours outside of the roster, tough, which is what I think it's referring to.

PN976

So they do have a set roster? Do the part-time employees have a set roster at the moment at McDonald's?‑‑‑No.

PN977

So perhaps take me back through that again - my understanding is that the award doesn't have any availability clause at the moment?‑‑‑No.

PN978

Your sentence says, "Under the award, this change would have to be recorded in writing", and the first sentence says, "In a week, there can be 2,767 requests from part-time employees to change their availability"?‑‑‑Okay, yes.

PN979

So do they have to make a request to change their availability under the award?‑‑‑To change their availability, no.

PN980

Looking at paragraph 93B, so each time an employee was required to flex up in the rostered hours, at the moment under the agreement - or under the current practice, I should say - the rostering manager and the part-time employee - the rostering manager asks the part-time employee if they want to work the extra hours?‑‑‑Yes.

PN981

So they're agreeing on the extra hours that would be worked?‑‑‑Yes.

PN982

It's recorded through the apps?‑‑‑Yes.

PN983

And eventually in a roster?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN984

And in the pay systems?‑‑‑Yes.

PN985

Can't this just be easily managed by an agreement in writing?‑‑‑I don't know.

PN986

At 93C it says here that the manager and the part-time employee would have to record and agree in writing before the - effectively a short-term change?‑‑‑Yes.

PN987

The manager could agree that the part-time employee gets paid overtime rates, couldn't they?‑‑‑Potentially.

PN988

That wouldn't require an agreement in writing?‑‑‑No.

PN989

Are you aware of any other sectors where being asked to work back after your shifts doesn't result in overtime rates?‑‑‑I don't know.

PN990

Just looking at the very end of 93 - so this is the bottom of the page - there's that extra two sentences. Here you say, "I estimate that the recording of all of these agreements would take a significant period of time and it would be difficult for he manager to obtain such agreements each time." What do you mean by, "Significant period"?‑‑‑A long period of time.

PN991

What does, "long", mean?‑‑‑Well, if there's 2,667 each time it would take hours, add hours to the restaurants each week but that is just an estimate.

PN992

Hours to McDonalds?‑‑‑And its licensees, yes.

PN993

Yes - because earlier you referred to - it would take approximately your estimate of 10 minutes to negotiate, prepare and execute and detailed IFA?‑‑‑Yes.

PN994

This is somewhat less than that, isn't it?‑‑‑It is but there's 2,767 each week.

PN995

They are agreeing at the moment, though, aren't they?‑‑‑Yes.

PN996

So it's really the reduction to writing that is the issue?‑‑‑Yes, in this respect, yes.

PN997

The vast majority of restaurants employ rostering managers?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN998

If there was a pro forma or an app or some other system in place, it could be done in a matter of seconds, couldn't it?‑‑‑I don't know.

PN999

At paragraph 94 you've written, "McDonald's concern with the award also includes the requirement" - and I'll let you read it. You said it would make rostering extremely difficult. Now, at paragraph 93B, you refer to - at the end of that sentence - that you were talking about changes in work where they work above their regular pattern of work on the roster?‑‑‑Sorry, which paragraph are you on?

PN1000

93B - so at the end of 93B you talk about employees, part-time employees and rostering managers and where they work above their regular pattern of work on the roster. I just want to draw tat to your attention and then 16B and at 16B you say, "Part-time is defined as someone who has reasonably predictable hours of work"?‑‑‑Yes.

PN1001

So if you turn back to 94 your evidence is that a part-time employee has reasonably predictable hours of work and at 94B you refer to additional flexed up hours above their regular pattern of work on the roster. What is it that makes the circumstances in paragraph 94 extremely difficult to roster?‑‑‑Because the training patterns and sales demand varies so significantly along with an employee's personal circumstances as well so it would be extremely difficult to have to fix on a set roster at the beginning of employment because the circumstances will change.

PN1002

Who told you that?‑‑‑The conversations I've had with licensees and restaurants managers.

PN1003

In terms of licensees, what are their names?‑‑‑Glen Kennedy, John Cinnamon, George Stamiris, Raylene McLeod, Lade Whiteley.

PN1004

The restaurant managers?‑‑‑Scott O'Connor and Dash - I can't remember his last name.

PN1005

Do the licensees roster staff?‑‑‑Individually themselves?

PN1006

Yes?‑‑‑Not usually.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1007

Do the restaurant managers roster staff?‑‑‑They would roster managers, probably. They would do the manager's roster.

PN1008

Okay, but would they do the crew roster?‑‑‑No, not usually.

PN1009

Did you talk to anyone who does crew rosters?‑‑‑Out of those licensees that I mentioned, no. But I've spoken to people who do rosters before.

PN1010

Sure, but in preparing the statement and coming to this sentence, "rostering extremely difficult", did you talk to any rostering managers?‑‑‑I can't recall if I spoke to rostering managers for the purposes of this affidavit but I've had at least some conversations with rostering managers about this, at least since the affidavit was made.

PN1011

In terms of - we've touched on a few times the issue of agreeing in writing. There's many methods to agree in writing, isn't there? You can have a paper document signed by both parties?‑‑‑You could.

PN1012

You could have a roster amended and initialled by both parties?‑‑‑Yes.

PN1013

An exchange of text messages?‑‑‑Yes.

PN1014

An exchange of emails?‑‑‑Yes.

PN1015

You've got an online system where an employee ticks a box to indicate approval?‑‑‑Potentially - I'm not sure.

PN1016

You could have a written request by an employee and an indication of approval by an employer?‑‑‑Yes.

PN1017

What analysis has been done by McDonald's of the cost of recording additional hours in writing?‑‑‑I don't know.

PN1018

Do you know if there has been an analysis?‑‑‑I don't know.

PN1019

Did you ask anyone?‑‑‑No.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1020

Has there been any analysis of the benefit to the business of the abolition of these rights, the award rights, and by that I mean agreeing on a set roster at the start of your employment, being entitled to overtime rates otherwise; has there been any analysis done by McDonald's of the value of that abolition?‑‑‑I don't know.

PN1021

Did you ask anyone?‑‑‑I haven't asked anyone.

PN1022

You mentioned that you'd spoken to six employees. You don't know whether they were part‑time, full‑time or casual?‑‑‑I don't know.

PN1023

McDonald's knows who its part‑time employees are, doesn't it?‑‑‑Yes.

PN1024

You could have easily identified them?‑‑‑Easily identified their names.

PN1025

Part-time - yes?‑‑‑Yes.

PN1026

You could have asked them about these issues?‑‑‑Potentially I could have.

PN1027

McDonald's could have surveyed them?‑‑‑I don't know.

PN1028

McDonald's isn't able to survey? When you say - - -?‑‑‑I don't know what it would take to implement a survey.

PN1029

Theoretically it's possible though?‑‑‑I don't know.

PN1030

JUSTICE ROSS: I think we've covered that no survey was undertaken.

PN1031

MR CULLINAN: Thank you, your Honour.

PN1032

Now in relation to roster changes, there's no suggestion from McDonald's that it would change its practice of allowing employees to request roster changes?‑‑‑No.

PN1033

Irrespective of whether the agreement or award applied?‑‑‑I'm - I don't know of any. Wait, sorry, can you repeat that again, the previous question?

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1034

About part‑time employees and rosters? So there's two elements to it. The first is there's no suggestion from McDonald's that it would change the current practice of part‑time employees being able to request changes to their roster once it's published?‑‑‑That's right.

PN1035

And there's no suggestion that McDonald's would stop contacting part‑time employees to offer them additional shifts?‑‑‑No, they probably would stop offering additional shifts to part‑time employees and give them more to casuals.

PN1036

And why is that?‑‑‑Because of the requirement to get the agreements in writing.

PN1037

And the analysis has been done by McDonald's to determine that cost difference?‑‑‑I don't know.

PN1038

McDonald's would keep employing casuals in any event wouldn't it?‑‑‑I would have thought so.

PN1039

In relation to the evidence you just gave about offering the hours to a casual employee, the process would still require the manager to contact the employee?‑‑‑Yes.

PN1040

And offer them the hours?‑‑‑Yes, unless the employees arrange a swap between themselves.

PN1041

Are part‑time employees more likely to attend a shift than a casual?‑‑‑I don't know.

PN1042

Are you aware of the availability arrangements under the proposed clause from the AiG?‑‑‑Yes.

PN1043

Under the proposed clause to change one's availability has a higher hurdle than the current McDonald's agreement hurdle, are you aware of that? So at clause 12.6 of the proposed award clause from the AiG that uses language:

PN1044

Where there has been a genuine and ongoing change in the employee's personal circumstances ...

PN1045

?‑‑‑I'm not sure if I have a copy of(sic).

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1046

Perhaps assume that language, so that the clause requires that there has been a genuine and ongoing - - -

PN1047

MR DIXON: Can you show the witness what you're referring to there?

PN1048

JUSTICE ROSS: Can you just identify what the witness is being shown, Mr Cullinan?

PN1049

MR CULLINAN: Yes, thank you, your Honour. It's the clause from the award proposed variation by the AiG in its submissions and I'm asking the witness to look at clause 12.6

PN1050

JUSTICE ROSS: So it's the proposed variation?

PN1051

MR CULLINAN: The proposed variation, yes, and in particular the reference to there needed to be a genuine and ongoing change in the employee's personal circumstances.

PN1052

At the moment McDonald's has a much lower bar, doesn't it, for a change to availability?‑‑‑It has to be by consent between the manager and the employee.

PN1053

Yes?‑‑‑Yes.

PN1054

And the basis for making a request, can it be temporary of nature?‑‑‑It can.

PN1055

And I believe that you include some of those things in your affidavit. Things such as exams, extracurricular activities, sport, family circumstances and other things which may not be of an ongoing change?‑‑‑Yes.

PN1056

They're not captured by the proposed clause from the AiG, are they?‑‑‑No.

PN1057

If you look at clause 12.7 which deals with an agreement to work additional hours, at the moment a manager has to go to a part‑time employee and ask them to work additional hours don't they?‑‑‑Under the enterprise agreement?

PN1058

Yes, well under the old practice at McDonald's?‑‑‑Yes. Yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1059

And that could be on a day by day basis?‑‑‑It could.

PN1060

Under that system, the proposed system, it requires 14 days' notice to withdraw agreement to those additional hours, doesn't it?‑‑‑That's when the employee wants to change it.

PN1061

Yes?‑‑‑Yes.

PN1062

But if McDonald's was working on that clause it could roster additional hours on someone who had agreed at 12.7 and they couldn't avoid - - -?‑‑‑Well, it - - -

PN1063

Sorry?‑‑‑I was - sorry, you go on.

PN1064

They couldn't avoid those hours, could they, without 14 days' notice?‑‑‑Well, the employee still has to agree to work the additional hours.

PN1065

Do they? Where do they have to agree to it in the clause?‑‑‑12.7, when they've been offered additional hours.

PN1066

Yes, and so they're offered those additional hours and how are they offered to them under the proposal from the AiG?‑‑‑I don't know.

PN1067

So 12.7(a) refers to:

PN1068

The additional hours are offered in accordance with clause 25, Hours of Work and Rostering.

PN1069

?‑‑‑Yes. Sorry, I didn't understand what you meant.

PN1070

Yes, well I guess the point I'm making is that there is no process for the employee to be approached and asked if they want to work those additional hours. Are you aware of that?‑‑‑You mean there's no process set out in the proposed clause?

PN1071

The proposed variation?‑‑‑Yes. Yes.

PN1072

Are you aware of that?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1073

So that would require someone to give 14 days' notice to avoid working additional hours, to withdraw their consent.

PN1074

MR DIXON: I don't think that is an accurate statement as to what the terms mean. It's a matter for interpretation by the tribunal at the end of the day, if the Commission pleases.

PN1075

JUSTICE ROSS: You can ask the witness for her understanding, but it's ultimately a question for us as to what the clause means and the submissions.

PN1076

MR CULLINAN: Thank you, your Honour. That was where I was trying to go, but I think I've gone far enough with that.

PN1077

JUSTICE ROSS: All right.

PN1078

MR CULLINAN: The central concern for McDonald's in these proceedings in relation to part‑time hours is the requirement to pay overtime rates for hours above the set hours. Isn't that correct?‑‑‑I don't think that's the central concern.

PN1079

What is the central concern?‑‑‑I think the central concern is the requirement to have to agree in writing each time additional hours are offered, as well as the requirement to agree on a roster which even includes meal breaks before employment starts.

PN1080

Essentially McDonald's wants part‑time employees to be able to work additional hours at ordinary rates though?‑‑‑That's one of the reasons.

PN1081

McDonald's wants the benefit of part‑time employees; their stability, their long service, the training they bring?‑‑‑Yes.

PN1082

But wants to pay them at ordinary rates and roster them like casuals?‑‑‑No, I don't agree with that.

PN1083

You gave some evidence earlier about agreeing that the cost of a staff member is important in determining a roster for employees?‑‑‑It's one of the factors.

PN1084

One of the factors?‑‑‑But I think the main factors are availability and whether or not they're trained in that particular area, as well.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1085

You gave evidence that you had never heard of the phrase "learn or churn"?‑‑‑Never heard of that phrase.

PN1086

What analysis has McDonald's done of the length of service of its casual employees?‑‑‑I don't know.

PN1087

Has anyone ever raised with you at McDonald's, or have you ever heard of anyone raising a concern, about staff receiving less hours as they get older?

PN1088

MR DIXON: That's pretty imprecise as to staff and I question the relevance of this.

PN1089

JUSTICE ROSS: Yes. What is the relevance? How does it relate to the two matters before us?

PN1090

MR CULLINAN: The relevance is a reference to casual staff and the concern is a business model predicated on casual staff having reduced hours as they get older and more expensive.

PN1091

JUSTICE ROSS: How does that relate to the two matters we have before us? I understand you might have a concern about a business model predicated that way, but how is it relevant to what we have to decide?

PN1092

MR CULLINAN: Well, it directly impacts on the interest of McDonald's to appoint part‑time staff.

PN1093

JUSTICE ROSS: I'm not following how it directly impacts.

PN1094

MR CULLINAN: If the business model is - under law. I'm not suggesting it's unlawful - to have staff as they get older no longer working shifts, then there is no interest in engaging staff on a part‑time basis where they're guaranteed hours. What I'm trying to elucidate is the view of McDonald's about its genuine interest in non‑casual employment.

PN1095

JUSTICE ROSS: All right. You can ask that question, because the witness has given evidence about the benefits that accrue to McDonald's from part‑time employment.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1096

MR CULLINAN: I'm sorry, your Honour, I just spoke too much. Which question? Are you referring to the end result or the question I started with?

PN1097

JUSTICE ROSS: This is probably an object lesson in why it's probably better not to raise an objection, but, nevertheless, why don't you frame a question and we'll see how closely it goes, bearing in mind that you can certainly ask questions that challenge the witness's evidence or seek to challenge the witness's evidence about statements she has made in relation to McDonald's or the benefits that accrue to McDonald's from engaging part‑time employees. This isn't an inquiry into McDonald's work practices or whatever concerns you may have about how they employ casuals as they get older, et cetera. It has to be relevant to the matter that is before us. All right?

PN1098

MR CULLINAN: Thank you, your Honour.

PN1099

Has McDonald's conducted any analysis, that you're aware of, of the financial benefit of casual employment allowing McDonald's to roster younger staff as they get older?‑‑‑I'm not aware of any analysis.

PN1100

Thank you. That's all the questions.

PN1101

JUSTICE ROSS: Ms Anderson, can I just take you to your first affidavit and to paragraphs 23 and 24. You see there you set out the numbers of full‑time, part‑time and casual employees employed directly in McDonald's restaurants and also those employees by franchisees?‑‑‑Yes.

PN1102

I'm just trying to follow this delivery driver issue. Do these numbers include delivery drivers or is it people directly employed in the restaurants?‑‑‑I believe it would cover deliver drivers, as well.

PN1103

Do you know how many they are and what their breakdown is?‑‑‑I don't.

PN1104

Not off the top of your head. Could you get that information?‑‑‑I would have thought so, but - - -

PN1105

Right?‑‑‑I'm not a hundred per cent sure.

PN1106

All right. How did you get the breakdown in relation to franchisees?‑‑‑Full‑time, part‑time and employment status?

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1107

Yes?‑‑‑So there was a report run from Nicola Vanderwerken which gathered the data from the metime system.

PN1108

All right?‑‑‑So the metime system has whether they're full‑time, part‑time or casual, their level.

PN1109

Okay?‑‑‑Yes.

PN1110

Can you extract the same information from system as at 1 June 2013?‑‑‑I think so.

PN1111

All right. Could you do two things: (1) I'm interested in the comparative data to that which is set out at paragraphs 23 and 24 as at 1 June 2013. That's the first point. The second one is if you can, looking at 23 and 24 of your affidavit, I take it - sorry, let me back up for the second point. Delivery drivers, is that a relatively recent phenomenon?‑‑‑Since 2016.

PN1112

Right?‑‑‑But I'm just - yes. I'm not a hundred per cent sure when the metime system came in.

PN1113

But, in any event, employers are obliged to keep records for seven years - - -?‑‑‑Yes.

PN1114

- - - of employees and their classifications. Presumably there would be some other way of getting it?‑‑‑Yes, yes.

PN1115

In relation to the data as at 6 February 2018, can you take delivery drivers out of that data in 23 and 24?‑‑‑I can find out. I would have thought so.

PN1116

Okay. Perhaps if you can provide that information to the solicitors who are acting in this matter?‑‑‑Okay.

PN1117

Thank you very much?‑‑‑Thank you.

PN1118

Can I just ask one more question. Paragraph 14, you have there in there second sentence:

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1119

But some employees perform preparatory work in the period for a 6 am opening.

PN1120

I think here you're referring to restaurants that don't trade between 5 am and 6 am, but employ some staff between 5 am and 6 am to prepare stuff for when the restaurant opens at 6 am. Is that right?‑‑‑That's right.

PN1121

Do you have any idea as to how many employees? It says some in those 201 restaurants?‑‑‑Other than the sample that we did based on the four restaurants.

PN1122

Yes, the two - the four, sorry, the two tables that appear later?‑‑‑Yes.

PN1123

Yes?‑‑‑That's right.

PN1124

All right. Thank you?‑‑‑Thank you.

PN1125

COMMISSIONER LEE: Can I just ask a question about paragraph 93. In 93(a), there was - and you were asked questions about this, that in a week there can be 2767 requests for part time employees to change their availability. Does that 2767 cover both the crew roster and management roster?‑‑‑Yes.

PN1126

Does it include requests that are made before the roster is posted or made available or whatever the term is under the agreement? It only includes those availability changes or does it include requests for availability change before the roster is posted and after the roster is posted?‑‑‑Before and after.

PN1127

It's all availability changes?‑‑‑Yes.

PN1128

Have you got any idea what proportion is of availability ‑ ‑ ‑?‑‑‑But which are before and which are after?

PN1129

Yes?‑‑‑I'm not sure. I don't know and I'm not sure if we can pull that.

PN1130

You don't know if you can get that?‑‑‑We might be able to but I'm not sure.

PN1131

Right. If you could get that, I assume you would be able to make that available?‑‑‑Yes, yes.

*** ANNABEL SARAH ANDERSON XXN MR CULLINAN

PN1132

Thanks.

PN1133

JUSTICE ROSS: Just while you're doing that, I'm interested in getting some clarification about 93(a) and what means by the expression "In a week there can be 2767 requests". I don't say this critically but it's not clear to me whether ‑ I suppose it can be anything, but is it said that over a certain period, I think this data was extracted by somebody else - - -?‑‑‑Yes.

PN1134

Perhaps when you're getting information for Commissioner Lee you can clarify well how did we get that number. Was it, for argument's sake, over a period of three months from the system, this was the average. It's just it's not expressed that way so I'm a little - I know that you answered a question about it and you said it, look, was an average but I don't know over what period so perhaps if you could find that as well?‑‑‑Sure.

PN1135

Thank you. Re-examination?

RE-EXAMINATION BY MR DIXON [11.30 AM]

PN1136

MR DIXON: Thank you, your Honour. Ms Anderson, can I take you to paragraph 94 of your first affidavit and you'll recall you were asked some questions about the basis upon which you formed the views there and you said in response that you would have conversations with managers since the affidavit was made. You recall that?‑‑‑Yes.

PN1137

Who did you have those conversations with?‑‑‑So a number of licensees that I've spoken to since I've made the affidavit. I can't really recall any of their names but ‑ ‑ ‑

PN1138

Can you tell the Commission how many in that category?‑‑Well, quite a few, I'd say, so maybe seven to 10 more.

PN1139

Right, and what was the nature of the conversation?‑‑‑So it was basically just conversations I was having with them generally and talking about the case and what the application was.

*** ANNABEL SARAH ANDERSON RXN MR DIXON

PN1140

But relevant to the question and the view expressed in 94, what was the information you gathered from those conversations?‑‑‑So I explained to them about the application and what it would look like if the award applied and then they gave me their views in response to that, which was that it would make rostering - to have to agree on a roster before employment starts, which includes starts and finish times and meal breaks and all of that, would make it almost impossible to roster part time employees.

PN1141

In relation to paragraph 93 to which your attention has been drawn on a few occasions, in paragraph 93(a) you were asked about the second sentence and under the award you've expressed a view. I think you set out the award clause on page 17 in paragraph 89. Can you identify for the Commission which, if any, of the provisions of the award clause 12 you have in mind in paragraph 93(a) and in answering the questions put to you in cross‑examination?‑‑‑Sorry, which was the page that you wanted me to look at?

PN1142

Just go back one previous page, page 17 of your affidavit, paragraph 89. Do you want me to repeat the question?‑‑‑Yes, please.

PN1143

You were asked a number of questions in relation to paragraph 93(a) and particularly in relation to the second sentence where you said "Under the award, this change would have to be recorded in writing", et cetera. You see that?‑‑‑Yes.

PN1144

You said under the award agreement in writing, can you go back to the award provision, which you've set out in paragraph 89, and indicate to the Commission which, if any, of those provisions you had in mind in answering the questions in relation to paragraph 93(a)?‑‑‑12.2 and 12.3 and 12.4.

PN1145

I'm sorry, did you say 12.4?‑‑‑Yes.

PN1146

Yes, thank you. In another line of questioning in relation to agreeing on hours and changing to hours, an example was put to you a part timer look at the rostering availability, the employee can agree on hours and you said there'd be a conversation and the employee says yes and I think the question was put to you it's just a question of clock on and clock off?‑‑‑Potentially, but it would have to be agreed to beforehand.

PN1147

Right but now what is the system of clocking on and clocking off within the McDonald's stores?‑‑‑So employees have to clock on when they start a shift and clock off when they finish a shift. They clock on and off for breaks as well. They've got - - -

PN1148

How does that work? How do they do that?‑‑‑So there's a little machine, they've got a code or they can use their fingerprint.

*** ANNABEL SARAH ANDERSON RXN MR DIXON

PN1149

There's a finger scanning - - -?‑‑‑Yes.

PN1150

- - - or a code?‑‑‑A code, like each person will have their own code and they log in using that code.

PN1151

If the employee has agreed to work an extra two hours and then clocks off - - -?‑‑‑At the end of the two hours?

PN1152

At the end of the two hours, how does that work? They go and put in either the code, do they, or the finger scan?‑‑‑Yes, so they just clock off at the end of the two hours.

PN1153

What's the record that's kept of that?‑‑‑So the clock in and clock ins are all stored on myRestaurant.

PN1154

Thank you. You will recall that you were asked some questions about some potential disharmony in the workforce and your response was "Not necessarily" in relation to the differences that might apply. Can you tell the Commission why you said you did not necessarily see disharmony in a case where majority of employees have voted yes and the minority perhaps have voted no to a change, and I understood your answer to say you did not necessarily see question of disharmony?‑‑‑Yes, I don't know that people would necessarily be upset if they vote and they vote the wrong way, that doesn't necessarily mean that there would be a negative impact on the workforce.

PN1155

I see. Can I then take you to paragraph 51 of your statement and you were asked about the various tasks and you were invited to look at the various tasks you've listed in paragraph 51 to page 11 and you've said that, amongst other things, some of those tasks definitely had to be done before opening. Do you recall that?‑‑‑Yes.

PN1156

Can you identify which of the tasks you put into that category?‑‑‑A, B, C, D, E, K, L.

PN1157

Did you say A, B, C, D?‑‑‑E - - -

PN1158

H?‑‑‑I, K, and L.

PN1159

JUSTICE ROSS: I'm not sure how much it's going to assist us in any event. Presumably one chops tomatoes during when the restaurant is open as well as beforehand.

*** ANNABEL SARAH ANDERSON RXN MR DIXON

PN1160

MR DIXON: I (indistinct) the answer, your Honour. Clearly I'm not suggesting that - thank you.

PN1161

JUSTICE ROSS: Yes.

PN1162

MR DIXON: Going back then to the question of the number of stores that trade that are open 24/7 and those that trade starting at 6 am but having employees to do work before 6 am - does McDonald's have stores that do not trade through to 6 am and that - stores that do not open for trading starting at 6 am?‑‑‑So that it's got employees working - - -

PN1163

As I understand the position you said that there were some stores that trade 24/7?‑‑‑Yes.

PN1164

And there are some stores in the list that you gave that start trading at 6 am but they need employees to start working at 5 am in order to get ready for trading?‑‑‑Yes.

PN1165

Are there some stores that are not in either of those categories?‑‑‑Yes.

PN1166

What can you tell the Commission - what those stores are?‑‑‑So those could be stores that work 24/7 on less than seven days of the week or there could be stores that open later than 6 am as well.

PN1167

Do you have any idea of the number of - - -?‑‑‑I don't.

PN1168

Thank you. I just want to take you back to the question I asked you about the paragraph 94 of your statement and the conversations you've had since you made the affidavit. Are you able to - I think you said there were seven to 10 persons that you'd had a conversation with. Are you able to tell the Commission whether they're the same or different to the persons - the six licensees and the two to three restaurant managers that you previously identified in your evidence?‑‑‑They're different.

PN1169

Different?‑‑‑Yes.

PN1170

All of them?‑‑‑Yes.

*** ANNABEL SARAH ANDERSON RXN MR DIXON

PN1171

Thank you. You also mentioned in your evidence, Mr Anderson, that the 10 minutes preparation of an IFA was probably - I think you said a low estimate and you also went on to say you have prepared IFAs before?‑‑‑Yes.

PN1172

Can you tell the Commission your experience in preparing IFAs?‑‑‑I was an in-house employment lawyer for Insurance Australia Group. They were offshoring a lot of their call centres to South Africa and sending employees over there to work on a secondment basis for a period of time. They would typically enter into IFAs with them to vary the hours of work that applied under the enterprise agreement.

PN1173

Could you give the Commission some idea of the number or volume of documents you prepared?‑‑‑Probably about 10 to 15.

PN1174

MR BRUNO: Can I object to this, just primarily on the basis that I think the witness's evidence was that she undertook this in her capacity as a lawyer. I'm not sure if that assists the tribunal in the sense that it's relevant to the issue here.

PN1175

JUSTICE ROSS: Yes, all right - well, we don't know anything about them. I'm not sure we can draw a direct comparison between what an IFA might look like in relation to this award and what is sought here with what was done elsewhere on the limited information we have.

PN1176

MR DIXON: If your Honour pleases. Can you just tell the tribunal as to why you said it was a low estimate, the 10 minutes?‑‑‑Because I think the amount of time varied depending quite a lot on the particular employee, that you would have to explain what the terms of the IFA meant. That took a bit of time because it's not easy to do. You then have to prepare the document. There was a template but you have to read it quite carefully to make sure it's accurate and then there is time which varies quite significantly about,, you know, arranging for the execution of the document because they might not follow up with you. You might have to chase them to get them to email it back through to you. So that kind of administrative time takes quite a bit of time as well but it's a bit hard to measure because you can send them an email asking where it is and call them and it's bits of broken periods of time.

PN1177

If it pleases, that's the re-examination.

PN1178

JUSTICE ROSS: Thank you, nothing further for the witness? Thank you, Ms Anderson, you're excused.

<THE WITNESS WITHDREW [11.43 AM]

*** ANNABEL SARAH ANDERSON RXN MR DIXON

PN1179

JUSTICE ROSS: We'll just take a short break and we'll come back at 5 to.

SHORT ADJOURNMENT [11.44 AM]

RESUMED [11.58 AM]

PN1180

JUSTICE ROSS: Your next witness, Mr Gotting?

PN1181

MR GOTTING: Thank you, your Honour. I call Nicola Agostino.

PN1182

THE ASSOCIATE: Please state your full name and address.

PN1183

MR AGOSTINO: Nicola Agostino, (address supplied).

<NICOLA AGOSTINO, AFFIRMED [11.59 AM]

EXAMINATION-IN-CHIEF BY MR GOTTING [11.59 AM]

PN1184

MR GOTTING: Mr Agostino, could you please repeat for the record your full name?‑‑‑Nicola Agostino.

PN1185

Could you please repeat your address?‑‑‑(Address supplied)

PN1186

Are you a McDonald's licensee?‑‑‑Yes.

PN1187

Have you prepared an affidavit for use in these proceedings?‑‑‑Yes.

PN1188

Do you have a copy of the affidavit with you?‑‑‑Yes.

PN1189

Is that affidavit dated 23 February 2018?‑‑‑Yes.

PN1190

Does it comprise 49 paragraphs?‑‑‑Yes.

PN1191

No annexures?‑‑‑No.

PN1192

Can I draw your attention to paragraph 13 of your affidavit?‑‑‑Yes.

*** NICOLA AGOSTINO XN MR GOTTING

PN1193

Mr Agostino, are there some changes that you want to make to that paragraph?‑‑‑Yes. The full‑time employee line and the casual employee lines don't - the total don't add up. However, the 362 is correct at the end.

PN1194

Can we just deal with it column by column?‑‑‑Sure.

PN1195

There is one change that you want to make in the column headed "Full‑time employees"?‑‑‑Yes.

PN1196

Is the change the last row in that column?‑‑‑Yes.

PN1197

Do you want to delete the number 166?‑‑‑Yes.

PN1198

Do you want to substitute the number 28?‑‑‑Correct.

PN1199

Then do you see the column marked "Casual employees"?‑‑‑Yes.

PN1200

Do you see the row that has "75"?‑‑‑Yes.

PN1201

Do you wish to delete the number 75?‑‑‑Yes.

PN1202

Do you want to substitute the number 213?‑‑‑Yes.

PN1203

Apart from those changes, is there anything else that you wish to change in your affidavit?‑‑‑No.

PN1204

Your Honour, that comprises the evidence‑in‑chief. I formerly tender that affidavit.

PN1205

JUSTICE ROSS: Do you have any objection to the affidavit?

PN1206

MR DIXON: No, your Honour.

PN1207

JUSTICE ROSS: No objection. Thank you. I will mark that exhibit Ai Group6.

*** NICOLA AGOSTINO XN MR GOTTING

EXHIBIT #AI GROUP6 AFFIDAVIT OF NICOLA AGOSTINO DATED 23/02/2018

CROSS-EXAMINATION BY MR BRUNO [12.01 PM]

PN1208

MR BRUNO: Mr Agostino, I was just going to ask you a few questions about various parts or paragraphs of your affidavit?‑‑‑Sure.

PN1209

Firstly, it's the case that Agostino Group Holdings operates solely under the McDonald's Australia Enterprise Agreement 2013?‑‑‑Yes.

PN1210

If I could ask you to answer the following question: it's the case that all of Agostino's Holdings three restaurants are 24 hours a day, seven days a week restaurants?‑‑‑Yes.

PN1211

Does that mean there is a drive‑through with each of those restaurants?‑‑‑Yes.

PN1212

There is also a restaurant where diners can come?‑‑‑Yes.

PN1213

Are the restaurants open 24/7 or do they open at different times?‑‑‑So the dining room section of the restaurant is closed predominantly between midnight and 6 am.

PN1214

But, otherwise, the drive‑through is 24 hours a day, seven days a week?‑‑‑Correct, yes.

PN1215

Each of the three restaurants that Agostino Holdings operates has, you have said in your statement at paragraph 21, six crew members working between 5 am and 6 am?‑‑‑Yes.

PN1216

Let me just see if I have understood your affidavit correctly. Two of these crew members - so two of the six - start at 5 am?‑‑‑Yes.

PN1217

That means you have had four out of the six working before 5 am?‑‑‑Correct.

PN1218

Are you able to say when those four start? Do they start at 12 am or earlier or later?‑‑‑Yes, it varies. Sometimes 11 pm, sometimes 10 pm, sometimes 12 o'clock. It varies, depending.

*** NICOLA AGOSTINO XXN MR BRUNO

PN1219

So two‑thirds, if I put it crudely, of Agostino Holdings' employees are working before the 5 am start?‑‑‑Correct.

PN1220

Before the other two?‑‑‑Yes.

PN1221

In terms of the work that is done by the two employees that start at 5 am, is that what you're seeking to describe at paragraph 19? Have you got your affidavit in front of you?‑‑‑Yes.

PN1222

If you turn to paragraph 19 - - -?‑‑‑Yes.

PN1223

- - - are you there referring to the work that the two employees undertake at each McDonald's store between 5 am and 6 am, the (a), (b) and (c), or is this the work that all your six employees do?‑‑‑All six.

PN1224

In terms of the nature of the work that's done at 5 am versus the work that's done by employees before 5 am, do you distinguish at all between the work that's performed?‑‑‑No.

PN1225

It's important work either way?‑‑‑Correct.

PN1226

Your Honour, I don't have any more questions.

CROSS-EXAMINATION BY MR CULLINAN [12.05 PM]

PN1227

MR CULLINAN: Mr Agostino, I understand the statement reflects your views about the issues with the existing award clause?‑‑‑Yes.

PN1228

You haven't left anything out which you consider particular material?‑‑‑No.

PN1229

In preparing your statement, did you talk to full‑time employees working in your three restaurants?‑‑‑Only my general manager that prepared the statement.

PN1230

Did you talk to any part‑time employees?‑‑‑No.

PN1231

Did you talk to any casual employees?‑‑‑No.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1232

Did you conduct a survey of your employees?‑‑‑No.

PN1233

Do you employ any delivery drivers?‑‑‑No.

PN1234

I just have a couple of questions about local market for these three stores. Do you have KFC, Red Rooster, Hungry Jack's and Domino's stores operating in the local market?‑‑‑Yes.

PN1235

All four of those?‑‑‑Yes, yes.

PN1236

Do you have local pizza shops that serve takeaway - - -?‑‑‑Yes.

PN1237

Do you have fish and chip shops?‑‑‑Yes.

PN1238

Do you have local chicken shops?‑‑‑Yes.

PN1239

Do you have local Chinese takeaways?‑‑‑Yes.

PN1240

Do you have local burger joints?‑‑‑Yes.

PN1241

Do you have any idea of the number that would be competitors to your McDonald's stores in the local area?‑‑‑I would be guessing, no.

PN1242

What would you guess?‑‑‑Yes, in my area there would be - there has got to be 20‑plus.

PN1243

Thank you. Are your three outlets successful?‑‑‑Yes.

PN1244

Now just looking at your statement, looking at paragraph 3, you've said here that you directed Jodie Smart to compile a range of information and data for the affidavit and you've reviewed it and you're satisfied, and then at paragraph 4 you say you make the statement on your - the affidavit on your own knowledge unless otherwise stated. Can you just identify the range of information and data that Jodie or Ms Smart gave you for your affidavit?‑‑‑Yes, so it would be the - probably the employee information. So number - point number 12.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1245

Twelve?‑‑‑Point number 13.

PN1246

Yes?‑‑‑And point 21.

PN1247

Yes?‑‑‑Even point 17.

PN1248

Yes?‑‑‑Number 27, point 27. That's probably it.

PN1249

Thank you, and in terms of - no, that's okay. At paragraph 14 you refer here to "no manager is employed as a casual" and by that are you referring to level 3 and level 4 staff?‑‑‑Correct, yes. Yes.

PN1250

If we go down to paragraphs 22 and 23 here you refer to the myJob application and the metime computer program. These systems here or these processes here about expressing preferred hours or availability, they're a McDonald's system?‑‑‑Correct.

PN1251

And it's standardised across your McDonald's stores?‑‑‑Sorry, is it?

PN1252

It's used across all three of your McDonald's stores?‑‑‑Yes.

PN1253

Are you familiar with the McDonald's enterprise agreement, the 2013 agreement?‑‑‑Yes.

PN1254

And these processes for availability and expressing preferred hours aren't a feature of the agreement, are they? It's not required in the agreement to do these things?‑‑‑To have these systems in place?

PN1255

Yes?‑‑‑No.

PN1256

Do these systems apply to casual employees as well?‑‑‑Yes.

PN1257

And when someone uses the app and they record their hours or their proposed availability or changes to their availability, that's recorded in writing in the app?‑‑‑Yes.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1258

And therefore your business or Agostino Group Holdings has a written record of the availability, whether they're casual or part‑time?‑‑‑Correct.

PN1259

And so temporary changes are made in writing in the app?‑‑‑Yes.

PN1260

And permanent changes as well?‑‑‑Yes.

PN1261

And so all availability changes must be made in writing by the employee?‑‑‑Yes.

PN1262

And that's a benefit for your businesses, it allows you to ensure a record of the request has been made, it allows - you've got the actual content. It's not just that there's a request, there's some content to it?‑‑‑Yes.

PN1263

It facilitates making a response?‑‑‑No.

PN1264

So if a part‑time employee makes a request for a change in their availability the business doesn't have to respond to that?‑‑‑Yes, well we have to either accept it or deny it and if we deny it then we have to speak to them verbally.

PN1265

Okay, at 23 you refer to an unavailability book which we understand or I understand to be a book that existed before this system was put in place earlier this year?‑‑‑Correct.

PN1266

And was there an unavailability book in each of the stores?‑‑‑Yes.

PN1267

And they wrote into that book their availability?‑‑‑Their unavailability, yes.

PN1268

And once you've done that did the part‑timers' unavailability automatically get agreed to?‑‑‑No.

PN1269

What was the process then?‑‑‑Again verbal.

PN1270

So the manager would read it there?‑‑‑The rostering manager would grab it when they start the roster and then chat to the employee.

PN1271

And if it was agreed?‑‑‑Then it would just get changed in the system.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1272

You've got three rostering managers, is that right?‑‑‑Correct.

PN1273

And are they full‑time?‑‑‑Yes.

PN1274

Looking at paragraph 26 here you say:

PN1275

In preparing the rosters the two key factors that are taken into account are staff availability and sales.

PN1276

Isn't age a critical determinate for rosters as well?‑‑‑Yes.

PN1277

Have you ever heard of the phrase "learn or churn"?‑‑‑Yes.

PN1278

And what do you understand it means?‑‑‑I've heard it but I don't really - I don't know, learn or churn. Learn - - -

PN1279

Well, let me put a couple of propositions to you then?‑‑‑Sure.

PN1280

That the first part of that, learn, is about McDonald's encouraging its employees to learn more about the business and one day take up a role as a manager?‑‑‑Sure.

PN1281

And the churn is about turning over employees as they get older and more expensive. Is that reasonable? What you understand learn or churn to be?‑‑‑Sure.

PN1282

The cost of labour is a significant issue isn't it?‑‑‑Yes.

PN1283

And younger workers are cheaper aren't they?‑‑‑Yes.

PN1284

And you rely on being able to roster younger workers?‑‑‑Yes.

PN1285

As they get older you need to be able to roster on younger workers than the older workers?‑‑‑Yes.

PN1286

How can you do that if they aren't casual?‑‑‑How can I?

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1287

How can you roster on younger workers to replace older workers if they aren't casual employees?‑‑‑If they aren't casual employees? Well, we can.

PN1288

So how do you do it if they're part‑timers?‑‑‑The way that we're doing it now.

PN1289

You roster fewer and fewer hours?‑‑‑No, the - so I'm confused by the question.

PN1290

Okay, so just going back three steps?‑‑‑Sure.

PN1291

So I said, you agreed, that you rely on being able to roster younger workers because they're cheaper?‑‑‑Yes.

PN1292

And so that relies on an employee being casual so that their hours can be reduced. Is that correct?‑‑‑Maybe. It - yes. Yes and no I suppose, so.

PN1293

So if a part‑timer has set hours of 10 hours a week?‑‑‑Yes.

PN1294

You just can't roster less than 10?‑‑‑Correct.

PN1295

So for you to be able to roster fewer hours as they get older they have to have been casual to begin with, don't they?‑‑‑Yes.

PN1296

If we go to paragraph 24, this is the section about rostering and about the way rostering managers implement - do their rosters and the process requires that rostering managers check with part‑time employees first before giving them additional hours. Is that correct?‑‑‑Inside their availability, no.

PN1297

So inside their availability they don't even check with them?‑‑‑So if - we obviously have to roster them a minimum amount of hours.

PN1298

Yes?‑‑‑And that happens.

PN1299

Yes?‑‑‑But that can fluctuate. If their minimum's 10 we can roster them 15, but we don't check with them prior as long as it's within their availability.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1300

Okay, so you don't check and they don't have to agree on the additional hours being worked?‑‑‑Not for a roster purpose, no.

PN1301

Sorry, I'm just going to - at paragraph 34, you refer to unpredictable increases in demand and refer to a power outage. How often is there a power outage?‑‑‑So across our three stores, it would happen once every couple of months.

PN1302

So by across the three stores, do you mean one store every couple of months?‑‑‑Correct.

PN1303

Yes - you make reference in your affidavit to employees requesting changes to their availability and if you had set rosters for employees where they knew when they were working, when their start and finish times were, which days of the week they were working, there would be less need for them to change their availability, wouldn't there?‑‑‑Yes.

PN1304

Those availability changes are managed through the app?‑‑‑Correct.

PN1305

Once the roster goes up - where does the roster go up? Is it up in a printed form or is it electronic?‑‑‑No, it's electronic - again, it's on the metime app.

PN1306

Then changes to it have to be by agreement?‑‑‑Correct.

PN1307

What about a casual employee that wants to make a change to it? Do they contact the rostering manager?‑‑‑Correct, yes, it's the same procedure.

PN1308

What if the rostering manager says no?‑‑‑That normally doesn't happen, so - - -

PN1309

Normally doesn't happen? What about part-timers?‑‑‑Again, it's normally a yes unless there is a - they're only changing it for a reason, so - - -

PN1310

Yes?‑‑‑Yes.

PN1311

So we've got Christmas Eve coming up and a casual says, "Actually, I'm going to mass with my family", what happens then? What does the rostering manager say to them - "We need to fill it, there's no one else"?‑‑‑IT doesn't happen. We fill it.

PN1312

With someone else?‑‑‑Yes.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1313

For a part-timer?‑‑‑The same.

PN1314

So does that mean that someone - once the roster has gone up, a part-timer says, "I can't work that shift", it's always able to be fixed?‑‑‑Yes.

PN1315

Other than by the worker working it - sorry, just to be clear?‑‑‑Sure, yes, yes.

PN1316

Okay, so they've rung up. They've contacted the rostering manager. Do they do that in writing? Do they do something in the app or is it a phone call?‑‑‑It's either they'll text the rostering manager, they'll phone the rostering manager or they'll be in the store and speak to the rostering manager.

PN1317

Yes, and then the rostering manager has the responsibility of finding someone to replace them?‑‑‑Yes.

PN1318

So they look at the availability of staff?‑‑‑Correct.

PN1319

They look at the roster to make sure that the person is not already on?‑‑‑Sure.

PN1320

They then have to call them. What else do they do to try and contact them?‑‑‑We've got a closed Facebook page.

PN1321

Yes?‑‑‑It's got our staff on it. We also sometimes send some text messages and phone calls.

PN1322

Yes. Sorry, go ahead?‑‑‑Or use people that are on the - or speak to people that are currently on the floor that might be available that day.

PN1323

Those workers may say yes or they may say no?‑‑‑Correct.

PN1324

If they're no you move on to the next one?‑‑‑Yes.

PN1325

Then eventually you find a worker that can do it and they agree to work those hours?‑‑‑Yes.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1326

SO the only difference between that structure and the award structure is that under the award you would have to document it in writing?‑‑‑Yes.

PN1327

Or pay overtime?‑‑‑Yes - they're the - if we know beforehand it's okay. It's the on-the-spot ones that are the tricky ones.

PN1328

Yes?‑‑‑Yes.

PN1329

When you say that, what do you mean? So if you know beforehand someone is not going to be working, you're able to make arrangements to make it work?‑‑‑Correct.

PN1330

You could have a pro forma, you could have a page or you could have something in the app that allows you just to record that in writing, couldn't you?‑‑‑Yes, yes.

PN1331

So Fred is replacing Sarah, Fred is going to come in, it's agreed. Everyone understands it. There could be a pro forma page that just - fill it out, tick it off, signed?‑‑‑Yes.

PN1332

That works. The issue, you say, though, is about the unpredictable ones - - -?‑‑‑Correct.

PN1333

- - - so no-shows and - - -?‑‑‑Spike in sales.

PN1334

Spike in sales or illness?‑‑‑Yes.

PN1335

It's immediate, you need someone there straight away?‑‑‑Correct.

PN1336

What happens in those circumstances?‑‑‑Yes, the procedure is pretty much the same in that we'll send a Facebook message, go through the availability list - it's normally phone calls first because it needs to happen quickly so - - -

PN1337

Okay, so eventually someone is found?‑‑‑Yes.

PN1338

They come straight in because it's pretty urgent?‑‑‑Yes.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1339

You could still have a pro forma page there, couldn't you? They just fill out their name, the hours they're doing that are different and sign it?‑‑‑Yes, we could - it all depends on what else is happening in the store.

PN1340

How long do you think that would take, though, that extra bit?‑‑‑Five minutes.

PN1341

It would be important - if the award applied it would be important to do that, though, wouldn't it?‑‑‑Correct.

PN1342

You don't want to pay overtimes rates?‑‑‑Yes.

PN1343

The part-time rate, though, is cheaper than the casual rate so you prefer to pay a part-timer than a casual? I think that's actually your evidence?‑‑‑Yes, it probably is, but - - -

PN1344

Well, let's go to paragraph 39. It's not your evidence so sorry for putting those words in your mouth. If you go to paragraph 39 you say that the preference of managers is to see whether part-time employees are available to work extra hours before asking casual employees and you give reasons why?‑‑‑Yes.

PN1345

I put to you as well one of the reasons is that they're cheaper than a casual employee. Is that correct?‑‑‑Yes.

PN1346

An overtime rate is actually more expensive than a casual employee, isn't it?‑‑‑Yes - or the casual would be more because it's double time, so then the part-timer - - -

PN1347

Time and a quarter for the casual?‑‑‑Yes - on the award?

PN1348

What do you understand it as?‑‑‑I'm not that familiar with the award. I'm only familiar with my - with the EBA.

PN1349

Looking at paragraph 42 now, so there are several sentences there at the start. Can you read all of 42 for me?‑‑‑Yes, sure: "The restaurant currently operates" - - -

PN1350

Sorry, Mr Agostino - you don't have to read it out loud. I just want you to read it - - -?‑‑‑Sorry, right, sorry. Yes.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1351

So with paragraph 42, here are you talking about the short-term, immediate changes that are on the spot, need to be made right now? Is that the concerns are at 42?‑‑‑Yes.

PN1352

If you had more casuals working for the business wouldn't there be more of these kinds of occasions? Don't you rely on the length of service and the commitment part-timers have to the business?‑‑‑Yes.

PN1353

So if you actually employed more casual staff you would have more no-shows?‑‑‑Not necessarily.

PN1354

You don't - have you done any analysis of the no-shows, whether they're part-time staff or casual staff?‑‑‑No.

PN1355

So when you say, "not necessarily", you just don't know?‑‑‑Sure, yes.

PN1356

At paragraph 44 - we're trying to understand a little bit more about what you're putting here. So each day at least two employees in each restaurant change their availability on an ongoing basis, so does this mean you've got 362 employees and each day at least six change their availability or at least - or something else? Is that what it means?‑‑‑Yes.

PN1357

Then there's 10 availability changes of a temporary nature?‑‑‑Yes.

PN1358

Isn't one of the main reasons why this occurs because they can't be guaranteed when they will be rostered in a week? If the part time worker knew they were working 6.00 until 9.00 Monday to Friday, they wouldn't have to make as many availability changes?‑‑‑Possibly.

PN1359

At paragraph 45, you say "On each day, extra work is offered to employees as a result of changes which are required quickly and as a result of the on the spot decisions", which we've talked about already, "at least twice a day in each restaurant". At least twice a day someone is asked to stay back?‑‑‑Yes.

PN1360

For how long?‑‑‑Do they have to stay back for?

PN1361

Yes?‑‑‑It all depends.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1362

But on average or approximately?‑‑‑Two hours, three hours.

PN1363

At paragraph 46, you say that if the award applied you'd have to make a written agreement before varying a part time employee hours and it would be extremely difficult to manage. Thinking about those two people who work back two to three hours on average as an estimate, if you didn't agree on a change in their contract and you had to pay them award, you'd pay them 150 percent as an overtime rate, is that correct?‑‑‑Yes.

PN1364

That would dis-incentivise or you would actually consider employing casuals instead of part timers because of that?‑‑‑Yes.

PN1365

Can you explain to me why you would employ people that you have to pay 125 percent all the time to cover the two people that might have to work back two or three hours at 150 percent?‑‑‑Well, this is purely around the change and having to have that written documentation, so - and I'm ‑ my biggest concern is that we will forget to do the documentation, so - because of the other hundred things that are happening in the restaurant.

PN1366

How many people are working in the restaurant on any given day?‑‑‑Again, depending on volume, there could be 10, there could be 30, so, at any one time, so.

PN1367

Has there been any analysis done by anyone in your business about the difference between paying these two people for two or three hours at 150 percent as compared to having to employ everyone at 125 percent on a casual rate?‑‑‑No.

PN1368

Do you understand the concern that I'm putting or the question that I'm putting to you that raising a concern that you might have to pay some people overtime rates for some of their hours as against your view that you would end up employing casuals and paying them all a 25 percent loading and what I'm struggling with is the business sense in that, why you would pay a whole lot of workers 25 percent rather than pay a very small group of workers a 50 percent loading. Have you looked at that issue or ‑ ‑ ‑?‑‑‑No.

PN1369

If you had more casual staff on, you'd have greater absentee issues wouldn't you?‑‑‑Possibly. It's hard to say.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1370

I ask that question, at the end of paragraph 47 - well paragraph 47 is where this sort of all comes to a head and you say that it's too expensive to employ part time staff and pay them overtime and if that was to occur you would move to a model where you no longer recruited any part time crew employees and instead only recruit casual employees and so part time employees are currently cheaper, at least for some hours of the week, than casual employees and your evidence is that if you had to pay some of them overtime rates for some of the week, you would prefer to pay all of them a 25 percent casual loading. Is that correct?‑‑‑It's the way I've written it, so yes, yes.

PN1371

But do you believe that?‑‑‑No.

PN1372

Thank you. You then go on to talk about the benefits of flexible part time employment at 48 and 49. I need to be clear about this because you started your answers to my questions today by saying you hadn't spoken to any part time employees and here you start by saying "From my discussions with part time employees". Can you be clear, have you spoken to any part time employees about these issues?‑‑‑So in relation to the affidavit, no, that was the question I believed.

PN1373

It was, yes?‑‑‑Yes, but in the past I would have spoken to them, yes.

PN1374

In the past you've spoken to part time employees and they've given you some of these views?‑‑‑Yes.

PN1375

How many employees did you speak to?‑‑‑10.

PN1376

Did you conduct any survey of employees?‑‑‑No.

PN1377

Irrespective of whether the award applied or the agreement applied, the current situation where you allow part time employees to change their rosters and their availability won't change will it? It's good for your business, it works?‑‑‑Yes, yes.

PN1378

At paragraph 49 you talk about personal leave and annual leave. Do you know what percentage of part time employees use their personal leave?‑‑‑No.

PN1379

Do you know any information around that, about ‑ ‑ ‑?‑‑‑Yes.

PN1380

What information do you know?‑‑‑So I get a report that's sent to me every week that tells me what their annual leave accruals are and their sick leave accruals are.

PN1381

Is anyone ever encouraged to use annual leave instead of sick leave when they're unwell?

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1382

MR DIXON: No?‑‑‑No.

PN1383

I withdraw the objection.

PN1384

MR CULLINAN: When you need to fill a shift because someone is unable to work it and you contact a part timer, is the evidence, in the first instance to try and have them fill that shift, the alternative would be to try and to identify a casual employee, or an alternative might be trying to identify a casual employee to work. That may take several calls to them, mightn't it?‑‑‑Yes.

PN1385

Then you'd have to roster them anyway onto the roster?‑‑‑Yes.

PN1386

If a part time employee is prepared to vary their contract and it's a fairly simple process because there's already been an agreement and you've got the pro forma there, you've filled it out, that's just as easy as trying to find a casual employee to fill that shift isn't it?‑‑‑So are we talking about - - -

PN1387

Filling - - -?‑‑‑filling a shift in the future, or?

PN1388

Yes?‑‑‑Yes.

PN1389

There's many methods to agree in writing, isn't there? That you could have a paper document that's signed by both parties? Is that yes?‑‑‑Yes.

PN1390

You could have your roster amended and initialled?‑‑‑Yes.

PN1391

You could have an exchange of text messages?‑‑‑Yes.

PN1392

An exchange of emails?‑‑‑Yes.

PN1393

You could use an online system where they tick a box to indicate approval?‑‑‑Yes.

PN1394

Has there been any modelling done by anyone of your business, modelling of your business, about the effect the award might have on the business - - -?‑‑‑No.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1395

- - - if it applied? Has there been any analysis done, to your knowledge, of the cost of recording additional hours in writing?‑‑‑No.

PN1396

Has there been any analysis of the value to the business of not having to record variations in writing?‑‑‑No.

PN1397

I put to you that your primary concern is that under the award you would have to pay part‑timers at overtime rates if they worked additional hours?‑‑‑Yes.

PN1398

So essentially you want to have part‑time employees work up to full‑time hours at ordinary rates?‑‑‑Yes.

PN1399

And you want the benefit of a part‑time employee, that's their stability, their training, their length of service, their commitment to your business, but you want to be able to roster them on a weekly basis and you want to be able to pay them without a casual loading?‑‑‑Yes.

PN1400

They're all my questions, your Honour.

PN1401

JUSTICE ROSS: Just bear with us for a moment, Mr Agostino.

PN1402

Mr Agostino, can I take you to paragraph 47. I just want to clarify part of your evidence in response to a question and it's that last sentence you say there and this is the proposition that, as I had understood it in your statement, that if you had to move back to the award then you would move to a model where you no longer recruited part‑time crew employees and instead would only recruit casuals. That's as I understood the statement but I had a note that you were asked about that and you changed that or clarified that position, and my understanding was you said that no, you didn't believe you would do that. I'm just not - you're nodding but - - -?‑‑‑Sure.

PN1403

I'm not sure what to?‑‑‑Right.

PN1404

So would you move to that model where you no longer recruited part‑time and instead only recruited casuals if the award applied, or would you not?‑‑‑Probably not, so.

PN1405

Okay, no that's fine?‑‑‑Yes.

*** NICOLA AGOSTINO XXN MR CULLINAN

PN1406

Thank you.

PN1407

I don't know if anything further arises from that? No?

PN1408

MR CULLINAN: No.

PN1409

JUSTICE ROSS: No. Mr Gotting?

RE-EXAMINATION BY MR GOTTING [12.40 PM]

PN1410

MR GOTTING: Thank you.

PN1411

JUSTICE ROSS: Sorry, Mr Gotting, I just wasn't sure which bit he was saying "No" to, that's all.

PN1412

MR GOTTING: No, no, I have no difficulty with the question.

PN1413

Just in response to the last sentence in paragraph 47, would you change anything in relation to the use of part‑time employees if you reverted back to the award rather than the enterprise agreement?‑‑‑No.

PN1414

There would be no change?‑‑‑No.

PN1415

Is that your evidence?‑‑‑Yes.

PN1416

And at the moment - okay, I withdraw that. Thank you. Mr Agostino, during the cross‑examination you were asked about the phrase "learn or churn"?‑‑‑Yes.

PN1417

Can you remember those questions?‑‑‑Yes.

PN1418

Do you use that phrase "learn or churn" in your business?‑‑‑No.

PN1419

And prior to the explanation that was provided to you by Mr Cullinan in cross‑examination did you know what that phrase meant?‑‑‑No.

*** NICOLA AGOSTINO RXN MR GOTTING

PN1420

You were asked some questions about the change in the number of employees that occur within your business. What proportion of employees in your business are students?‑‑‑Forty per cent.

PN1421

And that 40 per cent, are they secondary school students or tertiary students, or?‑‑‑Both, yes.

PN1422

Okay, and in your experience how long does an employee who's a student remain in one of your businesses?‑‑‑Three to five years.

PN1423

And how many people in your experience go through the training program and become a manager of one of the stores in your business?‑‑‑So how many? 10 a year, yes.

PN1424

JUSTICE ROSS: Sorry, are you asking him in Mr Agostino's businesses or are you asking him about employees who go through - - -

PN1425

MR GOTTING: Sorry, I was - - -

PN1426

JUSTICE ROSS: - - - and might be managers elsewhere?

PN1427

MR GOTTING: Yes, I'm sorry for the ambiguity.

PN1428

I was just asking Mr Agostino about the number of people that start in your business and go through to be a manager in your business?‑‑‑"In your business", yes that's the way I understood it. Yes.

PN1429

Okay, and do you know just in response to his Honour's question the number of people that might start in your business and go through to be a manager in another McDonald's store?‑‑‑No.

PN1430

And you indicated that of those students that are employed by your business they stay for three to five years. In your experience what are the reasons that the people leave working for your business?‑‑‑Another job. They've finished studies and qualified for whatever degree they're doing and they've moved jobs. Yes.

PN1431

Thank you. Mr Agostino, during the cross‑examination you were asked some questions about set rosters. Does your business have set rosters?‑‑‑No.

*** NICOLA AGOSTINO RXN MR GOTTING

PN1432

Is there a reason why you do not have set rosters?‑‑‑Yes.

PN1433

And what is that reason or what are those reasons?‑‑‑Sales fluctuations is probably the main one.

PN1434

During the cross‑examination there was a question relating to a casual employee who wanted to go to mass on Christmas Eve and indicated that they were unable to work. Have you dealt with that scenario of a casual employee indicating that they do not want to work because of mass on Christmas Eve?‑‑‑Me personally? No.

PN1435

No. During the course of cross‑examination you were asked some questions relating to the comparison between using part‑time employees and casual employees. Are there certain benefits that are provided to part‑time employees that are not provided to casual employees?‑‑‑Yes.

PN1436

And what are those benefits?‑‑‑Annual leave, sick leave.

PN1437

And do you know what the costs are for your business associated with providing annual leave to part‑time employees?‑‑‑Yes.

PN1438

And can you indicate to the members of the Commission what those costs are?‑‑‑The - well, obviously the accrual of annual leave and sick leave, so.

PN1439

And are you able to indicate an approximate cost or approximate percentage of your costs, total costs?‑‑‑No.

PN1440

During the course of the cross‑examination you were asked some questions about permanent changes and temporary changes. What are in your experience the reason or reasons for temporary changes?‑‑‑Family commitments come up, sporting commitments come up, study, exams.

PN1441

And you were asked in cross‑examination some questions about employees who are asked to stay back and you indicated that they might work somewhere between two to three hours, additional hours. Is there a system within your business for the recording of those additional hours?‑‑‑Yes.

*** NICOLA AGOSTINO RXN MR GOTTING

PN1442

And what is that system?‑‑‑So - well, there's two. There's fingerprint, so a smart clock that they clock on and off from and the manager will also write it on the roster.

PN1443

I see, and how does the smart clock operate?‑‑‑Biometrics and if that fails you put your metime code in and password.

PN1444

I see, and what does the manager need to do in relation to that biometric system?‑‑‑So if they're working outside their hours the manager needs to authorise it.

PN1445

And how does the manager authorise?‑‑‑By pressing "Authorise" and using the manager's fingerprint.

PN1446

I see. That completes the re-examination, thank you.

PN1447

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

<THE WITNESS WITHDREW [12.47 PM]

PN1448

JUSTICE ROSS: 1.45 convenient?

PN1449

MR GOTTING: There was just going to be one small matter that I wanted to raise arising out of the evidence of Mr Agostino.

PN1450

JUSTICE ROSS: Sure.

PN1451

MR GOTTING: It relates to the submissions that were filed by Ai Group, dated 12 July.

PN1452

JUSTICE ROSS: Yes.

PN1453

MR GOTTING: I'm talking about the submissions in chief rather than in reply. At paragraph 26 there is a reference to the evidence of Mr Agostino and at the end there is a reference to the number of casual employees. At the moment the submission refers to 75 but of course that evidence was changed in chief and the number should now be 213.

*** NICOLA AGOSTINO RXN MR GOTTING

PN1454

JUSTICE ROSS: Thank you. Is 1.45 convenient? We only have one witness this afternoon?

PN1455

MR GOTTING: There is one witness this afternoon.

PN1456

JUSTICE ROSS: Is there any shift in the estimates, based on what you've done so far? (Indistinct) cross-examining? Mr Cullinan, you're the only one up, so - - -

PN1457

MR CULLINAN: No, I don't think there is any shift at the moment but I'm not particularly experienced in this so - - -

PN1458

JUSTICE ROSS: Well, we'll find out.

PN1459

MR CULLINAN: Yes, thank you, your Honour.

PN1460

JUSTICE ROSS: You've been reasonably accurate so far. All right, we'll adjourn until 1.45.

LUNCHEON ADJOURNMENT [12.49 PM]

RESUMED [1.48 PM]

PN1461

JUSTICE ROSS: The next witness?

PN1462

MR DIXON: May it please the Commission, may I call Ms Montebello‑Hunter.

PN1463

THE ASSOCIATE: Please state your full name and address.

PN1464

MS MONTEBELLO-HUNTER: Elizabeth Mary Montebello‑Hunter, (address supplied).

<ELIZABETH MARY MONTEBELLO-HUNTER, AFFIRMED [1.48 PM]

EXAMINATION-IN-CHIEF BY MR DIXON [1.49 PM]

PN1465

MR DIXON: Ms Montebello‑Hunter, could you state your full names for the transcript?‑‑‑Yes. Elizabeth Mary Montebello‑Hunter.

*** ELIZABETH MARY MONTEBELLO-HUNTER XN MR DIXON

PN1466

Your address?‑‑‑My home address is (address supplied).

PN1467

Are you the national field HR manager for the Hungry Jack's group?‑‑‑Yes, I am.

PN1468

You're employed by Hungry Jack's Pty Ltd in that capacity?‑‑‑Yes, I am.

PN1469

Is it correct that for the purposes of these proceedings you have made a statement? It's an affidavit which you affirmed on 22 February 2018. Is that correct?‑‑‑Correct.

PN1470

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

PN1471

It consists of 55 paragraphs?‑‑‑55, yes.

PN1472

It has one annexure, EMH1, being copies of the Hungry Jack's Enterprise Agreement?‑‑‑Correct.

PN1473

I seek to tender the affidavit if the Commission pleases.

PN1474

JUSTICE ROSS: We will mark that exhibit Ai Group7.

EXHIBIT #AI GROUP7 AFFIDAVIT OF ELIZABETH MONTEBELLO-HUNTER AFFIRMED 22/02/2018 PLUS ANNEXURE

PN1475

MR DIXON: With the Full Bench's leave, may I just deal with one additional matter.

PN1476

MR DIXON: Ms Montebello‑Hunter, in paragraph 8 of your statement you refer to corporate restaurants of Hungry Jack's and you say:

PN1477

The corporate restaurants are on enterprise agreements. For the franchises, some operate on their own enterprise agreements and some operate on the Fast Food Industry Award.

PN1478

May I show you this document, please?‑‑‑Thank you.

PN1479

Do you recognise that document?‑‑‑Yes, I do.

*** ELIZABETH MARY MONTEBELLO-HUNTER XN MR DIXON

PN1480

Can you state what it contains?‑‑‑Yes. It's a listing of 26 stores that are underneath the Fast Food Award.

PN1481

Is it correct that those are the stores you refer to as operating under the Fast Food Award in paragraph 8 of your affidavit?‑‑‑Correct. The franchisee stores.

PN1482

I tender the document, if the Commission pleases.

PN1483

JUSTICE ROSS: I will mark that exhibit Ai Group8.

EXHIBIT #AI GROUP8 LIST OF 26 STORES UNDER FAST FOOD AWARD

PN1484

MR DIXON: That is the evidence‑in‑chief, if the Commission pleases.

CROSS-EXAMINATION BY MR CULLINAN [1.52 PM]

PN1485

MR CULLINAN: Thank you, Ms Montebello‑Hunter. In relation to your affidavit, I take it that it reflects the views that Hungry Jack's has about the existing award clause?‑‑‑Yes. It's my affidavit.

PN1486

Is it on behalf of Hungry Jack's?‑‑‑Yes.

PN1487

You haven't left out anything that you consider particularly material in relation to concerns about the award clause?‑‑‑No.

PN1488

When preparing the affidavit, how many franchisees did you speak to?‑‑‑Franchisees do not fall under my remit, so the only communication that I have had is with the director of franchisee - - -

PN1489

Did you speak to that director as part of preparing your affidavit?‑‑‑Not as part of preparing the affidavit, but just in consultation around some of the items that I was referring to, yes.

PN1490

But you didn't talk to any franchisees themselves?‑‑‑No.

PN1491

Did you talk to any full‑time employees that work in the stores?‑‑‑Yes.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1492

How many did you talk to?‑‑‑Over my employ, which is a collaboration of what you see in front of you in the affidavit, I don't have a distinct number of how many employees I spoke to. You're talking about company stores?

PN1493

In preparation for the affidavit, I'm asking how many full‑time employees that work in stores you spoke to as part of preparing the affidavit?‑‑‑I couldn't give you an exact number.

PN1494

Could you give me an estimate?‑‑‑No, I actually couldn't. I travel around the country and speak to a number of employees, so giving you a number would genuinely be a guesstimate.

PN1495

How many part‑time employees did you speak to?‑‑‑I'm going to say the same thing again.

PN1496

Casual employees?‑‑‑The same thing again.

PN1497

In preparing the affidavit though, did you speak with employees working in the stores?‑‑‑Yes, I certainly did.

PN1498

But you can't tell me how many?‑‑‑No, I didn't keep a tally, but I visited a number of stores and they were visited all over the country and, in turn, no, I didn't make a notation of people's specific names of the number of employees I spoke to.

PN1499

Do you know how many stores you visited?‑‑‑Once again, I didn't keep a tally. It's part of my role to visit stores and also to talk to the employees.

PN1500

Did you conduct a survey of employees about these issues that are dealt with in your affidavit?‑‑‑No.

PN1501

Are the Hungry Jack's corporate stores successful?‑‑‑Successful?

PN1502

Financially?‑‑‑I'm going to say yes. It depends upon your definition of success. A reputable brand as Hungry Jack's is, I'm making an assumption based on - if it is a reputable brand and a reputable company, then the answer is, yes, it's successful.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1503

Financially successful though. The stores that are operated, the outlets that are operated, they return a service?‑‑‑Once again I'm making an assumption, but the stores wouldn't continue to be operating if they weren't successful; so the answer is yes on my assumption.

PN1504

But you don't know? If you don't know the profitability of stores - - -?‑‑‑No. I don't know specifically, no.

PN1505

Do you know the profitability or success of the franchisee stores?‑‑‑No, I don't.

PN1506

Is there any coordinated discussion that occurs between franchisees and Hungry Jack's?‑‑‑Under the role that I play, the answer is no.

PN1507

So you haven't participated, that's my next question?‑‑‑Yes.

PN1508

You haven't participated in that?‑‑‑No.

PN1509

Are there meetings that are held that you're not participating in?‑‑‑I'm - I can only make an assumption that the answer is yes, but I'm not privy to any of that.

PN1510

At paragraph 13 you say you're unable to provide the breakdown, full‑time, part‑time or casual breakdown of the Hungry Jack's franchise restaurants?‑‑‑Mm‑hm.

PN1511

Why aren't you able to provide that?‑‑‑The information that was provided to me which you see in my affidavit is only with relation to the corporate stores because that's all the access to the data that I had available.

PN1512

The information though is held by the franchisees, is it not?‑‑‑Once again I do not know.

PN1513

So you don't know if the franchisees know how many part‑time or casual or full‑time employees they have?‑‑‑I would be making an assumption to say - to give you an answer so I can assume and give you an assumed answer, but the answer is - - -

PN1514

No, don't assume?‑‑‑No? Well, the answer is no I don't know.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1515

You could have asked them though?‑‑‑Well, it's the franchisees aren't part of my remit, so.

PN1516

But in preparing your affidavit surely you could have asked them?‑‑‑But I didn't.

PN1517

At paragraph 18 and 19 you explain the systems used or the electronic online systems that are used and refer to JEDI and Macromatix, the systems that are used in Hungry Jack's to record and arrange availability. Is this a standard process adopted across Hungry Jack's?‑‑‑In the company stores, yes it is.

PN1518

And what about in the franchise stores?‑‑‑I can answer the question again I do not know.

PN1519

Do you know if they've got access to that system?‑‑‑I do not know.

PN1520

Those systems themselves, the JEDI and the Macromatix, those systems aren't mandated by the award are they? There's no requirement in the award to have a system of recording availability?‑‑‑Well, yes it does because it requires us to make sure that we're rostering line with the employees' availability.

PN1521

The award requires that?‑‑‑Sorry, I'm talking about our - the EBA award. You're talking about the Fast Food Award?

PN1522

Yes, sorry. Do you know if the Fast Food Award requires it?‑‑‑Off the top of my head I'm not sure.

PN1523

So in terms of the agreement if I take you to page - of your affidavit, the Victorian agreement, and if you look at I think it's numbered in your document as page 176 and it's clause 12 on page 10 of the Hungry Jack's Victoria Agreement 1999. Do you have that in front of you so?‑‑‑Yes.

PN1524

So in relation to employees working in Victorian corporate stores is this the agreement that applies?‑‑‑I'm just double‑checking the front page because it is such a - apologies, yes it is.

PN1525

And clause 12 here at page 10 of that agreement, if you look at the start of clause 12.2 that obliges Hungry Jack's to have a set roster for part‑time staff, doesn't it?‑‑‑Yes.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1526

And the last sentence before 12.3 makes clear that part‑time employment is permanent and roster changes must not be constant, doesn't it?‑‑‑Sorry, you've referred to 12.3?

PN1527

The last sentence before 12.3, so the last sentence at 12.2 before we go on to 12.3?‑‑‑Apologies that's what - well, that's what it says in this particular clause.

PN1528

Yes, and is that the way it's applied? Are part‑time employees in Victoria in corporate stores given set rosters that don't change constantly?‑‑‑No.

PN1529

What are they given?‑‑‑So just bear with me. I can't find - I'll explain to you that there is a minimum and maximum amount of ordinary hours that an employee can work.

PN1530

Yes?‑‑‑And in turn those minimum amount of hours is the minimum amount that a person would be rostered on and they can actually flex up.

PN1531

And those minimum hours I presume are agreed with them?‑‑‑No. No, they're stipulated in the EBA. It's nine hours.

PN1532

And so when someone commences employment they're not commencing on a nine hour contract, they're just commencing employment as a part‑timer?‑‑‑No, they would be actually commence - well, they'd be employed as a part‑timer with the intention that they wouldn't work less than nine hours.

PN1533

Yes, but there's no agreed minimum hours with that employee when they start?‑‑‑Well, yes, because it's stipulated in the EBA.

PN1534

Yes, through the EBA?‑‑‑Yes.

PN1535

And the EBA says that they have a set roster?‑‑‑Yes, the - well, they do have a set roster. The set roster is the number of hours that they're entitled to work.

PN1536

So that's not when they're working, it's not the hours that they actually work in a week?‑‑‑So that will depend upon their availability. Most of our employees do have flexible hours in when they are available to work.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1537

Yes, so they don't actually have a set minimum nine hours that they work every fortnight?‑‑‑Absolutely - well, it's every week. They do because they're entitled to it.

PN1538

Yes, but when they're worked is set?‑‑‑So it's within their availability.

PN1539

And so if they've got an availability of always being available?‑‑‑Yes.

PN1540

Do the nine hours that they work each week change from week to week?‑‑‑They may.

PN1541

And that's despite the clause saying that roster changes must not be constant?‑‑‑Yes, but availability does actually change or flexibility does change in accordance with both requirements by the business and employees have other things that may come up in their working lives.

PN1542

So availability changes, the roster can change?‑‑‑Yes.

PN1543

What about the first sentence of 12.2 where it says:

PN1544

Over a two week period part‑time employees must have a set roster with the hours being averaged at a minimum of 18 hours.

PN1545

Does Hungry Jack's not understand that that means a set roster of when the hours are worked each week?‑‑‑Well, it is a set roster because we're guaranteeing the nine - the minimum nine hours to work each week.

PN1546

So you don't understand that that's a set roster in terms of when they're worked, it's just within availability?‑‑‑Correct.

PN1547

In relation to the availability then and how that is managed in the internal systems that are referred to at paragraphs 18 and 19 and at 22 of your statement, so here an employee enters the change that they request in their availability into JEDI?‑‑‑Well, it even starts before then. So when a person is employed they notate what their availability is. That information is entered into JEDI and in turn it's then transferred into our rostering system to ensure that we're rostering in accordance with their availability.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1548

Okay, and so then down the track, a few months go by, they need a change, temporary or permanent. They enter that into JEDI as a request?‑‑‑It can be done one of two ways - it can be either put in as a request if it's a permanent change or discussion could be had with the restaurant manager.

PN1549

Okay, or it could be written on to the roster?‑‑‑Well - - -

PN1550

Handwritten, I guess?‑‑‑ - - - if it was a temporary change.

PN1551

Yes, so if we're looking at paragraph 22 you've given the A or B and then an employee enters the change requesting their availability, be it JEDI?‑‑‑Yes.

PN1552

An employee verbally tells the manager or writes on the rosters where their availability may be extended?‑‑‑Yes, but that's for a temporary change, not a permanent change because you would want to capture a permanent change via our electronic system.

PN1553

Okay. So those permanent changes that are being made by the employee, then, they are being made electronically through JEDI?‑‑‑Correct.

PN1554

That's a written record of the employee's availability?‑‑‑Correct.

PN1555

There is benefit to that because it ensures a record of the request being made, is that correct?‑‑‑Correct.

PN1556

It ensures the content of the request is captured. It allows for the facilitating of a response, the making of a response by the business to the employee, is that correct?‑‑‑Correct.

PN1557

It avoids doubt or uncertainty about the request or the response?‑‑‑Well, it's identifying to us as the employer what a person's availability is, yes.

PN1558

So how does the approval process work? If someone puts that request into JEDI, how do they know it's been accepted or denied?‑‑‑They put forward their availability and obviously they're rostered in accordance with their availability.

PN1559

So there is no approval process for a manager?‑‑‑As far as a change in - no, when a change is accepted the manager would advise the employee.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1560

How do they advise them?‑‑‑They would advise them in a change in roster and having a discussion with the employee because not all changes are accepted on first instance. It would be dependent upon what that availability does in relation to the rest of the store and the amount of employees that they've got.

PN1561

Yes, so just coming back to where you said they have a conversation - so the employee logs on at home, completes the JEDI request?‑‑‑Yes.

PN1562

How do they know that's then been accepted? Do they get a phone call from the manager?‑‑‑They would have a discussion with the manager.

PN1563

So how does that work in a practical sense? When you say a discussion - at the next shift that they're on or - - -?‑‑‑So for employees' availability changes, and the changes are so dramatic that because they can be when there is timetable changes or the like, there is usually a follow-up discussion that takes place, whether or not that is initiated by the employee or by the manager, to actually talk through those changes in availability.

PN1564

If it's accepted how is it recorded?‑‑‑So the information is then put into the Macromatix system, which is where the rostering is done.

PN1565

Do you have any information about how often they're accepted?‑‑‑Availability changes happen all the time, given the amount of employees that we have and the amount of restaurants that we run.

PN1566

Yes, and I'm asking how often they are accepted? Do you have any information or data about how often they're accepted?‑‑‑There would be regular referrals but the answer is - I don't have a specific answer for you because rosters are done each week.

PN1567

Apologies - my question was miscommunicated. Do you know what proportion of requests for change to availability are accepted?‑‑‑No, I don't.

PN1568

Right. At paragraph 26, you explain here the way the roster can be altered and you make mention of - it's common practice that an employee will sign or initial the roster to confirm the shifts they will attend for work?‑‑‑That's correct.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1569

SO the roster is published. It's got the shifts within their availability. It's common practice for the employee to just note on that that they accept those shifts and they're working those shifts?‑‑‑Yes - because we do rely on having an employee workforce that flexibility is such an important part of their working life, we do get confirmation by them just notating that they have looked at the roster, which is the two weeks in advance roster to ensure that they are able to attend that shift.

PN1570

So the shift has been offered in writing on the roster?‑‑‑Yes.

PN1571

And they've accepted that offer in writing by initialling it?‑‑‑Correct.

PN1572

Then you talk about the standby list at paragraphs 27 and 28. That's a common feature across Hungry Jack's corporate restaurants, that there would be standby lists?‑‑‑Yes, it is.

PN1573

These are used for overtime?‑‑‑No, not overtime.

PN1574

Certainly not overtime pay but these are for shifts that are worked in addition to what the employee would have been working on the roster?‑‑‑So this is an employee highlighting to the manager that they are available to work additional hours over and above what they have been rostered.

PN1575

Thank you. That's a simple and easy and successful way to fill gaps?‑‑‑Yes, when it is a spontaneous change in one's availability which may occur on a particular day or on a particular week.

PN1576

The way it works is that someone is unable to do their shift and if you've swapped with them or there's a ready agreement you cross their name out and you fill your name in?‑‑‑No - what happens is the employees are encouraged to advise the manager that they are available to work some additional shifts. It's their call to let the manager know. They would notate on the roster what their additional availability is, whether it be specific days or specific hours. In turn if there is a requirement for us to call in or the restaurant manager to call in an additional person to either work an extended shift or an additional shift, then that standby list is used.

PN1577

That's where I was going, so that's good. So the next stage is that the employee gets called in and they arrive and the person who's not working's name is crossed out. The person who is working, their name is put in?‑‑‑Yes.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1578

I think your evidence is that the manager then signs it?‑‑‑No, the employee will clock in and clock out using the electronic clock machine, so a notation will be made on the roster but they will actually register that they've started or finished a shift.

PN1579

So the last sentence of paragraph 29 you say, "The manager will also sign the roster to verify they've been advised of the change." So is that correct?‑‑‑That's not necessarily part of the standby list. That may be somebody that is unable to attend a shift so they may call in sick, it may be a last-minute change. There is a manual adjustment that the manager will notate on the actual roster itself. That is not necessarily the same thing as the standby list. The standby list is an employee volunteering that they are available to work additional hours over and above what they would normally work whereas the reference made in paragraph 29 is really around an employee that may be required to know in advance of working a shift that they're actually working on behalf of somebody else.

PN1580

I see. That makes more sense now, thank you for that. So that is where I was getting confused; that's where the name gets crossed out, you write your name in and the manager signs it? That's for the shift swap, paragraph 29?‑‑‑Correct.

PN1581

I see. That ensures that it's absolutely clear what's happened?‑‑‑Well, it's an additional record to the finger-scanning clocking in and clocking out of that shift.

PN1582

Yes. If we go to paragraph 39, it's just a reference again to the standby list and that most of the time they agree to come in and work the extra hours. That system at the moment in Hungry Jacks works - would you say that it works well?‑‑‑Well, from my discussions with managers and employees, yes, it does work well and it is purely around the fact that it is an addition to their current availability. It's that flexibility of being able to work additional hours when they want to work and get some extra cash.

PN1583

I take it it's also a list of people right beside the roster that the manager can just go straight away, "I'm going to ring this person and this person and this person. They've already indicated they can work"?‑‑‑Well, it's around having particular people on particular days that are available to come in at short notice.

PN1584

Yes, thank you. If I can go back to paragraph 30, and here you talk about predictable increases in demand, do you have a data source for the way Hungry Jack's deals with these instances?‑‑‑Absolutely. So the current rostering pattern is taken from previous sales either at particular times or on average on past sales for a number of weeks but where there is specific events which may relate to, let me say, public holidays, things as I've listed here, special events such as Vivid in Sydney. As an example of that, we have stores that are obviously in the CBD here in Sydney that's specific hours between say 6.00 pm and 9.00 pm or 10.00 pm when Vivid's actually on, the fluctuation during those periods are very, very different to the standard trading patterns, so information is then gathered to pick up on what those trading patterns have been in the past.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1585

Then the first step is for the managers to check with part time employees whether they can and will work extra hours?‑‑‑So yes, they'd look at the availability of employees and in turn, same principle would happen, they would check to make sure the employees were available to work those shifts and obviously they'd be rostered on accordingly.

PN1586

Are they actually asked whether they want to work those shifts or if they're available are they just rostered?‑‑‑Yes, but if it's outside of the normal work patterns, they may just double check to ensure that those shifts will actually be covered.

PN1587

Then they're rostered for the extra hours. When they contact, do they contact them by telephone? How do they contact them to have that discussion?‑‑‑So one of two ways. The rosters are done two weeks in advance but usually where there's specific events that are coming up, sometimes they're done a little bit further in advance so there would be discussions that would take prior to those rosters being complete.

PN1588

Does Hungry Jack's use - in terms of having those discussions, do the managers use telephones, email, face to face discussions? What do they do?‑‑‑Combination all of that, text messaging.

PN1589

Do they use Facebook groups and - - -?‑‑‑I am familiar with some stores that do. They would be closed groups.

PN1590

Yes, and that's done at the point of compiling a roster?‑‑‑Yes, or prior.

PN1591

Making all those arrangements, all of those arrangements are being discussed and agreed upon and then put into a roster that's published for the period?‑‑‑So that's predictable work patterns, yes, there is pre-work that is done in lieu but in addition to that, there is obviously unexplained or un-predicted work patterns which do occur, and I'll use the CBD store again as an example where George Street has had a lot of construction work being done and in turn, sometimes that can mean traffic changes as far as pedestrians going and where they're coming into the store or not.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1592

Yes, and so in relation to that, the roster's already published and the business has to make changes?‑‑‑So that's where the flexibility comes into play in its true form whereby whether or not it's a change in traffic, somebody calls in sick, somebody's running late, that the manager would reply - rely upon the flexibility of the part time clause that we do exercise in asking employees to either stay back or asking them whether or not - or ringing up somebody on the standby list but they are asked and it's at their request whether or not they take the additional hours.

PN1593

It's by agreement at that point in time for those changes?‑‑‑Well, absolutely.

PN1594

They may say yes and they may say no?‑‑‑Absolutely.

PN1595

If they say no, you then call the next employee?‑‑‑Yes.

PN1596

Eventually an employee is hit upon who can do the hours and they come in?‑‑‑So once again, it's based around availability so - and we've also got the standby list but where it is spontaneous, the first port of call is either that standby list or those that are currently on shift and it also depends upon what's being covered because it may not be an entire shift. It may be a spurt of sales for a particular point in time. It may be a surge that there happened to be a school excursion and we've been inundated. It may be that the cinema has a - some sort of a - an event on, if they're in - as part of a complex so it's circumstantial as opposed to planned.

PN1597

Yes, and so circumstances lead to an agreement, someone's coming into work. Is the difference between that and the current award provision that you would require a written agreement not to pay overtime rates for that part timer?‑‑‑No, it's got nothing to do with overtime. It's around flexibility and it's around the fact that where there is surges in sales that it is relatively spontaneous and it's about making sure that the customer is being served, so it's not about the payments. Regardless of whether or not overtime is paid or it's not, we're still paying the employees and if they're part time employees, they're also entitled to long service leave, sick leave and annual leave so we're still paying them accruals even though it may not be overtime.

PN1598

Just to clarify that for me, contact is made with the employee, they arrange to come to work or stay back or whatever the case may be, there's an agreement there and it might require two or three employees to be contacted, but someone comes in and they help and they're now working. That's recorded by the employer and your evidence is is that it's got nothing to do with overtime rates of pay, it's about flexibility in terms of the employee being able to come in. Is that - - -?‑‑‑Well, it's a mutual agreement. So the employee's looking for additional hours, we're offering them those additional hours and they agree to come in and work at that ordinary rate. That is up to whatever the maximum amount of hours as outlined in the EBA for that particular state.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1599

That mutual agreement could be recorded in writing couldn't it?‑‑‑Not when it's spontaneous. So when it's - when there is no predictability to get that agreement to be upfront prior to the employee actually working the shift is extremely ‑ it's not practical at all.

PN1600

But you are doing that at the moment it's just not in writing. You're ringing them and asking them to come in and they're agreeing?‑‑‑But we're also asking employees who are already on the shift to potentially stop working, to go and sign an agreement, leave the customers or the influx of potential people being served to come to a complete standstill. It's impractical.

PN1601

Those workers aside, for the workers that are called and asked to come to work, there is agreement being reached it's just not being reached in writing?‑‑‑Of course the agreement's being reached.

PN1602

It could be done in a matter of seconds couldn't it? It could be a pro forma that's put in front of them, name, extra shift, sign here?‑‑‑I suppose the way that it works today, there is no written agreement in place and, in particular, because employees that commence their shift or are asked to come in when they aren't specifically being rostered on to work, it is around that spontaneity and as I mentioned earlier, we do have a finger scan which actually records them starting and finishing the shift as opposed to there being a written agreement which is what you're proposing.

PN1603

Well I'm not proposing it but I understand. In terms of agreeing in writing, there's many different ways of agreeing in writing, isn't there? There's a paper document that you could agree as a paper document, is that right? You could - - -?‑‑‑Yes, yes.

PN1604

A roster could be amended and initialled by both parties, that could be an agreement in writing couldn't it?‑‑‑But this - I'm going to still stipulate the current Fast Food Award and the way that it is written, it is to be done prior to the shift actually commencing. So there is far more restriction in the current agreement to the current work practices that we have today where that flexibility is by mutual agreement but it is far more spontaneous.

PN1605

Do you have data on the number of shift changes where someone stays back at ordinary rates by agreement?‑‑‑I - we absolutely could - sorry, let - can you re-phrase the question again.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1606

Does Hungry Jack's have the information, the data, available to it to identify how many, how often, employees are required, or requested, and agree to stay back at the end of their shifts for ordinary rates?‑‑‑Well, we're paying employees within the span of number one, availability and number two, their maximum amount of hours. So do we have record of people working additional hours to those that are currently written on the roster? Yes, of course we would.

PN1607

I asked does Hungry Jack's have data about the number of people; how regularly it happens that someone works back at the end of their shift for ordinary rates of pay beyond their ordinary time. Just a yes or no?‑‑‑So I need you to rephrase the question, sorry, because you're confusing me.

PN1608

You have repeatedly put to me as a concern that employees have to be able to work back at the end of their shifts for ordinary rates. It's a flexibility required by Hungry Jack's - - -?‑‑‑So we're not asking them - we're not making them work back. The request is put to them and they have the right to either accept or reject that request. In turn, it's because it's within their current terms of agreement. They're not working anything over and above (1) their availability, (2) the maximum of hours that they should be working.

PN1609

Putting that group aside, so these are now people being called in to do an extra shift. For that group of people, is it a simple process for them to agree in writing before they commence work?‑‑‑So I'm going to go back to the flexibility element. We're not actually - we're not currently recording it as its stands today. As I said, the record is the scanning on and scanning off using the finger scan.

PN1610

Yes?‑‑‑I can only answer what we're doing today and that is that we're not recording it.

PN1611

Thank you. A written agreement can be in the form of an exchange of text messages, couldn't it?‑‑‑Well, you're making an assumption. I'm not reading it in that way. I'm reading it as in an agreement has to happen prior to the employee commencing their shift.

PN1612

Yes, but the agreement itself could be - a written agreement could be in the form of an exchange of text messages between a manager and an employee, couldn't it?‑‑‑No, I don't think it could.

PN1613

An exchange of emails?‑‑‑I'm still going to say there needs to - my understanding of the way that the award is currently written, it would need to be almost like a contractual agreement between the two and we would need to retain those records. So saying it's via text message or via email doesn't sound practical from a record‑keeping perspective in reading what the Fast Food Award currently outlines.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1614

Thank you. What about an online system where the employee ticks a box to indicate approval?‑‑‑I'm going to go back again around the - we roster according to predictability. Where it is unpredictable is where it comes into play that - that flexibility and the availability of the employees to come and work the extra shifts. Either way, to actually stop doing what they're doing and serving our customers, and to go and agree and sign some sort of a contractual agreement, is impractical.

PN1615

But a written agreement could be an online system where the employee ticks a box - - -?‑‑‑It still requires the employee to stop serving a customer and moving away to sign an agreement.

PN1616

Ye?‑‑‑I'm saying to you the current practice is today that an employee would verbally agree to work the additional hour or half an hour or the additional shift and in turn it would be as simple as them clocking off accordingly, and the manager just making a notation on the roster around the changing occurred; but it wouldn't happen prior to the additional hours taking place.

PN1617

What analysis has been done by Hungry Jack's, what modelling has been done, of the effect of the award applying to the business?‑‑‑That, I can't tell you.

PN1618

Do you know if any analysis has been done?‑‑‑Genuinely, I don't know.

PN1619

What analysis has been done of the cost of recording additional hours or these contract variations in writing?‑‑‑I'm saying to you that an assumption has been made - and I've outlined that in my affidavit - that it could take up to five minutes to make a recording, but that is just an assumption because we're not doing it today.

PN1620

Has there been any independent assessment of that cost?‑‑‑I don't know. The company may have, but I can't give evidence on that.

PN1621

You're not aware of any assessment?‑‑‑No, I'm not.

PN1622

Has there been any assessment of the value to Hungry Jack's of the abolition of the rights to - well, I guess for some parts of the business there are very, very long‑term agreements, but has there been any analysis of the value to Hungry Jack's of not having the award apply?‑‑‑Has there been any analysis? Not that I'm aware.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1623

Thank you. You haven't spoken to any franchisees that are on the award?‑‑‑Not directly a franchisee, no.

PN1624

Whether or not the agreements or the award applies, Hungry Jack's would still permit part‑time employees to request roster changes, wouldn't they?‑‑‑That's a double question, so can you split that up in two? You have asked me whether or not - if the EBA applies, would we allow roster changes. The answer is, yes, we would allow roster changes underneath the current EBA.

PN1625

Your evidence is that Hungry Jack's allows part‑time employees to request roster changes?‑‑‑Yes.

PN1626

My question is even if the award applied, Hungry Jack's is still going to allow part‑time employees to request roster changes, isn't it?‑‑‑I think it's an open‑ended question. It's not about not allowing roster changes because the answer is, yes, we would allow roster changes. It's more around the flexibility element of those roster changes that I think is what is in question.

PN1627

It's a simple question. It's the right of a part‑time employee to request a roster change. Surely Hungry - well, why would it change?

PN1628

JUSTICE ROSS: What are you asking? When you just said it's a simple question, then you made a statement, but what - - -

PN1629

MR CULLINAN: I'll withdraw it. I'll move on.

PN1630

JUSTICE ROSS: Okay, right.

PN1631

MR CULLINAN: The current system at Hungry Jack's of awarding work to part‑time staff using the stand-by list and using all the other systems, that currently works, does it?‑‑‑Mm‑hm.

PN1632

Flexible part‑time arrangements are consistently with the award, aren't they?‑‑‑No, they're not.

PN1633

How are they not?‑‑‑Well, it requires - there aren't the same conditions, for a start. Prior to an employee starting any additional hours over and above the rostered hours, it needs to be put in writing.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1634

Yes?‑‑‑So that's a difference.

PN1635

So they're consistent, but they have to have agreement in writing?‑‑‑Yes, well, that's - - -

PN1636

MR DIXON: This is becoming argumentative and clearly not assisting the Commission, in my respectful submission. The award speaks for itself, the enterprise agreement speaks for itself. The witness has repeated the answer to the questions about the practices in Hungry Jack's.

PN1637

MR CULLINAN: It's a very simple question, your Honour.

PN1638

JUSTICE ROSS: Put the question.

PN1639

MR CULLINAN: At the moment if the award applied at Hungry Jack's, arrangements can be put in place with part‑time employees as long as they're reduced to writing for those part‑time employees to work overtime at ordinary rates, can't they?‑‑‑Of course things can be done, but I'm saying it's impractical based around the current arrangements that are done today.

PN1640

Yes?‑‑‑And also disadvantages employees around the mere fact that we are making it more difficult for them to get additional hours.

PN1641

If you could look at paragraph 52 of your statement. You start by saying:

PN1642

In relation to clause 12.2, variations to hours worked is difficult to put into writing.

PN1643

Do you mean 12.3 there?‑‑‑No, I don't.

PN1644

Clause 12.2 is at the time of first being employed, isn't it?‑‑‑No, that any variation will be in writing is what I'm referring to in 12.2.

PN1645

So the obligation in 12.2 is to put in write - anyway, okay, understood. In 53A you've put above at paragraph 51 what the current clause 12 is of the current award, and in 53A you say:

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1646

Where employee availability changes the award requires that change to be made in writing.

PN1647

Can you identify for us where that is?‑‑‑Well, exactly that same piece around the fact that any variation will be in writing to whatever they're currently rostered on.

PN1648

So where you write "Where employee availability changes" we are to read that as where employee arrangements about being rostered on? How do we read that differently from where employee availability changes? Because employee availability is different from being rostered on, isn't it?‑‑‑Well, no, one feeds into the other. So an employee's availability changes and in turn that means that there's a roster change.

PN1649

But that's not entirely correct, is it? I mean your availability might be across 80 hours of the week but your roster may only be for 10 hours of the week so you could have availability changes which don't impact on your roster?‑‑‑But they may, because we're not just doing it for one employee we're doing it for many employees over the span of many hours over an entire week. So even though a person's availability changes and doesn't appear to be impacting that particular individual whereby they may not be able to work one day and are able to work another, may absolutely have an impact on the entire roster and how that is.

PN1650

Here you're saying, your evidence is, that the change in availability of an employee under the award requires to be made in writing and I put it to you that there is no provision in the award about availability let alone having to change it to be in writing?‑‑‑I'm going to say again that a person's availability leads to a roster being able to be put in place. A roster can't be put - just made up and just an employee to work. They can only work in accordance with their availability. So even if it does not clearly stipulate the word "availability" one makes an assumption that availability means that they are actually available to work on the rostered times.

PN1651

At 53C you here refer to:

PN1652

Almost every day at least one shift requires a change because of unforeseen unavailability or lateness of employees.

PN1653

What is the data behind that that you've relied on?‑‑‑Human nature and as I said I've been around to many, many stores and of course there are people that call in sick, there are people that come in late and so I know that to be a correct statement, that availability and predictability can be uncertain.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1654

Sure. Your evidence is that "Almost every day at least one shift requires", is that per store?‑‑‑Absolutely.

PN1655

And it's based on your experience?‑‑‑It's based on my - no, it's based on my discussions in my travels. We have stores that operate 24/7 so it's not a statement that could not be seen to be accurate.

PN1656

You've spoken to management in every store?‑‑‑Not in every store but I have spoken to management and I've spoken to employees in my travels across Australia in different stores at different times.

PN1657

And the last sentence here:

PN1658

The award requires those changes to be agreed upon and made in writing.

PN1659

Is that to avoid overtime pay, because someone can fill in a shift and be paid overtime rates? The award doesn't require it to be in writing, does it?‑‑‑I'm going to say again it is around flexibility first and foremost and it is around the fact that the award requires the employee to put something in writing prior to doing the additional hours or to work that additional shift. The overtime element - as it would be today if they worked over their maximum amount of hours we would pay the overtime rate if they were working over and above. It's not predominantly about the overtime rate.

PN1660

My question was much simpler than that. You're saying that the award as it is requires those changes to be agreed upon and put in writing for someone - - -?‑‑‑Correct.

PN1661

- - - to work that hour?‑‑‑Correct.

PN1662

And what I'm putting to you is that they could work that hour without that being agreed upon and put in writing if they were paid overtime rates?‑‑‑No, my understanding is still it needs to be put in writing.

PN1663

Even an overtime request?‑‑‑That's my understanding.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1664

At 53D - no, it's the same issue. Sorry about that, I withdraw. At paragraph 54 you talk about your estimate that it could take from two to five minutes and we understand there's no independent analysis of the time it might take. How many of these changes would need to be recorded per store under the award?‑‑‑I couldn't tell you. I would just be guessing. The same principle applies again where there is, you know, unpredictable surges of sales, where there is unpredictable someone calling in sick, where there is somebody running late, and that will vary in different stores at different times right across the nation. So there is no way that I could give you an estimate and the estimate that I've put in here, up to five minutes, is purely an assumption because we don't currently do it today.

PN1665

So it wouldn't be a fair estimate to say perhaps one shift a day per store?‑‑‑I have said it would be at minimum one shift per day per store and I put that in my affidavit.

PN1666

Okay, so possibly at a minimum it could be two minutes per day per store for Hungry Jack's to record these things in writing?‑‑‑But I'm going to go back to it needs to be signed and then the agreement needs to be put in place prior to the shift actually either being extended or starting and, as I say, it's the impracticality of that particular element.

PN1667

Under the proposed award provision from the AiG, it doesn't propose a standby list system for the proposed award clause, does it?‑‑‑What document are you referring to?

PN1668

So you're aware that the AiG has made an application to vary the award clause?‑‑‑Yes, I am.

PN1669

May I pass up the draft determination schedule 1 of the AiG's - just for the witness to view?‑‑‑And you asked about the standby list?

PN1670

Yes, so if you go to clause 12.7 it has a structure for availability and additional hours. My question is at the moment Hungry Jack's employs a successful standby list system which allows workers to be contacted and to work additional hours on a day-by-day basis but that is not proposed to be put into place in the proposed award system?‑‑‑If you look at 12.1, and A, it actually talks about there being a spread of hours, not less than eight but up to 38 so it talks to the flexibility again, which goes into play around that standby list. That standby list is purely a practice that Hungry Jack's uses and is successful.

PN1671

Yes?‑‑‑But utilising the same principle as we spoke about earlier, whether nor they use a standby list or they ask somebody whether or not they will agree to work back, the same principle would apply.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1672

What is that principle?‑‑‑The principle is around the fact of someone being able to work additional, flexible hours as opposed to the standby list that you referred to.

PN1673

Well, it's Hungry Jack's standby list which has been a successful system. Is there a reason why Hungry Jack's doesn't want that structure to be put into the award?‑‑‑Well, it's a particular practice for Hungry Jack's.

PN1674

Thank you. At the moment the award provision provides that a part-timer who works additional hours to their set hours and doesn't agree to a contract variation will be paid overtime rates?‑‑‑Yes.

PN1675

If that was to apply at Hungry Jack's, is Hungry Jack's concerned with having to pay overtime rates if the award applied to it?‑‑‑I'll say it again - it's purely around the flexibility of an employee being able to work the additional hours. That's first and foremost of most concern. Hungry Jack's currently doesn't pay overtime if it's within the maximum span of hours - within that span of hours.

PN1676

So Hungry Jack's would be satisfied with an arrangement which allows for the flexibility you've described and arrangements for pay to not be at overtime rates?‑‑‑As long as they're - they're currently paid at ordinary rates and once again, employees aren't forced to work those additional hours. They are voluntarily asked. They can accept or reject so they're doing it of their own accord and it's well within what is allowed within what is allowed within what the maximum span of hours are.

PN1677

Yes, and does each store have a rostering manager?‑‑‑Yes, each store has a labour manager as well as a restaurant manager.

PN1678

The labour manager role, is that - can you explain that?‑‑‑Part of that role is around helping support the restaurant manager around the rostering.

PN1679

Thank you. They're all my questions, your Honour.

*** ELIZABETH MARY MONTEBELLO-HUNTER XXN MR CULLINAN

PN1680

JUSTICE ROSS: Can I just ask a question about - I know you've answered this on a number of occasions but where you have a part-time employee who is working in the restaurant and you require them to work beyond their regular shift finish time, as I've understood your evidence, your concern with the award provision is that it requires the variation to be agreed in writing before the variation commences so at the moment as I understand it, there would be a conversation between the labour manager in the restaurant or the supervisor with the part-time employee along the lines of, "Are you happy to work through until 5?" The employee says, "Yes." There is a record of it but I think you said or my note had it that there was a notation made by the manager at the end of the shift as well as, of course, the employee using the system. It would identify how many hours the employee had worked. What is the notation the manager makes?‑‑‑Literally it is a notation on the roster, just as purely a record that the person stayed back and then obviously the record or the verification, the finishing time would be the finger scan of the employee.

PN1681

So the manager at some point later - presumably the same shift - before the manage signs off they just make a notation: "Fred worked until 5 pm"?‑‑‑Correct.

PN1682

It wouldn't actually say that but it might just cross out 4 and put 5 on the physical record of the roster, is that how it works?‑‑‑Correct.

PN1683

Right. Okay, thank you.

PN1684

MR DIXON: Thank you.

RE-EXAMINATION BY MR DIXON [2.52 PM]

PN1685

MR DIXON: May I just ask you some additional questions to what his Honour the President has just asked you - take the example - and you were asked a number of questions like this - an employee during the shift is offered additional hours?‑‑‑Yes.

PN1686

They work the additional hours. The notation is made on the roster. That employee works the additional hours and I think you also mentioned clocking in and clocking out?‑‑‑Yes.

PN1687

Can you explain the system - what does the employee do at the end of the additional hours that were offered and worked?‑‑‑Nothing other than literally clocking in and clocking out.

PN1688

This is the finger scan that you referred to?‑‑‑Correct.

PN1689

So that employee then creates an electronic record that he or she has left the workplace, say, two hours later?‑‑‑Correct.

*** ELIZABETH MARY MONTEBELLO-HUNTER RXN MR DIXON

PN1690

What happens to that record - the electronically scanned information - that the employee left the workplace two hours later?‑‑‑That record as well as every other record of employees that have logged on and logged off all sort of roll up into a time and attendance journal and at the end of the day and the end of the working week the manager will go through and just approve to ensure that the correct hours have been logged and paid.

PN1691

Right, so the manager must then do something to affirm - - -?‑‑‑They verify it.

PN1692

Now, how does that happen?‑‑‑It's done on a system and that is done, as I mentioned, either at the end of the working day or at the end of the week, that they would actually verify that.

PN1693

Is that done electronically or in writing?‑‑‑No, it's done electronically.

PN1694

So the manager would then look through the record created by the employee's finger scanning out, clocking out?‑‑‑Yes.

PN1695

The manager would then review that record, is that correct?‑‑‑They would just make sure that whether or not there was any variations to the actual roster they would either have a manual adjustment on the roster like you just mentioned but, yes, they would check it. It's their responsibility to make sure that employees are getting paid correctly.

PN1696

What I'm trying to establish is what does the manager do on the electronic system, if anything, to give it his or her approval of the employee's additional hours?‑‑‑So they would verify that it's okay to be paid and that information - so it is almost like an electronic journal that is then fed through to our payroll system.

PN1697

What does the manager do, press a button or - - -?‑‑‑Similarly to pressing a button - they may press more than one button but they are pressing a button to verify for every employee that the records are correct.

PN1698

Is the system the same - take a situation where the employee asked to come in two hours before rostered hours on his or her roster. Is the system the same or different from a clocking in and verification point?‑‑‑No, where there is - it's unpredictable, in other words, it hasn't been rostered on and someone has been called up to cover a shift, the same or similar principle would apply.

PN1699

Does that mean when an employee comes to work two hours in advance, the only step that that employee must take is what?‑‑‑To clock in and clock out.

PN1700

Right - through the finger-scanning process that you described?‑‑‑Correct.

*** ELIZABETH MARY MONTEBELLO-HUNTER RXN MR DIXON

PN1701

The manager's role in that situation?‑‑‑Is to verify.

PN1702

Thank you. That is the re-examination, if the Commission pleases.

PN1703

JUSTICE ROSS: Thank you for your evidence, Ms Montebello-Hunter. You're excused.

<THE WITNESS WITHDREW [2.57 PM]

PN1704

MR GOTTING: Your Honour, there's five further affidavits that we read and the deponents are not required for cross‑examination. Could I tender those in turn?

PN1705

JUSTICE ROSS: Certainly.

PN1706

MR GOTTING: The first affidavit, your Honour, is by Glenn, G‑l‑e‑n‑n Norman Sullivan.

PN1707

JUSTICE ROSS: I'll mark that exhibit Ai Group 8.

PN1708

MR GOTTING: Thank you, your Honour. The second affidavit is by John Franc - F-r-a-n-c - - -

PN1709

JUSTICE ROSS: Just bear with me for a moment.

PN1710

MR GOTTING: Your Honour, it might be exhibit 9.

PN1711

JUSTICE ROSS: Yes, yes. Sorry, I'll mark that one exhibit Ai Group 9.

EXHIBIT #AI GROUP9 AFFIDAVIT OF GLENN NORMAN SULLIVAN

PN1712

MR GOTTING: The second affidavit is by John Francis Chapman.

PN1713

JUSTICE ROSS: I'll mark that exhibit Ai Group 10.

EXHIBIT #AI GROUP10 AFFIDAVIT OF JOHN FRANCIS CHAPMAN

*** ELIZABETH MARY MONTEBELLO-HUNTER RXN MR DIXON

PN1714

MR GOTTING: The third affidavit is by Alexander Martinoli, M‑a‑r‑t‑i‑n‑o‑l‑i.

PN1715

JUSTICE ROSS: I'll mark that exhibit 11.

EXHIBIT #AI GROUP11 AFFIDAVIT OF ALEXANDER MARTINOLI

PN1716

MR GOTTING: The fourth affidavit is by Kate Nicole Swan, S‑w‑a‑n.

PN1717

JUSTICE ROSS: I'll mark that exhibit Ai Group 12.

EXHIBIT #AI GROUP12 AFFIDAVIT OF KATE NICOLE SWAN

PN1718

MR GOTTING: And the fifth and final affidavit is by Leasa, L‑e‑a‑s‑a, Kate Frances Guilk, G-u-i-l-k.

PN1719

JUSTICE ROSS: I'll mark that exhibit Ai Group 13.

EXHIBIT #AI GROUP13 AFFIDAVIT OF LEASA KATE FRANCES GUILK

PN1720

MR GOTTING: Thank you.

PN1721

JUSTICE ROSS: Do you want to round up or leave it at 13?

PN1722

MR GOTTING: I'm not superstitious but if your Honour is, there's the Fast Food Industry Profile which is the research note prepared by the Commission.

PN1723

JUSTICE ROSS: Do you want to mark that exhibit MFI 1?

PN1724

MR GOTTING: Yes.

PN1725

SPEAKER: Sorry, what was the - - -

PN1726

MR GOTTING: MF - - -

PN1727

JUSTICE ROSS: The last one just marked for information 1, MFI 1.

MFI #1 FAST FOOD INDUSTRY PROFILE

PN1728

JUSTICE ROSS: It isn't really an exhibit of any party but it is a matter that we will take into account and that you're invited to comment on if you wish.

PN1729

MR GOTTING: That's the evidence upon which the Australian Industry Group relies.

PN1730

JUSTICE ROSS: I think we're next listed at 9.30 on Thursday for closing oral argument?

PN1731

MR GOTTING: That's so.

PN1732

JUSTICE ROSS: And the SDA and RAFFWU are to advise by 12 noon Wednesday which particular parts of the document headed "Findings" that are being sought by Ai Group are contested. Okay? Thank you.

PN1733

MR GOTTING: If your Honour could - - -

PN1734

JUSTICE ROSS: Yes?

PN1735

MR GOTTING: - - - say something that would assist in the early preparation of the transcripts that would assist - - -

PN1736

JUSTICE ROSS: No, no, we'll certainly - - -

PN1737

MR GOTTING: - - - those that are on the Bar table.

PN1738

JUSTICE ROSS: Yes. I'm seeking to have it same day, but my preferences haven't always been met by the contractor in that regard so I've done what I can and we'll follow it up.

PN1739

MR GOTTING: Thank you, that will assist.

PN1740

JUSTICE ROSS: Thanks, we'll adjourn until 9.30 Thursday.

ADJOURNED UNTIL THURSDAY, 19 JULY 2018 [3.00 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANNABEL SARAH ANDERSON, AFFIRMED.............................................. PN612

EXAMINATION-IN-CHIEF BY MR DIXON.................................................. PN612

EXHIBIT #AI GROUP3 AFFIDAVIT OF ANNABEL ANDERSON AFFIRMED 23/02/2018 PLUS ANNEXURES............................................................................................ PN625

EXHIBIT #AI GROUP4 ONE-PAGE DOCUMENT CONTAINING ANNABEL ANDERSON'S AMENDMENTS TO CALCULATIONS........................................................... PN627

EXHIBIT #AI GROUP5 WITNESS STATEMENT OF ANNABEL ANDERSON PN635

CROSS-EXAMINATION BY MR BRUNO...................................................... PN639

CROSS-EXAMINATION BY MR CULLINAN............................................... PN782

RE-EXAMINATION BY MR DIXON............................................................. PN1135

THE WITNESS WITHDREW.......................................................................... PN1178

NICOLA AGOSTINO, AFFIRMED................................................................ PN1183

EXAMINATION-IN-CHIEF BY MR GOTTING.......................................... PN1183

EXHIBIT #AI GROUP6 AFFIDAVIT OF NICOLA AGOSTINO DATED 23/02/2018............................................................................................................................... PN1207

CROSS-EXAMINATION BY MR BRUNO.................................................... PN1207

CROSS-EXAMINATION BY MR CULLINAN............................................. PN1226

RE-EXAMINATION BY MR GOTTING....................................................... PN1409

THE WITNESS WITHDREW.......................................................................... PN1447

ELIZABETH MARY MONTEBELLO-HUNTER, AFFIRMED................. PN1464

EXAMINATION-IN-CHIEF BY MR DIXON................................................ PN1464

EXHIBIT #AI GROUP7 AFFIDAVIT OF ELIZABETH MONTEBELLO-HUNTER AFFIRMED 22/02/2018 PLUS ANNEXURE.................................................. PN1474

EXHIBIT #AI GROUP8 LIST OF 26 STORES UNDER FAST FOOD AWARD PN1483

CROSS-EXAMINATION BY MR CULLINAN............................................. PN1484

RE-EXAMINATION BY MR DIXON............................................................. PN1684

THE WITNESS WITHDREW.......................................................................... PN1703

EXHIBIT #AI GROUP9 AFFIDAVIT OF GLENN NORMAN SULLIVAN PN1711

EXHIBIT #AI GROUP10 AFFIDAVIT OF JOHN FRANCIS CHAPMAN PN1713

EXHIBIT #AI GROUP11 AFFIDAVIT OF ALEXANDER MARTINOLI PN1715

EXHIBIT #AI GROUP12 AFFIDAVIT OF KATE NICOLE SWAN.......... PN1717

EXHIBIT #AI GROUP13 AFFIDAVIT OF LEASA KATE FRANCES GUILK PN1719

MFI #1 FAST FOOD INDUSTRY PROFILE................................................. PN1727