Industrial Relations Commission of New South Wales CITATION : John Holland Group v Construction, Forestry, Mining and Energy Union (NSW Branch) re Living Away From Home Allowance [2003] NSWIRComm 113 APPLICANT PARTIES : John Holland Group Pty Ltd RESPONDENT Construction, Forestry, Mining and Energy Union (NSW Branch) FILE NUMBER: IRC 5287 of 2002 CORAM: Harrison DP CATCHWORDS : Notification under s130 of Industrial Relations Act 1996 - Industrial dispute - Project award - Distant worker's living away from home allowance - Failure to apply award - Determination made on evidence - Payment of allowance ordered. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Browne v Dunne (1894) 6 R 67 HEARING DATES: 11/29/2002; 12/09/2002; 02/04/2003; 02/05/2003; 03/06/2003; 03/07/2003 DATE OF JUDGMENT: 04/15/2003 APPLICANT Mr Patch of Counsel Instructed by Master Builders Association LEGAL REPRESENTATIVES: RESPONDENT Ms S Sullivan, CFMEU JUDGMENT: 43 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 15 April 2003 Matter No IRC 5287 of 2002 Notification under s130 by john holland group pty ltd of a dispute with the Construction, Forestry, Mining and Energy Union (New South Wales Branch) re living away from home allowance DECISION [2003] NSWIRComm 113 1 The notification in this matter was filed on 17 September 2002 by the Master Builders Association of New South Wales (MBA) on behalf of its member, the John Holland Group Pty Ltd ("John Holland"). The notification advised of a dispute between with the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ("the union") in the following terms: The dispute is in relation to alleged underpayments of Living Away from Home Allowance to employees of the Company engaged on the Mount Arthur North Mine Development Project ("the Site"). The awards binding on the parties to the dispute are:- Mount Arthur North Construction Project Consent Award 2001 ("the Award") Particulars of the alleged dispute are as follows:- (i) The Company is undertaking work on the above-mentioned site. (ii) Since December 2001 the Company has employed workers under the award to work on the site. (iii) Some workers, upon engagement, were classified as a "Local worker" in accordance with clause 22 of the Award. (iv) The Union, on behalf of some employees, has made a claim for alleged underpayment of the Living Away from Home Allowance arising under the award. (v) The Union alleges that the Company incorrectly classified the employees as a "local worker" and is therefore liable to pay the allowance. Further, the union alleges that the Company coerced employees into providing a local address. (vi) The parties met on site in an attempt to resolve the matter on 4 September and 11 September 2002. The parties resolved a number of the claims at these meetings. (vii) The parties to the dispute are still in disagreement as to the entitlement of fifteen (15) workers with regards to the Living Away from Home Allowance. 2 The matter was subject to Compulsory Conference proceedings on 24 September 2002. The matter was unable to be settled by agreement between the parties and a Certificate of Attempted Conciliation issued. Directions were put in place to bring the matter to hearing. 3 In proceedings on 29 November 2002 the notifier withdrew issues of jurisdiction earlier promulgated. 4 The matter was subject to hearing of the substantive issue on 9 December 2002, 4 and 5 February 2003, and 6 and 7 March 2003. 5 Mr D Patch of Counsel appeared for the Company with Mr D Murray of the MBA. Ms S Sullivan appeared on behalf of the Union. 6 Mr Patch brought evidence from Mr Garry Mills, employed as Construction Project Safety Manager by Sinclair Knight Merz Roberts & Schaefar (SKM), joint venture principal contractors to BHP Billiton (BHP) for construction of the Mount Arthur North Construction Project ("the project"); Mr Mario Botticchio, General Superintendent for John Holland on the project; and Mr Philip Mouton, the Project Manager for John Holland on the project. 7 Ms Sullivan brought evidence from Messrs John Dyke, Michael Dyke, Christopher Cielo, Paul McCarthy, Allan Hartigan, Ian Goldsworthy, Justin Squires, Timothy Nelson, and Brendan Amos. Statements of claim were filed on behalf of Messrs Gregory Westlake, Greg Masters and Bernard Hamill. These persons were not called as the union was unable to locate them at the time of proceedings. The abovementioned were all employed by John Holland on the project. THE PROJECT 8 The project is the construction of a large open cut coal mine and associated services, facilities and equipment at Mount Arthur North, some 30 kilometres from Singleton, adjacent to the Bayswater, Drayton and Bengalla mines, and southwest of Muswellbrook. 9 SKM hold the principal contract which it discharges by the letting of a number of major sub contracts, a number of which were won by John Holland. The evidence of Messrs Botticchio and Mouton is that the extent of work won by John Holland was initially to the value of $20 million, and grew over the course of the project to exceed $60 million, resulting in an increase in employees from an anticipated small number to some 70 direct employees and a further 50 or so sub-contractors. THE AWARD 10 The Mount Arthur North Consent Award 2001 (336 IG 690) ("the award") was made by Redman C by consent of the parties. The application and scope of the award is found in cl 2 in the following terms: This Award shall apply only to all contractors, sub-contractors, and suppliers of supplementary labour engaged on surface construction work at the Mount Arthur North Project, New South Wales. Provided that the Award shall not apply to: Statutory employees Management and supervisory personnel Future operations personnel Engineers/Surveyors Clerical and Administration Personnel Security Personnel Employees of suppliers engaged in the deliveries of materials and equipment to and from the site. The parties agree that this exclusion shall not apply to employees who upon delivering materials and equipment from off-site to the project perform construction work on the project eg. employees who deliver scaffolding to the project who then erect the scaffolding are covered by this Award in respect o the work performed on the project. Off site infrastructure and pre-assembly work associated with the project undertaken by all contractors, sub-contractors or suppliers of supplementary labour in any premises, workshop or fabrication shop that is not attached to, or part of the project site. This Award shall have no application to plant commissioning, operations or maintenance or to any other work after turnover of work or to any other activities for which the contractors and sub-contractors are not responsible. 11 The details of the parties to the award are found in cl 3 in the following terms: The parties bound by this Award are: (1) Australian Industry Group on behalf of all contractors, sub- contractors and suppliers of supplementary labour (labour hire companies) engaged on work which falls within the application and scope of this Award. (2) All employees of contractors, sub-contractors and suppliers of supplementary labour engaged on work which falls within the application and scope of this Award whether members of the organisations listed in (c) or not. (3) The organisations which represent the employees defined in (b), namely: Labor Council of New South Wales. The Australian Workers Union, New South Wales. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch. Construction, Forestry, Mining and Energy Union (New South Wales Branch) Electrical Trades Union of Australia, New South Wales Branch The New south Wales Plumbers and Gasfitters Employees' Union Transport Workers' Union of Australia, New South Wales Branch 12 The evidence of Mr Mouton is that compliance with and application of the award was a contractual obligation required of John Holland by the client. 13 The notification in the matter is made in accordance with the disputes procedure found in cl 20 of the award in the following terms: Disputes between contractors, sub-contractors or suppliers of supplementary labour and their employees at the site in respect of Awards and/or this Award shall be settled in accordance with the procedure set out below: (1) Where an employee or a shop steward has submitted a request concerning any matter directly connected with employment to a foreman, or a more senior representative of management and that request has been refused, the employee may if he/she so desires, ask the shop steward to submit the matter to management and the matter shall then be submitted by the shop steward to the management. (2) The principal's representative shall be notified by the employer of the matter under discussion upon it being raised with the management by the shop steward. (3) The employer shall respond in writing within 24 hours of the issue being submitted by the shop steward. (4) If not settled at this stage, the matter shall be discussed between such representatives of the Union as the Union may desire and the employer, who may be accompanied by or represented by such officers or representatives of an Association of employers as the employer may desire within 48 hours of the matter being referred for discussion. (5) If the dispute is not resolved the Labor Council and the principal's representative shall be advised to enable them to assist in a resolution of the dispute. (6) Where the parties fail to resolve the dispute with the assistance of the Labor Council, it is agreed that a notification shall be made to the Industrial Relations Commission of New South Wales pursuant to the Industrial Relations Act 1996 for the express purpose of ensuring all avenues of conciliation and mediation are fully explored. (7) If the above process does not resolve the dispute either or both of the parties may refer the grievance to the Industrial Relations Commission of New South Wales for determination, whose determination shall be binding on the parties. (8) Work shall continue as normal while the dispute is being resolved. Neither party shall be prejudiced as to the final settlement by the continuance of work in accordance with this Clause. In the event that any dispute appears likely to remain unresolved or industrial action or blatant breaches of the Award by either party are likely to negate the intent of the Disputes Procedure, which of itself places in jeopardy the continuance of the parties desire to participate in the Award, nothing in this Clause shall restrict a Union or the employer referring the matter to the Industrial Relations Commission of New South Wales or from that body exercising its statutory powers. 14 The relevant provisions of the award subject to dispute in these proceedings are found in cl 22, Living Away - Distant Work, in the following terms: (1) Entitlement The employer shall provided a distant worker with reasonable board and lodging at no cost to the employee or pay the living away from home allowance contained in the contractor's parent Award when employed on the construction site at such distance from the employee's usual place of residence that the employee cannot reasonably return each night. It shall be considered impractical where the distance travelled exceeds 100km (by the shortest practical route) from the project to the usual place of residence. An employee who works until or beyond 6pm (E.S.T) or (7pm Daylight Saving Time) and who resides between 50km and 100km shall be provided with reasonable board and lodging (or 1/7th of the L.A.F.H.A) for those days. The employer shall provide an itinerant worker acceptable board and lodging at reasonable cost - (caravan allowance of $140.00 per week or $20.00 per day or the cost of the caravan site whichever is the greater). (2) Procedure The employer shall advise applicants for employment of their entitlement under this clause at the time of the interview. The employer shall determine whether the employee is correctly defined as a "distant worker", "itinerant worker" or "local worker". The appropriate definition shall be shown on the employer's records when the employee completes the "Usual Place of Residence Declaration" (Appendix C) made at the pre employment interview. An employer shall not, under any circumstances, attempt to persuade or induce applicants for employment to provide a local address as the usual place of residence in an effort to avoid the employer's obligations under this clause. (3) Disputes Disputes, arising from application of this clause will be subject to resolution in accordance with Clause 20 Disputes Procedure of this Award. In the event of a dispute all relevant documentation will be made available to the Tribunal dealing with this matter. (4) Definitions "Distant Worker" means an employee who has provided satisfactory evidence that due to engagement on the construction site he/she is unable to reasonably return home each night. "Itinerant Worker" means an employee with no fixed address. "Local Worker" means an employee whose usual place of residence is within the local area, and where subclause (1) does not apply. "Usual place of Residence" The employer shall obtain, and the applicant for employment shall provide a statement in writing of residence, at the time of engagement, provided that documentary evidence of the applicant's usual place of residence, such as a motor driver's licence may be provided and accepted in lieu of the statement in writing. The employee's usual place of residence and not the place of employment shall determine the applicability of this clause. An employee shall notify the employer in writing of any subsequent change to his usual place of residence. No subsequent change to an employee's usual place of residence shall entitle an employee to the provisions of this Clause, unless the employer agrees. "Reasonable Board and Lodging" means lodging in a well kept establishment with three adequate meals per day, adequate furnishings, good lighting and heating, hot and cold running water, in a single or twin room if a single room is unavailable. "Living Away From Home Allowance," means an allowance payable weekly. Such allowance shall not be wages, provided that in the case of broken parts of a week occurring at the beginning or end of employment, the allowance shall be divisible by seven (7). Provided further, that if the employee satisfies the employer that he/she reasonably incurred a greater outlay than any prescribed the allowance shall be increased to match the outlay. 15 Appendix C to the award is a declaration of usual place of residence in the following terms: I, Declare that my usual place of residence is (full address): Telephone Number: ( ) I understand that this Declaration determines, for the duration of my employment on the Mount Arthur North Project, my usual place of residence. Signed: Dated: Witness: Dated: 16 The argument advanced by the union is that John Holland are in breach of cl 22.2, para 3 in that they persuaded or induced applicants for employment to provide a local address as a usual place of residence in an effort to avoid their obligations under the clause. 17 Particular evidence is brought in support of this contention from each of the employees concerned. Mr John Dyke 18 The evidence of Mr John Dyke is that he was working on the Kooragang Coal Loader Stage 3 Expansion Project when he was informed, towards the end of that job, that there was a "big job" at Mount Arthur North and that he should contact Mr Mouton. Mr Dyke deposed that this information came from a supervisor of a contractor working on the Kooragang project which also had work at Mount Arthur North. 19 Mr John Dyke deposed that he made several telephone calls to Mr Mouton who undertook to call him back but did not do so. Mr Dyke deposed that ultimately he was told in a telephone call to Mr Mouton that he needed a local address to gain employment. 20 In cross examination Mr Patch put that Mr Mouton had not told Mr Dyke that he would need a local address, putting that Mr Mouton's response was to the effect that "they were looking for locals". Mr Dyke emphatically denied this version of events. 21 Mr Dyke's evidence is that he then obtained an application for employment form from John Holland's Singleton office and completed it with a Muswellbrook address. 22 Subsequent to the filing of this application Mr Dyke received a message to attend an interview with Mario Botticchio with whom he had a brief conversation in John Holland's site office covering his construction experience, and was then referred to the Pipework Supervisor. It was Mr Dyke's evidence that at no time during the course of these interviews was the living away from home allowance mentioned. 23 Mr Dyke commenced employment on 3 January 2002 and was subject to a site induction undertaken by a Mr Peter Irwin. Mr Dyke's evidence is that the substance of this induction was safety and site rules. 24 Mr Dyke's evidence is that a few days after he commenced work on 3 January 2002 there was a further "full" induction in the offices of SKM. Mr Dyke was adamant that there was no reference to the Distant Worker provision of the award by any person in the interview or induction process. 25 The address used by Mr Dyke on his application form and the Appendix C declaration is 64 Aberdeen Road, Muswellbrook, which he deposed is the residence of a friend of his sister. Mr Dyke deposed that he had never been to this address and that he had met his sister's friend only twice. Mr Dyke's evidence is that he had telephoned to obtain approval to use that address for the purpose of securing employment on the project for himself and his brother, Mr Michael Dyke. 26 Exhibit 4 is a statement provided by Mr John Dyke. Exhibit 5 is an application form and other documents from the personnel file held by John Holland in respect to Mr Dyke. Contained in the exhibits are a PAYE payment summary prepared by John Holland, an ACIRT (CBUS) member's statement, CFMEU membership card, correspondence from Centrelink, a letter from John Holland to Mr Dyke of 9 August 2002 providing Building and Construction Industry Long Service Leave Certificate of Service for 2001/2002, all addressed to Mr Dyke at 25 Platt Street, Waratah (a suburb of Newcastle in excess of 100 kms from the site). The Application for Employment form, a pre-placement medical report, the Declaration of Usual Place of Residence, and a Tax File Number Declaration show the address of 64 Aberdeen Road, Muswellbrook, and are dated 2 January 2002 with the exception of the pre-placement medical report which does not record a date. 27 Mr Dyke's evidence is that he did not receive a copy of the award until after the commencement of the instant dispute. Mr Michael Dyke 28 Mr Michael Dyke's evidence is that he was informed by his brother, Mr John Dyke, of the availability of work on the project, who said: "if we had a Muswellbrook address, that it was going to be easier for us to get a quicker start". Mr Dyke's evidence is that he completed an application form and gave it to his brother who took it to the John Holland office for him. 29 Subsequent to the filing of this application Mr Michael Dyke received a message to attend an interview with Mario Botticchio with whom he had a brief conversation covering his construction experience, and was then referred to the Pipeworks Supervisor. It was Mr Dyke's evidence that at no time during the course of these interviews, which took place on 3 January 2002, was the living away from home allowance mentioned. 30 Mr Dyke's evidence is that at the time of his interview with Mr Botticchio he was employed as a contract supervisor at Rylstone Council, a position which required him to give notice of ceasing employment. Mr Dyke maintained telephone contact with the Pipeworks Supervisor concerning arrangements for a medical examination, which took place on 16 January 2002, and commencement date for employment. 31 Mr Dyke's evidence is that he commenced employment on 28 or 29 January 2002 and underwent a site induction conducted by SKM, followed by a company specific induction conducted by a Mr Peter Irwin. Mr Dyke's evidence is that a major portion of his induction was taken up with occupational health and safety matters, with the remainder concerned with site facilities. Mr Dyke's evidence is that no mention of the award was made during the induction process. 32 During the course of the John Holland induction Mr Dyke was required to provide his driver's license as proof of ability to drive vehicles, together with his "green card", an Occupational Health & Safety Certificate, and other pertinent documents. The driver's licence reveals Mr Dyke's address as Lot 137 Bayway Village, Fullerton Cove (a suburb of Newcastle in excess of 100km from the site). Mr Dyke's evidence is that Mr Irwin took these documents to the John Holland site office for photocopying purposes. 33 Mr Dyke's evidence is that the address provided by him to John Holland on his Declaration of Usual Place of Residence was the same as that used by his brother, John Dyke, i.e. 64 Aberdeen Road, Muswellbrook. Mr Dyke's evidence is that the declaration was forwarded to John Holland together with his resume prior to interview. Mr Dyke deposed that he also had never been to this address. 34 The address used by Mr Dyke on his application form is Site 33 Riverside Caravan Park, Muswellbrook. Mr Dyke's evidence is that he obtained this accommodation on the day he commenced employment on the project. 35 Exhibit 6 is a statement provided by Mr Michael Dyke. Exhibit 7 is an application form and other documents from the personnel file held by John Holland in respect to Mr Michael Dyke. Contained in the exhibits are various pieces of correspondence from insurance companies, banks and an accountant addressed to Mr Dyke at 137 Bayway Village, Fullerton Cove; and Mr Dyke's Application for Employment form, a pre-placement medical report, and a Tax File Declaration, all showing the address of Site 33, Riverside Caravan Park Muswellbrook, all dated 30 January 2002. 36 Mr Dyke's evidence is that he did not receive a copy of the award until after the commencement of the instant dispute. 37 In cross examination Mr Patch put that Mr Dyke was never informed by John Holland that a local address was required to secure employment on the project. It was Mr Dyke's position that he was led by his brother to that understanding and that "he doesn't have a reason to lie to me." Mr Christopher Cielo 38 It is Mr Cielo's evidence that for some 18 years his place of residence has been the family property, "Brentleigh Park", at Chinchilla in Queensland, which he has returned to between engagements on construction work throughout Australia. 39 Mr Cielo's evidence is that he became acquainted with a Mr Marcus De Miranda who had moved onto a neighbouring property while working with John Holland as a storeman on a road construction project in that area. Mr Cielo's evidence is that he was informed by Mr De Miranda of the Mount Arthur North project and the availability of employment on the project, putting that Mr De Miranda advised him: "They're only employing locals". 40 Mr Cielo's evidence is that prior to his interview he sought assistance in completing a resume from a consultant in Dalby, Queensland and that he forwarded the resume by facsimile from Queensland, putting that Mr Botticchio referred to that resume during the interview. 41 Mr Cielo's evidence is that he then travelled to Aberdeen (a town in close proximity to the project), where he booked into the Commercial Hotel on 29 January 2002 and obtained a post office box for the purpose of establishing a local address. Mr Cielo's evidence is that Mr De Miranda, who was also residing at the Commercial Hotel, provided him with an employment application form, which he completed and returned to Mr De Miranda for delivery to John Holland. Mr Cielo's evidence is that this application form was returned to him as it recorded his address as "Brentleigh Park", Chinchilla, putting that he was advised to record a local address, which he did, using liquid paper to white out the "Brentleigh Park" address and inserting his brother's address at Scone. 42 Mr Cielo's evidence is that on attendance for an interview with Mario Botticchio, he was advised to complete a fresh application form with the Scone address recorded as his place of residence. 43 Mr Cielo's evidence is that he attended a medical examination on 6 February 2002 and commenced employment on 8 February 2002 following a brief induction carried out by Mr Peter Irwin. 44 Exhibit 8 contains documents relating to Mr Cielo's employment, inclusive of the Appendix C Declaration of Usual Place of Residence, which records his address as Aberdeen Hotel; a wages employment application which records his address as "C/o Com Hotel Aberdeen"; a wages employment details form and Tax File Number Declaration, which record the address P O Box 98, Aberdeen. Also contained within exhibit 8 is a photocopy of Mr Cielo's driver's licence which records his address as Anthill Hotel, Byrnes St, Mareeba 4880; and a vehicle registration renewal notice addressed to Mr Cielo at Brentleigh Park, Chinchilla, Queensland. 45 In response to Mr Patch's cross examination concerning the requirement for provision of a local address, Mr Cielo was firm in his assertion that this requirement was made clear to him by both Mr De Miranda and Mr Botticchio. 46 Mr Cielo's evidence is that he did not receive a copy of the award until after the commencement of the instant dispute. Mr Paul McCarthy 47 The evidence of Mr McCarthy is that at the time he became aware of available employment on the project he was residing and working in the Gold Coast region in Queensland. Mr McCarthy's evidence is that he is a qualified tradesman (carpenter) but was at the time working as a bar attendant. In examination in chief Mr McCarthy gave his residential address as 41 Ridgevale Drive, Helensvale, Queensland. 48 Mr McCarthy's evidence is that his father, who was employed by Muswellbrook Cranes, contacted him by telephone to advise of employment opportunities. Mr McCarthy's evidence is that his father informed him that he should ring "Mario" and provided him with a mobile telephone number for that purpose. Mr McCarthy's evidence is that he immediately telephoned "Mario", who acknowledged that there was work available, informing him that he must attend for an interview. It is Mr McCarthy's evidence that early in the conversation "Mario" requested his telephone number, advising that he would call him straight back, so as to save Mr McCarthy the cost of the telephone call. Mr McCarthy's evidence is that he provided his telephone number, which commenced with the 07 area code, and within a couple of minutes Mario called him back. 49 Mr McCarthy's evidence is that some few days later he attended an interview with Mario Botticchio at the John Holland site office which took some ten minutes, at which time he was provided with paperwork to fill out. Mr McCarthy's evidence is that Mario instructed: "You must put a local address, or else we can't give you a job". Mr McCarthy's evidence is that he provided his father's address, 47 Ruth White Avenue, Muswellbrook, as his place of residence. 50 Mr McCarthy's evidence is that he commenced employment on the project on 25 February 2002 at which time he attended a safety induction conducted by Mr Garry Mills, which dealt mainly with safety issues and lasted some three hours. Mr McCarthy's evidence is that there was also a John Holland induction, however this lasted only a couple of minutes. 51 Mr McCarthy's evidence is that at the time he commenced employment he did not hold a "green card", this being a requirement pursuant to New South Wales legislation, and that John Holland arranged for him to attend the necessary course to obtain his "green card". 52 Exhibit 9 is the personnel file held by John Holland in respect to Mr McCarthy. Contained therein are Mr McCarthy's pre-placement medical report, Tax File Number Declaration, Wages Employment Application, and Wages Employment Details, all bearing the address of 47 Ruth White Avenue, Muswellbrook. 53 Exhibit 10 is a copy of Mr McCarthy's Declaration of Usual Place of Residence, dated 3 March 2002, recording his address as 47 Ruth White Avenue, Muswellbrook. 54 Exhibit 11 is a statement provided by Mr McCarthy. Amongst the documents contained therein are a photocopy of Mr McCarthy's driver's licence, a vehicle registration renewal notice, bank statements, an electoral enrolment advice and other correspondence addressed to Mr McCarthy at 41 Ridgevale Avenue, Helensvale, Queensland. 55 At the time of commencement of employment Mr McCarthy advised John Holland of a Western Australian bank account for the purpose of payment of wages. Mr McCarthy's evidence is that he had opened this account whilst working in Western Australia and had continued with it. The account was subsequently replaced by a Muswellbrook account well after commencement of employment. 56 Mr McCarthy's evidence is that he did not receive a copy of the award until after the commencement of the instant dispute. 57 In response to Mr Patch's suggestion during cross examination that it was Mr McCarthy's father who advised that he would not be employed on the project unless he had a local address, Mr McCarthy reiterated that he was informed by Mario Botticchio on at least three occasions, during the initial telephone contact and at interview, that he would need to provide a local address. Mr Allan Hartigan 58 It is Mr Hartigan's evidence that in December 2001 he was advised by a friend, Mr Ian Goldsworthy, of employment opportunities at Mount Arthur North. Mr Hartigan's evidence is that his place of residence was 63 New England Highway, Campbells Hill, a suburb of Maitland, approximately 100 kms from the project. At the time, Mr Hartigan was self-employed as a builder and plumber. 59 Mr Hartigan's evidence is that he telephoned Mr Botticchio and an appointment was made for an interview to take place. Mr Hartigan's evidence is that during the interview he provided Mr Botticchio with a copy of his resume and a discussion took place about Mr Hartigan's place of residence, Mr Hartigan alleging that Mr Botticchio advised that he would not be employed unless he had a local address. 60 Mr Hartigan's evidence is that he attended a pre-placement medical examination on 13 February 2002 and was to commence work the following Friday. His evidence is that on the evening prior to starting employment he was advised that he would not be employed. Mr Hartigan's evidence is that following intervention on his behalf by Mr Lawler of the CFMEU, he was subject to a further interview conducted by a Mr Ross Howton and a second medical examination which took place on 9 March 2002 and commenced employment on the following day. 61 Documents contained within the personnel file held by John Holland in respect to Mr Hartigan (Ex 13) record Mr Hartigan's starting date as 4 March 2002, which appears to be the same date as the second interview with Mr Howton. 62 There is an inconsistency between the dates proffered by Mr Hartigan in his evidence and those recorded by John Holland in the documentation provided. This is immaterial to the issues to be decided in this matter. There is no evidence to assist in determination as to whether inconsistencies arose from a faulty recollection by Mr Hartigan or systemic failure within the recruitment practices employed by John Holland. 63 Mr Hartigan's evidence is that prior to commencing work he arranged accommodation at Country Acres Caravan Park, Singleton. 64 Mr Hartigan's evidence is that he attended two inductions on his first day of employment, the first taking place in a site office, primarily concerned with occupational health and safety and environmental matters; the second induction, conducted by Mr Peter Irwin, taking place in the first aid room. 65 Exhibit 12 is a statement provided by Mr Hartigan containing therein correspondence from John Holland addressed to Mr Hartigan, his Contractor Licence, telephone and gas bills and Wages Employment Application (undated), all bearing the address 63 New England Highway, Campbells Hill (Maitland). Also contained therein are Mr Hartigan's Declaration of Usual Place of Residence (dated 4 March 2002), bearing the address Caravan Park, Masion Dieu Road, Singleton, and Tax File Number Declaration (dated 9 March 2002) bearing the address Country Acres Caravan Park, Singleton. 66 Amongst the contents of Exhibit 13 are Mr Hartigan's C-BUS application, Wages Employment Application (dated 9 March 2002), Wages Employment Details (dated 9 March 2002), and two pre-placement medical reports, one dated 9 March 2002 and the other dated 13 February 2002. These documents all bear the address of 63 New England Highway, Campbells Hill (Maitland). 67 In response to Mr Patch's cross examination concerning the requirement for provision of a local address, Mr Hartigan reiterated the evidence given during examination in chief that this requirement was made clear to him by Mr Botticchio during his initial interview. 68 Mr Hartigan's evidence is that he did not receive a copy of the award until after the commencement of the instant dispute. Mr Justin Squires 69 The evidence of Mr Squires is that he was working as a boilermaker in Singleton when a friend, a Mr Borle, employed on the project advised him of the availability of employment. Mr Squires' evidence is that Mr Borle obtained an application form for him, which he completed, using Mr Borle's address, 10 Beech Street, Muswellbrook, on advice from Mr Borle that it would be in his best interests to provide a local address. Mr Borle returned the form to John Holland, Mr Botticchio subsequently contacting Mr Squires by telephone to arrange an interview. 70 Mr Squires' evidence is that he attended the site on the following Saturday and that an interview of some twenty minutes duration took place between himself and Mr Botticchio in the car park. Mr Squires' evidence is that he provided Mr Botticchio with his resume, was briefly questioned, and advised that he should await a telephone call to confirm his employment. Mr Squires' evidence is that his resume does not show a residential address, only a mobile telephone number, as for over ten years he has travelled from place to place following the construction industry, picking up temporary accommodation in the location of employment. 71 Mr Squires' evidence is that he subsequently received a telephone call advising of the success of his application and requesting he attend for induction. His evidence is that he attended an SKM induction followed by a John Holland induction, at the conclusion of which he commenced employment. 72 Exhibit 14 is the personnel file held by John Holland in respect to Mr Squires. Contained therein are Mr Squires' resume, which does not record any address, Cbus Membership Application (dated 28 November 2002), Tax File Number Declaration (dated 18 March 2002), Authority for Payroll Deduction of union fees, Wages Employment Application, and Wages Employment Details, all bearing the address of Riverside Caravan Park, Muswellbrook. Ex 14 further contains a photocopy of Mr Squires' heavy vehicle drivers licence issued by Queensland Transport, which records his address as Millmerran Caravan Park, 89 Campbell St, Millmerran (Qld); and a pre-placement medical report (dated 14 March 2002) which records Mr Squires' address as 10 Beech St, Muswellbrook. 73 Exhibit 15 is a statement provided by Mr Squires. Amongst the documents contained therein is a copy of Mr Squires' Declaration of Usual Place of Residence, dated 18 March 2002, recording his address as Riverside Van Park. 74 In cross examination by Mr Patch, Mr Squires agreed that the information that John Holland was only employing persons with a local address was provided to him by his friend, Mr Borle, putting that: "… it was said at the interview at the top of the hill it was good to see that I've got a local address". 75 Mr Squires evidence is that he became aware in November 2002 of the entitlements and allowances provided under the Award. Mr Ian Goldsworthy 76 The evidence of Mr Goldsworthy is that prior to commencing employment at Mount Arthur North, he was engaged on the Kooragang Coal Loader Expansion Project. He became aware of employment opportunities on the project through word of mouth and at the completion of the Coal Loader project he drove to the Mount Arthur North project site and requested an interview with John Holland's site manager. Mr Goldsworthy's evidence is that he met with Mario Botticchio, who requested that Mr Goldsworthy leave his resume and call back in early January as it was approaching Christmas. 77 Mr Goldsworthy's evidence is that he telephoned Mr Botticchio on 3 January 2002 and arranged to attend the site that afternoon for an interview. Mr Goldsworthy's evidence is that the interview was successful and he was informed to return on Monday for induction. His evidence is that at the conclusion of the interview some discussion took place concerning his place of residence wherein he indicated that he preferred to travel each day to his residence in Maitland, however if necessary could obtain a Post Office Box in the local area. Mr Goldsworthy's evidence is that he was instructed by Mr Botticchio to obtain a local address. Mr Goldsworthy's evidence is that on the way back to Maitland following the interview he booked into a caravan park in Singleton. 78 Mr Goldsworthy's evidence is that he commenced employment on the project on 7 January 2002. 79 Exhibit 16 is a statement provided by Mr Goldsworthy. Amongst the documents therein are his Declaration of Usual Place of Residence, dated 7 January 2002, recording his address as "Country Acres C/Park, Maison Dieu Road, Singleton"; Tax File Number Declaration (dated 9 January 2002), Wages Employment Application, and Wages Employment Details, all bearing the address of Country Acres Caravan Park. Ex 16 also contains correspondence concerning motor vehicle registration and insurance and a receipt for purchase of a motor vehicle (dated 5 February 2002) addressed to Mr Goldsworthy at 14 Ryan Street, Rutherford. 80 Exhibit 17 is the personnel file held by John Holland in respect to Mr Goldsworthy. Amongst the documents contained therein is a copy of Mr Goldsworthy's pre-placement medical report (dated 14 January 2002), on which Mr Goldsworthy's address appears as Country Acres Caravan Park, Singleton; and a further Tax File Number Declaration (dated 1 May 2002), bearing the address 14 Ryan Street, Rutherford. 81 Mr Goldsworthy's evidence is that on attendance at Mount Arthur North on 7 January 2002 he firstly underwent a lengthy BHP Billiton induction, followed by the John Holland induction conducted in the site First Aid Room by Peter Irwin. Mr Goldsworthy's evidence is that during this induction he completed the required paperwork, including the Declaration of Usual Place of Residence. 82 In response to Mr Patch's cross examination concerning the requirement for provision of a local address, Mr Goldsworthy was unmoved from the evidence given during examination in chief that this requirement was made clear to him by Mr Botticchio during the interview process, reiterating that his offer to obtain a Post Office Box in the local area as a compromise was rejected. Mr Timothy Nelson 83 The evidence of Mr Nelson is that in late 2001 he forwarded an application form for employment at Mount Arthur North to John Holland's Singleton Office but received no reply. 84 Mr Nelson's evidence is that some time after that event he was contacted by a friend, Mr Brendan Amos, employed by John Holland on the project, who advised that John Holland was seeking skilled labour for the project and that Mr Nelson should apply. Mr Nelson's evidence is that at this time he was employed in Sydney as a carpenter but was looking for other employment. 85 It is appropriate to note at this point that Mr Nelson was nominated by Mr Amos as a previous employer in his successful application for employment at Mount Arthur North. 86 Mr Nelson's evidence is that Mr Amos obtained an application form for him, which he completed, using a Muswellbrook address, and returned to Mr Amos who delivered it to Mr Botticchio. Mr Nelson's evidence is that Mr Botticchio telephoned him on the same day he received Mr Nelson's application form to arrange an interview. Mr Nelson's evidence is that he advised Mr Botticchio that he lived on the Central Coast and was working in Sydney so would not be able to attend an interview till around 6.00 or 6.30 pm, to which Mr Botticchio agreed, the interview taking place at approximately 6.15pm on that same day. 87 Mr Nelson's evidence is that he had never visited 58 Humphrey Street Muswellbrook, the address he put on his application form as his place of residence. Mr Nelson's evidence is that this was the same address used by Brendan Amos on his job application and that Mr Amos had indicated to him that without a local address he would not get an interview. 88 Mr Nelson's evidence is that same week of his interview with Mr Botticchio he attended a medical examination and was subsequently employed by John Holland. 89 Mr Nelson's evidence is that he commenced work on 11 March 2002 at which time he attended an induction conducted by SKM which lasted approximately three hours, followed by a John Holland induction which was conducted by Mr Matt Carew, a foreman with John Holland. It is Mr Nelson's evidence that there were two other new employees also present at the induction, and that during the course of the induction their driver's licences and other relevant documents were taken to the site office to be photocopied. 90 It is Mr Nelson's evidence that at the time of his interview and up until September 2002 his residential address was 62A Chittaway Road, Chittaway Bay, a suburb located on the Central Coast. 91 Exhibit 20 is the statement filed on behalf of Mr Nelson, including a photocopy of his driver's licence, correspondence to Mr Nelson concerning motor vehicle insurance and registration, and bank statements all advanced to Mr Nelson at 62A Chittaway Road, Chittaway Bay. Also contained within exhibit 20 is a copy of Mr Nelson's Declaration of Usual Place of Residence, wages employment details and Tax File Number Declaration, all of which record Mr Nelson's address as 58 Humphery Street, Muswellbrook. Further to the above documents, exhibit 20 contains a copy of Mr Nelson's wages employment application on which the address of 58 Humphery Street Muswellbrook has been crossed out and the address 36 Wallarah Road, New Lambton recorded. It is Mr Nelson's evidence that he had become concerned that mail sent to 58 Humphery Street would not find him and had substituted the address at New Lambton as this was his normal postal address. Mr Brendan Amos 92 The evidence of Mr Amos is that he forwarded an application form for employment at Mount Arthur North to John Holland's Singleton Office but received no reply. 93 Mr Amos' evidence is that some time after that event a former work colleague, Mr Sean Cook, who had commenced employment with John Holland on the project, advised him that he had arranged an interview for him with Mario Botticchio. At the time Mr Amos was working for a Surveyors' firm in Newcastle. 94 Mr Amos' evidence is that he cannot recall the date, however he attended the project site in the company of two other persons, Mr Alex Todd and a person he knew as Declan. Mr Amos' evidence is that the interview was conducted by Mario Botticchio in the car park during which a brief description of the project and site was given. Mr Amos' evidence is that at the time Mr Botticchio addressed a question to the three men in general concerning their place of residence, to which "Declan" replied: "We're from Newcastle". Mr Amos' evidence is that Mr Botticchio then advised that a local address was required for employment by John Hollands on the site. Mr Amos' evidence is that he commenced employment on the project approximately one to two weeks after the interview and that Mr Todd the week following. 95 Mr Amos' evidence is that he commenced work on 22 February 2002 at which time he attended an induction conducted by SKM, followed by a John Holland induction which was conducted by the John Holland "safety man". It is Mr Amos' evidence that there were three other new employees also present at the induction, and that during the course of the induction his driver's licence and Workcover ticket were photocopied. 96 It is Mr Amos' evidence that at the time of his interview his residential address was 17 Kirkdale Drive, Kotara South, a suburb of Newcastle some 150 kms from the Mount Arthur North site. 97 Mr Amos' evidence is that whilst working on the project he obtained accommodation at Pinaroo Leisure Park, New England Highway, Muswellbrook, which he shared with Timothy Nelson, however travelled two or three nights during the week to his residence in Newcastle, where he also spent weekends. 98 Exhibit 22 is the statement filed on behalf of Mr Amos, including a photocopy of his driver's licence, correspondence to Mr Amos concerning home contents' insurance, an Australian Tax Office Notice of Assessment (year ending 30 June 2002) and electricity and telephone bills, all addressed to Mr Amos at 17 Kirkdale Drive, Kotara South. Also contained within exhibit 22 is a copy of Mr Amos' Declaration of Usual Place of Residence, wages employment details and Tax File Number Declaration, all of which record Mr Amos' address as 58 Humphery Street, Muswellbrook. Ex 22 further contains Mr Amos' Wages Employment Application on which the address of 58 Humphery Street, Muswellbrook has been crossed out and substituted with the address 51 Adam Street, Muswellbrook. Mr Amos' evidence is that he had never visited the Humphery Street address however knew it as the residence of Sean Cook's brother and the place of residence for Mr Cook whilst he was working on the project. It is Mr Amos' evidence that he had become concerned that mail sent to 58 Humphery Street would not find him and had advised in June of a change of address to 51 Adams Street, Muswellbrook, the residence occupied by Alex Todd whilst he was working on the project. 99 Exhibit 23 is the personnel file held by John Holland in respect to Mr Amos. Among the documents contained therein are two Tax File Number Declarations; one bears the date 22 February 2002 and the address of 58 Humphery Street, Muswellbrook, the second is date 8 November 2002 and records Mr Amos' address as 17 Kirkdale Drive, Kotara South. 100 In cross examination Mr Patch went to the interview conducted by Mr Botticchio, putting that there was no discussion of place of residence. Mr Amos' reiterated his evidence that Mr Botticchio directed the enquiry "Where are you from?" to those present as a general question. RESPONDENT'S WITNESSES Mr Garry Mills 101 The evidence of Mr Mills is that in his position of Safety Manager employed by SKM he is (among other things) responsible for site induction training for all new employees including those of contractors and sub-contractors. 102 Mr Mills deposed that: "In the course of the induction training each employee is given a copy of the Mount Arthur North Consent Award 2001, its provisions are explained to them and they are given the opportunity to ask questions." 103 In cross examination Mr Mills conceded that from August to December 2001 he under took all inductions himself, subsequently co-ordinating and supervising the conduct of inductions by a sub-contractor identified as a Mr Peter Biggs until June of 2002 when the process was passed to another provider. 104 Mr Mills deposed that all employees inducted from late January 2002 were provided with a copy of the award, a copy of which was tendered (Ex 3), and prior to this a one page summary which he conceded made no reference to living away from home allowances. 105 Mr Mills' evidence is that an estimate was made of the number of employees on site prior to late January 2002 and copies of the award were sent to contractors and sub-contractors in sufficient number to distribute. Mr Mills had no knowledge of actual distribution. Mr Mills deposed that he put 130 copies of the award in the on-site mailing system for John Holland and that some 2,500 copies of the award were distributed throughout the site and in the course of inductions. 106 Mr Mills confirmed that the one page summary continued to be used at the inductions in which the award booklet was provided. Mr Phillip Mouton 107 Mr Mouton has been employed by John Holland for some 15 years. 108 Mr Mouton's evidence is that on winning the first package of work in September 2001, preparations for the project commenced at the Singleton office. Mr Mouton deposed that site establishment and the move from Singleton to the site was completed by late October 2001. 109 Mr Mouton's evidence is that site work commenced with two long term employees transferred from the Sydney office and as demand grew for more employees on site he made an assessment that the demand should be met from the local area as the work involved did not require specialists but form workers and labourers. 110 Mr Mouton deposed that he formed the view that there were many advantages to having a local workforce, including a negative cost benefit compared to bringing workers from outside the local area, the goodwill achieved by providing employment opportunities in the local community, higher reliability, higher flexibility, and less fatigue arising from minimised travel requirements to attend work or to be with family. 111 Mr Mouton's evidence is that there was no requirement to advertise for labour as "word of mouth" resulted in a steady flow of applications. 112 Mr Mouton deposed at point 5 of his statement of evidence (Ex 25): "From the outset we made it clear to anyone enquiring about possible employment or to any of our workforce who were endeavouring to find work for their friends that we were looking to employ local people." 113 Mr Mouton deposed that he delegated the responsibility of employing all of the site workforce to the general superintendent, Mr Botticchio. Mr Mouton deposed that he informed Mr Botticchio of the policy of local recruitment and instructed him that he would have to consult Mr Mouton if the need arose to depart from that policy. Mr Mouton deposed that such consultation occurred on a limited number of occasions. 114 Mr Mouton's evidence is that at no stage did John Holland adopt a policy to influence employees to give a false address, nor is he aware of such an occurrence. 115 Mr Mouton deposed that following an offer of employment, successful applicants were sent to a site induction conducted by SKM, subsequent to which the prospective employee was required to complete what he described as "the John Holland paperwork", including the Declaration of Usual Place of Residence, before employment was finalised. 116 During cross examination Mr Mouton acknowledged that John Holland employs human resource professionals, putting that these persons did not get involved in site employment, which is the responsibility of the direct project management. 117 Mr Mouton described the Declaration of Usual Place of Residence as a "client's form", conceding that the requirements of the award were not met. Mr Mouton's evidence in this regard is found at pp509 and 510 of transcript in the following terms: SULLIVAN: Q: I want to take you to the first paragraph which says the employer shall advise applicants for employment of their entitlements under this clause at the time of interview. Did you ever give a direction that people should be told of their entitlement at the time of the interview, if they were living away from home? MOUTON: A: If they were living away from home? Q: If they were employed on your job--- A: And living away from home? Q: And living away from home. Did you ever give any person a direction to advise people at the time of interview? A: No, because it didn't come up. Q: The second paragraph, it says the employer: "The employer shall determine whether the employee is correctly defined as a distant worker, itinerant worker or local worker. The appropriate definition should be shown on the employer's records when the employee completes the Usual Place of Residence Declaration", which is at Appendix 4 of this award that you've mentioned, "made at the pre-employment interview." Did you ever give any direction to any person that the usual place of residence declaration should be made at the pre-employment interview? A: We departed from that slightly. We - that was because we already had their application - that the declarations were made out during the induction. Q: Right, is there any particular reason why you departed from the award, in respect of --- ? A: We didn't - I guess - see any import into it - they were filling out the John Holland application which was the standard way we employed people, and this was a client thing that they wanted done, so we - we did it at the time of induction. Q: Can I suggest to you Mr Mouton, that there is a standard way of employing people under the Mt Arthur North consent award in respect of declarations of usual place of residence, and that is contained in the award in the section that I just read out to you, which says that the usual place of residence declaration must be made at the pre-employment interview. That is the standard way of employing people under this award Mr Mouton, I put it to you. A: Yes. 118 With specific reference to the statement of John Dyke, Mr Mouton confirmed that he recalled several telephone conversations with Mr Dyke, putting that on at least one occasion, possibly more, he had informed Mr Dyke that "we look for local people" or words to that effect. Mr Mouton's evidence is that he did not pursue Mr Dyk'es application as at the time there were no vacancies. 119 Mr Mouton's evidence is that he subsequently delegated all employment to Mr Botticchio and that Mr Dyke came to Mr Botticchio as a candidate and was subject to assessment and subsequent employment. Mr Mario Botticchio 120 Mr Botticchio's evidence confirmed and supported that of Mr Mouton in respect to delegation and responsibility for employment. Mr Botticchio deposed that there was a steady stream of people approaching John Holland for employment, usually through friends, and at no time had they advertised for labour. 121 Mr Botticchio's evidence is that with the benefit of hindsight, had he been aware from the outset of the eventual growth in work and need for employees, he would have advertised State wide, which would have broadened the selection. Mr Botticchio conceded that this would have most likely involved payment of living away from home allowances, however, opened recruitment to a more experienced pool. 122 Mr Botticchio's evidence is that he would usually have a recommendation from some person and as the work was not highly skilled or specialised, interviews, either by telephone or in person, were usually quite short, dealing with qualifications and availability of the applicant. 123 Mr Botticchio deposed that some people brought a completed application form with them to the interview and others completed the application form on site. At p421 of transcript, during evidence in chief, Mr Botticchio deposed: "We didn't have a really tight system - most of our employees used to fill in more than one set, like they would come in - like when they came to see me they fill in one, and then when they were actually employed, our lady in the office would make them fill the whole thing in again." 124 It is Mr Botticchio's evidence that at no stage had he attempted to influence anyone to give a false address, putting that most of those persons he interviewed were aware of the preference for locals. 125 Mr Botticchio's evidence is that some five employees were engaged as distant workers and paid as such. At para 2 of his statement of evidence (Ex 24) Mr Botticchio states: "…. The provisions of the Project Award in relation to Living Away From Home did not play any part in this discussion, and in fact were not part of my thinking at any time then or when I interviewed job applicants." 126 Mr Botticchio added at pp 415 and 416 of transcript that he never asked any applicant to disclose their residential address, putting that: "I myself am a very private person and I do not ask people any questions like that". 127 Mr Botticchio's approach is further described at pp 463 and 464 of transcript in the following terms: Q: All right. Could it be the case that - well, you said earlier that you're not a person in your interviews, who pries very much into people's private lives or where they live, and things like that - is that the case? A: That is correct. Q: So, when you say that somebody may have told you they come from Newcastle, or they may have told you, or you may have understood from some other place that they'd been working on Kooragang - it's not something that you would have pried further into. A: No. Q: All right. Thank you. A: Can I explain a little? Q: Yes, please. A: I got really upset when I first got up there myself, because I had to sign the Department of Immigration paper and later - and I didn't want to sign, because I never had that in Australia, and since then, on the job, I was really super aware of not asking people questions that belong to them, because I wasn't covered by the award therefore I shouldn't have had to sign the paper. Q: All right. So that was an attitude you took, based on that intrusion into your privacy. A: Yes, I really resent that sort of thing. Q: At the end of the day you were interested in hiring men and getting the job done? A: Hiring people, yes. Q: That was your main priority? A: Yes, but the idea of trying to help young people out, it's very high in my own priorities. … … Q: … and therefore you weren't familiar with the issues of living away from home allowance of the proper procedures and paper work that supposed to occur? A: That is correct. Q: Nobody told you about it? A: No. Q: Phil Mouton didn't tell you about it? A: No, I can't remember that I was told specifically. 128 Mr Botticchio's evidence is that on selection of an applicant for employment, arrangements were made for an SKM induction prior to finalisation of paperwork and subsequent to that applicants, then employees, would complete what he described as "the final paperwork, including the Declaration as to their usual address before they actually started". Mr Botticchio's evidence is that he did not take part in this process. 129 Mr Botticchio offered evidence in respect to each of the applicant in the following terms (Ex 24): Brendon Amos 8. Brendan was recommended to me by an existing employee, Sean Cook. He came in for an interview with Alex Todd. Both indicated that they knew of our policy of recruiting locally, saying words to the effect that "we know you want locals, we live locally". I do not agree that I said anything to the effect of "I do not want to know where you live". Chris Cielo 9. Generally I find nothing to disagree with in his statement. John Dyke 10. I cannot comment on the first three paragraphs of his statement, but I do not disagree with the remainder. The question of address never came up in any discussions I had with John. Michael Dyke 11. I do not disagree with the third paragraph, and cannot comment on the remainder. The question of address never came up in any discussions I had with Michael. lan Goldsworthy 12. I deny saying the things attributed to me. Ian was informed to the effect of "we have a policy of local employment". He said "Oh, no worries" and gave a local address, and I had no reason to question it. Alan Hartigan 14. When I first spoke to Alan via telephone he indicated to me to the effect that "I know you want locals". I had him come in for an interview anyway and among other things we discussed the reasons for preferring locals. He indicated that he understood saying something like "I'd relocate". I accepted his application with the Maitland address. Later, after he had done the site induction, and when I wasn't present, he gave his address as being at Singleton in the Declaration of Usual Place of Address. Paul McCarthy 15. Paul's father Ray was working for one of our subcontractors, Muswellbrook Cranes. He asked me for a job for Paul. I knew that Ray lived in Muswellbrook and assured Paul lived with him, or at least locally. I did not discuss Paul's address with Paul at all and had no reason to question the Muswellbrook address he gave me. I deny the last two sentences of paragraph 2 and all of paragraph 3 of his statement. Timothy Nelson 16. The first contact I had with Timothy was his application, which showed his address as being at Muswellbrook. I had no reason to question this, and he later gave the same address in his Declaration of Usual Place of Address. Justin Squires 17. Justin was employed on the recommendation of another worker, Aloysius Borle. I was informed that he was already working locally. I had no reason to question the address he gave on his application and later on his Declaration of Usual Place of Address and did not discuss the issue with him. 130 Mr Botticchio's evidence is that he has been involved in the construction industry from prior to 1969, though has limited experience outside major metropolitan areas, however, has experience in employment on some major construction projects, including the ski tube tunnel in the Snowy Mountains. 131 During cross examination Mr Botticchio conceded that he first became aware of the provisions of the award around the second quarter of 2002, subsequent to the employment of the applicants in these proceedings. At pp444 and 445 of transcript Mr Botticchio concedes that at the time he employed the applicants he was not aware of the award obligation to establish their usual place of residence at the pre-employment interview. 132 Mr Botticchio deposed that he had never worked out of the Singleton office, had never attended there, did not know its precise location and any applications for employment forwarded to that office were sent to him some time later. SUBMISSIONS 133 Ms Sullivan submits that the policy of recruitment of local labour was promulgated and applied in a manner which she describes as careless, amounting to an inducement to employees of the type specifically prohibited by the award. Ms Sullivan supports this submission by particular reference to John Holland's failure to have the Declaration of Usual Place of Residence completed at the pre-employment interview as required by the award. 134 Ms Sullivan submits that the evidence demonstrates objective carelessness and non-application of the award to the persons represented by her in these proceedings, amounting to a breach of the award which unfairly denied the applicants their entitlements pursuant to the award. 135 Mr Patch relies upon the written submissions filed on 27 November 2002 which acknowledge the policy of employing local people and drawing attention to the obligation to widely communicate that policy in the local community in order to attract job applicants. 136 In his written submissions Mr Patch relies upon the advantages of employing local people to support his argument that John Holland had no reason whatsoever to deliberately engage workers that it knew were not local. Mr Patch submits that the broader advantages of employing local personnel outweighed any minor economic benefit of avoiding the payment of living away from home allowance. 137 Mr Patch contends that for these reasons to act in the manner alleged in these proceedings would have been against the interest of the employer, and accordingly unlikely to have occurred. 138 Mr Patch contends that it is probable that some of the employees gave a false address in their Declaration of Usual Place of Residence not because they had been coerced by the employer, but that, knowing of the policy of hiring locals, they freely chose to give a false address without informing the employer that they were doing so to get a job. 139 Mr Patch contends that in those circumstances persons providing a false address disentitled themselves to payment of the living away from home allowance. 140 Mr Patch refutes the argument advanced by Ms Sullivan that John Holland, either deliberately or by way of negligence, pressured job applicants into giving a false address. 141 Mr Patch submits that the assertion that either Mr Botticchio or Mr Mouton told people to put a local address is not consistent, falling down, in his submission, on the basis of inconsistencies between witnesses and a failure by Ms Sullivan to put the proposition directly to Messrs Botticchio and Mouton as required by the rule in Browne v Dunne (1894) 6 R 67. 142 Mr Patch argues that the Declaration of Usual Place of Residence found in Appendix C of the award is not a mandatory requirement as it is found in an appendix, not the body of the Award; further submitting that the requirement pursuant to cl 22(4), Definition, found in the body of the award, requires a "statement in writing of residence at the time of engagement", which he puts is inconsistent with the notion of completion of the Declaration of Usual Place of Residence at the "pre-employment interview". Mr Patch argues that the practice adopted by John Holland, revealed in the evidence in these proceedings, complied with the requirement "at the time of engagement". 143 Mr Patch submits that where persons provided a local address no obligation arose pursuant to cl 22(2) of the award to inform them of entitlement under cl 22, Living away - distant work, and accordingly there could be no breach of that requirements. CONSIDERATION 144 This matter turns heavily upon the evidence of Messrs Botticchio and Mouton. Their evidence discloses that Mr Mouton, and others senior to him in the John Holland organisation, settled upon a policy of employment of local labour for the project unless exceptional circumstances or needs arose. This policy was not publicly advertised however, became well known in the construction industry. 145 Initially, written applications were taken at John Hollands' Singleton office. Applications with an address outside the locality of the project were set aside, those with a "local" address were filed separately for consideration. 146 Employment was delegated to Mr Botticchio, the General Site Superintendent. 147 Mr Mouton's evidence is that he informed Mr Botticchio of the preference for local employees but did not describe a procedure to support this policy. Mr Botticchio's evidence is that he had never visited John Holland's Singleton office. Mr Botticchio deposed that he was aware of the preference for local employees and so far as he could he observed that requirement. His evidence is that he was required to obtain approval from Mr Mouton to employ any non-locals. 148 Mr Botticchio deposed that he had not paid any particular attention to the Award until after the commencement of these proceedings and that it played no part in his recruitment decisions. 149 John Holland's contract at the project grew over the period from late 2001 to early 2003 from some $20 million to a figure in excess of $60 million. This had the effect of increasing the required workforce from some 20 to approximately 70 direct employees, plus 50 or so sub-contractors. 150 Mr Botticchio's evidence is that all labour needs were met by recommendation from existing employees. Mr Botticchio doubted whether he had reference to the written applications received at the Singleton office, putting that if he had seen them he had not relied upon them for recruitment. 151 Mr Botticchio deposed that his primary interest when recruiting was the experience, qualifications and ability of the candidate to undertake the work required. Mr Botticchio deposed that he put significant weight upon presentation and enthusiasm. He deposed that he was disposed to assist eager young people to give them opportunity and experience and to assist them to deal with personal challenges, which he put made for an harmonious and productive workforce. 152 Mr Botticchio deposed that he regarded enquiry into personal issues of residential address an invasion of privacy. He deposed that he was particularly sensitive to this issue as a matter of personal values and the fact that he had been greatly offended by the requirement that he personally complete an authority to Obtain From DIMA details of immigration status required by the Award. 153 I do not accept the argument advanced by Mr Patch which seeks to distinguish between the terms "pre-employment", "interview", and "at the time of engagement". 154 The award imposes a positive delegation upon the employer to determine residential status and categorise employees for entitlement to distant work provisions. 155 On the evidence I am compelled to the finding that the Award was not applied, it was ignored. 156 The Declaration of Usual Place of Residence is found in Appendix C of the award as an aid to implement the Award so as to avoid disputes such as this. 157 The onus is placed upon the employer to advise the applicants of their rights pursuant to the Award at the time of pre-employment interview. The interview is not the induction or the day they start work, "the interview" must be prior to employment. The onus is on the employer to determine the status of an employee at the "pre-employment interview". 158 The evidence of Mr Botticchio is that he did not consider or address this issue at the pre-employment interview conducted by him. 159 The question arises whether the employer attempted to persuade or induce applicants for employment to provide a local address. 160 The argument that there is no requirement to advise of entitlements where a local address is given is not sustainable. The employer must categorise employees as "distant worker", "itinerant", or "local" and advise accordingly. No procedure or practice of compliance with this provision is in evidence. 161 The employment procedures relied upon by the employer are properly described as haphazard and careless. No attempt was made to comply with the award. 162 An extempore decision was made at pp 554 and 555 of transcript on 7 March 2003 in the following terms: The evidence in this matter, from the applicants, is that each engaged in some form of subterfuge in respect to their usual place of residence or address. However, on the evidence before me I find that they were, in the terms of the award, persuaded or induced to do so by the promulgation of the policy by the company. The company put in place a policy of employment of locals, but no procedure to support it. The evidence of Mr Botticchio and the evidence of Mr Mouton reveals that in the actual engagement the award was not consulted. That the usual place of residence form was regarded as something to satisfy the client and done as an afterthought. In each of the subterfuges put forward by the employees there was surrounding it sufficient information and evidence for anyone who wanted to look to reveal that their usual place of residence was not that disclosed on the form completed at the requirement of the company, most usually at the induction after employment, bringing down any defence that the company may have to this application. I generally find in favour of the argument put forward by the CFMEU, in particular Mr Justin Squires, on his evidence and that of the company he could not be categorised as any other form than an itinerant worker and his categorisation as such, would entitle him to payment. I will deliver a detailed and reasoned judgment in full in due course, but generally I find in favour of the submissions advanced by Ms Sullivan. I determine that the applicants brought in these proceedings do qualify as distant workers under this award and should be paid living away from home allowance in accordance thereto. 163 I have considered the evidence in this matter and, on the basis of the facts adduced, the following categorisation is determined pursuant to clause 22 of the award in the following terms: John Dyke - Distant worker Michael Dyke - Distant worker Christopher Cielo - Distant worker Paul McCarthy - Itinerant worker Allan Hartigan - Distant worker Justin Squires - Itinerant worker Ian Goldsworthy - Distant worker Timothy Nelson - Distant worker Brendan Amos - Distant worker 164 I so determine. 165 Orders issue pursuant to s136 of the Industrial Relations Act 1996 that the above named persons be so categorised under clause 22 of the Mount Arthur North Consent Award 2001 336 IG 690 and that John Holland Pty Ltd make payment in accordance therewith. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday 15 April 2003 Matter No IRC 5287 of 2002 Notification under s130 by john holland group pty ltd of a dispute with the Construction, Forestry, Mining and Energy Union (New South Wales Branch) re living away from home allowance ORDERS 1. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr John Dyke as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 2. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Michael Dyke as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 3. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Christopher Cielo as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 4. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Paul McCarthy as an itinerant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 5. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group ty Ltd is ordered to pay Mr Allan Hartigan as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 6. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Justin Squires as an itinerant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 7. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Ian Goldsworthy as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 8. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Timothy Nelson as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. 9. Pursuant to s136 of the Industrial Relations Act 1996 John Holland Group Pty Ltd is ordered to pay Mr Brendan Amos as a distant worker pursuant to the Mount Arthur North Consent Award 2001 336 IG 690 for the time he was engaged by John Holland Pty Ltd on the Mount Arthur North construction project. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.