7Mr Latai provided a statement and also gave oral evidence. Since the commencement of his employment with Veolia and previously when the company was known as Collex Waste Management ("Collex") he stated that he had obtained a full-time position as a driver, initially driving a one-armed side loader waste vehicle. Throughout his employment with Veolia he was always "a full-time permanent driver." He usually worked within the Warringah Council area as Veolia had a contract with that Council to provide waste disposal services. Mr Latai said that he took as much overtime as he could to support his family and frequently was directed to work additional hours within the boundaries of Ku-ring-gai Council and at Hornsby Shire Council. It was common practice to be directed to assist other employees of Veolia working in Ku-ring-gai and around Hornsby. He regularly transported vehicles between different yards as directed by managers of the Veolia: he had all the necessary licenses and was experienced in handling the various types of vehicles used by Veolia in waste work across Sydney.
8There was no restriction placed on Mr Latai requiring him to work only within the Warringah Council area and he was never instructed that he could not work outside that area which fell under the company's contract with Warringah Council. He was not aware of the boundaries within which that contract was carried out by Veolia. In fact he was frequently directed to perform other general waste work in areas other than Warringah, pointing to the work he performed at Ku-ring-gai and Hornsby.
9In early 2008, Mr Latai and other workers became aware that Veolia had lost the Warringah contract to United Resource Management Group Pty Ltd ("URM"). He attended a few union meetings where he was told that there would be no work for those working under the Warringah contract but there may be jobs available with URM. He believed that some of the employees obtained positions with URM but Veolia did not provide him with much information about that work. Mr Latai did not wish to take a job with URM because he regarded the money as being inferior and the starting points for work would have been remote from his home. Mr Latai noted that most of the workers who took positions with URM lived on the northern beaches.
10At that time Mr Latai told his then supervisor and Mr Greg Roberts, the area manager for Veolia, that he wished to stay with the company and would work wherever he was directed to perform duties. In approximately July 2009 Veolia ceased to provide waste services to Warringah Council. Mr Latai was part of a small group of Veolia employees who were called upon to clean the Cromer depot yard, work that lasted approximately one week. He was then involved in transporting trucks to Enfield, Alexandria and Hornsby and on approximately 9 July 2009 he started work as a driver at the Veolia Hornsby yard. He was then directed to perform work mainly within the Hornsby Shire Council area.
11In early 2010, Veolia lost the Hornsby Shire Council contract to Cleanaway. Mr Latai said he did not receive much information about what would occur after Veolia lost the contract but there were union meetings held to discuss the matter. A number of Viola workers who lived in the local area sought jobs with Cleanaway but Mr Latai did not live locally and he did not wish to have a permanent job with Cleanaway at Hornsby but wanted to stay with Veolia.
12Following Veolia's loss of the Hornsby contract, Mr Latai said that he was told to work out of the Borrow Road depot in Alexandria. This was a yard maintained by Veolia and provided waste services to the SCC. He said he had no choice about this work because if he wanted to stay with Veolia that was the only place where the company had work available: Mr Latai, therefore, worked on the company's contract with the SCC at Alexandria.
13Mr Latai then became aware that the company was unlikely to retain the contract with the SCC and it was probable that URM would take over the contract. He said there were a number of union meetings but he did not recall any formal staff meetings being conducted by Veolia in relation to the possible closure of the Borrow Road depot. He did not recall receiving any notices or correspondence from Veolia concerning his future employment or possible termination. He wished to stay with Veolia as he was used to doing the work and he regarded himself as being treated quite well and well paid - therefore, he wanted to remain with the company doing his job. He recalled that there was some discussion about obtaining employment with URM and the union organiser at one of the meetings had indicated that URM had the SCC contract and may be employing drivers. There was no formal process concerning this work and the only information Mr Latai had received from Veolia was that employees at Borrow Road should approach URM to continue to do waste work for the SCC. In addition, Mr Latai heard from co-workers and union representatives that, under URM, the hours of work were to be changed and the days would be longer and the pay would be less. The terms and conditions of the URM work were discussed at union meetings. Mr Latai did not wish to work for URM but wished to stay with Veolia, mainly because of the better terms and conditions of employment. He therefore did not seek to obtain work with URM after that company commenced performing the SCC waste work.
14Mr Latai said he returned to work on 9 March 2010 after being absent on sick leave for one day. He was working the 1.00 am shift and returned to the yard at the usual time of approximately 10 am and commenced filling out the normal paper work. At approximately 10.30 am, Mr Roberts informed him that this was his last shift and thanked him for his service with the company. Mr Roberts, who was then Mr Latai's supervisor, wished him the best for his future and told him not to hesitate to call him if he wanted to work again for the company. Mr Roberts gave him a copy of his card and an employment separation certificate from the company.
15Mr Latai said that, until 9 March 2010, although he knew that Veolia's contract with the SCC was coming to an end, he did not know the precise date in which the Borrrow Road yard would cease to operate. He was hopeful that he would be transferred within the company and was unaware that his employment with Veolia was coming to an end. He did not receive any further correspondence from Veolia concerning his termination and did not receive any redundancy payment. He did not receive written notice of his termination from the company or payment in lieu of notice. After 9 March 2010 Mr Latai was unemployed for approximately eight weeks and was unable to obtain unemployment benefits as he had money in the bank and his wife worked. By May 2010 he had obtained a position driving a waste truck with Blacktown Council, a position he has held to the present time. That position, however, was not a permanent position but was a casual position.
16In cross-examination it was put to Mr Latai that he began initially as a casual but by October 1997 "became a permanent employee." Mr Latai did not accept that proposition and regarded himself as being permanently employed from the beginning of his engagement in June 1997. He accepted that his work at that time was on the Collex Warringah Council contract. When he heard that Veolia may lose the Warringhah Council contract Mr Latai denied he understood that, if the contract was lost, jobs on that contract and his job would no longer exist. He accepted that, when the new contractor was engaged, all employees working for Veolia on the Warringah contract were offered an opportunity to work for the new contractor. There were meetings of Veolia employees where they were encouraged to apply for work with the new contractor. At those meetings the employees were told that the new contractor had jobs for all Veolia employees who had been working on the Warringah contract. Mr Latai applied to the new contractor for work and was offered employment but he rejected that offer.
17It was accepted by Mr Latai that when the Warringah contract ended he was "moved to work on the Hornsby contract" and worked out of a depot at Mount Kur-ring-gai. In the second half of 2009 Mr Roberts, at a meeting of employees, told them that the Hornsby contract had been lost and the contract would conclude at the end of January 2010. All Veolia employees performing work on the Hornsby contract were encouraged to apply for work with the new contractor. Mr Latai accepted the proposition that, for those who did not go to the new contractor, "Veolia would try to re-deploy them but Veolia's capacity to do so was becoming less and less." Mr Latai did not take a job with the new Hornsby contractor because he did not regard the conditions as being as good and they were paying less but the real reason for not taking that job was the long hours with the runs becoming longer. This was something he was told in interviews with the new contractor. Mr Latai accepted the proposition that, when the Hornsby contract came to an end, there were a small number of employees who continued to work with Veolia and the remainder of the employees stopped working for the company.
18From his experience with other companies and with Veolia, Mr Latai understood that companies had contracts with Councils for a set period of time and at the end of that time there was a tender process where the company may win or lose the tender. He understood that if the tender was lost, all jobs on that contract would no longer exist but he did not know that they were going to have to leave the company. When the Hornsby contract was lost there were three options available that Mr Roberts spoke about in meetings: to go to the new contractor, to find other employment or if possible, obtain re-deployment with Veolia. There was no discussion about Veolia making redundancy payments.
19When Mr Latai was working on the Warringah and Hornsby contracts he and other workers had been told that they were working on either the Warringah or Hornsby contract. In relation to the SCC contract Mr Latai said he was told to go to Alexandria and was not told to go to a particular place but he knew he was working on the SCC contract. Mr Latai denied that Mr Roberts told him that Alexandria was the only position available - he was simply told to go to Alexandria. He was told that it would not be long before the contract at Alexandria would be terminated. It was put to Mr Latai that Mr Roberts said he would see if there were positions available for him with Veolia's bulk operations but Mr Latai denied such a conversation took place. Mr Latai said that, in their conversations, Mr Roberts did not mention any bulk work. He said that when he commenced at Alexandria he knew the contract was about to come to an end. He did not know when that would occur but he knew he was going to work at Alexandria and was told by someone else that the contract was coming to an end. A week before the contract ended, Mr Latai knew that the contract was to end on 9 March 2010. When pressed on the matter Mr Latai stated that he had read Mr Robert's evidence about being offered a bulk operations job but denied that he was made such an offer and stated that he had not had any correspondence with Mr Roberts about any bulk jobs. Mr Latai said that, if he had been offered the bulk operations position, he would have turned it down because of the hours of work. Mr Latai agreed that, when his employment was terminated, Mr Roberts said that the reason was that Veolia had lost the contract with SCC and there was no more work available for him. When Mr Latai commenced work with Veolia he was given information about the work to be performed but when he was sent to perform other work, he was not given a new letter or a letter of appointment.
20In cross-examination Mr Latai denied that, when he became aware that the Warringah contract had been lost by Veolia, his job therefore no longer existed. He recalled that in February 2009 there was a meeting at the Cromer Depot where Mr Roberts spoke of the loss of the Warringah contract. At that meeting all employees were encouraged to apply for new positions with URM and that it was understood that URM had jobs for all of the Veolia employees who had worked on the Warringah contract. Mr Latai did apply to URM and was offered employment but rejected that offer. He was aware that in the first half of 2009 Veolia had lost other contracts.
21In the second half of 2009 Mr Latai accepted that he had been told that Veolia had been unsuccessful in retaining the Hornsby contract. Mr Roberts attended meetings with the Hornsby drivers and told them the contract would end in January 2010. Cleanaway had obtained that contract and the drivers were encouraged to apply for work with Cleanaway. Mr Roberts said that if they did not obtain work with Cleanaway he would try to re-deploy them but Veolia's capacity to re-deploy people was diminishing with the loss of other contracts.
22Mr Latai accepted that he understood that Veolia had contracts with Councils and they could be won or lost by the company. He knew that if a contract was lost, jobs were lost but he did not know that he would lose his job with Veolia in those circumstances and that was not his experience. After the Warringah contract was lost he worked at Hornsby and after Hornsby he worked at Alexandria. In relation to the loss of the Hornsby contract he agreed that there were meetings about the availability of work with Cleanaway with the option of going elsewhere or being re-deployed with Veolia. There had not been any discussion about redundancy payments. Mr Latai denied that, towards the end of his employment at Borrow Road, Mr Roberts had offered him different work, namely, working on Veolia's bulk operations. Mr Latai said that, if such work had been offered, he would not have accepted it because of the different nature of the work.
23Mr Gregory Roberts, at all relevant times, was the manager of municipal contracts for Veolia. He provided a statement and gave sworn evidence in the proceedings. Mr Roberts spoke of the industry as being "highly competitive" noting that domestic waste collection contracts for various Councils within the Sydney region were put out for tender on a regular basis. The usual contract periods were for five, seven or ten years with, in some cases, options to extend that period if so desired by the Council. Mr Roberts identified Veolia's five major competitors during this period.
24Speaking from his experience Mr Roberts outlined the elements necessary to be able to successfully tender for this work, including the necessary infrastructure involving, amongst other things, maintenance capacity and supervisors, an ability to effectively respond to ratepayers' concerns in the management of the contract and the ability to operate a range of vehicles to meet the varying requirements of Councils. He spoke of the relatively low margins available to successful tenderers and the fact that, in re-tendering, a Council's requirements may have altered leaving the tender process, in effect, addressing a new contract arrangement. This combination of variables meant that a company could not be confident that its contract would be renewed at the expiry of the term and it was common experience to have a regular change in the companies providing waste services to Councils.
25When Mr Roberts assumed the role of manager of municipal contracts in June 2007 there were a number of contracts with different expiry dates: three contracts were due to expire between February and June 2009, two were to expire between January and March 2010 and two were to expire from mid-to-late 2014 while Botany's contract operated from year-to-year. Veolia operated out of a central depot, preferably located within the geographic area of the particular Council, although this was not always possible. Sometimes it was a requirement of the contract.
26The business of Veolia was organised having to regard to the specific requirements of the contract with each Council. Employees were allocated to a specific Council contract although, from time-to-time, a supervisor would direct an employee to assist in an adjacent Council area but Mr Roberts did not regard such work as forming part of the essential duties of the employees. Another exception was establishing a small number of "floater" positions who could work in either Ku-ring-gai or Hornsby areas after the Warringah Council contract was terminated. Those positions were dependent on having sufficient work for each of the contracts.
27Mr Roberts referred to arrangements made with the TWU leading to higher wages and conditions that caused difficulties for Veolia in tendering competitively for Council contracts. In 2006 the company tendered for the renewal of the Leichhardt Council contract but was unsuccessful while in 2008/2009 its tender for the renewal of the Randwick Council contract was also unsuccessful. Further, in 2009 the tender for the renewal of the Hornsby and SCC contracts were lost.
28In relation to Mr Latai, his employment with Veolia commenced in approximately June 1997. He was engaged as a driver of a side loader vehicle working out of the Cromer depot and was to work on the Warringah Council contract. Mr Roberts said that, in performing this work, Mr Latai was engaged under the terms of the Transport Industry - Waste Collection and Recycling (State) Award as varied by the VES Warringah Domestic Waste and Recycling Services EBA 2008.
29The Warringah contract expired on 30 June 2009 and the company did not re-tender for the work because it did not believe that it would be able to lodge a competitive and profitable tender. All employees engaged in connection with the Warringah contract were informed of the company's decision not to re-tender for the contract and Mr Roberts attended a number of meetings at the Cromer depot commencing in February 2009 in relation to the termination of the contract. Mr Latai was present at several such meetings. At these meetings all employees were encouraged to apply to the new contractor for work. The company assisted its employees in seeking alternative employment with a new contractor by arranging discussions between that contractor and its employees concerning the terms and conditions being offered and arranging for job interviews. It appeared that the new contractor potentially had jobs for all of the company's employees who had been working on the Warringah contract and there were certain benefits in picking up those experienced people recognised by both the new contractor and the Council.
30In relation to the employees who did not gain alternative new employment with the new contractor or arranged for other employment, Veolia sought to re-deploy such employees in its remaining domestic waste operations having regard to, amongst other things, the employees' preferred work location and the company's operational needs for the remaining contracts. At Warringah, between 15 and 20 employees took employment with the new contractor, 6 obtained employment elsewhere and the remainder (between 9 and 14) were re-deployed to other Veolia contracts in domestic waste.
31After the Warringah contract concluded, Mr Latai accepted work as a "floater" driver in connection with the Hornsby and Ku-ring-gai Council contracts from July 2009. In this work Mr Latai was covered by the VES Hornsby Domestic Recycling and Clean Waste Services EBA 2009. In this role Mr Latai performed driving tasks in connection with both Councils. Mr Latai had a preference for Ku-ring-gai work because it was closer to his residence. The Hornsby contract was to conclude in 2010. Veolia tendered for renewal of the contract in the second half of 2009 but was informed that it had been unsuccessful and that Cleanaway had been awarded the contract. Again, all employees engaged by the company in connection with the Hornsby contract were informed that Veolia had been unsuccessful in retaining the contract, that Cleanaway had been awarded the contract and this occurred at a series of meetings held in the Mt Ku-ring-gai depot commencing from approximately October 2009. Mr Latai was present at several such meetings. At these meetings the employees were told that they should consider applying for positions with Cleanaway and that Veolia would try to re-deploy those who did not gain alternative employment with Cleanaway but noting that Veolia's ability to re-deploy was reducing because it had lost several other contracts, including the Warringah contract.
32Veolia assisted its employees to seek alternative employment with Cleanaway by arranging discussions between that company and its employees concerning the terms and conditions being offered and also arranging job interviews. The offers made by Cleanaway were broadly equivalent to the conditions available to Veolia employees although there was a $1 or $1.50 lower hourly rate and prior service with Veolia would not be counted as service with Cleanaway. That work was covered by a 2009 enterprise agreement. Mr Roberts understood that Cleanaway potentially had jobs for those Veolia employees who had previously worked on the Hornsby contract. A number of employees were concerned that living on the Central Coast they would not be well suited by Cleanaway basing its operations at Blacktown rather than at Mt Kur-ing-gai where Veolia had operated. This was thought not to be of great concern to Mr Latai who lived much closer to Blacktown.
33The Veolia employees who did not gain alternative employment with the new contractor or obtain other employment were sought to be re-deployed in Veolia's remaining domestic waste operations having regard to the employee's preferred work location and the company's operational needs. There were approximately 24 full-time employees at Hornsby of whom nine took alternative employment with Cleanaway and a number of others were able to obtain employment in the Hunter Valley. Mr Latai apparently applied for alternative employment and was made an offer by Cleanaway but declined to accept that offer.
34While Veolia was managing the Hornsby situation, the SCC contract was due to terminate on 9 March 2010. Veolia had tendered for renewal of the contract in late 2009 but in December 2009 had been informed by the Council that its tender had been unsuccessful. In early December 2009 Mr Roberts called a meeting of all employees, held at the Alexandria depot. He informed them that the company had been unsuccessful in re-tendering for the SCC contract and stated that the URM group had been awarded the contract. He told employees that they should consider applying for a position with URM and that Veolia would try to re-deploy those who did not gain employment with URM although re-deployments would be difficult because of the number of contracts lost by Veolia in recent times.
35In late December 2009 URM posted a notice to Veolia employees inviting them to apply for positions with URM. Again, Veolia assisted its employees to seek employment with URM by arranging discussions with the new contractor about the terms and conditions to be offered and arranging job interviews. Mr Roberts spoke at further meetings with employees engaged under the SCC contract and at a January 2010 meeting urged all Veolia employees to consider applying for a job with URM as the company contract would end on 9 March 2010.
36In mid-January 2010 the TWU had written to Mr Roberts stating that its primary aim was to facilitate suitable alternative employment for members affected by Veolia's loss of the contract to URM. The letter indicated that the union considered "that suitable alternative employment" had to involve terms and conditions "no less favourable" than those currently enjoyed by employees along with preserving accrued entitlements and recognition of employees' continuity of service with Veolia. The union understood that the terms and conditions offered by URM were significantly inferior to those available with Veolia and that URM was, at that stage, refusing to recognise employees' prior service or the maintenance of accrued entitlements.
37In early February 2010, Mr Roberts recalled having a conversation with Mr Latai in the context of the Hornsby contract ending and what would happen to him. In that conversation Mr Roberts said all that was available was work at Alexandria and that would not be available for long because the company's contract was about to end. He told Mr Latai that he should have taken a job with Cleanaway or URM but that he would see if there were any available positions "in our bulk operations." Following that conversation Mr Latai commenced work as a driver working out of the Borrow Road depot, Alexandria under the SCC contract. In that employment Mr Latai was covered by the Collex Pty Ltd Domestic Waste Collection Divisional Agreement 2005/2008.
38On 19 February 2010, Mr Roberts attended another meeting of employees working on the SCC contract and again urged Veolia employees to apply for a position with URM, repeating that the SCC contract would end on 9 March 2010. By reference to records, Mr Roberts was able to say that there were 18 full-time employees remaining who had not been re-deployed by Veolia into its bulk or remaining domestic operations or had resigned prior to that time. Of those, thirteen had applied for positions with URM and three had accepted those positions with the remainder declining employment if offered or not attending for an interview. Mr Latai did not apply to URM but applied for work at Blacktown Council. He was offered two days per week but declined that work.
39A further conversation occurred between Mr Roberts and Mr Latai prior to 10 March 2010. Mr Latai was informed that a driver's position was available with Veolia's bulk operations. Mr Roberts said that the duties were similar to a driving role on domestic waste with Mr Latai being required to drive a truck to various locations to either deliver or empty large skip bins. There was less looking and moving around as there were no runners involved in this work. The rates of pay were less than for the Veolia domestic work but involved more hours compared to the domestic work of job and finish. With regular overtime that was available to bulk drivers, gross earnings were potentially comparable to domestic waste drivers. The other terms and conditions of employment were substantially similar to those of domestic waste drivers. Mr Latai subsequently informed him that he was not interested in the position as a bulk driver.
40Mr Roberts spoke of Veolia taking all reasonable steps to procure alternative employment for employees affected by any loss of contract but stated that those circumstances were not due to any restructuring by the company, nor were they due to the impact of adverse economic circumstances resulting in collective redundancies. When Veolia had a number of domestic contracts it had the capacity to offer re-deployment to employees or other contacted work and this could be accommodated by using less casual labour. Mr Latai would not have been employed initially had the company not been successful in obtaining the Warringah contract. He would not have subsequently been offered work on the Hornsby contract and briefly on the SCC contract if Veolia did not have some work that needed to be done in connection with those contracts over the remainder of their terms.
41In cross-examination, Mr Roberts stated that Mr Latai started with Collex in June 1997 as a casual employee and became a permanent employee later that year. Collex later became known as Veolia. In the company a permanent driver was an employee who had a permanent job to do five days per week on a certain run while a casual would be used when permanent employees were absent or where extra runs were to be completed on a particular day. A casual may have been used two, three or four times per week and very rarely, five times per week. When contracts came to an end the casual employees were no longer required. The company's view was that it would be "in the best interests to look after the permanent employees" and the company tried to re-deploy them into other contracts. If there were casuals working on the other contracts they would be replaced by re-deploying a permanent employee. The company looked after its permanent employees. The other contracts were with various Councils and often of a lengthy period of five or sometimes seven years and could be extended for up to ten years. They would not all end on the same day or year and therefore some contracts would cease prior to others ending.
42In relation to bulk work operations, Mr Roberts recalled that within the last week of Mr Latai's employment at Alexandria he offered the bulk operation position but Mr Latai was not interested. The company was trying to re-deploy as many permanents as possible and was trying to use any positions that were available.
43In relation to the Warringah contract, Mr Roberts advised employees that it was in their best interests to look for employment elsewhere and apply to the new contractor. Veolia realised that there were not enough positions for re-deployment but were doing their best to re-deploy those who could not get other employment. Some employees left prior to the contract concluding and applied for employment elsewhere because they knew the contract was coming to an end.
44Mr Roberts was unable to say how other companies operated penalty provisions or to indicate why penalties were more of an issue with Veolia than other companies. He accepted that labour price was an issue beyond the Warringah contract and applied to all municipal contracts in Sydney. At one stage, in 2008, Randwick employees agreed to take a pay cut to help the company gain the contract, nevertheless, the company was priced out of that contract and it was awarded to a competitor. In relation to two contracts, the wage levels were not an issue and were similar thus allowing a transfer of the company's employees to the new contractor. In relation to the Hornsby contract, many of the drivers wanted to commute from the Central Coast and therefore chose to go with the new contractor because wages and conditions were similar. Ten years ago Veolia had eight contracts and now had three. The contracts now held by Veolia were Woollahra, where the contract would expire in 2014 and the Ku-ring-gai contract, having a possibility of going through to 2016. Botany was a year-to-year proposition. The last time the company won a tender for a municipal contract was in 2004.
45The company had done everything possible to ensure Mr Latai's employment, including offering him a job in the bulk operations but he declined that position. Mr Roberts said he could not make a position available to save existing employees or to keep someone employed "if there is no position available." He could only offer what was available and Mr Latai declined that position and another employee took up that role. At that time, if the company had eight contracts or won other contracts, there was more opportunity for re-deployment and Mr Latai would still be employed.
46Mr Roberts confirmed that the company's approach was that, when a contract was either lost or not tendered for again at its expiration, employees were encouraged to obtain positions with the new contractor or to obtain other employment. Those who were left were re-deployed within the company if the company had positions available. The company would do what they could to re-deploy persons who had not obtained other employment. At Warringah some employees joined the new contractor, some left the company and everyone that remained was re-deployed within Veolia. No employee was dismissed as a result of the loss of the Warringah contract. The same approach was taken when the Hornsby contract was lost.
47In relation to the SCC contract and the meetings the company held with employees, Mr Roberts accepted that he did not tell the employees that if they did not apply for a job with the new contractor, they would be dismissed. It was put to Mr Roberts that the loss of a contract was not necessarily the end of the line for the employees: he replied that the contract did not necessarily mean the end of Mr Latai's employment and he had been offered a position in bulk operations. There was no position in the Ku-ring-gai or Botany contracts to offer him as they were filled with permanents. Each yard had their own union and policy and no permanent employees were to be sacrificed for other permanent employees who did not work in that yard and it did not matter how long the person had been employed. The company would not employ a casual in a permanent position if there were permanents that wanted the job.
48After Mr Latai finished work on the Hornsby contract, Mr Roberts accepted that he said to him words to the effect "You will be going to Alexandria." He did not say to Mr Latai that he would be going to work on the SCC contract. He accepted that the Alexandria depot included the SCC contract but also included two other contracts. The other contracts "were fully complemented with permanents."
49Mr Tony Khoury, executive director of Waste Contractors and Recyclers Association of New South Wales, provided a statement. After objections, the remainder of his statement was tendered: he was not required to give sworn evidence and was not cross-examined. Mr Khoury spoke of the Association as being a registered industrial body of employers concerned with business issues arising in the waste and recycling industry. It had been a registered body since 1948 and was registered under both New South Wales legislation and Fair Work Australia. The Association provided members with advice and support on a broad range of employment and industrial matters. The Association had 146 members who owned, operated and controlled an estimated 95 per cent of the commercial waste and recycling collection vehicles in New South Wales. A Council contract for waste or recycling collection was usually obtained by a member of the Association.
50Within the Sydney metropolitan region there were 40 Councils of which approximately two-thirds currently contracted out the provision of waste and recycling collection to specialist companies, being members of the Association. Councils who did not contract out their waste and recycling collection operated on a "day labour" basis, directly employing drivers to operate the vehicle owned or leased by the Council and operating from a Council depot,
51The tender process for a Council contract was described as "highly competitive." Mr Khoury accepted that at least four or five members of the Association put forward expressions of interest for such contracts. There were nine major waste and recycling companies operating in the Sydney region, including Veolia. Contracts were generally offered for five, seven or ten years. The most usual contract was for a term of seven years. The competitive nature of the industry and the relatively tight margins involved meant that an incumbent service provider could not be confident that its contract would be renewed upon expiry. There were regular changes in the companies providing contract services and this was a feature of the industry. Mr Khoury referred to information that indicated that a minimum of 18 Council contracts had changed hands in the Sydney metropolitan region over the past ten years. In some cases Council contracts had changed hands on more than one occasion during that period.
52Mr Khoury described three broad categories of employment arrangements existing in the industry amongst Association members: some member companies were relatively highly unionised and were the subject of enterprise bargaining arrangements with the union; some member companies were less unionised and operated on terms and conditions laid down by award, plus over-award payments and discretionary bonuses; some member companies strictly paid under and applied the terms of the industry award, including transitional amounts from the pre-modern award to the modern award. One pressure on member companies resulted from operations under enterprise bargaining agreements, arrangements that had increasingly being paying higher rates of pay than those operating under the other two broad categories, thus finding themselves in a less competitive position.
53It was Mr Khoury's experience in this industry that the vast majority of employees of a contractor who had been unsuccessful in renewing a contract would be offered employment by the incoming contractor. There was a long history of groups of employees surviving a number of different contractors operating waste and collection services for a particular Council. This occurred because both Council and the incoming contractor saw the benefit in having continuity of experienced drivers who had knowledge of particular runs in the Council area. Mr Khoury believed that most employees for an incoming contractor would come from the workforce of the outgoing contractor with the remaining positions being sourced through job agencies, advertisements and through the incoming contractor using any surplus existing employees. More recently, the disparity between pay and conditions between members of the Association had led to a reluctance in employees of an unsuccessful tender enjoying higher EBA rates, to accept employment with a new contractor operating strictly on award rates.
54When there was a change of contractor the Association had urged its members to make arrangements with the incoming contractor for the employment of existing employees and to encourage the outgoing contractor to have its existing employees engaged in connection with the new contractor. Association members were also encouraged to assist their employees to improve skills, including interviewing skills and preparation of a CV.
55In evidence in reply, Mr Latai said that he did not know of a system nor did he have an expectation that when Veolia lost a contract that employees, including himself, would lose their job. His understanding was that when a contract concluded the company gave employees a job somewhere else. No one had ever told him that his job would finish if the contract finished. No other employee had ever told him that would occur or was expected to occur.
56While at Alexandria, Mr Latai had little contact with Mr Roberts. He believed that Mr Roberts was mistaken about offering him the bulk operations position but he knew that job had been offered to a Mr John Azzapardi. Mr Azzapardi had told Mr Latai that he had been offered the position as a bulk driver but that it did not sound very good. He was unhappy about accepting it because he felt he was being forced into the job by Mr Roberts.