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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
ADMINISTRATOR APPOINTED
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
O/N 3067
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER RICHARDS
C2004/5348
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) of the Act
by P&O Ports Limited for orders in respect
of the P&O Ports Fisherman Islands Terminal
Enterprise Agreement 2003
BRISBANE
12.38 PM, FRIDAY, 30 JULY 2004
THIS HEARING WAS CONDUCTED BY TELEPHONE
AND RECORDED IN BRISBANE
PN1
THE COMMISSIONER: Good afternoon, everyone. If I can just take some appearances, thanks.
PN2
MR J. TUCK: I seek leave to appear on behalf of P&O Ports, the applicant.
PN3
THE COMMISSIONER: Thanks, Mr Tuck. I'll consider leave momentarily. Do you have anyone appearing with you?
PN4
MR TUCK: Sitting next to me is MR LEVER from Freehills, but I have on behalf of the company in the Commission MR ROWAN BULLOCK. Mr Bullock is the General Manager Operations for Brisbane.
PN5
THE COMMISSIONER: Good. Thanks, Mr Tuck. And by phone I have whom, sorry?
PN6
MR D. PERRY: By phone, Commissioner, it's David Perry. I'm the Assistant Branch Secretary of the Maritime Union - - -
PN7
THE COMMISSIONER: Sorry, you'll have to start again.
PN8
MR PERRY: David Perry, the Assistant Branch Secretary of the Maritime Union of Australia, Southern Queensland Branch.
PN9
THE COMMISSIONER: Good. Thanks, Mr Perry.
PN10
MR PERRY: Look, I'm having difficulties hearing the gentlemen.
PN11
THE COMMISSIONER: Well, I share your difficulties, Mr Perry. Mr Perry, can we just first of all deal with leave? Do you object to Mr Tuck's request for leave? Mr Perry, do you object to Mr Tuck's request for leave?
PN12
THE COMMISSION: Mr Perry, are you still connected to the phone call?
PN13
MR PERRY: Yes, sorry. Yes. I understand ..... I don't deny his right to leave.
PN14
THE COMMISSIONER: Good. Leave is granted, Mr Tuck. Are there any housekeeping matters or any other procedural matters anyone wants to raise before we get on with Mr Tuck's submissions?
PN15
MR PERRY: Just one thing. I haven't been involved in this matter and I'm actually on annual leave and our other officers around the states - I was wondering if it wouldn't be probably a wise thing to adjourn this matter until early next week as I believe there's - if P&O probably could assist with this - that there is no industrial action that I'm aware of.
PN16
THE COMMISSIONER: Well, can you hear me there, Mr Perry?
PN17
MR PERRY: Vaguely.
PN18
THE COMMISSIONER: Mr Perry, before I deal with that matter, I just wouldn't mind knowing something about the allegations at least that are being made about industrial action just at the moment and perhaps we can come to a view as to - your view that you're putting to me at this point in relation to your concerns about your appearance are that industrial action to your knowledge isn't taking place. Is that what you're saying?
PN19
MR PERRY: Yes, absolutely.
PN20
THE COMMISSIONER: Well, let's just deal with that for the moment to see what the allegations are, what the claims are and we'll discuss that shortly, but I'll just hear this. Can we just hear from Mr Tuck as to what his submissions will be in respect of that matter.
PN21
MR PERRY: Certainly.
PN22
MR TUCK: If the Commission pleases, the grounds of the application set out broadly what we say has been occurring at the Fisherman Islands terminal since 15 July and more severe impact since the beginning of this week. Now, effectively the industrial action commenced first on 15 July in relation to a stoppage of work in which a meeting was conducted by Mr Trevor Munday of the MUA. He attended the site under a right of entry and a meeting that he conducted during the meal break went over and there was a delay in resumption of work of some 20 minutes for some employees and 45 minutes for other employees.
PN23
Now, subsequent to that there were various letters sent to the MUA, to the delegates and to other employees by the company advising them that that behaviour is unacceptable and that it would not be tolerated in the future. Subsequent to that an offer was also made if there are residual issues that the union has and the members have at the Fishermans Islands terminal then they can, one, they're welcome to meet with the company and the company will make itself available, and secondly they were invited to have a two hour meeting, as they are entitled to do so under the agreement. There are specific bases upon which you can have those meetings and that was conducted on the Friday 23 July - sorry, I think it is 23 July.
PN24
THE COMMISSIONER: We'll come to all of this detail shortly, but again, currently at the dock what's happening?
PN25
MR TUCK: There is a go-slow on at the dock. Now, that is not an easy thing for us to demonstrate quickly, but the graphs - by way of simple example, there's a 21 average lift is what was being achieved in the first week of July. Some of the shifts this week, Commissioner, were down to on some of the cranes below 13 with an average tracking down towards 15 and less. Now, that's 6 less lifts per hour per crane and that over a week has a very significant impact, and Mr Bullock is available to give evidence as to - that is happening, has continued to happen.
PN26
There have been various representations made by the company that it ought to stop and they, we say, haven't been expressly denied by the union nor by the members, our employees. The impact of that is significant. The company has lost close to a quarter of a million dollars since this commenced. We don't have the exact figures, but we believe it's well in excess of $200,000 has been - - -
PN27
THE COMMISSIONER: That's since the 15th?
PN28
MR TUCK: Since the 15th. This week losses are anticipated at $180,000. So the cost per day of close to $30,000 and the damage done to P&Os reputation is significant.
PN29
THE COMMISSIONER: Okay. Mr Perry, what can you tell me about your understanding of the situation, then?
PN30
MR PERRY: My understanding is that there's been no industrial action as such, so I'm not sure why the box rates are down so low. I - unfortunately were in Singapore on 15 July and never returned until the 19th and I've been on leave since, so, look, I'm not au fait all of this. I certainly haven't been contacted by anyone to say that we're in a dispute with anybody, except other than by P&O today that they've got some dispute.
PN31
Look, I'm at a loss to explain why the box rate is six containers less an hour or whatever the rate was given than it was on 1 July. Maybe they're stacked different. Maybe they're - you know, the consignment has been loaded in different areas, different ships, the way they're handled. I'm not sure, and I'm at a loss to explain that other than to say it could be a technical reason.
PN32
THE COMMISSIONER: Have you sought any background or instructions in relation to this matter, Mr Perry?
PN33
MR PERRY: We were notified very late about this matter today, as you'd appreciate, Commissioner, and my colleague, who is actually one of the relieving officials, notified the Commission that we couldn't actually make it in there on time and it's only been an hour and - well, nearly two hours since we were actually notified, so we haven't been able to do much research on it in regards to, you know, possibly why these ships have been a bit more difficult to discharge than others.
PN34
THE COMMISSIONER: So have you discussed with anyone else as to whether or not there is any ban or limitation in effect at this point, or any go-slow?
PN35
MR PERRY: No. One of our relieving officials, Mark Lane, attended the job today and spoke to management and to our members that there was some concerns about productivity from the management to our members and our members were pretty adamant that, no, there certainly is nothing underhanded happening and things should be on track. You know, there must have been a bit of a difficult spot on the machines where - I'm not quite sure of the historical background and what was going on in particular shifts, but they certainly conveyed to our relieving official that there was no action and that as far as they were concerned things were as normal. I mean, I'm not sure what the rate is today. Maybe the P&O management could assist us there.
PN36
THE COMMISSIONER: Well, Mr Tuck, what do you have to say about this?
PN37
MR TUCK: There has been communication with Mr Carr. There was communication last night to Mr Carr about the go-slow and that the company's expectation was that it should - those bans should be lifted. If they weren't lifted overnight then we would make this application today, and we have done so. The union - - -
PN38
THE COMMISSIONER: Sorry, Mr Carr being?
PN39
MR TUCK: Mr Carr is the organiser and he's actually the branch secretary of the South Queensland branch of the MUA. Now, Mr Carr had those discussions with Mr Bullock, so the union - Mr Carr is certainly well aware of the concerns of the company and has been well aware all week, and there are various statements been made from members and from delegates to the effect that, "Why is there a go-slow?" "You'll have to speak to the union about that. We don't know." Not denying it. "You'll have to speak to the union."
PN40
Now, the rates of movements per hour - a drop of six, a drop of eight or nine in some shifts - is a significant, a very significant, drop in productivity. It's not linked to maintenance. Mr Bullock will give evidence that that's not the case. There have not been maintenance issues. There's nothing particular or peculiar about the work that has been required to be done this week. There's nothing peculiar about the shifts, the ships that are in dock. There's nothing peculiar about the congestion at the site and if you compare a week in June when the dock was as busy - the terminal was as busy in June - there is a significant drop in productivity, and it's our submission that there is a ban on normal work practices and that there is a go-slow on.
PN41
And we don't have any indication that that has improved back to normal productivity which is closer to at least 19 or above. The average is close to 21. Last night's shift did improve from below 15 to about 17, I think, on the graph in front of me on at least one of the cranes. But we haven't had the union indicate to us that the bans have been lifted and we invite the union to do so.
PN42
THE COMMISSIONER: Well, can we just take what Mr Tuck has just said there, Mr Perry. If I can just revert to Mr Tuck just briefly. Mr Tuck, in the absence of an order from this Commission, is there any other basis on which you might be satisfied at least for a temporary basis that the action of which you complain may be lifted? Is there any action that Mr Perry and the MUA might take that might satisfy you for an interim period that the action is no longer happening?
PN43
MR TUCK: Well, it's difficult, Commissioner, to - - -
PN44
THE COMMISSIONER: Until you see the evidence of the output.
PN45
MR TUCK: Yes, because we've had the issue now for almost two weeks. We've had some cagey behaviour by the MUA and delegates on site, because the nature of a go-slow can be a 10, 20 per cent reduction in productivity and it's more difficult to say to people, "Well, we need you to work as per usual," and they say, "Well, there's nothing happening." Clearly the material and the evidence that we have indicates that something is happening. On some of the shifts it has been almost a halving of productivity.
PN46
So unless we have some indication from the union that they acknowledge that this behaviour has taken place and they will give instructions that it cease - all we're getting at the moment is a denial, which is what we've had for two weeks, and to simply say, "Oh, well, we'll go down there and say nothing is happening," will just confirm to the guys that there's nothing happening. It's not going to satisfy the company given the attitude displayed to date by the MUA.
PN47
THE COMMISSIONER: Yes. Well, I haven't heard Mr Bullock's evidence yet, so I'm reserving my judgment but prima facie, if you like, if the figures that are being bandied around are proved to be accurate they are significant drops, very significant drops, in productivity. But Mr Perry has put a point about what in his view might be behind that. That would also require some examination. Mr Perry, perhaps you can help us here. In your view, is there any - I've asked Mr Tuck how he could be satisfied that these productivity levels could be rapidly improved, if I could put it in those neutral terms. Is there any way in which you might be able to tell the Commission any way in which these productivity levels might be able to be resumed at short notices?
PN48
MR PERRY: Commissioner, if I may, I'd just like to go back to - with your permission, to some of the comments Mr Tuck made in regards to conversations with out branch secretary, Mick Carr, last night.
PN49
THE COMMISSIONER: Yes, sure.
PN50
MR PERRY: Or hearsay conversations.
PN51
THE COMMISSIONER: Yes. Remember, none of this is being taken under evidence and I'd hear evidence shortly in relation to these matters, so I'm not relying on anything I'm getting from the Bar Table, so - - -
PN52
MR PERRY: No, that's fine, because my understanding is the only outstanding issue is that P&O have been well, I guess, ..... and put up to P&O in regards to outstanding EBA issued and I believe the only thing Mick Carr was seeking from P&O was meeting in regards to those issues. Whether Mick Carr made some comment that there was industrial action, I can't possibly verify that, and I don't think that he would have considering the union's position there is no industrial action. We don't support any industrial action taking place.
PN53
And maybe Mr Bullock can tell us what the box rate is at the moment. I've just heard Mr Tuck say it was up to 17 last night, which is, what, three an hour under what their peak productivity is. I mean, it just smells a bit funny to me, that's all, that they're trying to use this to I guess achieve some other means. I'm not sure where they're coming from because as far as I'm aware there is no industrial action and maybe Mr Bullock can assist us by telling us whether there is currently any industrial action occurring.
PN54
THE COMMISSIONER: Well, we're at that point where we're now debating evidence, and I'm just going to have to now allow this application to proceed. Now, that's going to, Mr Perry, put you in a situation where I'm going to have to ask you whether you have any - eventually come to you and ask you whether you have any witnesses or any evidence you can lead in this matter. What are you going to tell me about that when eventually I come to you.
PN55
MR PERRY: Commissioner, in regards to the MUA?
PN56
THE COMMISSIONER: Well, with regard to this allegation as to whether or not industrial action is happening at the Fisherman Islands terminal.
PN57
MR PERRY: Well, Commissioner, as far as I know there is no industrial action. Our relieving official was down at the job this morning twice and he spoke to them. He said, "Look, the company has got concerns about productivity." The MUA certainly don't support any stifling of their productivity, so, you know, everyone work to their best ability type of talk. And I don't know what more we can do than that. Go down and tell them that there's more - categorically tell them that there is no industrial action by the MUA than a relieving official in the capacity of the union under the rules to go down and actually say that. And it's twice today.
PN58
So, I mean, I just - it gets a bit tough to provide some information on where it is at this moment and if it's not occurring, well, let's all keep working in that direction and without any I guess need for orders or further application to go forward. I mean, if it's a matter that's not a concern at the moment I don't see why we need even head any further with this.
PN59
THE COMMISSIONER: Well, that's what we're going to have to establish; whether the matter is of any concern at the moment, and that is by looking at the evidence that will come forward in this matter and at first instance through - presumably, Mr Tuck, am I right you're going to lead Mr Bullock - - -
PN60
MR TUCK: Yes, Mr Bullock.
PN61
THE COMMISSIONER: - - - shortly apart from any other opening statement you want to make?
PN62
MR TUCK: I would proceed to call Mr Bullock.
PN63
THE COMMISSIONER: Yes. And, Mr Perry, this means that as difficult as this will be on the telephone - I can assure you I understand your situation, but you will have an opportunity to cross-examine Mr Bullock on the issues that he raises.
PN64
MR PERRY: Commissioner, if I may, I mean, I'm not quite sure - maybe some of my information is incorrect because I haven't been here, but what I'm saying is what I'm aware of is our officials have been down, they've expressed to the P&O employees and our members that, "Hey, you know, if there's a productivity problem here it could be a management issue." I'm not sure. But there's certainly no industrial action by the MUA. I can absolutely categorically tell you that right now.
PN65
THE COMMISSIONER: Right.
PN66
MR PERRY: And I'm not quite sure where it's heading and I'm - so I don't know what the application is for. To stop what? To stop something that isn't happening?
PN67
THE COMMISSIONER: Yes. Well, that's what the evidence will eventually - the evidence will eventually yield a conclusion one way or the other. Look, Mr Perry, is there any benefit from me giving you a limited amount of time, say, the next 15 minutes or so, to make some additional phone calls to clarify any situations or to garner any - - -
PN68
MR PERRY: I think that would be appreciated. If we call you back in approximately 1 hour.
PN69
THE COMMISSIONER: Well, one hour is getting me too late because I've had to push other matters back to bring this matter on. Can I give you 20 minutes at the moment to make some telephone calls - - -
PN70
MR PERRY: Commissioner, could I seek an adjournment of the whole matter?
PN71
THE COMMISSIONER: Well, this is not something I'll entertain at this moment. I want you to take the next 20 minutes to make some telephone calls to the extent that is necessary and to whomsoever you think are relevant individuals and if you can garner some further information that might be helpful in any submissions you need to make, or else in establishing some grounds for presumably giving the applicant in this matter some comfort that industrial action is most definitely not taking place.
PN72
But what those grounds might be or what that undertaking or whatever might be, that might come forth. It might be some form of undertaking that there is no industrial action and so forth. I'll leave the detail and the form of that to yourself. But can you jump on you phone and do what you can for the next 20 minutes, then we'll dial in again at 20 past 1 and see where you've got up to?
PN73
MR PERRY: Certainly, Commissioner.
PN74
THE COMMISSIONER: Okay.
PN75
MR PERRY: I'll certainly do my best to get as much information as I possibly can.
PN76
THE COMMISSIONER: Good. We'll adjourn now and I'll dial you back in at 20 past 1. Thank you.
PN77
MR PERRY: All right. Thank you, Commissioner.
PN78
THE COMMISSIONER: We're adjourned.
SHORT ADJOURNMENT [1.00pm]
RESUMED [1.21pm]
PN79
THE COMMISSIONER: Thanks, everyone. Mr Perry, are you there with us?
PN80
MR PERRY: Yes, Commissioner.
PN81
THE COMMISSIONER: Do you have anything to tell us as a consequence of your ring-around?
PN82
MR PERRY: Well, I can't find anybody - I've tried all our national officials, I've tried our branch officials. I can't get on to anybody. Commissioner, I really don't know how I can assist the Commission other than to say that all I know that I'm aware of - my knowledge of this matter is that there is no industrial action and that the MUA hasn't participated in any. And further, Commissioner, I'd seek to say it would be unfair that I try and represent this matter in a hearing with regard to my limited knowledge of it and my limited time to prepare for such a hearing.
PN83
THE COMMISSIONER: Yes, I appreciate your particular circumstances as you put them to me, Mr Perry. I'm not convinced, however, on the explanation you've provided me that there is no representative capacity available anywhere from the MUA today whatsoever. I'm going to proceed to hear this matter. I can do it in one of two ways. I can hear it in essence, if you like, in absentia. That is, without a representative of the MUA, or I can take into account what you have told me about your particular situation and nonetheless allow you to continue to participate.
PN84
What I need to do is because I have an application before me I need to establish to the extent that it is possible on the evidence that is before me whether or not the jurisdictional prerequisites requiring the making of an order are met. One of those is that there is industrial action happening. In this case it is alleged it is happening or probable or threatening, and there is the exercise of a discretion that notwithstanding those jurisdictional prerequisites having been satisfied, the Commission must exercise its discretion as to whether or not it should make an order in all the circumstances of the matter.
PN85
Now, I'm going to proceed to take evidence in this matter. Now, it's a question for yourself, Mr Perry. I appreciate what you've told me and your particular circumstances as you've put them to me, but do you wish to continue to appear or would you prefer to withdraw and have the matter dealt with in absentia for the purposes of the MUA?
PN86
MR PERRY: Well, Commissioner, to be quite honest I'm not quite sure what the legalities of what your two options are that you've given me and I just think in all fairness that it should be adjourned based on the fact that I have very limited knowledge of the whole thing and whether I am representative of the union in what capacity can I say any more than the fact that there's no organised dispute by the MUA?
PN87
THE COMMISSIONER: Yes, well - - -
PN88
MR PERRY: You know, I mean, I guess if the company have delegates and employees who have made statements to them I guess they'll have to produce those people. Other than to say that, well, they're saying it's black and I'm saying it's white.
PN89
THE COMMISSIONER: Yes. Well, I appreciate what you've said. I can't give you legal advice about your position other than to say that in the event - and it doesn't necessarily follow, but in the event I should make an order in respect of this matter, it would be open to you to appeal that order on the basis of natural justice amongst other grounds that might be relevant to you. Now, that said, I'll return the matter to Mr Tuck to proceed with the application unless Mr Tuck has some other views on this matter.
PN90
MR TUCK: Well, the only comment I would make, Commission, is that the matter has been properly filed and served on the union and the company does press the matter to be heard and determined quickly as the Commission is required to do so under the Act, and it's a matter for the MUA whether they want to participate or not. The fact that no representative of the MUA is here - I'm instructed that that is of significant disappointment to P&O because the amount of money that this conduct, as we allege, has incurred might be close to a quarter of a million dollars for P&O but probably a similar amount of money to the clients of P&O. So if the MUA is not in a position to be here then that's a matter for it. Otherwise, we would press ahead with our application.
PN91
MR PERRY: Commissioner, if I may, P&O are aware that both our officials that are currently working are interstate. I think even to the point where Mr Tuck mentioned a phone call to our branch secretary last night by P&O management to his location interstate or wherever he may be. I'm not even quite aware if he's interstate or up north. So when was the application actually filed? Was it filed knowing that these people weren't available?
PN92
MR TUCK: To answer that question, Mr Crumlin, the national secretary of the union, was telephoned yesterday. He was advised about the industrial action. We understand that he then spoke to Mr Munday and spoke to Mr Carr. If those two gentlemen wish to absent themselves from Brisbane today during this industrial action, that's a matter for them. It's not to their convenience that we access the Commission. It's not to their convenience that we timetable our response to this industrial action.
PN93
We want it to cease and we're asking the Commission's assistance for it to cease. The fact that Mr Carr and Mr Munday, knowing what the company's intentions were, continue with whatever previous plans that they had is hardly a matter for consideration. That's a matter for the MUA. If they choose to ignore the issues being raised by P&O that's a matter for it.
PN94
MR PERRY: I beg your pardon, Mr Tuck, but Mick Carr left on Wednesday the 28th, so it wasn't yesterday, so he never left yesterday in the assumption that there was any industrial action going on because there is none. There is no industrial action. There is no industrial action organised by the MUA. If P&O have spoken to Paddy Crumlin and Trevor Munday and Mick Carr and they've said there's no industrial action, well, obviously there's no industrial action organised by the union.
PN95
If P&O have got some issues with their employees and their management issues, I'm not aware of what they all are. I believe there's been a meeting organised for 3 August with P&Os management and the MUA to sort out any outstanding matters that are outstanding in the enterprise agreement. That's my understanding.
PN96
MR TUCK: If the Commission pleases, we'd now seek to call Mr Bullock.
PN97
PN98
MR TUCK: Is your name Rowan George Bullock?---Yes, it is.
PN99
And are you the General Manager Operations for Brisbane for P&O Ports Limited?---Yes, I am.
PN100
And, Mr Bullock, I'd like to draw your attention to the events first of 15 July at around midday. Can you explain to the Commission what occurred at that first smoko?---It was actually the second meal break of the day shift. We were advised by the Assistant Branch Secretary, Trevor Munday, that he was coming on site to talk to our employees. He passed that communication to my Operations Manager, Matthew Carley. We understand Mr Munday then proceeded to the amenities room and addressed our labour. The meeting went overtime. That is, the meal break was scheduled to finish at 12.45 and we were approached by a couple of delegates to say, "Can we extend the meeting?" We had ships alongside and we said, "No, we must get back to work." The labour went - the delegates went back downstairs. The labour did not turn to. It was brought to my attention. I went down at approximately 12.55 and I addressed the labour. Trevor Munday was in the amenities room. That's the assistant branch secretary. He was in attendance still and I advised the employees that the meeting was not authorised, that they were participating in illegal industrial action and I insisted they return to work as we had customers to satisfy. I further pointed out to the employees and to the union representative that there were mechanisms within the enterprise agreement with which to deal with disputes and also there were facilities for yard meetings such as a two hour yard meeting that if approached the company would consider. I then left the amenities room.
PN101
And did the employees return to work?---They returned to work at 13.04, but on investigation some of those employees had in fact overstayed their meal break by 45 minutes because they should have turned to at 12.20. Different meal breaks apply to some employees.
PN102
Now, that's the events of Thursday 15 July. In response to that industrial action, did you cause letters to be drafted?---We initially - before we considered letters, we in fact asked Trevor Munday to attend for a discussion with management after the employees returned to work and we received a fairly belligerent response.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN103
Why do you say that?---Well, Mr Munday because quite agitated, quite loud, and basically told me to do what I had to do. I think the words were something like, "Do what you have to do, Rowan. Do what you're doing to Glen Wood." And that is in relation to a right of entry issue we have with Mr Wood.
PN104
And did anything further happen on that day?---Nothing further that we could detect.
PN105
Did you have any discussions with any representative of the union before preparing letters around 22 July?---No, we considered what action was appropriate and we discussed that with our corporate office. We also received a request for a two hour yard meeting, which we agreed to, to occur on 23 July.
PN106
When did you receive that request?---I think it was the following Monday.
PN107
Who made that request?---The South Queensland office, Mick Carr.
PN108
And you say that you agreed for that meeting to occur on 23 July?---We did. We looked at our schedule and we believed that that would be suitable with minimal disruption to our customers. We then found that - through less than satisfactory performance we found that the vessel would still be alongside for that time. The meeting was scheduled for 1500 hours to finish at 1700 hours. We have the option to postpone that meeting due to operational circumstances. Because of the importance we saw in resolving some of the issues and allowing the issues to be aired, we allowed that ship to sit idle while that meeting occurred. And after the meeting I received no feedback at all from the union about what was discussed or what - where to from here.
PN109
And can I ask you to look at this letter, please? That's a letter addressed to Mr Michael McLennan. Can you explain what that letter is?---This letter points out to Mr McLennan that he can - participated in an unlawful stoppage - - -
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN110
I might ask you to just stop there, Mr Bullock. Can you identify who is Mr McLennan?---Mr McLennan is a casual employee, a guaranteed wage employee at Fisherman Islands terminal and he has employee representative status in that he represents employees on the site committee.
PN111
Yes. And in that letter what are you advising? I'll just ask you to summarise what that letter is?---There are some very specific obligations of an employee representative under our enterprise agreement and primary amongst those are not to interfere with operational aspects. We recognise their right to talk to our employees during meal breaks, but there is a specific requirement for them to ensure that their activities do not interfere with operations. So we have made it clear to Mr McLennan that he breached those arrangements and we expressed our dissatisfaction to him. And we reserved our right if it continued to withdraw those rights.
PN112
When was that letter sent?---That was sent on 22 July.
PN113
I'd seek to tender a copy - - -
PN114
PN115
MR TUCK: Could I ask that you be provided with a copy of a letter to Mr Eadie. Mr Bullock, who is Mr Eadie?---Scott Eadie is a permanent employee based at Fisherman Islands terminal. He also has employee representative status in that he is a member of our site committee.
PN116
And is that letter in identical terms to the letter to Mr McLennan?---Yes, it is.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN117
I seek to tender that letter.
PN118
PN119
MR TUCK: When was that letter sent?---Dated 22 July. Small correction. We printed these all out on the 22nd. They were actually posted 23rd. I apologise.
PN120
And could you look at this letter too, please? Can you identify that letter?---Yes, this letter was sent to employees not involved in the unlawful stoppage, but we sought to make them aware of the unlawful stoppage and that we would not tolerate similar instances. It was important we felt that employees understood their obligations to us not to interfere with operations. As I say, we have no issue with employees being briefed during meal breaks, but we expect that at all times they act lawfully and in accordance with the enterprise agreement and the Act.
PN121
And when was that letter distributed?---Also 23 July.
PN122
I seek to tender that letter.
PN123
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN124
MR TUCK: And could I ask that the witness be provided with a further letter.
PN125
Mr Bullock, can you please identify that letter?---This letter was sent to employees who were on normal rest period. That is, those who commenced meal break at 1220 hours and should have resumed work at 1245 hours on the 15th. We pointed out that they had breached their obligations to us and that their conduct was unlawful industrial action.
PN126
And when was that letter sent?---Also the 23rd. Printed 22nd, mailed 23rd.
PN127
And when you say mailed, was it mailed to the employee's home address?---Yes, it was.
PN128
And could I ask the witness be provided with a further letter.
PN129
Are you able to identify that letter, Mr Bullock?---Yes. This letter is of a similar nature but to those employees who were on early meal break arrangements on that shift - on day shift 15 July, and they should have returned to work at 12.20.
PN130
I seek to tender that letter as well.
PN131
THE COMMISSIONER: We have two letters to - the general ended up in the letter to Mr Tonkin, is it? Mr Young. Do you want those dealt with as one - - -
PN132
MR TUCK: No, as separate - - -
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN133
THE COMMISSIONER: Okay. The general letter marked 22 July is A4 and the one entered, amongst other names, Mr C. Tonkin is A5.
EXHIBIT #A4 LETTER DATED 22/07/2004 TO EMPLOYEES WHO BREACHED OBLIGATIONS
EXHIBIT #A5 LETTER DATED 22/07/2004 TO EMPLOYEES ON EARLY MEAL BREAK
PN134
MR TUCK: And I'd ask the witness be shown this document.
PN135
Mr Bullock, are you able to identify that letter?---Yes, I am. This letter was sent by the Director of Operations, Grant Gilfillan, to Paddy Crumlin in relation to the conduct of the South Queensland Assistant Branch Secretary, Trevor Munday, in which Trevor breached his obligation to us during the conduct of a meeting with our employees.
PN136
I tender that letter.
PN137
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN138
MR TUCK: I wish to hand to you, Mr Bullock, some graphs. Before I ask you to identify those graphs, Mr Bullock, are you able to explain the way in which the operations of P&O is set up in terms of the rostering?---Yes, we have a component of permanent labour who are on rosters. They are termed FSEs. We have variable salary employees who are permanent employees but not allocated to a roster and we have casual employees who are either a guaranteed wage employee or a supplementary employees. Obviously there is a requirement for supplementation to meet peaks and troughs and allocation arrangements within the enterprise agreement contemplate that arrangement.
PN139
And are you able to say how many employees on average are engaged at FIT?---When we are not working a vessel it's generally quite a low number. Probably out in machines probably six to eight people, depending on activity. We have a structured way of contemplating what work load we would have to deal with and allocation of labour is made to meet that demand.
PN140
And in the past two weeks what number of employees are engaged on each of the shifts?---Well, we probably average in excess of three crane gangs per shift recently. We're at a reasonably busy period, but Brisbane does not have a necessarily consistent flow of vessels through. This week in particular is busy as are previous weeks, but we did not have a vessel on Saturday, for example, last week-end, though we commenced operation on a vessel on the Sunday and have worked continuously since. It's fair to say that each gang probably is about 10 people in addition to the R and D gangs that are on any shift.
PN141
And R and D gangs; what does R and D stand for?---That's receival and delivery, sorry. It's the road transport interface.
PN142
And how many cranes operate at Fishermans Island?---We have four ship to shore gantry cranes. We have access also to a crane downstream of our facility, so we have at occasion run five cranes. And we also opt at times to use ship's gear if that's suitable.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN143
Are each of the cranes identical?---No.
PN144
Can you explain the differences between the cranes?---There are three different manufacturers. Two cranes were commissioned at the same time. However, one is slightly higher than the other. There is a newer crane, crane 2, which is in the middle of the two Mitsui cranes which were the original cranes and it is a faster more modern crane. And we have crane 4 which is the original container crane within the port, which was transferred down from Hamilton in about 1983/84.
PN145
Now, you have before you some graphs. Are you able to explain what those graphs first represent in broad terms?---Yes. They talk about the average crane rate per hour for an individual crane. Each sheet talks about a crane. At the top you'll see QC1. That means quay crane 1, and the data is taken from 15 July from when we had the unlawful stoppage at the meal break. The crane rate is that that is contained in our enterprise agreement as appendix 1 to part A and that it looks to - - -
PN146
If I could stop you there?---Sure.
PN147
I do have a copy of the enterprise agreement, Commissioner, which I could hand to you. The copy that I have is downloaded from Wagenet, Commissioner. I don't seek to tender it or have it marked. I hope it therefore is a Commission document.
PN148
Appendix 1, Mr Bullock, you say sets out the crane rates anticipated under that agreement?---That's correct.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN149
And what do you say the average crane rate performance is for - ought to be for each of these cranes?---Well, what they ought to be - we anticipated under our enterprise agreement that we would have an average crane rate of 25 moves. That was one of the core tenets of our agreement with the MUA and the employees. In fact, this agreement talks about wage increases during the period of the EA linked to achievement of the core objectives of the EA. It talks about crane rate of 25 moves, a truck turn time of 30 minutes and the establishment of an overall productivity measure. It further goes on to say that employees are obliged to work a 7.25 hour shift out of 8 hours. That is, net of meal breaks they should be working for 7.25 hours. They are the fundamental measures that we make of our performance against this enterprise agreement.
PN150
Those performance benchmarks are set out in clause 3.1 of the agreement?---The crane rate, truck turn time and OPM certainly are. The requirement to work 7.25 hours is in another clause.
PN151
Yes. Now, may I ask you if you look first at quay crane 1, it's performance since 15 July 2004. Are you able to say what those various performance graphs on each of the shifts indicates?---The DEN are the shifts; day, evening and night, and obviously the various dates starting on 15 July working through to shift completing night shift at 0700 this morning, which is N on 29 July.
PN152
And why do you say - do you say that those graphs indicate a reduction in performance of work?---If you take performance over a reasonable period you expect to see an average maintained. We've had an improving crane rate since the linkage to the 4 per cent increase was made and we - - -
PN153
When you say 4 per cent increase, what are you talking about there?---That is the 4 per cent increase contained within the enterprise agreement around which we held several discussions with the MUA and employees and made it clear that we needed to see progress towards achieving the EA objectives as a way of ensuring that we saw good faith in achieving the benefits that were offered within our enterprise agreement. The benefit to the company obviously is improved productivity, but there were significant benefits for the employees. Since 1 July - and we did agree to the 4 per cent because whilst they weren't at 25 the trend was at least positive. Since 1 July there's been a turnaround.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN154
What were they at?---They were around about 21.
PN155
Yes. Yes. And just looking at the first graph, which is quay crane 1, why do you say that that graph indicates a reduction in the performance of work?---Well, over the data we've placed a trend line and you can see the trend is significantly down some 25 per cent. But more worrying is the frequency of shifts below an acceptable rate, particularly since 22 July.
PN156
What do you say is an acceptable rate?---We've told our employees that 22 would be a minimum rate to be maintained at Fisherman Islands terminal, given the various types of work handled, but we would obviously prefer to be handling more. We're keen to work with the employees to improve productivity, but we also have to be mindful of constraints around various cargoes, various vessels and the terminal layout. So we have already, in discussions with employees, given a reasonable target to aim at in our opinion.
PN157
In relation to if you take this week's, is there any explanation other than the performance of the individuals that would explain crane rates per hour less than 15?---Well, no. We have issues and it's quite fair to say that at times there are issues on board vessels, there are issues in relation to waiting for machinery in the yard and there are sometimes issues of machinery breakdown. But that happens on every shift every day of the week and the rates when you average them at 21, as you can see from the graph data before 22 July, you average on crane 1 very close to 25 much of the time. And to be as low as we are this week and given that we are told there are issues around the employment - sorry, the employees' relationship with management leads us to believe there's a problem.
PN158
And are you able to attribute that problem to the maintenance issues or congestion in the yard?---No, we've already factored that in our considerations when we have made the statement we believe there's industrial action.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN159
And what investigations have you made in relation to any congestion or maintenance issues that made exist?---We've placed additional supervisors under the hook - under the crane so that we can monitor the activity of the operation. We've monitored very closely the truck turn times to see what impact the yard status has had on truck turn times and up until yesterday truck turn times were still trending positively. That is, less than 25 minutes.
PN160
And what does that indicate to you?---It indicates that the yard is a shared facility or a shared resources. The ship operation shares the yard with the road operation. That means machines working to and from the yard are as constrained as each other. The fact that the truck turn times have continued to be at a good level would seem to indicate that we are managing our resource allocation quite adequately to that activity.
PN161
And if you then - can I ask you to look at the next graph, which is quay crane 2 and its performance. Is that a similar story in relation to that crane?---Yes, this crane, as I said earlier, is a more modern crane therefore its cross travel and hoist speeds are superior to the older cranes and we would expect that on average that crane exceeds the rates handled by the other cranes at the facility, and you can see there day shift on the 16th we in fact did 30 moves per hour.
PN162
Yes. And is there any explanation as to why the trend line for that crane would be as low as it has been, for example, under 10 moves an hour, on the night shift of the 26th and less than 20 for the whole of 27 July?---No. There was an issue last night on evening shift, 29th, that we accept, with cross-travel wheels, but no other major maintenance issues have affected that crane that we're aware of.
PN163
And in relation to the ships that you presently have alongside, what rates would you typically expect crane 2 to be performing at?---Well, this week in particular we had one vessel that exchanged 1700 containers and that is roughly what - just over twice what the contract calls for that vessel. With an exchange of that size, we would expect that at least on six or seven areas of work there would be very large bays that would allow us to work at very high rates and we did not achieve that at all.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN164
What do you say very high rates are?---Well, particularly for crane 2 we would have thought between 25 and 30 moves. This vessel normally on a fairly low exchange does go to a number of ports. It's a round the world service. But on this occasion we were facilitated with an excellent stow for productivity and we did not achieve it.
PN165
And are you able to explain for the Commission what is it about that particular vessel that influences the ability to achieve above 25 as opposed to any other vessel?---Well, it's about the ability for a crane to remain stationary and exchange a lot of containers without long travelling up and down the wharf. That means that the crane is at a fixed point and can do maybe 150 containers or more in one point of work.
PN166
And in relation to the rates that were in fact achieved by crane 2, was there any explanation that you could identify that may explain the drop in its productivity?---No, and particularly if you compare it to crane 1, the drop is consistent. That is not usual. We would expect that some cranes on some shifts don't go so well because of the type of stow they have to deal with or perhaps they are dealing with non-containerised articles such as we call it break bulk. So you will see fluctuations between cranes. Unfortunately the downturn in our productivity has been so general across all cranes as to make individual crane performance irrelevant.
PN167
And if I can ask you to turn over, then, to crane 3. Does that present a similar picture and story?---It certainly does. As you can see, there are some shifts where the crane has performed close or better than 25 moves, but this week it is consistently below par on any shift.
PN168
And if you turn over the next page, quay crane 4. Now, why is it that quay crane 4 doesn't appear to have been operated every shift?---Crane 4 is the oldest of our cranes. That doesn't mean to say it's not serviceable or effective. In fact, it is a different profile to cranes 1, 2 and 3 and it has the facility to lift two 20 foot containers. It's a twin lift crane. However, with the style of vessels coming through Brisbane now the stows on deck are much higher and
**** ROWAN GEORGE BULLOCK XN MR TUCK
there are times when that crane can't physically clear the containers on deck, therefore it is not used until we're clearing down below deck in particular, but at that point it is a very effective crane because it's able to lift two containers at a time.
PN169
I seek to tender each of those graphs. I can tender them as one document.
PN170
PN171
MR TUCK: Now, since the downturn as indicated by the graphs, have you had any discussions with any MUA delegate or official to seek an explanation from the union?---Yes.
PN172
When was the first of those discussions?---The first discussion occurred between Matthew Carley, my Operations Manager, and Len Cox, an employee representative, and the question - - -
PN173
When did that occur?---That occurred on the 27th at approximately 7 pm.
PN174
And have you been informed as to what happened in that conversation?---No. Len Cox was not forthcoming as to any issues but referred us to talk to the union and resolve any issues.
PN175
Who told you that?---Matthew made a file note of his discussion and passed it to me.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN176
And have you had any further discussions with other delegate or member of the union after that?---Yes, the next morning we assessed production and it was still poor, or trending down. I asked that Matthew ask the shift delegates to explain what the issues were and if they weren't able to explain them to subsequently bring them to my office for a discussion. They arrived at my office at approximately 8.45 am. I pointed - - -
PN177
Who are the delegates?---I beg your pardon. Boyd McKenzie, Graham Stark and Wayne Stuart and they were not forthcoming as to any particular issue between the company and the employees. We made if very clear we were unhappy with the performance. We were considering time-keeping. That is, monitoring each point of work and if necessary taking disciplinary action and as a further consequence would be to list the issue with the Commission.
PN178
Did you receive a response from any of those delegates?---They just said that they would be contacting the union, and I said, "Well, I will be as well," and I then proceeded to talk to the union.
PN179
Who did you speak to?---I spoke - I tried for Trevor Munday. He's the normal representative at Fisherman Islands for the MUA. He was not available. I spoke to Mick Carr who is the branch secretary.
PN180
When did you do that?---I did that at approximately 0850 as soon as the delegates had left my office.
PN181
That's on Wednesday the 28th?---That's right.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN182
And are you able to recall the conversation you had with Mr Carr?---It was very much along the same lines as with the delegates, that I believed there was industrial action occurring, that there was a go-slow in place and that we wanted their assistance to resolve that. I pointed out - well, sorry, I beg your pardon. Mick Carr then said, well, he didn't agree that there was an issue. However, he did say that there were issues arising out of the last enterprise - sorry, ERC meeting, which is the site committee meeting, that still needed to be resolved. I did point out to Mick - it was somewhat of a circular argument - that I had been trying to have a meeting with MUA officials for some time offering many dates and in fact offering responses to issues as they had been raised but with no success. So it was very frustrating for him to be raising issues with the company or with me in particular that we were not able, then, to resolve.
PN183
Are there procedures under the agreement for dealing with disputes?---Yes, there is. There's a disputes resolution process in our enterprise agreement, and on many occasions we have - we have had to point out the correct use of those procedures. We have been in the Commission and other places, and we also pointed out over a particular issue that the company has put in dispute that we would honour the disputes resolution process, and move forward based on that process.
PN184
Have any of the issues raised by Mr Carr on Wednesday, 28 July, been activated through the disputes resolution process?---We were told they were in dispute. However, the communication of these things has been a series of emails. We did sit down with Trevor Munday on 21 May and worked through a number of issues. That meeting was unfortunately curtailed because of an injury to an employee on another site that I had to attend. We passed on minutes of those meetings to the MUA for their consideration. Some of those issues remain outstanding from that meeting of 21 May, and there are some issues outstanding as to interpretation from the MUA side. In a subsequent discussion with Mick Carr, because I did ask that Mick phone me back after our first discussion. I hadn't heard anything, so I phoned him again and offered to forward to him a summary of the issues as we understood to be in dispute, what the company's position was, what the MUA's position was, and where we thought, you know, the final position of the company was, and we asked in that email that the union advise us if any of these issues were dead or they should be escalated in accordance with the procedure. We've had no response to that list.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN185
And can I just now take you to the issue of the impact that the reduction in productivity has had on P and O in Queensland. Can you advise the Commission of that impact?---Well, the thing we value most is our relationship with our customer. The arrangements at our terminals, because we provide services across all of our terminals, and many of our customers go to more than one terminal in Australia. So our performance in Brisbane has a material impact on ports south of Brisbane, and also ports overseas from Brisbane. Vessel charter rates, whilst they are not our direct responsibility, are very high. In fact, they're at record levels, so the customers are very sensitive to delays within their schedule. We have contract berthing windows which set the performance criteria for meeting various schedules, and some of these schedules, as I say, are around the world. So our performance in Australia is critical to achieving those schedules. If we fail, our customers - a number of things can happen. One, they miss their berthing window in a place like Singapore where the berthing windows are very tight, and they may be delayed significantly. They may have to omit intervening ports to regard the schedule. One example we have to omit Port Kelang for a customer is something like $US72,000. We have - - -
PN186
Where is Port Kelang?---Port Kelang is Malaysia, and this service, in fact, only calls to ports overseas, Port Kelang and Singapore, so apart from Australian ports there is very limited opportunity to regain its schedule if we delay her. Of course, the other impact is they may choose to omit a port within Australia, which has a material impact on P and O again because we have national contracts.
PN187
Are there any penalty provisions between you and the customers?---Yes, there are. Part of our expectation and confidence about our enterprise agreement is to achieve higher crane rates and we have to be able to sell that to our customers. They have to believe that we can achieve a certain level of productivity, and that's material to the penalty clauses, and some of them are up to 2½ thousand dollars per hour if we fail.
PN188
And what potential penalty exposure does P and O face because of the reduction in productivity in the last 10 days?---In this week alone, analysing the schedule and the contract provisions against that schedule, we are exposed to the level of $A96,000.
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PN189
And are there any other costs that are incurred in terms of the, for example, hours taken to move boxes?---Yes. Obviously a reduction in productivity means that man shifts required to handle a certain volume of cargo or containers increases, and we've estimated that that cost, again for this week only, is in the order of $A88,000.
PN190
And what other costs might your clients incur?---Well, their schedule integrity is - is integral to them achieving customer or market share. If their schedules become unreliable, importers and exporters use companies who have reliable schedules. So very - it's a very dynamic market in the shipping industry, and therefore any loss of market share is - is quite - quite damaging.
PN191
And you have mentioned the charter costs or the costs of omitting ports. Can you give an indication as to what those costs might be in relation to any particular vessel?---A modern container vessel - well, recently there was a new benchmark set by Mitsui. They - they took on a 4000 TU vessel at something like $US40,000/$US45,000 a day. If you were to take an average, you would say that probably most vessels are being secured between $US20,000 and $US35,000 per day.
PN192
Yes. And are you aware of whether any vessels have been delayed by reason of the performance at FIT this past week?---Yes, a number of vessels have been at Caloundra at the pilot's grounds or anchorage grounds waiting to get along side Fisherman Islands. They have greater or lesser cost depending on the size of the vessel.
PN193
Are you aware of any vessels that have been forced to omit ports and what costs may be associated with that?---Yes, our national vessel coordinator met with a major customer today who advised that they would now have to omit Port Kelang for a second time. The first time was to regain their schedule after their own issue. So there will be two consecutive port omissions which will severely damage their reputation.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN194
And is there any cost associated with that?---$US72,000 each call.
PN195
And as you say, there are global shipping routes that a number of your vessels will be servicing. For example, the passages across the Panama those transit, are you aware of any vessels that have been forced to vacate their Panama transit?---Yes, we are. The P and O Nedlloyd Mairangi which was the 1700 exchange vessel I mentioned earlier has lost its transit across the Panama. The Panama has restricted capacity because it's going through a lock refurbishment program, and any delay that loses the company its - its window, if you like, might result in a 3, 4, 5 delay - day delay. We're advised by our customer that they are facing at least a 3 day delay as a consequence of missing that transit. That is a very large vessel in the order of 279 metres, and would probably be in the high 30s US dollars a day - $US30,000 a day charter costs. It's a 4100 TU vessel and they've only been going for about 18 months now.
PN196
So to do the simple calculations, you are close to $US100,000?---Yes, and that's not looking at intervening costs that they might incur. They go from Australia to New Zealand and they may opt to omit port calls in New Zealand, and the rail and road costs in New Zealand are very expensive to overcome any port omission that might occur.
PN197
Mr Bullock, have you made inquiries as to the rates that are being achieved today at FIT?---Yes, we have. We are told that the rates have improved. They are still below what we consider acceptable levels. There has been a - there has been an improvement on day shift.
PN198
I have no further questions for Mr Bullock, Commissioner.
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PN199
THE COMMISSIONER: Mr Bullock, can you just go back to the issue of the port omissions. You mentioned two port omissions. Can you just run me through that argument again or that evidence you gave?---Yes. The customer we are talking about has two port calls outside Australia. In other words, it services South-East Asia. It has a very tight schedule and the only way that it can make up for delays is to omit a port call either within Australia or an overseas port. Fortunately, Port Kelang is relatively close to Singapore and they can connect at least cost, but it still runs into the order of $US72,000 because of the volume of containers that have to move between the two ports.
PN200
Looking at the crane rates or the night shift from 29 July, the crane rates, excluding crane number 4 - 1, 2, 3 all appear to have had an improvement in productivity on the night shift?---Yes, Commissioner, we would support that observation; however, very much dependent on the nature of work. The vessel along side was what we would consider a very good working vessel, and in any event should have achieved a better rate.
PN201
And your evidence just a moment ago was that the day - you referred to the most recent day shift which was - - - ?---The day shift today, Commissioner.
PN202
Which is today's day shift commencing when?---0700 this morning.
PN203
Until?---Will cease at 1500 hours today.
PN204
And so it is an observation of hourly rate since this morning until such time as you - - - ?---Yes. The day or the shifts - because of the impact of the meal breaks, we have two meal breaks at our terminals, and we measure or count the number of containers handled by any crane over any break so you can see the impact of good productivity or poor productivity on every 2½ hour period.
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PN205
Sorry, your evidence is what again in relation to the day shift today?---The day shift has improved; however, you need to look at a shift on a complete basis. So we won't know the true outcome of today's day shift until close of shift at 1500. Because of different work points within the vessel, the vessel that started today was discharging only a very simple operation, and I'm told the crane was working at 25 moves per hour which is very encouraging; however, it does make somewhat of a lie of prior productivity. It's the - obviously interfacing with the same yard that was there yesterday. It's the same equipment and we're - whilst we're pleased to see an improvement in crane rates, makes us all a little bit more sceptical about what's happened in the preceding shifts.
PN206
Sorry, what was - you were doing 25 boxes when?---On crane 4 on a discharge, which is as I say the most efficient or effective working arrangement we can have because it's the most simple from the yard perspective. You're just basically putting them into a common area of the yard and you can achieve pretty good rates with that type of operation.
PN207
So that was crane number 4, was it?---Yes.
PN208
And yesterday's night shift was doing, it looks like, something around 14 or so, was it?---Just over 14½ perhaps, yes.
PN209
14½ boxes. Was that on a difficult exchange or - - - ?---That vessel was finishing the - working - sorry, working on the "Champion" which is a very simple layout. It only goes to one port overseas, so it makes the yard a very simple interface, so we would have expected that crane to do much better than that.
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PN210
Mr Bullock, what in your view is the - you have alleged that there is industrial action occurring which explains the decline in productivity uniformly across the four cranes despite some observable increase in the last night shift and possibly for the day shift today. What, in your view, is the root cause of the alleged industrial action? Is it the events of the 15th or is it the events of the correspondence of the 22nd? Is it the list of EBA issues?---It's an unfortunate pattern that it was repeated in November last year. A series of lunch or meal break meetings went over time, then followed by a series of very poor productivity that we determined and advertised to our customers as a "go slow". Normal rates resumed after discussions between the parties. I have to say it's an all too familiar pattern that we've seen in the last few days, and Commissioner, we have made it clear to the union, both in writing and on the telephone, that we stood ready to discuss the issues. We gave them no comfort that we would resolve to their satisfaction every one of them, but we were prepared to explore what the differences were and what accommodations could be made. We have just had no luck at all securing their time. I would have thought that a major terminal such as Brisbane would have deserved more attention from the local office than it's received. It's been very disappointing and very frustrating from the management's perspective. I can understand if the employees feel we're not dealing with the issues. If that's a frustration for them, then I have to say that it's not something that the company's caused, and we need to overcome those poor behaviours that are being exhibited in the extended meal breaks and in low productivity.
PN211
Just in summary, what are the issues afoot?---Okay.
PN212
Just in headings only?---All right. We - we - on the email that we sent to the union, basically it talks about bonus distribution. There is a bonus available to employees and they are disputing our right to determine who should get the bonus. There is a dispute over the use of an external medical provider for establishing the capacity of employees to return to work or what duties they may - may undertake if they have been subject to injury or a pattern of absences. We have issues of closed port days where they claim that they should be given a day in lieu, even if they don't work the day. There is an issue of a day in lieu over sick days taken in certain aspects of the roster which are weeks 6, 7 and 8. There was a clear agreement between the parties that when the roster was modified to allow that working agreement, that if an employee became or took a sick day on those particular days it was agreed between the parties very clearly that there would not be a day in lieu granted.
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PN213
Now, it is also your evidence, is it, that - well, is it your evidence that - your submissions, rather, that the uniform trends across the four cranes was impossible to explain other than by human intervention?---The - that is our position, Commissioner. The observed speed of the cranes is - is such to give us strong concerns. It's evidenced in the crane rates being achieved against a task that is no different to any other week at Fisherman Islands. In fact, probably with the large exchanges, better than other weeks at Fisherman Islands.
PN214
There have been, to your knowledge, no idiosyncratic situations that have arisen in respect of any particular vessels or any particular box profiles that - - - ?---No, we - - -
PN215
- - - can generate the uniformity of outcome across the four cranes?---No, none that were different to any other period. Again, that's the reason why we've had to wait to capture the data to prove the trend and that it is a consistent reduction in productivity against a pattern that is no different to any other period.
PN216
Was the meeting of the 15th at lunch time about these issues that you have just itemised?---We were not told what the issues were.
PN217
What was the - if you run off - well, have you run off crane performance rates prior to 15 July?---Yes, we have, Commissioner. We do that on a weekly basis and we share that with the union and employees. It's posted down in our amenities area. It's circulates amongst all terminal people. And it's shared with the - the South Queensland branch as well as the federal office of the MUA. As I say, up until July 1, there was a steady trend upwards in crane rates and in other key performance indicators that we agreed to share. Those key indicators, by the way, Commissioner, are the three issues that were contained in clause 3 of the enterprise agreement and the shift working time, the target of 7.25 hours.
PN218
So you say up until July 1 there was an upward trend?---Yes.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN219
And, what, it started to get erratic after July 1?---It's trending down now, yes.
PN220
So these started 15 July, some two weeks later?---That's right.
PN221
So did the two weekly sets of crane reports prior to the 15th indicate the same pattern, a downward trend, or was there a - - - ?---No, certainly not as strongly downward, Commissioner. The - the rates, if anything, plateaued and then - then started to dip. The one KPI that maintained a reasonable level was the truck turn time over that period, which again illustrates to us that whilst the yard is busy, it is not the factor in the productivity of the cranes.
PN222
Is there any particular reason, to your knowledge, of why it is from - well, from this particular week beginning 15 July that the downward trend started?---Well, we took the 15th as the measure because that was the day that we experienced the industrial action and became concerned that it indicated a general attitudinal change at the terminal and can only assume that by direct participation of Trevor Munday, that there was a sanction or awareness of it by the MUA.
PN223
Have you identified any of the particular drop-offs? Have you examined or evaluated any of the particular drop-offs in the crane rates, looking at crane number 1 on the day shift of 17 July and then on the day shift of 21 July, why there was such steep falls in those particular occasions?---We consider those usually explainable by the vessel - the crane being involved in handling break bulk. It may be a major outage of some sort. Handling break bulk is specifically excluded from the crane rate for the purposes of calculation, as per the enterprise agreement, and if it's a break-down issue we will make allowance for it if the crane is then run out and another crane is taking its place. It could also be - sorry, Commissioner - that it may have been finishing off a vessel and then the crane crew goes to lashing in which case whilst there's no containers being exchanged, the crane time still accrues.
**** ROWAN GEORGE BULLOCK XN MR TUCK
PN224
But in these particular circumstances, do you know what occurred?---I'm not particularly aware of those drop-offs but they are common across all activities. As we say, a trend or a deviation if you like from the norm is understandable. The general deterioration of rates is not - is certainly evident in our statistics. I could seek further advice on that particular crane shift, if the Commissioner pleases.
PN225
Well, that's my questions for Mr Bullock. We will now allow Mr Perry an opportunity. Mr Perry, are you still with us after all of that?
PN226
MR PERRY: Pardon?
PN227
THE COMMISSIONER: Mr Perry, you now have an opportunity to cross-examine.
PN228
MR PERRY: Mr Bullock, you made some comments that the MUA don't put any resources into the terminal of P and O. We had an official down there twice today. I believe that we have always been accessible to the company for any issues that arise down there. Is that generally correct?---If you were to say to me that there was a resource provided, yes I would. The resource himself admitted he was not across the issues and was not adequately briefed as to the concerns of the employees. Therefore, I wonder about the - the application of that resource, whether it's not just lip service to our concerns.
PN229
Well, I guess that raises the issue about lip service. The bonus issue, to my understanding, has been outstanding for sometime. The medical provider has been an outstanding issue for well over 12 months. The closed port days has been an issue since the last EBA. And the days in lieu of the rosters, 5 weeks, 5 or 6, I'm not quite aware of. So why all of a sudden would these become an issue of industrial action, do you think, if they have been outstanding for so long?---Because our position has been consistently put to the union and the
**** ROWAN GEORGE BULLOCK XXN MR PERRY
employees. I put it to you that you don't like what we're telling you and as was the case in November/December last year when there were other issues outstanding, a "go slow" was initiated to force the company to agree to your position.
PN230
Well, not directly my position, but you are claiming that your employees had a position that was different to management, I guess?---Well, I think that's a fair summation.
PN231
Just in regards to the box rates, it says in the EBA that it says work towards the container rate of 25 an hour. How often do you achieve over 25 an hour?---On some shifts we do achieve up to 30 moves per hour, but not enough, one, to satisfy the enterprise agreement rates, or to place us at an industry benchmark level.
PN232
Okay. Mr Bullock, you said there was some meetings taking place in regards to a Len Cox and - between Matthew Carley and Len Cox?---That's correct, David, yes.
PN233
Because earlier on Mr Tuck made mention that there was concern by MUA delegates employees and officials who want the "go slow". Len Cox obviously never concerned anything of any such nature to Mr Carley, and that is the conversation I imagine?---We've - - -
PN234
Where you would have raised that?---We have taken the avoidance of the question and the referral of us to the union, and the union's lack of attention to the issue as either stonewalling us or acceding to the fact that there is a problem.
PN235
Okay. Then you say there was another meeting between yourself, I believe, with Wayne Stuart, Graham Stark, and Boyd McKenzie where they also neither acknowledged there was any industrial disputation?---Well, that's what they said, but then again they wanted to talk to the union. We are concerned why the constant referral to the union if there's not a problem.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN236
Well, Mr Bullock, in all regards, I mean the MUA is a very significant part of the waterfront, and as you know I think about 99 per cent of your employees are members of ours by choice, and they refer most things to the union. But certainly the union directs them, but are you saying - has anyone actually said to you that the MUA is in dispute with P and O?---In my discussions with Mr Carr, he kept bringing me back to issues that were outstanding between the parties. I construed from that that he was associating those issues with the poor productivity that we were experiencing.
PN237
But those issues that Mr Carr - you know, Mr Carr is not present with me, unfortunately, but as I have said earlier, those issues referred to bonuses, medical provider, closed port days, and days in lieu of rosters. They have been outstanding issues for some time, and any, basically, I guess, conversations with have P and O in regards to everything always come back to those issues. So I mean I do not know how this could be perceived as industrial action by the MUA and why all of a sudden it occurred?---If you're asking my perception, David, my - my perception is that having reached an impasse between the parties, I am now being forced to negotiate with a "go slow" at my head. That's the perception I have, and I put that very clearly to employees and the union.
PN238
Have you agreed to have a meeting on 3 August with the branch here and delegates?---The discussion I had with Mr Carr last night was that he was informed that if we did not see an improvement, a significant improvement in productivity, we would be listing the issue in the morning with the AIRC, and he said "Well, no, let's have a meeting next week". I have to say, after sending emails to your branch about holdings meetings with plenty of notice, and then having them turned down, I have no confidence that the meeting would have been held as undertaken. I have evidence of meetings that were called and then, through other pressing matters of the union, they have been cancelled. I had no comfort from Mr Carr's statement that that meeting would, in fact, occur, and I needed to take steps to protect the interests of my customers and the company.
PN239
Mr Bullock, did you have a conversation with Mick Carr last night?---Yes, I did.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN240
Were you aware that he wasn't in Brisbane?---He told me he was flying to Melbourne in the morning and he would ring me when he got off the plane.
PN241
Flying to Melbourne from where?---He didn't say.
PN242
He was in Sydney?---Well, my - the movements of the MUA and the resources applied, as I pointed out to Mr Carr, had to be decided by the MUA. This is a serious issue affecting a significant operation in Brisbane and we asked his assistance to resolve the issue.
PN243
And he said - my understanding is that the Branch Secretary said on 3 August he is able to meet with you?---He didn't say a date; he said "next week". 3 August was a date that was to be set for a combined ERC meeting between our Hamilton employees and the terminal employees which we have had to since cancel because productivity has pushed ships out into those - on to that day, and we can't release the labour to hold the meeting. I also informed Mr Carr of that earlier yesterday.
PN244
Well, that is fair enough. But what I am trying to get to is that the MUA has tried to meet with you and has put forward the proposition of a meeting next week to go through these four issues that you have mentioned - the bonus, the medical provider, closed port days, and days in lieu of rostered days off when you're sick - sick leave?---Well - - -
PN245
And productivity has increased today, I believe. You have got no concerns about the productivity today?---I have concerns that it will not be sustained, that only by saying that we would arrive in this place have I seen an improvement in productivity. So, therefore, I must say that I am very concerned about the conduct over the forthcoming shifts.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN246
Mr Bullock, you said that you had the conversation with Mr Carr last night, and you had proposed to meet early next week. Then am I correct in saying that P and O made the application to the Commission this morning?---We advised Paddy Crumlin, the federal - the National Secretary - that we would be listing. We advised Mr Munday, who I spoke to last night who was at Patrick's Brisbane terminal last night, and I spoke to Mr Carr whose whereabouts you're telling me was Sydney - - -
PN247
I believe it was Sydney. I believe?---Okay. Well, he told me he was going to Melbourne. I - I assumed he was going from Brisbane to Melbourne. He phoned me on the mobile, so I'm not sure where he phoned me from, David. But what I am saying is that if these issues are so important, are so concerning to our employees, we have demonstrated an ability and a willingness to meeting. There has not been the same commitment from the union and an offer now to meet next week carries with it the same certainty that I have been dealing with all week, that is no certainty at all.
PN248
Mr Bullock, you mentioned that Trevor Munday was at the Patrick's facility last night at Fisherman's Island?---That's my understanding. He told me he was attending a fire in a straddle.
PN249
Okay. Well, my understanding is that he is in Sydney as well. There was a fire in a straddle here but that was being dealt with by the phone - I am not sure?---I am sure - well, the indication I had, David, was that he was in Brisbane. I understood he went to Sydney on Wednesday. An email I had from Mr Munday declines meeting on the - meetings on 26 and 27 July, and that he would contact me on Wednesday to advise of his availability. That phone call did not occur. So I am no wiser as to his availability.
PN250
Well, either am I at this point, because I can't speak for that. Look, at no time - has anyone informed you that there is a "go slow" on? Has anyone verbally said to you that the union is in dispute with you or your company?---I have not been put on formal notice from the union. At the end of the day, the operation of the business is mine to be responsible for, and I need to make these judgments based on empirical evidence.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN251
Yes, well, unfortunately, I have not been involved with the discussions around this issue and I was unaware you had productivity problems until today. So, look, I don't know what the go is. All I am suggesting is we have this meeting on the 3rd, whatever date the parties can work through these issues. But I can certainly let you know, Mr Bullock, that there is nothing organised by the union in regards to industrial disputes. Now, you say you had a meeting on the 15th, that you did okay a meeting for Trevor Munday to address the employees during their lunch break?---No, he told us he was on site and was talking to the employees. That's part of the right of entry.
PN252
Yes, yes, I understand that?---Yes, yes.
PN253
And then there was - the way I sort of hear you say, there were three different lunch breaks that day?---Two. There are - there is an early and a normal meal break provision in the enterprise agreement. There is no - - -
PN254
But you said some were delayed by 20, some were delayed by 5 minutes?---45.
PN255
By 45 minutes. When you said the delegates come and seen you at - I think it was 12.45 - is that correct?---They saw Matthew Carley.
PN256
Matthew Carley?---Yes.
PN257
Do you know how long they met with him for?---Not sure. He advised them to return to the amenities and instruct the employees to return to work but - - -
PN258
So there would have been some discussion between - at 12.45 between the delegate and the Operations Manager, so you would say that would last 25 minutes, I suppose?---At a maximum, yes. It doesn't take that long, I would suggest, but by the time you get up and down to the amenities, perhaps that long.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN259
Okay. So there'd be another discussion amongst the employees, I guess that, you know, "Look, the meeting is over and we can't resolve all issues now. I'll have to come back tomorrow lunch time and I'll get that - take another 5 or 10 minutes and you will be back to work"?---Well, you're - - -
PN260
So no one actually refused to go to work, I understand?---Well, David, what you didn't understand was that when I went down into the amenities room, the meeting was still in full swing. There were employees and Trevor Munday participating in the meeting, and I had to cease the meeting and instruct people to go back to work. So there was no agitation. In fact, it seemed to me that had we not intervened, that meeting may have gone on for quite some time.
PN261
I guess that's your right to manage, to make sure people go to work on time. But that wasn't part of an industrial dispute, though. That wasn't an organised dispute that you're aware of?---I don't know what you would call a union official standing there in front of all of our employees beyond the meal break where it's completely and clearly defined in our agreement, I don't know what organisation means in your terms but it - - -
PN262
But didn't you say that there were staggered meal breaks that day and some of them actually were only a short period over that time?---No, David. There are early meal breaks and there are normal meal breaks within the P and O Enterprise Agreement at Fisherman Islands terminal. If you refer to the document, the latest the employees should return to work is 12.45. They didn't return to work until 1305.
PN263
Unfortunately, I am not aware of the discussion. Look, other than the fact that no one has actually said to you that the MUA is in dispute with you, have they?---The MUA has told me there are issues in dispute between the company and the union and the employees.
PN264
But they're outstanding matters from previous - this is the bonus, the medical provider - what are the other issues - closed port days and days in lieu of sick days or something?---Yes, and I do apologise, David. The balanced leave program was also one issue as well.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN265
The balanced leave program?---Yes.
PN266
But they're issues that are all down to be discussed by the appropriate parties; is that correct?---That's our position, David, but we've heard nothing from the MUA that gives us any - - -
PN267
Well, Mr Bullock, I will tell you now I will guarantee that I will meet with you any day next day that you wish to resolve and discuss these matters, and I am an official of the union, and we will meet with companies when issues arise because we have made a commitment to you for an enterprise agreement that we will work towards the productivity level, and we certainly abide by that?---Well, David, that would be the first admission that you abide by the productivity levels contained. There has been no serious commitment to 25 moves per hour at a local level.
PN268
I certainly think there is. I mean, the actual words say "work towards" and you have got some older equipment down there, as you have stated earlier with one of the cranes, and you have got a nice new one. And it's the way the ships are stacked there, as you're aware, and you have explained to the Commission that sometimes you get a ship here that you have got to keep shifting the crane around that can reduce productivity, is that correct, if you have got to keep going in different cells?---That hasn't been the case this week. We've had very large exchanges on reasonably - in fact, more simple stows than we've had to deal with in previous weeks, David, and our productivity has been very sub-standard.
PN269
If we go back to today, you said that at 7 o'clock this morning productivity - there was no issue with productivity, that it was on track as per the EBA; is that correct?---No, I didn't. At 7 o'clock this morning, I was not at all satisfied with the outcome of the night shift. In fact, I happened to talk to Scott Eadie, a site representative, as he was leaving the site, and asked him what the issues were. He had no - nothing concrete or nothing supportive to say. I indicated to him I was unhappy. So we are just getting no cooperation or no quantification of the issues to give us any comfort it's anything but industrial action.
**** ROWAN GEORGE BULLOCK XXN MR PERRY
PN270
So Mr Eadie never - he never made any confirmation that there was any dispute with the company or him, as delegate, was in dispute with you?---No. He referred me back to the union.
PN271
And what you mean to say - there is no dispute and I think if your container rates are what they are - you said today is on target as they're supposed to, I cannot see where the dispute is?---Well, can I say in response to that that an instantaneous crate rate of 25 over a short period does give me no comfort at all that we're sustaining a normal crane rate. That's the whole point of what I was saying.
PN272
I have got no have further questions, Commissioner. I am not quite sure where this is heading.
PN273
THE COMMISSIONER: Good, thanks, Mr Perry.
PN274
MR TUCK: No re-examination.
PN275
PN276
THE COMMISSIONER: Back to you Mr Tuck.
PN277
MR TUCK: Commissioner, in our submission, there is evidence before the Commission, first, that industrial action has been taking place, and has happened, and there has been some improvement in the productivity today but there has been no complete withdrawal of the industrial action. Moreover, the fact that there has been improvement today, particularly after the filing of this application, really reveals that this has been an orchestrated "go slow". It can be turned on and off. It has turned off when this application was filed in the Commission. It has been plain, we say on the evidence of Mr Bullock, that there has been a "go slow". It has been orchestrated.
PN278
It is evidenced by the charts. It is also supported by the fact that there are no extraneous circumstances which would explain that decline. In fact, that decline ought not to be occurring because of the nature of the ships that have been in port. The obligation for the Commission is to satisfy itself in relation to matters of jurisdiction under Section 127, first that there is industrial action is happening, and we say that a "go slow" being a ban on the normal performance of work falls plainly within the definition of Section 4 of the Act; that the action is happening, threatened, impending, or probable, we say it is happening.
PN279
If the Commission is not satisfied it is happening, then we say it is certainly probable. The attitude of the union in, one, not being willing to, we say, truthfully admit to the position that they have been orchestrating a "go slow" and ban on work means that the company cannot be satisfied that today's improvement will be sustained. It is not enough for the union to simply say, "Well, I understand the rates are improving and no one has ever said to you that there is a 'go slow'".
PN280
The fact that no one says it, it may well be a useful position for the union to adopt in these matters, but it does not excuse the behaviour. It simply means that they are not prepared to come out of the grass, effectively, and say this is what they are orchestrating and for the reasons that they are doing it. The evidence of Mr Bullock makes plain that the industrial action has been taking place.
PN281
The fact that the union has not been prepared to come out and explain why they are imposing the bans, or for what industrial purpose the bans are meant to bring pressure to bear on P and O, does not excuse that behaviour at all. In fact, it makes, in my submission, the behaviour all the worse because the company is not in the position to properly address any issues that may be festering from the point of view of the union and its members, and therefore, it is simply bleeding whilst this process and this industrial action is imposed upon it, and it is bleeding at a significant rate.
PN282
The dollars involved, as evidenced by Mr Bullock, are significant. They are not small amounts. They are in the hundreds of thousands of dollars that this has cost. For the union, one, not to be here in person and not to be across the issues, and not be in a position to address the Commission, in our submission makes plain that the union has not been interested in resolving it; what it has been interested in is putting pressure on P and O ports through a slow process to bleed the company through this period, and then have discussions with them next week.
PN283
They ought not get the benefit of that behaviour. They ought not to be allowed to conduct themselves where they inflict that sort of damage to the company, and to its clients, and then say, "Oh well, we're now prepared to discuss it with you, and we will come to the table". That is not the manner in which they ought to conduct themselves. That is not their obligations under the agreement, and that is not their obligations under the Workplace Relations Act.
PN284
They have obligations not to engage in this sort of behaviour, and it is unlawful for them to do so. Now, we say the Commission can be satisfied, first, that there is industrial action happening, impending or probable. It is happening in relation to employees and work that is regulated by the certified agreement. The Commission has before it a copy of the P and O Ports Fisherman Islands Terminal Enterprise Agreement of 2003.
PN285
That was certified by Commissioner Raffaelli on 15 September 2003, and it remains in force until 30 June 2005. It has a disputes resolution procedure. It does have accommodation for the union to agitate and raise issues which it has concerns, and it has an obligation and a commitment from both parties that work will continue as normal during that process.
PN286
Further, the Commission can be satisfied, in our submission, that industrial action has been happening, and that those jurisdictional matters having been satisfied, the question then is on what basis the Commission ought to exercise its discretion. Now, it will be well-known to the Commission that Coal and Allied, a Full Bench of this Commission has considered the basis upon which the Commission will move, and we say if you look at the balancing exercise in this case, you have P and O ports suffering significant loss itself, and its clients suffering significant inconvenience and cost, and that the fact that there is an enterprise agreement in place that the company has been prepared to meet, that the company certainly comes before the Commission today with very clean hands in this matter, and that in those circumstances the Commission ought to be satisfied that its discretion ought to exercise to grant an order.
PN287
Now, we have set out what we say the order should be in our annexure to our application. Now, we seek an order for 12 months. We will not die in the ditch about that period if the Commission is minded to make an order, but we do want an order at least for a period of time, certainly whilst these discussions take place so that we can be satisfied that the union is aware that it ought to be behave in a particular way and our employees have certain obligations whilst we have these discussions rather than have discussions with a gun held to our head.
PN288
The matters are going to be resolved. They will be assisted, in our submission, by that process and that period of time being protected by an order of the Commission. And if the Commission is minded, we would say that an order of a lesser period that accommodated that process would be appropriate. The Annexure 1 sets out what that order ought look like, and on the basis upon which we move, and we submit that the Commission has both the jurisdiction to make such an order and the circumstances ought move the Commission to exercise its jurisdiction to make an order in those terms, or like terms. If the Commission pleases.
PN289
THE COMMISSIONER: Good, thank you, Mr Tuck. Mr Perry?
PN290
MR PERRY: Commissioner, we would oppose that order based on the fact that going through the graphs from 15 July there are days there where they have achieved over the 25 on some days, and other days they have been slower. That seems to be the peak and trough in stevedoring. You have got dates here of the 29th, crane - I think it was 2 - is up around the - over the 20 mark. I think crane 3 was down a little bit under the - it is over the 15. But one of the most startling revelations that come out of Mr Bullock's evidence, I guess, was that the truck turn-around time is actually five minutes faster than what the EBA direction is for productivity.
PN291
So if there was going to be an issue, you would think that that would be a process that would be affected, and I do not believe that that has occurred. So if it is only about the actual containers coming off the ship, and that seems to be the main issue here, I do not see that it is an orchestrated dispute at all, in any fashion, because we certainly have not collaborated it and we certainly would not instigate it. Why the slow-down in the crane rates have been over the previous week, I cannot explain; I have not even been there. I have been on holidays; I have been to Singapore.
PN292
But there is certainly, as I am aware of, absolutely no dispute. Now, for Mr Tuck to say that we did not give any regard to the Commission by not appearing, we were notified at 11 o'clock. I was contacted at approximately 5 to 12.00 today to come and do it, and then it was organised to come and do it by phone. So there was no way that I would have physically made it to the Commission on time, anyway.
PN293
Now, Mr Bullock knew that Mick Carr would not be in the state today. Mr Bullock claims that he spoke to Mr Munday last night and says that he was in Brisbane. I am pretty sure Mr Munday has been in Sydney for nearly most of the week. Mick Carr has certainly been out of the state since Wednesday. Productivity by the company's admission improved this morning before anyone knew about being notified for any application to go to the Australian Industrial Relations Commission, so I cannot see where the Commission could find the grounds of the dispute. That is my submission.
PN294
We certainly have not orchestrated, organised it, or informed anyone to be involved in any form of industrial action against P and O. And that is where we stand, Commissioner.
PN295
THE COMMISSIONER: Good, thanks, Mr Perry.
PN296
I have given consideration to the submissions that have been made today and the evidence that is before me. The Workplace Relations Act, Section 127(1) and Section 127(2) establishes a number of jurisdictional prerequisite purposes of making an order, and then vests in the Commission a discretion as to whether or not to make an order.
PN297
In respect of Section 127(1), the first jurisdictional requirement is that - and I quote - is that:
PN298
If it appears to the Commission that industrial action is happening or is threatened, impending, or probable ...
PN299
In my view, I need to initially determine whether it appears to the Commission that that is the case, and I quote the Act again. It says:
PN300
If it appears to the Commission ...
PN301
I have before me as principal evidence in this matter the crane rates for the four cranes at the Fisherman Island terminal and their lifting rates for the period 15 July to 29 July, a two week period. The most significant observation I can make about the performances of these four cranes over this two week period is that there is a common and discernible downward trend by a significant percentage in respect of each crane.
PN302
There appears to be no discernible explanation for any uniform mechanical, technical, or other physical obstacles to the significant downward trend performance of each of the four cranes other than, as is suggested by way of explanation, human intervention. If there had been deviation in performance - it may lead the Commission to a different view if there had been partial performance at the assumed rates productivity in respect of one or two cranes or more in relation to others. There may well be a recourse to an explanation that might reside in some particular scenarios relevant to those particular cranes confronting the particular crews at the time.
PN303
But what is before the Commission at the moment by way of evidence is we have, in effect, four operating cranes that have a virtual uniform decline in productivity across a two week period when the evidence was in the previous periods the trend had been upwards, and that this trend over the two week period, 15 July to 29 July, is distinctive for its reason of its uniformity of decline across all four cranes.
PN304
I am being asked to reach a conclusion as to whether or not I am of the view, or it appears to me whether industrial action is happening or is threatening, impending, or probable, and I find myself in a position that it does appear to me that the trend performance of all four cranes is such that I am unable to reach a view other than that it would appear to me that industrial action is happening, and indeed, if it has momentarily ceased as of last night's shift, and possibly over the course of today's day shift which is still in progress for the next few minutes at least, it may nonetheless be impending or probable or threatened in relation to the future performance of those cranes.
PN305
Having so reached a view, I am also asked to find other jurisdictional grounds for making an order. I am of the view that the work in relation to the circumstances before the Commission is regulated by a certified agreement, in this case the P and O Ports Fisherman Islands Terminal Enterprise Agreement 2003. I am also of the view that in respect of Section 127(2) of the Act, that an appropriate person has made an application in respect of this matter.
PN306
It falls to me as a matter of discretion, having been satisfied that jurisdictional prerequisites are met, whether or not I issue an order, and if I do on what terms. I have had regard to the evidence from Mr Bullock as to the economic impact of the downward decline in crane rate performances over the last two weeks in terms of its direct economic impact, that is, as well as its actual and potential indirect economic impact by way of wider relationships with ship owners and so forth.
PN307
I am of the view, as a consequence, that an order should issue. I am not of the view that an order should issue in the strict terms as sought by the applicant in this matter. The applicant in this matter has at clause 7 of the draft order sought an order to remain in force for some 12 months, though the submissions in closing have provided some flexibility in respect of that amount of time, but nonetheless with a view to seeking an order of sufficient duration to provide some comfort for the purposes of negotiations in respect of outstanding issues that have been cited by Mr Bullock.
PN308
I am not of the view that an order of any extended duration should be made in respect of this matter. I am of the view that I should only make an order that should come into effect from the distribution of the order later this afternoon for a period of some two weeks. Having so made the order, and on the basis of what in my view is a relatively short period of time, I will nonetheless leave it to the applicant in this matter to again file in respect of this matter, if it has continuing concerns over the next reporting cycle in respect of these particular crane rates.
PN309
I am also of the view that a period of two weeks is sufficient to enable the parties to, and as Mr Perry has submitted in his exchange with Mr Bullock by way of cross-examination, it will provide sufficient time for the parties to finally, it would appear, come together for the purposes of discussions as to the outstanding issues that are before them, that were earlier itemised by Mr Bullock, and these refer to the bonus distribution, the external medical provider, closed port days, sick days and days off in lieu, and the balanced leave program. That may not be an exclusive list, but it is an indicative list that I am aware as being the subject matters that are required for discussion between the parties.
PN310
As I said, I am not prepared to make an order of significant duration. I nonetheless make the observation in passing that industrial action of various types is sometimes elusive for the purposes of ready characterisation and identification. In respect of this matter, I have examined the evidence before me and it appears to me that industrial action in the form as alleged is happening, and if not happening at this direct point or from last night's shift and today's day shift, is indeed, nonetheless, probable or threatened on the basis of the previous two week period.
PN311
I again reiterate that I have not been inclined to make an order of significant duration. Despite 12 months being sought, I think 2 weeks will be sufficient for the parties to re-engage for the purposes of negotiation and for another reporting cycle to be carried out on the crane performance rates. If there are issues regarding the outstanding matters between the parties, the Commission stands ready to be a participant to the effect that it can be usefully involved, but I leave that, of course, to the parties to consider.
PN312
Again, though, in the event the company is of the view that there is further or continuing industrial action, and this can be demonstrated, and the jurisdictional requirements of the Act can be met, it is of course free to make a further application as it may and in the circumstances. Other than that, I will convert these reasons in transcript to a written format in a short period of some days, and publish that accordingly.
PN313
Beyond the comments that I have made and the decision I have provided in transcript today, I have no further comments, and we are adjourned.
ADJOURNED INDEFINITELY [3.05pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ROWAN GEORGE BULLOCK, SWORN PN98
EXAMINATION-IN-CHIEF BY MR TUCK PN98
EXHIBIT #A1 LETTER TO MICHAEL McLENNAN DATED 22/07/2004 PN115
EXHIBIT #A2 LETTER TO SCOTT EADIE DATED 22/07/2004 PN119
EXHIBIT #A3 LETTER TO EMPLOYEES NOT INVOLVED IN STOPPAGE DATED 22/07/2004 PN124
EXHIBIT #A4 LETTER DATED 22/07/2004 TO EMPLOYEES WHO BREACHED OBLIGATIONS PN134
EXHIBIT #A5 LETTER DATED 22/07/2004 TO EMPLOYEES ON EARLY MEAL BREAK PN134
EXHIBIT #A6 LETTER SENT FROM GRANT GILFILLAN TO PADDY CRUMLIN PN138
EXHIBIT #A7 GRAPHS SHOWING CRANE ACTIVITY PN171
CROSS-EXAMINATION BY MR PERRY PN228
WITNESS WITHDREW PN276
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