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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
O/N 15218
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY INDUSTRIAL REGISTRAR JENKINS
RE 2004/1223
APPLICATION FOR REVOCATION OF PERMIT
Application under section 285A(3) of the Act
by P&O Ports for revocation of a permit to
enter and inspect issued to Glenton Wood
SYDNEY
10.18 AM, TUESDAY, 23 NOVEMBER 2004
Continued from 22.11.04
PN1044
THE DEPUTY REGISTRAR: Mr Gunther, if I could just remind you that you remain on oath from yesterday?---Yes.
PN1045
Mr Docking?
PN1046
MR DOCKING: Registrar, before recommencing cross-examination, is it possible that the transcript service be varied to rather than having a three day delay approximately, perhaps it can be obtained in a shorter time period so that when submissions are made, at least some of the transcript can be used rather than notes and recollection?
PN1047
THE DEPUTY REGISTRAR: Certainly. I'll consider that, Mr Docking, during the course of the morning and advise you at lunch time.
PN1048
MR DOCKING: Thank you.
PN1049
THE DEPUTY REGISTRAR: I'm hesitating really because I suppose I'm still - we've set this down for four days. Hopefully, that's all it will take. If it sort of eventuates that it's going to take longer and we're talking about submissions at some point down the track, then obviously it's not necessary for me to take that decision but certainly I will attempt to resolve that by lunch time.
PN1050
MR DOCKING: Thank you.
PN1051
Mr Gunther, do you still have a copy of both your statements with you in the witness box?---Yes, I do.
PN1052
I just wanted to check with you, paragraph 10 of your first statement, the second line, says you were to drive approximately 12 corporate employees around the Darling Harbour site?---Sorry, what paragraph was that again?
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1053
Paragraph 10, the second line?---Yes, that's correct.
PN1054
How many seats did that mini bus have?---13.
PN1055
So is that 13 plus the driver's seat or including the driver?---It's including the driver's seat.
PN1056
And what occurred on that day was there were eight P&O Ports employees plus Ms Mulligan plus Sarah Appleby and plus Mr Nathan Utzon making 11. That's right?---I don't know exactly the numbers.
PN1057
Well, assume that's the position. It means in a mini bus with 13 seats, even allowing that including the driver, there was a spare seat?---No, there was 12 seats then. That's why I've said approximately 12 people. I don't know exactly how many people but there was enough seats for the 11 people on the tour plus myself and that included the driver's seat.
PN1058
So you know, don't you, in one of your emails you suggest that there wasn't any spare seats?---There wasn't any spare seats.
PN1059
And your first evidence was correct that it was 13 seats allowing a spare seat?---There were no spare seats.
PN1060
Now, I want to go to paragraph 14 of your first statement and you see you set out some conversation and you make reference to "at this stage". Do you see what I'm referring to?---Yes.
PN1061
And if you look at paragraph 21, you indicate:
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1062
On 24 March 2004, Paul forwarded me an email from Glen Wood that he had previously received.
PN1063
That's a reference to Mr Davis, is it not?---Yes, it is.
PN1064
And just so there's no dispute, I want to show you what's EJF12. I can provide a clean copy. It includes subject, attitude of your management, an email from Mr Wood to Mr Blood, 23 March 2004 at 3.55pm. That is what you refer to in paragraph 21 of your first statement, exhibit P&O 5?---Yes, it is.
PN1065
So did Mr Davis tell you that quite apart from the email, did he tell you over the telephone or face to face that he had this email from Mr Wood sent to Mr Blood on 23 March 2004?---The first I heard of it was when he forwarded it to me.
PN1066
How did you know it was an email that Paul had previously received from Glen Wood?---It wasn't received from Glen. Tim Blood forwarded it to Paul for his comment.
PN1067
How did you know that?---Because the forward message was on the email.
PN1068
And you can put that to one side. I then want to take you to page 12 of your first affidavit, GSG3 and do you see also in that document, the fifth paragraph down which says:
PN1069
At approximately 415 hours.
PN1070
Do you have that paragraph?---Yes, I do.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1071
And do you see in that paragraph, the second last line you say:
PN1072
It was at this stage where he told GW to "piss off".
PN1073
?---Yes.
PN1074
And if you look down two paragraphs down, you say:
PN1075
It was at this stage that GW turned his comments to a personal nature.
PN1076
Do you see where I'm referring to?---Yes, I do.
PN1077
Two further paragraphs down, you say:
PN1078
GW walked away and then returned.
PN1079
?---Yes.
PN1080
Do you see what I'm referring to?---Yes, I do.
PN1081
And reading GCG3, that reference I just took you to is the first time you suggested GW walked away and then returned, isn't it?---Yes, it is.
PN1082
And what you did in your second statement, exhibit P&O6 is change the version both in your statement printed 26 May 2004 and your version in GSG3, haven't you?---I'm not too sure. Which paragraph are you referring to that I've changed?
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1083
And what you've changed is to something that's incorrect, paragraph 22 because in paragraph 22, you say, the third sentence:
PN1084
Paul Davis told Glen Wood to "piss off" on one occasion only and said this as Glen Wood was walking away from him.
PN1085
That change is incorrect, isn't it?---No, what I mean by that is when Paul said that to Mr Woods, Mr Woods had turned and was starting to walk away. He'd only made a couple of steps. What I mean when I said, when he returned to ..... number, he'd actually walked a good 10, 15 metres away, then turned around and came back.
PN1086
Sir, paragraph 22 is false, you've made it up?---No, I haven't.
PN1087
Well, it's certainly not in what you say is your closest in time recollection in your first statement, GSG3, is it, what you set out in paragraph 22 about Mr Wood at that stage of being told to piss off by Mr Davis that Mr Wood was walking away?---That is correct, he was walking away from him. It was only a couple of steps. I don't - - -
PN1088
It's not in GSG3, is it, that suggestion in your statement printed 25 August 2004?---No, it wasn't.
PN1089
And it's not there because you've made it up?---No, I haven't.
PN1090
So it means, doesn't it, GSG3 is inaccurate at least in that respect?---No, it's not.
PN1091
So you just left it out but it's not inaccurate, GSG3?---Correct.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1092
So you don't consider leaving something out like that makes your version inaccurate?---No, I do not.
PN1093
And let's have a look at GSG3, part of your first statement. You suggest that Giddeon Falconer was a union member, don't you?---Yes.
PN1094
Who told you that?---He did.
PN1095
Did he tell you that he'd paid a $5 joining fee and had never paid any union subscription?---No, I did not, did not know that.
PN1096
If you look at GSG3, page 12 of exhibit P&O5 at the bottom, it indicates:
PN1097
At that time Mr Wood entered the site to talk to the crew of Spirit of Tasmania III most Tuesdays and Fridays. He does not advise me of his intending visit.
PN1098
Do you see what I'm referring to?---Yes, I do.
PN1099
And you were aware from 1 April 2004, P&O was insisting that Mr Wood provided written notification in advance of any visit?---Yes, I was.
PN1100
And that never occurred, did it, by P&O for Darling Harbour Wharf 8?---No, because he wasn't coming to talk to our employees.
PN1101
And it never occurred because you've never had control of that site in the way you suggest in your first statement?---I'm not quite following the question. Which part of the statement are you referring to?
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1102
Let's deal with your first statement, paragraph 3. After some quotes, you refer to some Darling Harbour site policy. Do you say that's in writing?---At that stage, no.
PN1103
Are you saying it's now in writing?---Yes, it is.
PN1104
When was it first put in writing?---When the walkways were marked out.
PN1105
When? Give me a date?---Off the top of my head, I can't say.
PN1106
And who do you say wrote the policy?---I did.
PN1107
And are you saying it was a policy in writing at the time this statement was printed, 26 May 2004?---It could have been, I don't know, I'm sorry.
PN1108
Well, if it existed, you chose not to attach it?---Well, it's, we, I constructed on, with consultation with TT-Line. It's sort of their document but -
PN1109
So you wrote it but it's a TT-Line document, is that what you're saying?---Well, we wrote it together.
PN1110
Well, whose logo, that is company letterhead appears on it?---No ones.
PN1111
Anyway, back to my question. If it did really exist as at 26 May 2004, you chose not to attach it to your statement?---I didn't think anything of it.
PN1112
Pardon?---That it didn't occur to me to attach it, no.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1113
Well, looking at that paragraph, does it help refresh your memory that it did really exist as at 26 May 2004 in writing?---No, I don't recall if it did exist or not.
PN1114
And in your second statement you make reference, don't you at one stage Mr Wood pointing a camera at you and taking photographs?---Yes.
PN1115
So you've known for a long time that Mr Wood has taken photographs of you at work at Darling Harbour Wharf 8?---He's done it that once.
PN1116
But you've known before you did your second statement that had taken place?---Yes.
PN1117
And you never suggested to Mr Wood, did you, that it was illegal to take photographs?---I didn't know it was illegal.
PN1118
Well, you're not suggesting it is, are you?---I don't know.
PN1119
Do you stop passengers who are coming and going taking photographs?---No, we do not.
PN1120
And passengers do that from time to time in your observation?---Yes, they do.
PN1121
And that's just a normal thing people do on holidays, isn't it?---Yes.
PN1122
I'll show you these photographs.
PN1123
Registrar, I've only got one colour set of originals and I can provide it. It's more as an aide-memoire to yourself and P&O a black and white copy but obviously photocopying colour photographs doesn't lead to great reproductions in black and white but I'll tender the colour ones ultimately.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1124
Before I take you to the photographs, you have to wear personal protective equipment, don't you?---Yes.
PN1125
When you perform this job of calling the mark?---Yes.
PN1126
That PPE or personal protective equipment includes, do you a vest?---Yes.
PN1127
Does it also include a hard hat?---Yes.
PN1128
And you'd be acting unsafely if you did calling the marks without a hard hat according to you?---Yes.
PN1129
You've done that on occasions, forgotten to put your hard hat on when you called the marks?---In the early stages before the risk assessment was completed, there were stages where a hard hat wasn't worn.
PN1130
So you accept you've acted unsafely by not wearing a hard hat performing the task of calling the marks?---Yes.
PN1131
Have you been punished, disciplined by P&O for that?---No.
PN1132
Have you ever told management above you that you acted so unsafely?---No.
PN1133
And when do you say the risk assessment was done which somehow has a connection to you having to wear a hard hat?---I don't recall the date.
PN1134
How many days ago was it?---Off the top of my head, March, April.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1135
It might have even been after April?---I don't recall the date.
PN1136
A pretty important document a risk assessment for something like calling the marks when lines could part and kill someone. Are you seriously saying you don't remember when it was done?---Yes.
PN1137
Do you do many risk assessments?---We do risk assessments for all hazards on site.
PN1138
Have you done many risk assessments since the risk assessment of calling the mark?---No, we completed them all.
PN1139
I'll take you to the photographs and the system that applies and Registrar, I anticipate when Mr Wood gives evidence, he'll adopt the descriptions that appeared on the back of the original photographs. I ask that the witness have the colour ones and the Registrar has just an aide-memoire the black and white. On the originals there's a description on the back.
PN1140
THE DEPUTY REGISTRAR: Yes, I appreciate the point, Mr Docking, it's not a problem.
PN1141
MR DOCKING: Probably if you put them on the little ledge in front of you so they don't become mixed up, the colour photographs and I'll take you to each one in turn so if you can just put the bundle in front. I'll take you to the first one on top and then as you look at each one, if you just turn them over and put them to aside so it might just help from mixing them up. I'm showing you photograph one. That shows Wilson Security personnel directing cars and vans into the yard, not P&O employees?---Yes.
PN1142
If you can just put that to aside. I'm showing you photograph two. This shows the position near the stairs where you stand to call the mark?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1143
Trucks are parked some 50 to 60 metres away?---Yes.
PN1144
And there are witches hats in place, aren't there to prevent trucks coming near when you're calling the mark?---No, those witches hats are there to prevent discharging or loading cars from getting lost and going into the freight yard.
PN1145
And as at the day of this incident in January 2004, the position was that Wilson Security personnel directed cars and vans into the yard, not P&O employees?---Yes.
PN1146
Just like in photograph one?---Yes.
PN1147
Were the witches hats actually there in January 2004 for the incident you talk about in your first statement?---Yes, the witches hats have always been there.
PN1148
And then - - -
PN1149
MR BARTON: Registrar, just in relation to this line of questioning, relying on these photographs, I'm content for these questions to be put to this witness and presumably others but subject to this reservation. There's been no proof of these photographs, whether they were taken with any authority, when they were taken or anything of that nature. In the interest of expediency, I'm not objecting to these questions being put to the witness but we may well be objecting to the tender of these photographs at an appropriate point and that may have implications for the evidence but I'd simply put it on that basis at the moment.
PN1150
MR DOCKING: Registrar, when Mr Wood gives evidence, he will confirm he took the photographs and he has inserted the descriptions or provided the descriptions. Whether he physically stuck them to the back, I'm not sure but he does provide the descriptions. I'm not proposing calling Mr Wood at this stage.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1151
THE DEPUTY REGISTRAR: I don't think I need to rule on any of that at this stage, although Mr Barton, your reservations are noted.
PN1152
MR BARTON: Thank you, Registrar.
PN1153
MR DOCKING: If you can then go to the third photograph, it shows where trucks are parked for loading, doesn't it?---Yes, it does.
PN1154
Some 50 to 60 metres away from where you call the mark?---The freight can be parked anywhere from where that car is on the left hand side of the picture right down to the back.
PN1155
You may have to just explain what you mean by the back so we're not at cross purposes?---Okay. The yellow barriers in the back of the photograph in the background.
PN1156
Is that towards the back? You can see the left hand side Centrepoint Tower. Do you mean in that direction?---No, where the taut liner is, to the right of the taut liner, these yellow barriers, they can be - freight can be parked anywhere from those yellow barriers to the car on the left hand side, that's area all for freight.
PN1157
In any event, the trucks are not allowed to be any closer than this 30 to 60 metres away from where you're calling the mark?---30 to 60 -
PN1158
I'm sorry, 50 to 60 metres?---No, what - from where I'm calling the marks, the - how wide would the yard be?
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1159
Have you actually made any measurements or checked any measurements yourself?---Yes, I have. I have them in my office because we needed to work out the best way to lay the yard out so we did measurements working on the trailer sizes and things like that but a trailer can be parked there, it's 12 metres. You're probably talking about 12 to - 12 metres away from where I call the marks.
PN1160
Why do you "probably"?---I am picking a figure. I am - in my head.
PN1161
Guessing?---Yes, guessing.
PN1162
Well, that's all right. Mr Woods has taken the precaution of checking this so we can deal with that in his evidence. Now, what's shown in photograph three was the same arrangement in place, 30 January 2004, wasn't it?---Yes.
PN1163
If you could put that third photograph to the side. I'm then asking you about photograph number four. That shows the ramp where the ships ramp is lowered to load or unload the vessel, isn't it?---Yes.
PN1164
Access by passengers on foot is strictly prohibited in that area?---Yes.
PN1165
And Wilson Security are the ones that ensure that this is carried out that passenger access is strictly prohibited?---And P&O employees.
PN1166
Which P&O employees do you say have a security role of the type performed by Wilson Security at Wharf 8 Darling Harbour?---I guess you could say it's Wilson's responsibility to not let anybody pass the concrete barriers but if we see somebody in the yard, obviously it's a safety risk and we ask them to move and we notify Wilsons if they can escort them back to the proper area.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1167
So it's Wilson Security who policy this prohibition of passengers coming on foot to that area of the ramp?---Yes.
PN1168
And it's Wilsons who enforce that prohibition - - -?---Yes.
PN1169
- - - by asking passengers to move?---But P&O employees can also do that if they think it's a safety risk that that person is there.
PN1170
You can put photograph 4 aside. I'm now showing you photograph 5. That shows the marked walkway which runs down the stringer?---The white one, yes.
PN1171
And what do you understand by the reference stringer?---Stringer is there, the area adjacent to the berth. It runs alongside the berth.
PN1172
And is it marked, because you've got the colour one, any particular colour, the stringer?---By, the stringer would be the yellow area.
PN1173
And the walkway, what colour do you say that is?---The white area.
PN1174
So we can see the marked walkway which runs down the stringer, then down the far fence leading to the car park?---Yes.
PN1175
And that walkway is used by crew?---Yes.
PN1176
Cleaners?---Yes.
PN1177
Providores?---No.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1178
Are you sure about that?---Well, providores normally drive their trucks on-board. If there's a contractor that has to get on-board, he can park his car in the contractor area and if he doesn't need to take his car on-board, then he can use the walkway.
PN1179
And you've identified contractors. It's also used by union officials when entering the ship through what's called the side gun port. That is they use the marked walkway?---Yes.
PN1180
And the same position applied 30 January 2004?---Yes.
PN1181
Had you actually worked at Wharf 8 Darling Harbour before the TT-Line operation commenced early January 2004?---No.
PN1182
So your first experience was when the TT-Line operation commenced - - -?---Yes.
PN1183
- - - with Wharf 8 Darling Harbour? Is that right?---Yes.
PN1184
Put that photo aside. I'm then taking you to photograph number 6. It shows cars and vans parked in the assembly area for loading for the purpose of vessel boarding?---Yes.
PN1185
And that area is controlled by Wilson Security?---Yes.
PN1186
It's not controlled by P&O Ports at all?---P&O Ports takes control once the loading of cars start.
PN1187
That's just not correct what you just stated?---Yes, it is.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1188
Put aside photograph 6. Photograph 7 shows the linesmen working in the area?---Yes.
PN1189
And on this occasion, are you the person to the right of the photograph, head tilted looking upwards?---Yes.
PN1190
And it shows you on this occasion wearing your full safety or gear or PPE, namely vest and safety hat?---Yes.
PN1191
Photograph number seven also shows witches hats to stop any traffic entering the area?---Yes.
PN1192
Put that photograph aside. I next take you to photograph 8 and photograph 8 shows you calling the mark?---Yes.
PN1193
No cargo or trucks in the area when you're performing that task?---Well, it looks like it's been cut out of the shot. There could have been freight to the left of the shot. I don't know.
PN1194
I'm dealing with you physically where you're standing. There is no cargo or trucks in the area where you are standing physically to call the mark?---Correct.
PN1195
And the same applied on 30 January 2004?---No.
PN1196
Put that photo aside. I next take you to photo nine. That photo shows the linesman mooring the vessel?---Yes.
PN1197
And you can see how far away the trucks are from where the linesmen are working performing this task of mooring the vessel?---On that day, yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1198
More than on that day. It shows the position that's been a practice at Darling Harbour, Wharf 8, since the TT-Line operation started January 2004?---No.
PN1199
Are you saying you let trucks be in close proximity for when you call the marks as shown in photograph 8?---I would - - -
PN1200
Did you let trucks park close to you or remain located when you did that task?---In the early days before all of the systems were put in place, there were trucks that would park along the berth, refrigerated vans, maybe a freight car. We always tried to move them before the ship came in but on some circumstances, we couldn't get them moved. We've since had discussions with Patricks security guards and when they let cargo in, if we're not there, then they get them to park in the correct areas which is shown in these photographs.
PN1201
You can't seriously say that you would let the vessel come in, you call the mark with a refrigerated truck close by you?---The refrigerated truck was turned off. There was no driver. There was no hazard to myself.
PN1202
You say that was safe, do you?---Yes.
PN1203
Do you say it was safe for the linesman having to do the mooring, having, if you're allegation is right, a refrigerated truck close by?---The refrigerated truck probably would have been in lane two of the photograph. If the, if the lane, the lane closest to the ship is lane one, it would have been in lane two.
PN1204
I'll give you a blue pen. Put a cross in number two to what you just referred. Have you just put a cross and number two on that photograph to indicate the reference you just made to lane two?---Yes, I have.
PN1205
And is that where you say the refrigerated truck was on 30 January 2004 where you just placed a blue cross on photograph - - -?---To my best recollection, yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1206
Might I have a look at that for the moment, Registrar and might I, sorry, have my blue pen back?
PN1207
I return the photograph to the witness and can you turn it over. I then take you to photograph 10. That shows you calling the mark?---Yes.
PN1208
It shows a linesman mooring the vessel?---Yes.
PN1209
It shows the witches hat in the area to stop trucks proceeding through the area?---Yes.
PN1210
And that same system applied on 30 January 2004 as shown in photograph 10, didn't it?---No.
PN1211
What do you say were the differences?---Well, the differences is that the freight may not necessarily have been in those positions.
PN1212
You say may not necessarily. You cannot recall one way or the other?---Well, on 30 January there was a refrigerated van parked near the berth in lane, in lane 2 to my best recollection.
PN1213
But you might be wrong?---There was definitely a refrigerated truck there.
PN1214
And it might not be in the position you've marked?---Give or take a couple of metres.
PN1215
Turn that photograph. I'll now go to photograph 11. That shows you calling the mark and the mooring of the vessel?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1216
And it also shows the position of trucks and cars, doesn't it?---Yes.
PN1217
And the same applied on 30 January 2004, the system - - -?---No.
PN1218
Turn that photograph over. I then take you to photograph number 12. It shows you calling the mark and the position of trucks and cars on that day?---Yes.
PN1219
And those trucks and cars are nowhere near where you're calling the mark?---Correct.
PN1220
And the same applied on 30 January 2004?---No.
PN1221
If you'd turn photograph 12 over. I notice you did. I then take you to photograph 13. That shows you calling the mark?---No, that's the car marshalling area. Just hang on. That's 14.
PN1222
I do apologise?---13. Yes, that's me calling the marks.
PN1223
And again it shows the walkway and the stringer running along the wharf?---Yes.
PN1224
And that walkway is used by crew members and ship cleaners?---Yes.
PN1225
As well as ship providores on foot?---Yes.
PN1226
As well as contractors?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1227
And union officials use that walkway as well?---Yes.
PN1228
And that applied also on 30 January 2004?---No.
PN1229
Are you trying to suggest the walkway wasn't marked?---Yes, I am.
PN1230
On 30 January 2004?---Yes, I am.
PN1231
When do you say it was marked for the first time?---I don't recall the date.
PN1232
Didn't you know that walkway has been marked there for years before you even first came and had any physical presence on Darling Harbour Wharf 8?---There was, when we first started, the yellow lines were there. There was also a yellow line along the fence line at the back which is where the yellow barriers are and then that stopped at the gate. There was no walkway from the gate where the ticket booth is up to the administration building or the terminal.
PN1233
I then take you to photograph 14, it shows Wilson Security personnel directing traffic and placing cars and vans in position for loading onto the vessel, doesn't it?---Yes.
PN1234
And that work is not done by P&O employees?---Correct.
PN1235
And the same applied on 30 January 2004?---Correct.
PN1236
Put that photograph aside. I take you to photograph 15. It shows P&O employees working in Spirit of Tasmania III?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1237
And it shows the P&O not wearing all the PPE required, namely a safety hat?---Hard hats aren't required when in the ship.
PN1238
Are not required where?---When you're working in the ship. The hard hat is only required for when the person calls the marks because they can be, there's a risk of them being hit in the head with a monkey's fist. At all other times, a hard hat is not required.
PN1239
Just that expression, I know it's probably a term of art for your industry, a monkey's fist, what's that?---A monkey's fist. When the mooring lines come down, the crew on board tie a rope to the mooring line and then they throw it over the side. The mooring gang come and they use that rope to pull the mooring line ashore. On the end of the rope is a, what they call the monkey's fist and it just bounces on the ground so the rope doesn't fall in the water and it's just rope that's sort of wound around. It's very hard and if you get hit in the head with it, obviously it can cause damage.
PN1240
Well, even apart from the monkey's fist, if any part of the rope its someone in the head, it would cause obvious serious injury?---That's why we wear hard hats.
PN1241
So are you saying the P&O employee, if he or she comes off the ramp and comes onto the wharf area, then has to put the hard hat on?---No, only when the mooring of the vessel occurs because that's the only time when the monkey's first comes down.
PN1242
Is it not your experience that there's a greater chance to be injured on the vessels?---No. We've, myself and the other members of the safety committee, the various stevedoring at Darling Harbour, don't deem it necessary to wear hard hats. We've done a risk assessment on that.
PN1243
Did you ever check that one with WorkCover to see if they agree?---No, I have not.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1244
Turn that photograph over and this is photograph 16. That shows you not wearing your hard hat, doesn't it?---Correct. The vessel is already berthed and working.
PN1245
Wasn't it the case on that occasion you didn't wear your hard hat when the calling of the marks took place? This is an example of where you worked unsafely?---No, because the picture is me walking past berth number 8. The vessel on this occasion is not parked in the position where all the other photos apart from photo 15 shows. This is on berth number 5. So if I'm walking at that distance, the vessel must have already berthed. If I was there, them I'm not calling the marks.
PN1246
Just going back to this issue of wearing hard hats, is it not the case crew working the vessel wear hard hats for the obvious safety reasons?---I've seen certain crew do it.
PN1247
You're not saying a safe system is when it's left to the discretion of crew members, whether he or she puts on the hard hat?---I don't know the policy - - -
PN1248
MR BARTON: Registrar, the witness is being asked questions about a vessel operated by another entity. Evidence obviously is clear that P&O doesn't operate the vessel. He can't answer for TT-Line.
PN1249
MR DOCKING: Well, I'll deal with it this way but the P&O employees work in the vessel, don't they?---Yes.
PN1250
And is it not the case that the vessel operator requires hard hats for the crew?---Not to my knowledge.
PN1251
In your stevedoring experience, you've not observed crew working on the vessel wearing hard hats for safety?---I have seen if you were working on deck three, I've probably seen one third mate wear a hard hat and that's about it.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1252
Again because it's terminology, I know you're familiar with, what's deck three mean?---Deck three is the main deck. The, on picture 15, as you drive into the ship, that's deck three. That's the main deck where all the freight goes.
PN1253
So internally, the mate, it's internally where P&O employees also work, the mate wears a hard hat?---I've seen one third mate wear one.
PN1254
I then take you to photograph 17. Again you don't have your hard hat on on that occasion when you're about to board the vessel?---Same as in 16, the vessel is already berthed or I'm not calling the marks so -
PN1255
Finally, photograph 18, that shows P&O Ports employees working on Spirit of Tasmania III in the vehicle deck not wearing hard hats or it shows an employee not wearing a hard hat?---Correct.
PN1256
Registrar, might the original photographs be marked for identification? I'll tender them when Mr Wood gives evidence.
PN1257
THE DEPUTY REGISTRAR: At this stage I'd be proposing simply to mark them as MFI3 and should it be necessary, individual photos can be marked separately subsequently.
MFI #3 ORIGINAL PHOTOGRAPHS
PN1258
MR DOCKING: Mr Gunter, I just want to then deal with a number of points I haven't already covered in your statement. Paragraph 18 of your first statement, having taken you through the photographs, it's just incorrect to say that passengers who had just boarded the vessel could potentially see what had happened?---Sorry?
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1259
Your paragraph 18 in exhibit P&O5 is incorrect to say passengers who had just boarded the vessel could potentially see what had happened?---No, that's incorrect. My statement is correct.
PN1260
Well, you know that the passengers are not allowed on the deck until the ship has left. The deck, my terminology mightn't be technically correct. By that I mean if you look at - I withdraw that. Not able to stand on top, on the top deck looking down at work below. Passengers aren't allowed when the Spirit of Tasmania III is departing?---Not to my knowledge. They can stand up there whenever they want. Are you serious when a ship departs?---I have not seen anybody stop them. Are you talking about the deck right on top, deck 11 and 12? No?
PN1261
Where the lines work is done, the ramp - - -?---That's a restricted area. No one is allowed there.
PN1262
And then if I can take you to your second statement. Do you see paragraph 2, exhibit P&O6. As at 25 August 2004 in response to Mr Wood, you were saying there are some marked walkways?---Yes, those were the yellow ones I described earlier.
PN1263
The other walkways always been there before TT-Line commenced, wasn't it?---The yellow ones, as I said earlier, the yellow ones were but they didn't cover the whole area so the procedure was that all visitors that no person would walk on the vessel, that they would all be bussed on.
PN1264
Well, you can't say there was a procedure. It didn't even exist in writing as at 30 January 2004?---It may not have consisted in writing but everybody was aware of it.
PN1265
Well, you never told Mr Wood that, did you, on 30 January 2004?---I believe it was up to TT-Line because he was there to visit their crew.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1266
Of course, it was up to TT-Line because they operate Darling Harbour Wharf 8 and the vessel, don't they?---Yes.
PN1267
And you never told, if you go to paragraph 4, Mr Wood, in January 2004 that you were responsible for safety of people in the facility?---Sorry, can you please repeat the first part of the question?
PN1268
You never told Mr Wood at any time in January 2004 that you were responsible for safety of people in the facility?---No.
PN1269
The first time you told him that was when Mr Wood got this statement, 25 August 2004?---Correct.
PN1270
Another example of how you're being most modest, grossly unfair to Mr Wood, you make this allegation in paragraph 5 about Mr Wood failing to wear a safety vest on at least two other occasions, don't you?---Yes.
PN1271
That's grossly unfair. You've never provided details of what day, what time, where that took place, have you?---I've never been asked to.
PN1272
You just thought you'd put it in your statement without those details, did you?---It's, it happened with TT-Line and Wilson Security.
PN1273
Answer my question. You thought you'd put it in your statement without providing those details, didn't you?---No, I was never asked for them.
PN1274
Are these allegations you make that you say you personally observed?---No.
PN1275
It's just hearsay, is it?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1276
Is that why you didn't bother trying to identify when, where and who was involved because you could never give any direct evidence of those allegations?---No, I have the reports.
PN1277
Sir, do you understand direct evidence? I'm referring to what you personally saw and heard?---I did not see the incident, no.
PN1278
So you could never provide direct evidence of these allegations?---No.
PN1279
And you've never written to Mr Wood and made these allegations, have you?---No.
PN1280
Do you have any industrial experience in industrial relations human resources?---No.
PN1281
Well, haven't you heard that it's basic procedural fairness if you want to make an allegation, you'll tell somebody when it was, who was there, what's alleged?---I informed the, my manager - - -
PN1282
Can you just answer my question. Are you familiar with those concepts from your work?---No.
PN1283
And didn't anyone in human resources, given there's a whole bevy of people having those roles, pick you up and say look, you've got to provide that sort of detail, when it's alleged to have occurred, who was allegedly present, who saw what, what happened?---No.
PN1284
That's all new to you, do you say, that type of approach?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1285
Now that I've taken you through the photographs, your paragraph 6 is simply incorrect to suggest you're responsible for traffic control and visitor safety in the area between the yard and vessel?---My statement is correct.
PN1286
Paragraph 10, you deal with what's traditionally been performed in Sydney. Have you actually worked at Port Jackson before becoming involved in the TT-Line operations in January 2004?---No.
PN1287
Have you ever heard of the Maritime Services Board which used to perform work?---No.
PN1288
Just because you haven't worked there, you know nothing about what was the position before January 2004?---Correct.
PN1289
It touches a little bit upon what was covered yesterday. At paragraph 17, the last sentence, you say something like this: A number of occasions managers and supervisors of the TT-Line operations can drive P&O Ports visitors around the site. Do you see what I'm referring to?---Yes.
PN1290
Apart from the one occasion which you agree in hindsight it would have been better to let Mr Wood know given you knew he was the union official handling the site, it just doesn't happen?---I have been to other locations where I've been in a group of visitors and we have been driven around by supervisors or managers.
PN1291
And dealing with Darling Harbour Wharf 8, that just hasn't happened otherwise that managers and supervisors have driven around that site by being the bus driver?---We can't, we're not to skilled to drive the new bus that came in after this one.
PN1292
Well, for the old bus, do you say you were present when managers and supervisors did drive - - -?---That was the only one - - -
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1293
- - - the old bus around the site apart from the one occasion you did on 23 March 2004?---It hasn't happened other than that one occasion.
PN1294
I then want to go to paragraph 22, just touching upon it briefly again. Given you had provided to you by Mr Davis, Mr Wood's version, you always knew Mr Wood had said Mr Davis said more than once words to the effect of piss off?---No, he only said it once.
PN1295
You knew from reading Mr Wood's email provided to you by Mr Davis that Mr Wood was saying he was told to piss off more than once?---Yes.
PN1296
And I've looked at your emails, nowhere, nowhere in those emails did you deny that Mr Woods said that he was told to piss off more than once?---No, I didn't.
PN1297
And the reason you never denied it at the time, close in time to reading Mr Wood's email is because you knew that he had been told by Mr Davis more than once to piss off on 23 March 2004?---No, it's incorrect, he only said it once.
PN1298
I then want to take you to paragraph 25 and you talk about severe provocation and a threat to stop work on the vessel. Do you see what I'm referring to?---Yes.
PN1299
What you left out was what you say are the prefacing words of Mr Wood, something to the effect that if you were to drive the bus again. You just left those words out?---To my recollection, I don't think he said that.
PN1300
Are you denying that Mr Woods said something like that? What are you trying to check?---My statements. To my recollection, without checking my statements, to my recollection - - -
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1301
That he never used those sorts of words?---No, he used the words, he will stop but I don't recall if he used the words, if I drive the bus again first.
PN1302
Or at any stage you don't recall now whether he used those words?---No, he definitely said those words.
PN1303
Yes. So you know that you've unfairly set out what Mr Woods said by leaving out reference to those words?---I don't recall if he said those words or not.
PN1304
Well, let's take you to CSG3 page 12 exhibit P&O5 and probably work from the bottom of page 12. Go to the fifth paragraph. It begins:
PN1305
GW only spoke to me once.
PN1306
Do you see what I'm referring to?---Yes.
PN1307
And do you see according to this account it includes Mr Woods saying:
PN1308
I'm not to drive a bus any more.
PN1309
?---Yes.
PN1310
And then do you see you then go on at the end to say:
PN1311
...constantly threatened to stop the working of the vessel if I was to drive a bus again.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1312
?---Sorry, which was that paragraph?
PN1313
The paragraph fifth from the bottom begins:
PN1314
GW only spoke to me once.
PN1315
and if you then go to the last line and a half, it includes:
PN1316
He constantly threatened to stop the working of the vessel if I was to drive a bus again.
PN1317
?---Yes.
PN1318
So Mr Wood always included in the comments that reference to the effect you say if you were to drive the bus again?---To my recollection, he would have said it maybe once or twice but he definitely said he will stop work at other times without using those words.
PN1319
Look, you're just making things up as you go along?---No, I'm not.
PN1320
And do you accept your paragraph 25 unfairly sets out what Mr Wood allegedly said because you leave out any reference to Mr Wood referring to:
PN1321
...if you were to drive the bus again.
PN1322
?---No, I don't think that that was an unfair thing to say.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1323
Then I want to clarify at paragraph 25, you say:
PN1324
In my experience at P&O Ports -
PN1325
The experience you refer to, when does that start from by year?---From when I started with TT-Line, the TT-Line operation.
PN1326
So your experience with P&O is limited from late December 2003?---Yes.
PN1327
And for you to deal with employees and MUA representatives, does that start from January 2004 for the employees on the waterfront themselves employed by P&O Ports?---Yes.
PN1328
And you say:
PN1329
They do not generally swear at each other during meetings and discussions.
PN1330
I take it by your use of the word "generally", you've experienced exception?---Yes.
PN1331
And put aside Mr Wood, you've experienced exceptions when Mr Wood has not been involved of swearing?---Are you talking with MUA meetings or with MUA people?
PN1332
I'm talking about generally?---People swear.
PN1333
Yes and people you've experienced, P&O employees and management from time to time use the word "fuck"?---Yes.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1334
They use the word "fucking"?---Yes.
PN1335
What other swear words have you experienced that P&O management employees use in talking to each other?
PN1336
MR BARTON: Well, Registrar, is this really necessary? I mean, we get the general gist of the questions.
PN1337
MR DOCKING: I do press it.
PN1338
MR BARTON: Well, what value does it add to these proceedings to go through this charade?
PN1339
MR DOCKING: It's not a charade. I'll take in final submissions to a Court of Criminal Appeal decision on this sort of line of territory. If they want to come here and allege it's offensive, they're wrong at law. I do press it.
PN1340
THE DEPUTY REGISTRAR: Mr Docking, I think that I'll allow you a little bit leeway but I think the point has generally been made up to this point in time.
PN1341
MR DOCKING: Yes.
PN1342
THE DEPUTY REGISTRAR: There have been quite a series of questions in that vein so I'd ask you to sort of exercise a bit of restraint.
PN1343
MR DOCKING: I'm going to. I'm just trying to get some of the other swear words or bad language used.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1344
Can you give me other examples where P&O Ports management employees have used to each other that type of language?---I can't think of any off the top of my head.
PN1345
You are not going to say the first time you've heard management or employees use, piss off, is when Mr Davis used it?---No.
PN1346
You've heard that before as well, haven't you?---Yes.
PN1347
And going to your experience in New Zealand, was it Auckland?---Yes and Tauranga.
PN1348
In those two ports you've heard management and employees use words like fuck, fucking, piss off to each other?---Yes.
PN1349
Probably a lot stronger language than that as well?---Yes.
PN1350
The very essence of the waterfront both in New Zealand and Australia that that type of language is used by management and employees to each other?---On the waterfront, yes, at a TT-Line operation, no.
PN1351
But the waterfront includes the TT-Line operation?---Yes, but it's different. We deal with passengers, we have a high level of customer service so swearing is something that's not tolerated.
PN1352
I'm sorry, it's not tolerated. What have you done to have Mr Davis disciplined for swearing?---I don't know.
PN1353
And you are not able to provide one passenger, are you, who can come here and give evidence and complain about anything Mr Woods said by way of language?---No.
**** CORY STEPHEN GUNTHER XXN MR DOCKING
PN1354
PN1355
MR BARTON: Mr Gunther, there are just a few questions in re-examination. At the TT-Line operation there are P&O employees employed on that site, that's correct, isn't it?---Yes.
PN1356
And you are a person who supervises those employees?---Yes.
PN1357
At least some of those employees are members of the MUA?---I believe all of them are members of the MUA.
PN1358
If an issue arose on the site involving the MUA and those employees who would be the person from the P&O management side who would deal with that issue?---I would contact my manager, Brett McInnes and I would also contact Marianne Amazoco, HR Manager.
PN1359
But at first instance are you the person- - -?---At first instance, yes.
PN1360
Has Mr Wood ever attempted to discuss with you any issues involving P&O employees at TT-Line?---No.
PN1361
Is that because there have been no issues?
PN1362
MR DOCKING: I object. How can it possibly enter Mr Woods mind.
PN1363
MR BARTON: I am asking have there been any issues involving P&O employees who were his supervisors.
**** CORY STEPHEN GUNTHER RXN MR BARTON
PN1364
THE DEPUTY REGISTRAR: I will allow the question, Mr Docking.
PN1365
THE WITNESS: There have been no issues apart from the EA negotiations which Warren Smith has been handling with our employees.
PN1366
MR BARTON: Mr Gunther, you were asked some questions about the driving of this mini bus that maybe you should have asked or notified Mr Wood of this: do you need Mr Wood's permission before you make decisions of that sort?---No.
PN1367
You've been asked some questions about photographs and in your statement you refer to the fact that you observed Mr Wood, you believe, taking photographs of you. Did Mr Wood ever seek your permission to photograph you?---No.
PN1368
Did he ever seek permission from P&O to take photographs of the wharf?---No.
PN1369
As far as you are aware, did he ever seek permission from TTI?---No.
PN1370
Did he ever give you copies of the photographs that he took?---No.
PN1371
Did he ever confirm to you that he had in fact taken photographs?---No.
PN1372
Was Mr Wood on any occasion when he was on the site at the wharf did he tell you that he had taken photographs?---No.
PN1373
Mr Gunther, you were asked some questions about an occasion on which you weren't wearing appropriate PPE gear, only a helmet.
**** CORY STEPHEN GUNTHER RXN MR BARTON
PN1374
MR DOCKING: I object because he has conceded that there's been more than one occasion when I originally asked the questions about the photographs and there was his concessions before he was shown the photographs.
PN1375
MR BARTON: Mr Gunther have you ever wilfully refused to swear safety gear when requested?---No.
PN1376
You were asked some questions about the operations at the wharf and the role of P&O. Are you sware of marine orders?---Yes.
PN1377
When stevedoring operations are taking place who is in charge.
PN1378
MR DOCKING: I object to this. This will all be in his statements. this isn't re-examination at all.
PN1379
THE DEPUTY REGISTRAR: It does sound like examination in chief, Mr Barton, that line of questioning.
PN1380
MR BARTON: It's in response to questions that were asked of Mr Gunther about who was in charge. It was put to him directly that TT-Line and Wilson Security were in charge of the operations. I am referring Mr Gunther to a statutory regime in which the stevedore is clearing the person in charge. I am asking about his awareness.
PN1381
MR DOCKING: That should have been in his evidence in chief. This was an issue, a clearly joined issue with in the statements that were served. Mr Gunther had a reply statement, no attempt was made to refer to this sort of material. It's ambush of the worst sort.
PN1382
THE DEPUTY REGISTRAR: Perhaps it's ambush, Mr Docking but I think, given the context that Mr Barton has provided in relation to re-examination I will allow that question.
**** CORY STEPHEN GUNTHER RXN MR BARTON
PN1383
MR BARTON: Do you want me to repeat the question. I was asking about marine orders and asking whether you were familiar with that?---Yes.
PN1384
And when stevedoring operations are carried out, is it correct - - -
PN1385
MR DOCKING: I object to leading. He's already led him and told him what to say anyway but I object to leading.
PN1386
THE DEPUTY REGISTRAR: Rephrase the question, please Mr Barton.
PN1387
MR DOCKING; And I note my objection because he's already told the witness with to say.
PN1388
MR BARTON: Can you explain the effect of marine orders to the Commission?---In marine orders there has to be a person in charge of the stevedoring operation; at Darling Harbour that is the supervisor.
PN1389
And that's you.
PN1390
MR DOCKING: I object.
PN1391
MR BARTON: This was all capable of being proven - - -
PN1392
MR DOCKING; I object and I ask it be struck from the record. This is most improper and unfair to Mr Wood. All of this was at issue and should have been covered in the statement in reply and evidence in chief, should be proved by objective evidence. By that I mean documentary evidence, reference to the precise orders.
**** CORY STEPHEN GUNTHER RXN MR BARTON
PN1393
THE DEPUTY REGISTRAR: Mr Docking, it is the case that you are in cross examination. You put into issue that it would be the matter of who is actually in control of operations on the wharf, etcetera.
PN1394
MR DOCKING: I got concessions, I admit, in cross examination by reference to the photographs from the very witness.
PN1395
THE DEPUTY REGISTRAR: So I think in those circumstances I am prepared to allow some leeway to counsel for the applicant in terms of the re-examination as necessary. I accept the point that you are making about, in retrospect, some of this may have been preferably put in evidence in chief but given the course of the cross examination and the issues that have been made it is my decision to allow that question and answer to remain.
PN1396
MR DOCKING: If it pleases the Commission.
PN1397
MR BARTON: Mr Gunther, you were also asked some questions about the incident on 23 March and threats that were made by Mr Wood and the context of your driving the bus or not driving the bus any more. Can I refer you to paragraph 17 of your first statement. Have you read that? Paragraph 17, at the bottom of page 7---Yes
PN1398
That statement is true and correct?---Yes it is.
PN1399
In that you refer to the fact that Mr Woods said to you, you are not to drive a bus any more. If it happens again I will stop work on the vessel?---Yes.
PN1400
And that was your evidence in your first statement?---Yes.
**** CORY STEPHEN GUNTHER RXN MR BARTON
PN1401
Finally, Mr Gunther, you were asked some questions about the colourful language that occurs on the waterfront and no doubt in other workplaces, probably including law firms and barristers chambers. In your experience is it a normal part of the waterfront for people to swear in the way that Mr Wood swears?---No.
PN1402
What is the difference between the way Mr Woods swears and the colourful nature of the waterfront?---Normally you might use the word, fuck, once in a sentence not two or three times, the aggressive tone that it was used.
PN1403
Thank you Mr Gunther, no further questions.
PN1404
PN1405
THE DEPUTY REGISTRAR: I would like to take a ten minute adjournment at this point in time.
SHORT ADJOURNMENT [11.25am]
RESUMED [11.36am]
PN1406
MR BARTON: Registrar, I can call the next witness for the applicant, Nathan Rodney Butson.
PN1407
THE DEPUTY REGISTRAR: We'll deal with objections if there are any first.
PN1408
MR DOCKING: No, Registrar.
PN1409
PN1410
MR BARTON: Mr Butson, could you give your name and address for the Commission, please?---My name is Nathan Rodney Butson. I currently reside at (address supplied).
PN1411
And Mr Butson, you've prepared a statement for the purposes of these proceedings?---I have.
PN1412
And you have a copy of that with you?---I do.
PN1413
Are the contents of that statement true and correct?---Yes, they are.
PN1414
I tender that statement, Registrar.
PN1415
PN1416
PN1417
MR DOCKING: Thank you, Registrar.
PN1418
Do you do the training for Devonport?---Not really, no. I have been down there but I don't legally do training for it and for the TT-Line employees down there, no.
**** NATHAN RODNEY BUTSON XXN MR DOCKING
PN1419
For the P&O employees?---I'm responsible for it. I don't directly do it.
PN1420
So you're just not in the position to know who is trained to drive the buses on behalf of P&O down at that port?---I don't have a lot of knowledge about that operation at all.
PN1421
Would the same apply to the Victorian operation of P&O, you're not sure who is trained to drive any bus down there?---I couldn't give you a list of names, no.
PN1422
And then going to this incident 23 March 2004, did you actually get to see who was driving the bus around Darling Harbour Wharf 8 before you - - -?---No.
PN1423
- - - got on any bus?---No.
PN1424
Am I to read your paragraph 4 as conveying that it was eight P&O employees plus Ms Mulligan, plus Ms Appleby, plus is it E Learning that all got on the bus?---That's her title, yes, Sarah Appleby, the E Learning Manager at P&O Ports. Yes, that's correct.
PN1425
You got on it yourself?---Yes, I did.
PN1426
Do you know how many seats were on the bus by number?---There were - we were at maximum capacity. There were three of us in the front, myself, Cory and Sarah Appleby. Lisa - - -
PN1427
You say maximum capacity, do you actually know the number of seats?---I believe it's 11, maybe 12, but offhand no.
PN1428
You say maximum capacity, is it one of those mini buses that has the bench seat across the back, do you remember?---I don't remember.
**** NATHAN RODNEY BUTSON XXN MR DOCKING
PN1429
So you're not really sure how many seats were available or not available?---I remember there weren't any spare seats available.
PN1430
But you can't remember what the - you know the sorts of mini buses that have a bench seat at the back?---Yes. The reason I say that there weren't any spare seats available was that Sarah Appleby was sitting in the front whereas if there'd been a seat available, she probably would have been sitting in the back.
PN1431
And what, you were sitting in the front as well?---I was.
PN1432
You're not suggesting Mr Wood used any swearing in the conversation you deal with in paragraph 7?---I don't recall him swearing, no.
PN1433
And given you didn't email ND1, 26 March 2004, if you heard him swear, you would have remembered it when you did the email?---Quite probably, yes.
PN1434
Have you had much to do with union officials to see where they get agitated if there's a matter that might impact on the number of employees employed at P&O at a particular site?---I haven't had a lot of experience with union officials. I have some during the interaction of my job.
PN1435
Have you experienced that union officials tend to get agitated if some of the work performed by their members is performed by management?---I couldn't say one way or the other.
PN1436
Thank you, Registrar.
PN1437
MR DOCKING: Nothing further.
**** NATHAN RODNEY BUTSON XXN MR DOCKING
PN1438
PN1439
MR BARTON: Registrar, the next witness for the applicant is Anthony James Stone. There are two statements you should have on the file. There's a statement that was made on or about 26 May 2004.
PN1440
THE DEPUTY REGISTRAR: Yes, that's right.
PN1441
MR BARTON: And a second statement in reply that was made on 25 August 2004.
PN1442
THE DEPUTY REGISTRAR: Yes, I have that.
PN1443
MR BARTON: I'm not sure if there are any objections to those statements, Registrar.
PN1444
MR DOCKING: Yes, there are some objections. The first statement, paragraph 7, I object to the last sentence beginning:
PN1445
Glen wood made these comments in such a loud voice that I wondered -
PN1446
I object on the basis it's irrelevant what he wondered and secondly, if they want to call evidence about what other people could hear or could not hear, there should be direct evidence from such a person.
PN1447
MR BARTON: Registrar, this is really a matter of weight rather than objection to admissibility. The witness is giving evidence of what he observed, namely Mr Wood speaking in a loud voice and he's giving evidence of his own state of mind. What weight is ultimately attached to that and what value it has can be a matter for submission. As to the point about whether it purports to give evidence of what other people did or said or thought, firstly, it clearly doesn't purport to do that but in any event in paragraph 12 the witness sets out a conversation with another member of P&O who did in fact overhear the conversation so we press the paragraph.
PN1448
MR DOCKING: Unsurprisingly, I'm going to object to paragraph 12. It's hearsay. They can call that other person to give direct evidence and I can deal with it. It's in the same category. I also object to the last sentence in paragraph:
PN1449
I felt sure that these employees could hear him shouting.
PN1450
I object on the same basis of the first objection, irrelevant. They can call direct evidence from anybody. It's just impermissible speculation.
PN1451
THE DEPUTY REGISTRAR: In relation to paragraph 12, Mr Docking, I think given the connections, I'd rather deal with that at the same time as your submission in relation in relation to 12.
PN1452
MR DOCKING: They're the same submissions and obviously it's hearsay.
PN1453
THE DEPUTY REGISTRAR: So this is in relation to the entire paragraph?
PN1454
MR DOCKING: Yes.
PN1455
THE DEPUTY REGISTRAR: Mr Barton?
PN1456
MR BARTON: Well, Registrar, paragraph 12 isn't hearsay. It's evidence of a conversation this witness had with a person who is identified. It's simply evidence of a conversation that occurred, that's all it is. In relation to paragraph 12, I think we could concede that this witness can't say what other employees, whether other employees could hear the shouting so I don't have any objection to the last sentence being struck out:
PN1457
I felt sure that these employees could hear him shouting.
PN1458
but the parts objected to in paragraphs 7 and 12, we press.
PN1459
THE DEPUTY REGISTRAR: On the base of the concession, I'll exclude this last sentence of paragraph 10. I think in relation to paragraph 12, consistent in my rulings in relation to previous statements, I will allow the paragraph to stand but not as to the truth of the contents of the statements contained therein. In relation to paragraph 7 I think, Mr Barton, it's correct to say that there's probably - well, I think it's fairly clear given that it's - are wondering about what other people may or may not have been able to hear that its probative value is not likely to be particularly great, but I think that's a matter that can be dealt with by submissions. I will allow the paragraph to remain.
PN1460
Mr Docking, did you have any other objections in relation to the statement in reply of Mr Stone?
PN1461
MR DOCKING: Yes, I object to paragraph 19.
PN1462
THE DEPUTY REGISTRAR: I'm sorry. Paragraph 19 of the first statement?
PN1463
MR DOCKING: Yes. And also paragraph 20 on the basis of yesterday's ruling and the ruling made a short time ago I just don't see how they can go in as to the truth of what's in the representations set out in both those paragraphs.
PN1464
THE DEPUTY REGISTRAR: Mr Barton?
PN1465
MR BARTON: Really the same - press them on the same basis as before. They just show some evidence of conversations that occurred. The witness is in a position to give evidence about that. Submissions can be made about - along the same lines about the content of the conversations and the truth of what was said, so, again, we press them on a similar basis to objections that have been made about other paragraphs.
PN1466
THE DEPUTY REGISTRAR: Mr Barton, can I just clarify - sorry if I've lost track here a little bit - are you pressing them as to the truth of the statements or as to the fact that a conversation occurred? I'm just trying to clarify on the hearsay rule what's - - -
PN1467
MR BARTON: Yes, we are pressing it on the basis that this is evidence of conversations that occurred not necessarily on the basis of truth of what was said by each of the persons referred to in the statement.
PN1468
THE DEPUTY REGISTRAR: On that basis I will allow the paragraphs to stay in.
PN1469
MR BARTON: And, sorry, Registrar, that's to the extent that they contain hearsay, of course.
PN1470
THE DEPUTY REGISTRAR: Yes.
PN1471
MR DOCKING: Registrar, I just said it's all hearsay. None is made in the presence of Mr Wood for paragraphs 19 and 20 but the Registrar has indicated the approach to these matters already. Registrar, I then have no objections to the second statement of Mr Stone, and, can I note, I take the approach for someone like Mr Stone I think are cases like ABC v Seymour in which statements have been exchanged replying to Mr Wood's statement that there's no need to go through each and every dispute between those two witnesses, that is, there's no breach of Browne v Dunn because the material already filed shows the Registrar where the disputes are.
PN1472
The Registrar will see the reply statement deals with bits of Mr Wood's statement and says, "Oh, no, I deny that that was said at that time," or "I have a different perception of what occurred when." I don't propose to go through each and every one of those in cross-examination because it's already clearly in dispute, so I just want to make that position clear so it's not - - -
PN1473
THE DEPUTY REGISTRAR: Certainly, Mr Docking, I understand the point you're making.
PN1474
PN1475
MR BARTON: Mr Stone, could you give your full name and address to the Commission, please?---Anthony James Stone (address supplied).
PN1476
And, Mr Stone, you prepared two statements for the purposes of these proceedings?---That's correct.
PN1477
A statement that was made on 26 May 2004. Do you have a copy of that with you?---That's correct.
PN1478
And the contents of that statement are true and correct?---That's correct.
PN1479
I tender that statement, Registrar.
PN1480
PN1481
MR BARTON: And, Mr Stone, you made a - sorry, can we just take you, sorry, briefly - just a couple of questions - in paragraphs 1 and 2 you refer to the experience that you had with P&O Ports. In the course of your employment with P&O Ports have you had dealings or experience in dealing with union officials?---Yes.
PN1482
If I could take you to paragraph 15 of that statement. If I could show the witness a document, Registrar? Mr Stone, you refer in paragraph 15 to a meeting that - sorry, a meeting and conversation with Mr Wood. The document you have is that the file note you made of that meeting?---Yes, that looks like it.
**** ANTHONY JAMES STONE XN MR BARTON
PN1483
I tender that document, Registrar.
PN1484
PN1485
MR BARTON: And, Mr Stone, I just take you to paragraph 21 of your statement. You refer to in your role as human resources co-ordinator you were attending a large number of disciplinary meetings some of which Mr Wood was present. Have you attended similar types of meetings of which other union officials or delegates have been present?---Yes, I have.
PN1486
And that would include Mr Warren Smith?---Yes, that's correct.
PN1487
Mr Stone, can I refer you to the second statement that you made on 25 August this year. Do you have a copy of that with you? It's a statement in reply, five pages?---Yes.
PN1488
Do you have a copy of that?---Yes.
PN1489
The contents of that statement are true and correct?---That's correct.
PN1490
I tender that document.
PN1491
**** ANTHONY JAMES STONE XN MR BARTON
PN1492
MR BARTON: Thank you, Registrar.
PN1493
PN1494
MR DOCKING: Mr Stone, if I go to that last paragraph of your first statement, exhibit P&O 8, I take it that there would be notes of each of the disciplinary meetings you refer to in that paragraph?---Sorry, which statement are you referring to?
PN1495
The first one. Mine has printed 26 May 2004 on it, paragraph 21. Do you have that in front of you?---Yes, I do.
PN1496
And you refer to attending to a large number of disciplinary meetings, including ones in which Mr Wood was present. P&O would have notes of each and every one of those meetings?---They probably would, yes.
PN1497
Including notes made by you?---Yes. That's correct.
PN1498
And you don't bother producing any of those notes to try and express that opinion, do you?---I'm sorry, I'm not sure - - -
PN1499
Where are copies of any of those notes that you refer to for meetings in paragraph 21?---They would probably be held at the company.
PN1500
And how many years' experience do you have as a human resource or industrial relation persons?---Over six years.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1501
And you know what basic procedural fairness is. If you want to make an allegation you tell the employee, or Mr Wood, when something took place?---Yes. Yes.
PN1502
You tell Mr Wood where it took place?---Yes, that's correct.
PN1503
And basic procedural fairness is that you would provide particulars, details, specifics, not general appellations of how Mr Wood is said to have acted?---I'm sure - sorry, I'm not sure I'm following what the question is.
PN1504
Dealing with basic procedural fairness, if you want to make an allegation about someone's behaviour, you provide specific details of what that person has said and done at the meeting?---That's correct. Yes.
PN1505
You just don't use a general appellation. You give those specific details, so that person can fairly respond?---Yes. That's correct.
PN1506
You fail your own understanding of procedural fairness, don't you, by not providing any of the when, where, who said what, and specific details for paragraph 21?---I'm sure - I'm really not sure on what the question is that you're asking. I mean, I provided details in regards to those meetings that I've been involved with. Are you asking me whether or not there was specific names of people that were involved, or - - -
PN1507
You haven't provided what you accept is basic procedural fairness, any of the details of the meetings in paragraph 21 you try to refer to?---I'm really - I'm a little bit perplexed. I don't understand what it is that you're asking me in the question.
PN1508
In the witness box you are incapable of providing any details of when these meetings took place that you refer to in paragraph 21?---Well, if you wanted to ask me about that, yes, I could.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1509
In the witness box you're incapable of providing that detail of when, aren't you?---If you're asking me if I have detailed notes with me of the meetings, I don't have them with me, no.
PN1510
I'll try for the third time. In the witness box, you're incapable of providing the details of when, for the meetings referred to in paragraph 21?---I don't have those with me, no.
PN1511
So you're incapable of giving evidence in the witness box about them?---At this point in time, yes.
PN1512
And you're incapable, as you sit in the witness box, of giving evidence about who was present for those meetings?---At this point in time, yes.
PN1513
And you're incapable, as you sit in the witness box, of giving evidence about details, specifics, of what you allege Mr Wood said?---I think those issues were covered in the statement that was provided.
PN1514
I'm dealing with paragraph 21. As you sit in the witness box, you are incapable of providing specifics or details of what you allege Mr Wood said at these meetings you refer to in paragraph 21.
PN1515
MR BARTON: Registrar, I think the witness has answered this question. It's just being approached again and maybe in a slightly different way, but he's conceded that he doesn't have the details that might be asked of him about these meetings. The point has already been made.
PN1516
MR DOCKING: I've got time, who was present. Now I was the specific allegations of what Mr Wood said. I want to confirms he's incapable in the witness box of providing those for the meetings in paragraph 21.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1517
MR BARTON: I think, Registrar, he has already said that.
PN1518
THE DEPUTY REGISTRAR: I think he has answered the question, Mr Docking.
PN1519
MR DOCKING: Well, can I just clarify with the witness?
PN1520
Do you accept you are incapable of providing those specific details of what Mr Wood allegedly said or did at the meetings referred to in paragraph 21, as you sit in the witness box?---I don't know what you're really asking me to say. I've provided information in the statement. I've told you that there are probably notes of meetings that were and are held by the company. I don't have them with me at this point in time.
PN1521
And in the witness box, you can't shed any light on what you allege Mr Wood did or said in the meetings that you refer to in paragraph 21?---I can. If you ask me a question, I'll answer the question. That's what the purpose of me being here, to my understanding.
PN1522
So you can recall at each meeting - let's start with when they took place, for those meetings in paragraph 21, given you've said before you can't give that detail in the witness box?---Well, which meeting are you referring to?
PN1523
Well, that's the problem. I haven't got a clue, nor has Mr Wood, because you haven't given any of that information. Do you understand the problem?---I don't understand your question. That's what I have explained to you. As far as I could understand, you asked me a question, I answered it.
PN1524
You have not bothered providing any detail in paragraph 21 when the meetings took place. Do you understand "when" is what date, what time?---Yes. I do.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1525
You can't provide that detail in the witness box?---Not at this point in time, no.
PN1526
You can't provide any detail at this point of time in the witness box about what you allege Mr Wood said or what he did in any particular meeting referred to in paragraph 21?---I have provided in the statement details of the meetings that I've been involved with, with Mr Wood, and on those occasions the information was contained in the statements of those meetings that I was involved with.
PN1527
So you don't refer to any other meetings in paragraph 21, other than what you specifically deal with at the meeting on 29 August 2003, as one meeting?---That's correct.
PN1528
And the only other meeting you mean to refer to in paragraph 21 is the meeting on 2 February 2004?---They were the two experiences, or two meetings, that I was involved with with Mr Wood.
PN1529
So there are no other meetings - - - ?---There was one other - - -
PN1530
- - - for the purposes of paragraph 21?---There was one other meeting that I was involved in, only in the capacity of taking minutes for that meeting. There's only been three occasions in which I have been involved with Mr Wood.
PN1531
So you reference in almost every disciplinary meeting should read, "The meeting on 29 August 2003, the meeting on 2 February 2004 and another undisclosed third meeting"?---That's correct.
PN1532
Thank you. Now, have you got a copy of a note, exhibit P&O9, which was shown to you today?---What is that referring to?
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1533
It's typed. It's headed "Disciplinary Meetings Darling Harbour, Monday, 2 February 2004"?---That's correct.
PN1534
And I just want to clarify, who do you say typed this note?---I typed this note.
PN1535
When, in terms of the meeting took place on Monday, 2 February 2004?---It would have been on that date.
PN1536
You say it would have. Do you actually know, or you're just reconstructing?---I do know, because on the basis of all meetings, I take handwritten notes. Because my handwriting isn't really that legible, I take notes so that it can be recalled at a later stage.
PN1537
And if I take you to - it's the second unnumbered page, the last paragraph, the reference to -
PN1538
It was decided that other meetings that had been arranged for today would be postponed to another time -
PN1539
that means that P&O made that decision, doesn't it?---No. That's not correct.
PN1540
And then it says:
PN1541
Other employees may have been prepared to hold the meetings with just a site committee union member present, however it was decided to arrange another date so that these meetings could all be conducted on the same date.
PN1542
Do you see where I'm referring to?---Yes. That's correct.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1543
And the second reference in that paragraph to "decided", that is a reference of what P&O decided?---When it - what - - -
PN1544
Will you just answer my question, is that a reference to what P&O decided?---Well, there was no alternative, at that stage, for the - other than to have those meetings at another time. All the meetings had been called off.
PN1545
I'll try again, for the third time. That reference to "decided", being the second time that word appears in that last paragraph, is a reference to what P&O decided?---No, that's not the case.
PN1546
You're not suggesting it was Mr Wood who decided to arrange another day so that these meetings could all be conducted on the same day? Are you?---No.
PN1547
Well, if it's not Mr Wood, was it you who made that decision?---No.
PN1548
Who was it?---The decision was made by Mr Reilly at that stage because the meetings had all been cancelled.
PN1549
Look, Registrar, I ask that the witness be directed to answer the questions without elaborating and clarifying. He's adding things that I have not asked him to add. He identified Mr Reilly. That's all that the question required him to answer, not to then add and try to qualify.
PN1550
THE DEPUTY REGISTRAR: Mr Docking, I think the point you are making is a reasonable one, but I also think that there needs to be some leeway allowed for witnesses to attempt to answer the question as they understand it to the best of their ability. Mr Stone, if you could confine your answers to a direct response to the question that's put to you, please.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1551
MR DOCKING: Thank you, Registrar.
PN1552
Now, with Mr Reilly deciding to arrange another dates so that these meetings could all be conducted on the same date, at that time what position did you understand he held?---He was the Human Resource Manager.
PN1553
And therefore, did you understand as the Human Resource Manager, he made that decision on behalf of P&O?---Yes, that's correct.
PN1554
And you always understood, didn't you, when I first asked you about this second reference to quote decided end quote, that because Mr Reilly made the decision, he was making it on behalf of P&O?---That's correct.
PN1555
And let's go to the first quote decided end quote in that last paragraph on your unnumbered page 2, that also is a reference to what Mr Reilly, and therefore P&O, decided?---No. That's not correct.
PN1556
Are you seriously saying it wasn't Mr Reilly, P&O or yourself, who decided that other meetings arranged would be postponed to another time?---The meetings were postponed because they had been cancelled that day by Mr Wood, at the time of the meeting being held at Darling Harbour.
PN1557
Who do you refer to where, in that last paragraph, unnumbered page 2, it refers to it was quote decided end quote. Who do you refer to as making that decision? A lot of seconds have passed. Are you having difficulty answering that question?---I'm actually having difficulty reading it because I don't have my reading glasses with me.
PN1558
I'm sorry. Do you need to adjourn to get those?---They're not with me. I don't have them with me.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1559
I'll read the paragraph out in full to you. The last paragraph, exhibit P&O9:
PN1560
Due to this issue - it was decided that other meetings that had been arranged for today would be postponed to another time. Other employees may have been prepared to hold the meetings with just a site committee/union member present. However, it was decided to arrange another date so that these meetings could all be conducted on the same date.
PN1561
Do you accept I just read to you the last paragraph in your own document?---That's correct.
PN1562
Now that I have read that last paragraph in full to you, the first reference to quote decided end quote, is a reference to what was decided on behalf of P&O?---Yes.
PN1563
And for it to be decided on behalf of P&O, does that mean it was a decision involving Mr Reilly?---Yes, it was.
PN1564
And does it also mean it was a decision involving your agreement with what he proposed?---What do you mean by my agreement?
PN1565
Well, given a decision was made to postpone meetings to another time, was that a decision in which you participated in that decision making process?---No, I didn't.
PN1566
So it was the more senior person - - - ?---That's correct.
PN1567
- - - had the sole call; is that right?---That's correct.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1568
Was anyone else, to your knowledge, involved, apart from Mr Reilly, in making that decision I have just asked you about?---I'm not sure as to the discussions Mr Reilly had with other parties in making that decision.
PN1569
Is it just because of seniority that's above your level?---That's correct.
PN1570
Now, dealing with Mr Hartland, can you advise as to whether P&O subsequently did alter the entry in Microster - M-i-c-r-o-s - - - ?---Microster.
PN1571
Microster. Did P&O actually alter the entry?---We have. We have.
PN1572
In other words, it accepted the point that was made on behalf of Mr Hartland about the FTR for that sick day?---From subsequent discussions, yes.
PN1573
Well, what happened was he provided his diary which confirmed he was right at that meeting?---I haven't seen the diary entry.
PN1574
So it was altered, do you say, without even looking at Mr Hartland's diary entry?---I have had discussions with Mr Hartland subsequent to that meeting, yes.
PN1575
Do you concede - I'm sorry, I don't remember everything in your statements - that the company the point taken on behalf of Mr Hartland and made that alteration to its records?---That's correct.
PN1576
Is it in your statements that that took place?---No.
PN1577
You attached to your first statement, exhibit P&O8 - there's a handwritten page 12. I understand that's a separate notation by somebody called Kirsty Bundt, HR Administrator, Darling Harbour Terminal?---A handwritten note, is it?
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1578
Well, it has little handwritten numbers which help us identify what page. It's page number 12, the top right hand corner, and why I identified that way, if you can't read a handwritten 12, tell us?---I'm not sure what you're referring to. I don't have the exhibit numbers written on the statements.
PN1579
MR BARTON: Registrar, I just witness is having some difficulty in actually reading the documents, if he can clarify that, because if he's being referred and he can't read them, he's obviously at a disadvantage.
PN1580
MR DOCKING: Well, I'm happy to stand him down and deal with the next witness. He can get his glasses and we will deal with him after lunch. That's probably a sensible way of dealing with it.
PN1581
THE DEPUTY REGISTRAR: Mr Stone, is it feasible for you to return to your place of residence and retrieve your glasses and return to be examined after lunch?---Yes.
PN1582
I think that's probably the appropriate course of action in order to assist. Mr Stone, I'll excuse you at this point of time. I remind you that you remain on oath and you shouldn't discuss your evidence with anyone during the adjournment, and I would appreciate it if you are able to obtain your glasses and return at 2pm?---Yes.
PN1583
Is that sufficient time for you to - - - ?---Yes, that's fine.
PN1584
Thank you. On that basis, you're excused.
PN1585
THE DEPUTY REGISTRAR: Yes, Mr Docking.
PN1586
MR DOCKING: I'm sorry. I was just talking to Mr Giddins about a matter.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1587
THE DEPUTY REGISTRAR: I've excused this witness on the basis that I have just outlined to return at 2pm.
PN1588
PN1589
MR BARTON: Perhaps I can call the next witness. I apologise to the Commission. I wasn't aware that Mr Stone had that problem with reading glasses. Ms Brady is the next witness. Perhaps Mr Docking would prefer that she's outside while we deal with the objections.
PN1590
MR DOCKING: No. I have no difficulty with Ms Brady being here for the objections.
PN1591
MR BARTON: Registrar, there are two statements. There's a statement that was made on 26 May of Rachael Maree Brady, and a second statement in reply that was made on 24 August.
PN1592
MR DOCKING: The objections I have are to the 24 August 2004 statement, and I'm happy just to flag these extensions and the extent necessary can be dealt with in any submissions. The first objection is paragraph 3, commencing the second sentence - or, in fact it's that second sentence, "At not time", finishing with, "outlined in that letter". I would object on relevance.
PN1593
THE DEPUTY REGISTRAR: Sorry, Mr Docking, was that paragraph 3?
PN1594
MR DOCKING: Yes. The second shorter one.
PN1595
THE DEPUTY REGISTRAR: Sorry. So the second sentence, "At no time" - - -
PN1596
MR DOCKING: It's that sentence. Just on relevance, I just noted it can dealt with to the extent necessary in final submissions. And then the same category is paragraph 6 on the fourth line:
PN1597
Neither Glen Wood nor the MUA have challenged P&O Ports' decision in this regard.
PN1598
I'm not sure if employers think that unions respond to everything that they might write to a union.
PN1599
THE DEPUTY REGISTRAR: I think that's something that can be dealt with in submissions, Mr Docking.
PN1600
MR DOCKING: Yes.
PN1601
PN1602
MR BARTON: Ms Brady, could you give your full name and address to the Commission, please?---My name is Rachael Marie Brady and (address supplied). The address in my statement is my work address.
PN1603
And, Ms Brady, you've made two statements for the purposes of these proceedings?---I have.
PN1604
A statement dated 26 May?---That's correct.
PN1605
So the contents of that statement are true and correct?---I should correct my position. It was correct at the time of signing off. My position has now changed. I'm now the National Adviser of Employee Relations.
PN1606
And if I could just take you to paragraphs 55 and 56 of your statement?---Yes.
PN1607
You refer there to notices purported to be given on 25 and 26 May?---Yes.
PN1608
Relating respectively to an intention to enter premises on 26 and 27 May?---Yes.
PN1609
Did Mr Wood enter any P&O premises on either of those dates?---I understand that he did enter on the 26th, but not on the 27th. I must admit my relocation is uncertain on that.
PN1610
And, Ms Brady, if I can take you to paragraph 62 of that statement?---Yes.
PN1611
You say in that paragraph that:
**** RACHAEL MARIE BRADY XN MR BARTON
PN1612
P&O Ports has not received a response from Paddy Kremlin in relation to that letter.
PN1613
That was your statement as at 26 May. Since you made that statement has P&O received a response to that letter?---No, it hasn't.
PN1614
If I could refer you to paragraph 63. You refer there to P&O Ports Human Resources Handbook and you've extracted - there's extracts which deal with workplace harassment policies, workplace violence, bullying and corporate social responsibility. Do you see those?---Yes.
PN1615
Is it the practice of P&O to take disciplinary action against employees that breach those policies?---Yes, it is.
PN1616
And that policy applies to all P&O employees?---That's correct.
PN1617
Including employees who are members of the MUA?---That's correct.
PN1618
I tender that statement, Registrar.
PN1619
PN1620
MR BARTON: Ms Brady, you've made a second statement, a statement in reply dated 24 August?---Yes, I have.
**** RACHAEL MARIE BRADY XN MR BARTON
PN1621
You have a copy of that. The contents of that statement are true and correct?---Again, correct at the time of signing off on this on 24 August.
PN1622
I will tender that statement, Registrar.
PN1623
PN1624
MR BARTON: Registrar, there are just a couple of other documents I wish to tender through this witness. Excuse me, Registrar, could you just give me one moment. Perhaps to try and make this a bit easier there's a bundle of documents and I will hand one for the witness and one for the Registrar. Mr Brady, I wonder if you could identify the first document that is headed Maritime Union of Australia and then there's a box at the top Without Prejudice to the Pending Proceedings. If you could identify that document?---This is a facsimile notification that Glen Wood has started using for notification to enter P&O premises from on or about - that was probably the first one actually, 21 October; on or about 21 October.
PN1625
And then the second document, which appear to be emails, can you identify those?---I have the letter to Robert Coombs, sorry.
PN1626
No, sorry, the second document should be the string of emails?---Yes. These are all - this is an email that was forwarded to Bill Giddins of the Maritime Union of Australia by myself. The reason it looks like a string is that the email addresses were initially incorrect or were other email addresses that Mr Giddins may use.
**** RACHAEL MARIE BRADY XN MR BARTON
PN1627
So it really is just one email?---That's correct.
PN1628
From you to Mr Giddins?---That's correct.
PN1629
And it deals with the issue of the notice that we referred to a moment ago?---That's correct.
PN1630
And the third document is a letter from P&O from you to Mr Coombs dated 23 October 2004?---That's correct.
PN1631
And again it deals with the notification dated 21 October?---That's correct.
PN1632
I would tender those documents, Registrar. And if it's easier perhaps we could just tender them as one, if that is convenient.
PN1633
MR DOCKING: No objection.
PN1634
PN1635
MR BARTON: Nothing further.
PN1636
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1637
MR DOCKING: Thank you. As the National Adviser Employee Relations Officer can you tell me in New South Wales for this year how many Human Resources or Employee Relations Officers have P&O had access to, to do their work?---Brian Reilly is the Human Resource Manager for New South Wales. He has a team beneath him who at one stage included Tony Stone. He now has a HR Officer other than Tony Stone. Tony has moved on. And an assistant. I, myself, would also assist in my national role and Carolyn Walsh, who works with me, would also assist from time to time as required. Emma Fenson was on a period of maternity leave, so she was away for approximately six months throughout that time and is now back, although less involved in day to day activities and on a part-time basis.
PN1638
And how many work sites is that range of people in New South Wales responsible for?---Largely it's Port Botany Terminal, Darling Harbour Operation, Glebe Island, the TT-Line Operation and to some extent Port Kembla and Newcastle.
PN1639
And from time to time one or more of those people even fly out and help people in the Brisbane Ports to perform Human Resource Industrial Relations type work?---Oh, that's very rare.
PN1640
But it has happened even this year?---It has happened. Well, I don't know that you would describe it as assisting the Brisbane Office for that purpose. It may be a national project that is being worked on.
PN1641
So do I take it Queensland has its own Employee Relations or Human Resources Employee Officers as well?---We have a Human Resource team in Brisbane. That's correct.
PN1642
And what about in Victoria?---There's one in Victoria. That's correct.
PN1643
How many people there?---Off the top of my head four under the - including people like return to work co-ordinators; training.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1644
What about in any other state of this country?---We have similar teams in Western Australia and a similar team dedicated to the Automotive and General Stevedoring Division.
PN1645
And from time to time, as is the prerogative of an employer like P&O, it employs lawyers like Freehills to help in work?---That's correct.
PN1646
And you know, don't you, that there's a suggestion that the meetings - the FTR meetings which commenced on 2 February 2004 have not taken place again because of a resource problem within P&O?---We have had absent management meetings since that time.
PN1647
Yes. And it would just be nonsense to say that the 2 February 2004 meetings have not been arranged on other dates and conducted on other dates because of a resource problem for somebody like P&O?---Well, surprisingly from time to time our resources are stretched. There's a lot of Human Resources and industrial issues that arise at P&O, as you can imagine, and often there is a resource problem in HR; often.
PN1648
Sorry. And there's been a lot of days since 2 February 2004 until - what are we - 23 November 2004, hasn't there?---Certainly. I mean, a lot is a bit of a sliding scale, but there's been - - -
PN1649
More than enough days to conduct with the available resources the FTR meetings which commenced on Monday 2 February 2004?---I would say "yes".
PN1650
Now, in your first statement, exhibit P&O11, you make reference to various times and dates at which you say Mr Wood entered P&O Ports Port Botany Terminal. You're not saying that you personally directly observed any of those visits, are you?---No, I'm not.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1651
So do I take it you got those dates and times from some sort of record taken by somebody?---That's right. At the time I was advised possibly and also confirmed in sign-on sheets - sign-in sheets.
PN1652
Where did you get each of the dates and times that you say Mr Wood visited or entered the site?---In terms of speaking with people. It may have been from the management at the site or from the Port Botany sign-in sheet.
PN1653
So do I take it your statement from paragraph 5 onwards when it sets out entry times and dates are a combination of hearsay from managers as one source?---If you are asking me whether I was told by managers.
PN1654
Well, you know that's hearsay, don't you?---Well, I prefer not to give a conclusion on that.
PN1655
I'm sorry?---Unless you're testing me as a lawyer.
PN1656
I should clarify. Do you hold a practicing certificate?---I certainly do.
PN1657
As what?---As a solicitor in New South Wales.
PN1658
For how long have you so practised?---Well, two and a half years.
PN1659
And you understand, don't you, that given you're the one in the witness box, you're relying upon what somebody else told you about an entry time and date, is hearsay?---Okay. Again, I'm not sure whether you're asking for my professional opinion or my evidence as a witness?
PN1660
Either?---Well, I can - - -
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1661
I would have thought it would be the same answer?---I can say that I was advised by managers of Mr Wood's entering the site as well as confirming that on the sign in sheet.
PN1662
And I think there's no mystery, but what you call the sign in sheets, were produced under summons for production by P&O?---I have seen the Port Botany sign in sheet. I haven't witnessed or seen the Darling Harbour sign in sheet, or the Glebe Island sign in sheet.
PN1663
Well, there is no Darling Harbour one?---Well, I understand there is one conducted by the Darling Harbour site facility, not by P&O.
PN1664
By a private security consulting company?---Yes, I understand that's the case.
PN1665
Named what?---I don't know.
PN1666
And the other facility, Glebe Island, is that the AAT facility?---That's correct.
PN1667
And again it's done by a private security company controlling the entry and exit from that site at Glebe Island?---I understand that to be the case. I couldn't give a definite answer on that.
PN1668
Do you know who the provider is for the security at that site?---At Glebe Island, no, I don't, not off the top of my head.
PN1669
Going to Port Botany, you know that P&O has produced what you call the sign in entry sheets in response to a summons?---That's right.
PN1670
I'll show you this copy. I'm just wanting to see if this is where you got the details from?---Sure.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1671
Registrar, I note that this copy also has some notations made by Mr Wood; I anticipate that he will give evidence confirming those notations when he gives evidence.
PN1672
I'm not suggesting, Ms Brady, that you've seen his notations before?---Okay.
PN1673
Can you satisfy if they are copies of the sheets which provided one of the sources of information for you to give some suggestions about what day and time Mr Wood entered P&O Ports for Botany?---They look like the sign in sheets for Port Botany.
PN1674
And had you done any calculation before 1 April 2004, had Mr Woods entered over 30 times at the Port Botany site?---I don't think I'd done that calculation.
PN1675
Well, I can add it up later, but you know there's not one single complaint relied upon in this application for his entries at Port Botany as recorded in those sheets before 1 April 2004?---I don't believe so.
PN1676
Well, you'd know, given you're the national adviser, and you - - -?---I commenced in February, so - - -
PN1677
Yes, but you're here as the instructor; you'd know if there was any such complaint, wouldn't you?---Okay, and the evidence will also show that, I suppose.
PN1678
And you know there is no complaint for his entries before 1 April 2004 at Port Botany as recorded in those sheets?---Okay.
PN1679
Well, it's the truth?---Okay.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1680
So do I take it to check whether your summary is right in your first statement, you just match up those entries that I just handed to you, a copy of those entries, to see if you've faithfully got the time and date out of those records?---Yes. I did largely do that. I got some of the times from the managers, and it may have been that I didn't get all of the sign in sheets to confirm that but I largely tried to do that. That's right.
PN1681
Which are the entries are information provided by managers?---Oh, I couldn't tell you off the top of my head.
PN1682
Well, have you got a record you can consult because it's - I want to clarify some of these; they just seem to be wrong?---Well, perhaps you can clarify them.
PN1683
You're in the witness box; can you get access to a record to confirm which of these suggested dates and times were provided by managers and are not in those sheets?---I don't know that I have that in a record.
PN1684
Well, when the manager has told you something, didn't you record it?---I may have, probably would have. I don't know whether I kept that file note though. There's a lot of file notes in this matter.
PN1685
I just want to see if you're actually making a complaint about what Mr Wood did. If you go to paragraph 36?---Yes.
PN1686
You make a complaint that he hadn't given 24 hours notice. How many hours' notice do you say Mr Wood had given at that occasion?---Well, if he entered at 8 am, then almost 24 hours' notice.
PN1687
What, 22½ hours' notice?---That's doing the math.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1688
And you know that he entered on that occasion to attend a site committee meeting?---On 5 May, that's correct, yes.
PN1689
And that wasn't attending P&O Port Botany at any meal break, or other break, as contemplated by the Workplace Relations Act?---No, that's correct. I understand site management had given him permission to attend early on that date.
PN1690
Who do you understand gave him that permission?---Mr Cummins, Mr Roy Cummins, sorry. He was the terminal manager at the time.
PN1691
So do I take it your suggestion that Mr Wood had not given 24 hours' notice as you say in paragraph 36, it's a little bit misleading because he'd been invited in?---Oh, well, no, he purported to give notice, and when it was realised that he had not given the 24 hours' notice - from recollection, he raised that and Mr Cummins then said, "Well, despite the fact that you haven't given it 24 hours' notice, we will allow you to attend the site committee meeting".
PN1692
And you knew that at the time you did this statement printed 26 May 2004, did you?---Yes, I think I did.
PN1693
Why didn't you include that reference to it, was entering premises with permission?---We did. It's in paragraph 36, line 3.
PN1694
Why have you got the reference to he didn't give 24 hours' notice; he doesn't need to give 24 hours notice to attend a site committee meeting?---No, but he purported to give 24 hours' notice, and it was only when he was in breach of that requirement, that we gave him permission.
PN1695
As you saying he breached some 24 hours' notice by attending the site committee meeting?---No, I'm not saying that.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1696
Well, it's just irrelevant to this application, isn't it, him attending the site committee meeting - - -?---Well - - -
PN1697
- - - with permission, or in other words, the invitation accepted of the employer?---No, on that occasion, he failed to give the 24 hours' notice as required, and we allowed him to access regardless of that.
PN1698
And the form of permission you've been told about, was it just the normal common sense that Mr Wood spoke to Mr Cummins, and Mr Cummins agreed, "You can enter the premises"?---No, I believe Mr Cummins actually contacted myself as well.
PN1699
Oh, so Mr Cummins even got your permission for Mr Wood to attend?---Well, not my permission I wouldn't say. We did discuss the issue.
PN1700
Well, did you tell to not let Mr Wood in?---No, I didn't.
PN1701
So you agreed that Mr Wood should be able to enter?---Yes, I did.
PN1702
In other words, he entered, you know, by agreement, invitation, permission, of the employer?---He entered on the basis that we waive the requirement to give 24 hours' notice.
PN1703
What requirement did he have to give of 24 hours' notice to attend a site committee meeting, which has nothing to do with meal breaks or other breaks?---He was required to give 24 hours' notice to attend the site and we waived it.
PN1704
Where is that found, for Mr Wood as a union official, to attend a site committee meeting; where is the requirement that he has to give 24 hours' notice for that purpose?---I'm not certain.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1705
It doesn't exist, does it?---Well, that's your submission.
PN1706
No. You've got it in your statement; can you please point to me where is the requirement for a union official attending with the permission of an employer, that's invitation, a site committee meeting, that Mr Wood had to give 24 hours' notice?---I can't point it out to you.
PN1707
And I will just clarify another matter. You've had a chance to look at Mr Wood's statement because you wanted to reply to certain parts of it in your second statement?---Yes, I don't have it before me though.
PN1708
And just to make it clear, the time that the site committee meeting was on has nothing to do with a meal break or other break?---I couldn't be certain what time the site committee meeting was on. It looks like it was on at 8 o'clock. It's not scheduled for - well, it may have been scheduled for a break, I'm not sure.
PN1709
You never bothered finding that out?---No, I didn't.
PN1710
And then - I'm just trying to clarify then for 4 May entry referred to in paragraph 33. You've got he entered at 8.04 am?---That's right.
PN1711
That was not a meal break or other break, was it?---I'm not sure.
PN1712
Well, didn't you bother finding out?---Again, I was told after the fact of these.
PN1713
Who told you?---Well, either, as I've already said, the managers or I confirmed on the sign-in sheets.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1714
Well, which is it for this particular entry in your paragraph 33?---I can check the sign-in sheet.
PN1715
Well, did any manager tell you about the 8.04 am, 4 May 2004, entry at Port Botany?---Possibly.
PN1716
You just don't know?---No.
PN1717
And you know at that stage, 4 May 2004, unless P&O management agreed to Mr Wood entering he wouldn't have been allowed in?---I don't know that you can say there was a decision made by P&O. Mr Wood signs into the sign-in sheet. The receptionist wouldn't prevent him from accessing the site.
PN1718
Look, you know Mr Wood has given extensive evidence that you never challenged in your statement in reply about the system in place for him to gain entry?---The protocol - the local arrangement in place prior to us - do you mean under the Enterprise Agreement?
PN1719
I'm talking about Mr Wood's statement where he sets out in detail - and no one has challenged it - about how he signs in and gets access?---Well, perhaps you can refer me to that specific evidence that you want me to address from Mr Wood.
PN1720
You never bothered disputing that evidence in your reply statement, did you?---Well, I don't know what evidence you're talking about.
PN1721
At the time you signed your reply statement - and it is signed your reply statement?---The copy I have isn't.
PN1722
Well, you've certainly adhered to it?---I agree to its accurateness, yes.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1723
Yes?---But I don't know what evidence you're referring to from Mr Wood.
PN1724
You had a chance to dispute whatever you wanted to in Mr Wood's statement in that reply statement, didn't you?---I did have that opportunity, yes.
PN1725
And at 8.04 am on 4 May 2004 was not a meal break or other break, was it, at Port Botany?---I don't know. I can check. I don't know off the top of my head.
PN1726
It's just not practicably possible for that to be a meal break at that time at P&O Port Botany, is it?
PN1727
MR BARTON: Registrar, the witness has answered the questions. She says she doesn't know. Continually having a go at her isn't going to get a different answer.
PN1728
MR DOCKING: No, I'm going to try to - she's supposed to be the National Adviser, but she must know something about the rostering and how the ships enter, as I'm instructed?---We've got over 20 Enterprise Agreements that provide for different break and rostering arrangements.
PN1729
THE DEPUTY REGISTRAR: I think the witness has answered the question about whether or not she knows whether or not that was a meal break, Mr Docking.
PN1730
MR DOCKING: Yes. We will just assume Mr Wood has put in paragraph 152 of his statement the suggested time of approximately 8.04 am was not a meal break. Will you assume that's in Mr Wood's statement?---If you're saying that's in Mr Wood's statement, yes, I will make that assumption.
PN1731
And you've made no inquiries to ever dispute that; is that what you're saying?---That's correct.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1732
And Mr Wood goes on and says:
PN1733
And therefore if it was an attempted entry under the Workplace Relations Act power I would not have gained entry. Based on my statement above and how entry into Port Botany is through the front door I would not have been allowed to enter without the agreement of P&O.
PN1734
Will you assume that's in his statement?---I will assume that's in his statement.
PN1735
And you understand what he said is correct, that if it had have been an attempted entry under the Workplace Relations Act power he would not have gained entry through the front door?
PN1736
MR BARTON: To the question, Registrar, the witness is being asked to make a legal conclusion about a proposition put forward by Mr Wood. It's a matter of submission not evidence.
PN1737
MR DOCKING: I will deal with it this way, Registrar: you know the system in place at the time because you've already given evidence that Mr Cummins had to contact you. Mr Wood wanted to come in, checks would be made by management?---No, that's not correct. If Mr Wood sought to sign in it's possible that management would not be aware of that because the sign-in is manned by a receptionist. Mr Cummins was not given the task of sitting downstairs in reception and observing when Mr Wood entered and exited the terminal.
PN1738
Are you saying the receptionist has never been told after 1 April 2004 to let somebody know if Mr Wood is trying to enter?---Not to my knowledge.
PN1739
Have you actually checked what instructions, if any, were given?---Well, I did not give those instructions and I haven't checked.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1740
So you're just speculating in the evidence you gave a short moment ago?---Which evidence was I speculating?
PN1741
About how he would get in and the secretary might just let him in without management knowing?---Well - - -
PN1742
Are you just speculating?---No, you had asked me whether P&O would make a decision to prevent him from accessing and I'm not sure who would make that decision.
PN1743
So you are speculating because you don't know the truth?---If that's the way you want to put it, yes.
PN1744
So given - you've had paragraph 152 of Mr Wood for some months now, and that's not a criticism of anybody because two sets of hearing dates were vacated, do you know that?---Yes.
PN1745
What inquiries have you made to check what Mr Wood said in paragraph 152?---Again, sorry, if you're referring to the same evidence I can address that but I'm not quite sure what you're asking about 152.
PN1746
The passage I read to you from paragraph 152.
PN1747
MR BARTON: Registrar, it's a bit unfair to the witness. It would be easier to give the witness a copy of the statement to clarify it.
PN1748
MR DOCKING: I'm happy to provide a clean copy.
PN1749
Can you satisfy yourself I referred to the first six lines?---Regarding 4 May?
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1750
Yes. Satisfy yourself that's what I've already asked you about?---Yes, I am satisfied.
PN1751
Are you saying you've made no inquiries to check to be able to respond to what Mr Wood said in those first six lines of paragraph 152 of his statement?---I have - that's correct, I have not checked whether it was a meal break, but I don't know on what basis he would be prevented access through the Port Botany entryway. I certainly did not give that direction to anyone to prevent him from accessing.
PN1752
But you don't know what other management personnel gave as directions?---No, but given that Mr Cummins was the senior manager there and he and I were in contact in relation to this I do not expect that he would have given that direction either.
PN1753
Mr Wood wasn't allowed in at that stage unless P&O thought he'd given the 24 hours' notice. You know that?---That's right.
PN1754
Well, given he hadn't given 24 hours' notice here doesn't it suggest to you that he was invited in, he was allowed in by agreement, quite apart from any Workplace Relations Act requirement for 24 hours?
PN1755
MR BARTON: I really object to this line of questions. The witness is being asked to speculate on something she has no knowledge of. She's admitted this. Where does it get us if she's speculating on what may or may - other people may or may not have done? It's of no value at all. I mean, she's not in a position to speculate.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1756
MR DOCKING: Well, I do press it because look at the distinction between her paragraph 36, the last two lines, how the site management gave permission to enter in order to attend the site committee scheduled to take place. When it suits the employer it educes that type of evidence. When the witness is challenged about the same sort of information, well, how did he attend, the hands are thrown up and said, oh, just doesn't know. I mean, this is an important matter. They seriously amended their application yesterday. I say it's important according to the employer and they don't want it tested.
PN1757
THE DEPUTY REGISTRAR: Mr Docking, I think that I will allow the line of questioning to continue but I would ask to keep in mind that the witness has answered a number of questions phrased in different ways to the same effect that she doesn't know and there's probably not a lot to be gained, I would agree with Mr Barton's submission, by continuing down that path for an excessive amount of time anyway.
PN1758
MR DOCKING: This was the only other example I was using, particularly as Mr Wood had put the employer on notice. I'm afraid I've been distracted now.
PN1759
THE WITNESS: I should just clarify something, actually.
PN1760
MR DOCKING: I'm not asking you to clarify anything. You certainly establish with paragraph 36 that Mr Wood got permission to enter?---On 5 May, yes.
PN1761
And you know, at the time, 4 May 2004, that system in place was that if P&O believed Mr Wood had not given 24 hours notice, he was not allowed to enter under his Work Place Relations Act right of entry?---That's correct.
PN1762
And therefore, for him to get entry without 24 hours notice, based on your knowledge of the system then in place, it suggests to you, does it not, that he entered with the agreement of the employer, P&O?---We gave him permission, yes.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1763
Are you able to assist - because Mr Wood even was frank and said, he can't recall why he visited on that day - - - ?---That was 4 May that you're talking about, not 5 May.
PN1764
It is. And are you able to assist? He is frank. He says, "I am unable to recall why I visited. P&O might be able to jolt my memory." Are you able to assist? Did you make any inquiries with manager's records to find out why he entered on 4 May 2004?---Now, I'm a bit confused. Before we were talking about 5 May in paragraph 36 of my statement, which was the Site Committee meeting. Mr Woods paragraph 152 refers to 4 May, when there was no permission granted to breach the 24 hours.
PN1765
I thought you had accepted for 4 May 2004, he must have been given permission to enter?---Oh, no. Sorry. That's - that was my error. I thought you were referring to 5 May; the day of the Site Committee meeting.
PN1766
In any event, I will be able to deal with it in submissions, but given Mr Wood said, in effect, "look, can P&O jolt my memory? I can't remember why I visited on 4 May 2004." Have you, on behalf of P&O, been able to find out why he was present?---No.
PN1767
And you gave evidence in chief today - this was about 26 and 27 May 2004 - something to the effect that he did enter on 26 May, not on 27. Your recollection is uncertain on that. Do you remember giving evidence to that effect?---I do.
PN1768
Why is your recollection uncertain, keeping in mind, you've never observed any of these entries yourself?---I have observed the entries. I have copies of the entries for 27 and 26 May that has just been given to me this morning and I apologise, I have neglected, prior to attending the stand, to clarify entry on those days. I can do that if you would like to adjourn?
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1769
So 26 and 27 May, you base those on what's in the entries, not on what any other manager told you?---That's correct.
PN1770
That's what I was trying to clarify what you meant. I then want to go to the second statement and as I do so, I hand you a copy of this letter to Nicholas Turner Freehills from Mr Giddins of the MUA. If that could be shown to the witness? You can see, Mr Giddins wrote back on 16 September 2004 - this is about your paragraph 4 of your reply. And the last sentence thereof refers to:
PN1771
... the agreed protocol under the certified agreements in place in Queensland.
PN1772
?---Yes.
PN1773
The letter continues:
PN1774
We request that you ensure that Ms Brady brings with her, to assist her at the time she gives evidence, any written procedure or protocol notified to the national office or the Southern Queensland branch of the MUA relating to entry of union officials at Fisherman Islands of Hamilton in Queensland, in conformity with clause 9.1.2.1 of the P&O Ports Hamilton EA (2002) and the P&O Ports Fisherman Islands EA (2002).
PN1775
Do you see what I'm referring to?---I do.
PN1776
Have you got any written procedure of protocol referred to in that facsimile dated 16 September 2004 with you?---There is no written procedure agreed between the parties - to those agreements. There is a facsimile that is commonly used, but not an agreed written procedure or protocol - to my knowledge.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1777
So if I go to exhibit P&O 12 paragraph 4, on the top of page 2, do you withdraw as incorrect, your suggestion about:
PN1778
... relate to the agreed protocol under the certified agreements in place in Queensland.
PN1779
?---Which paragraph? Are you referring to my statement in reply?
PN1780
I am. Exhibit P&O 12, top of page 2. Do you now withdraw as incorrect, your reference to:
PN1781
... relate to the agreed protocol under the certified agreements in place in Queensland.
PN1782
?---No, like I said, there is a facsimile commonly used as a protocol, but there is no written procedure regarding right of entry.
PN1783
You gave evidence a few questions ago to the effect, there is no written procedure agreed?---There is no written procedure agreed for right of entry. There is a protocol in place using a facsimile.
PN1784
Registrar, I'll tender the letter of Bill Giddins, the Maritime Union of Australia National Office, to Nicholas Turner, dated 16 September 2004 and I'll tender as a separate exhibit, the Port Botany Ports P&O entry records, as produced under summons for production by P&O. And I note that there is some colour highlighting that should assist later, that I'll get Mr Wood to explain what the colour highlighting means. So I tender as two separate exhibits - both are with the witness.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1785
MR BARTON: I have no objection to the tender of the letter. I am concerned about the exhibit - document that is being tendered - the attendance records, which has - has been conceded - handwritten notations prepared by Mr Wood. They obviously don't form part of the original record. If it's to be tendered, it should be tendered as a clean copy.
PN1786
MR DOCKING: I only have a marked-up copy. I'm happy - I'll wait to tender that copy for Mr Wood. If there is no dispute - that's what I showed the witness in the witness box - I'll wait until Mr Wood gives evidence and I'll tender it then.
PN1787
THE DEPUTY REGISTRAR: It may assist, I think, that I have a file copy of the document that you're referring to. Would it assist if you ensure that that's the case and then maybe this can be the tendered exhibit for the moment?
PN1788
MR DOCKING: Rather than ending up with the Commission having two copies, I'm happy, if there's no dispute that what is handed back to me was what was showed to the present witness, I'll tender the marked-up copy during Mr Wood's evidence? It can be marked for identification in the meantime, the marked-up copy? And I still tender the 16 September - - -
PN1789
THE DEPUTY REGISTRAR: Marked-up copy will be - sorry, Mr Docking, I spoke over the top of you - marked for identification number 4.
MFI #4 MARKED-UP COPY OF PORT BOTANY PORTS P&O ENTRY RECORDS
PN1790
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1791
MR DOCKING: I've still got probably in the range of 10 minutes to go. I note the time.
PN1792
THE DEPUTY REGISTRAR: I think I would prefer to finish with the witness before lunch if that's possible. I know it's getting late, but I think that's an appropriate course of action. Sorry, Mr Docking, before you proceed, can I just clarify; I haven't received a clean copy of the marked-up version. Are we agreeable to that being left as MFI4 for the time being until it's tendered in evidence to become an exhibit - - -
PN1793
MR DOCKING: Yes.
PN1794
THE DEPUTY REGISTRAR: - - - when Mr Wood gives evidence? Mr Barton, do you have any - - -
PN1795
MR BARTON: That course is fine with us, Registrar.
PN1796
MR DOCKING: I'm even happy to provide the MFI, in the meantime, for P&O to look at.
PN1797
MR BARTON: Yes, if we could, please. Yes.
PN1798
THE DEPUTY REGISTRAR: On that basis, we'll proceed, thank you.
PN1799
MR DOCKING: Thank you. You refer to the facsimile. You still have that copy of Mr Wood's statement. Hopefully, the attachments are included?---Yes.
PN1800
If you go six pages from the back - and it may have been partly obliterated in the photocopying task - but there should be GRW8 in black ink?---Yes.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1801
And when you refer to the facsimile - or you said something to that effect - this is what you refer to; the five examples that compromise GRW8?---Sorry, could you repeat that question, I was reading the facsimile?
PN1802
When you referred to - in your evidence - to the facsimile, five examples of that facsimile are in GRW8?---Yes, that's correct.
PN1803
And you only became involved in the waterfront industry - when?---February 2004.
PN1804
And you would have had a chance to look at GRW7, which is a statutory declaration from one Bernadette Whelan from the Sydney branch of the MUA?---Yes, I have.
PN1805
I appreciate you can't give any direct evidence about what was the practice and procedure in the industry before you commenced?---No. I can't.
PN1806
Have you at least made inquiries - do you see Ms Whelan says:
PN1807
The right of entry form that Glen Wood was using from 9 April 2004 to 9 June 2004 is the standard form of notification that union officials had used in this branch since the Patrick dispute of 1998, and employers have never refused access to their premises with the issuing of this notice.
PN1808
Have you made some inquiries to establish, at least, the position of P&O?---I understand that's not the case in Sydney with P&Os practices, but that in Queensland the facsimile you refer to, or the standard facsimile, has been used for some time.
PN1809
And, based on your inquiries, it indicates right back to the Patrick dispute 1998, it's been used in Brisbane?---Oh, I think the management up there were able to say for the last few years. I couldn't give it as 1998.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1810
And that's because, is it, none of the management were left up in Brisbane who had been there since the Patrick dispute?---There has been a change-over of that kind, yes. That's correct.
PN1811
And, in any event, until the company took the position with Mr Wood, as at from 1 April 2004, there wasn't any need to use that form of notification in Sydney or Port Jackson for P&O Ports?---There was a different protocol in place in New South Wales. That's right.
PN1812
You refer to the different protocol, and it's what has been contained in the enterprise agreements?---The enterprise agreements don't specify day-to-day how the union official is to enter the site.
PN1813
Are you saying there's some other written protocol in existence that Mr Wood hasn't seen that exists for P&O Ports in Sydney?---No, I'm not. I'm just saying there was a different practice in place in Sydney than in Queensland where you have these written facsimiles, and it varies, again, around the country.
PN1814
And don't you know that what's existed for P&O has been in the enterprise or certified agreements for right of entry? Do you know anything about that?---Well, this facsimile from the Queensland branch is not in the enterprise agreement.
PN1815
Oh, I know that, but what happens to the Queensland Ports is it has the same, does it, right of entry provisions as exist in the P&O Ports Port Botany Certified Agreement?---That's correct.
PN1816
The same provision that was in place for White Bay, as in Queensland?---In the White Bay Agreement - White Bay/Glebe Island Agreement, that's correct.
PN1817
In other words, it's been uniform throughout P&Os operations in Australia, the certified agreement or enterprise agreement provisions on right of entry?---The provisions in the agreements are uniform, yes.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1818
And before 1 April 2004, nobody from P&O required a written 24 hour notification, as you understand it, for entry by MUA officials into the New South Wales Ports?---That's correct.
PN1819
And - - - ?---Back to - sorry, back to February, of course, when I first started.
PN1820
And you know, don't you, that no complaint has been made by P&O about the form of the facsimile that's in GRW8 to Mr Wood's statement to the Queensland branch of the MUA?---That's correct. No complaint has been made.
PN1821
And you know, don't you, that even though the Southern Queensland branch of the MUA gives this notification each and every day, the officials don't enter each and every day?---That's probably correct.
PN1822
In other words, there's no complaint that they're breaching the Workplace Relations Act by providing a facsimile giving 24 hours' notice and then no official entering?---No, because that's the protocol agreed in Queensland under the agreement.
PN1823
Oh, it's no protocol under the agreement. You've already - it's not in the certified agreement, this protocol you refer to for Queensland, is it?---No. It's not.
PN1824
And you can't produce any written document either, can you, that - - - ?---No.
PN1825
- - - could be called a protocol?---No. I can't.
PN1826
And what it is, it's just the custom and practice that has existed in Queensland. That's what your inquiries establish?---That's correct.
**** RACHAEL MARIE BRADY XXN MR DOCKING
PN1827
Now, I want to go to paragraph 3 of your second shorter statement, exhibit P&O12. I appreciate your experience with the MUA is limited from February 2004, but you're not suggesting that somehow the MUA is compelled to respond to every letter that P&O might send to it?---Not compelled, but often would. No, not compelled.
PN1828
And, on occasions, doesn't respond to what an employer like P&O might write to them about?---That's correct.
PN1829
And you know, don't you, originally this hearing was listed for 12 July 2004, or at least that's what the parties had anticipated?---Yes, on or about, to the best of my knowledge.
PN1830
And you were told, weren't you, that Mr Wood was going to be overseas from 24 July until September?---Yes. We were.
PN1831
And you knew during that period that he didn't intend to try to enter because he was going to be out of the jurisdiction overseas?---I presumed that would be the case.
PN1832
And then you knew, didn't you, that it was then listed, I think, in September 2004, but, through no one's fault, those dates had to be vacated?---Yes. That's correct.
PN1833
And you've provided some evidence today that Mr Wood is now entering again Port Botany P&O Ports site?---From approximately end of October, that's correct.
PN1834
**** RACHAEL MARIE BRADY RXN MR BARTON
PN1835
MR BARTON: Ms Brady, if I could just clarify questions that were put to you about the incident on 4 May - sorry, the purported right of entry on 4 May, and I refer paragraph 36 of your first statement, and I'm actually referring to 5 May?---Yes. I have that.
PN1836
And your evidence in paragraph 36 is that Mr Wood had not given 24 hours' notice in relation to his intention to enter on the day, but that site management gave him permission to enter in order to attend the site committee meeting scheduled to take place at 8?---Yes.
PN1837
Is it P&Os position that, had he not given that notice, he would not have been permitted to attend that site committee meeting?---Sorry - - -
PN1838
Absent management permission, he would have had no right to attend that meeting on site?---That's correct.
PN1839
In relation to the questions that were put to you regarding the Queensland protocol, or arrangement, again, just for clarification, I understand your evidence is that there's no written protocol?---That's correct.
PN1840
There is a form of notification which is regarded as the standard form?---That's correct.
PN1841
And there's an arrangement or an understanding about the procedure to be followed?---That - - -
PN1842
MR DOCKING: Well, I object to leading.
PN1843
MR BARTON: If I could show the witness the document. Registrar, this is an agreement certified under the Workplace Relations Act. It relates to P&O Ports Operations Fisherman's Island in Queensland.
**** RACHAEL MARIE BRADY RXN MR BARTON
PN1844
If I can refer you to page 7, paragraph 9.1.2.1, and you'll see there, Ms Brady, there's a reference to:
PN1845
A union officer first advises the site manager of his or her intended arrival on site in accordance with procedures determined by the company notified in writing.
PN1846
Is it your understanding that those procedures vary from one location to another?---That's correct.
PN1847
And the facsimile form that you've referred to, is it your understanding that that's the procedure adopted in Queensland?
PN1848
MR DOCKING: I object. I object. One, it's leading and, secondly, she's not qualified, by her own evidence, to express any opinion.
PN1849
THE DEPUTY REGISTRAR: There does appear to be a problem with that question, Mr Barton. I'll give you the opportunity to phrase it in another way, but I think - - -
PN1850
MR BARTON: I think I can deal with it by way of submission.
PN1851
Ms Brady, to your knowledge, have any Queensland officials - MUA officials based in Queensland had their right of entry under the enterprise agreement revoked by P&O Ports?---No.
PN1852
Nothing further, Registrar.
PN1853
PN1854
THE DEPUTY REGISTRAR: I propose that we adjourn until 2.15.
LUNCHEON ADJOURNMENT [1.21pm]
RESUMED [2.23pm]
PN1855
MR BARTON: Registrar, I think we were - I think we were in the process of recalling Mr Stone.
PN1856
THE DEPUTY REGISTRAR: Yes, Mr Barton. Just before we do that, if I could just indicate in relation to Mr Docking's request this morning, I have decided to request next day delivery of the transcript from here on in. I think that will assist both the parties and myself in terms of any final submissions and consideration of the evidence. It obviously won't deliver Thursday's, or Wednesday's may not be here by 9 am on Thursday, but it will assist for a substantial portion of the evidence that's been given.
PN1857
MR DOCKING: I appreciate that assistance.
PN1858
MR BARTON: Thank you, Registrar.
PN1859
PN1860
MR DOCKING: Mr Stone, I'm going to take you to your first statement. Do you see at paragraph 15, page 4, the first words you attribute to Mr Wood are to the following effect:
PN1861
Today's meeting will not be going on all day. They will have to wind up early because I have to leave.
PN1862
?---Yes.
PN1863
If you also then look at your two page typed document, the third paragraph, what you record there is,
PN1864
Glen Woods -
PN1865
- do you accept that would be Wood not Woods?---Yes.
PN1866
Continuing -
PN1867
approached me and stated that he did not have all day to run these meetings, and because he had been notified -
PN1868
sorry -
PN1869
because he had not been notified of these meetings until this morning that they would have to be completed prior to him leaving.
PN1870
?---Yes.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1871
That note doesn't make any reference to "wind up early", does it, your two page note for the relevant passage I just drew your attention to?---Passage - paragraph 15 in my statement?
PN1872
The passage in your two page typed note makes no reference to "wind up early"?---No, it doesn't.
PN1873
And the reason it doesn't appear there is Mr Wood never used words to that effect, "wind up early"?---He did.
PN1874
You just forgot those words, did you, when you did the typed note on the same day, 2 February 2004?---The purpose of the typed note was basically just to keep a record of what issues were discussed. I mean, in those - but on the basis of that, I just typed up the information as best as I could recollect at the time.
PN1875
And when you typed it up as best as you could recollect it at the time, do you say you had forgotten that Mr Wood had said words to the effect "wind up early"?---That may have been the case.
PN1876
And it means, doesn't it, that your best recollection done close in time, according to you, leaves some things out that you said?---That could be the case, yes.
PN1877
Leaves out some things Mr Wood said?---The basis of those comments were that the meetings weren't going all day because Mr Wood had to leave early.
PN1878
Will you answer my question? Do you accept your two page typed document leaves out some things Mr Wood said?---Yes.
PN1879
Do you accept it leaves out some things Mr Hartland said?---Yes.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1880
Let's look at something that it doesn't leave out. The second page, point 6, last sentence, you recorded:
PN1881
Barry Hartland then asked me if I could rectify the incorrect entry in -
PN1882
what's that word -
PN1883
Microster from an FTR to a sick day to which I replied that I could.
PN1884
Do you see what I'm referring to?---Yes.
PN1885
And let's see the uniformity at least on this point? If you go to page 12 of your first statement, the Kirsty Bundt typed note, it reads:
PN1886
Barry Hartland sought Tony's assurance that he would remove the FTR from his file as Glen Woods, Jamie McMeekin and he left the room and Tony agreed to do this.
PN1887
?---I'm sorry, I don't have a copy of what you're reading from. Is that from Kirsty Bundt's file not?
PN1888
Yes?---I don't have a copy of that.
PN1889
Isn't attached - earlier this morning I was trying to take you to the page numbered 12. There's little handwritten page numbers in the top right hand corners, attached to your first statement?---Can you - sorry, can I just get clarification of which document you're referring to.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1890
Your first statement. I'll hand you a clean copy, apart from, I think, Mr Giddins has written the exhibit number on the first page. I've opened it at the page that has handwritten 12 in the right hand corner. Do you have that page attached to the copy of your statement you took in the witness box?---No, I don't.
PN1891
It might not have just been the glasses?---That's why I said I didn't understand the questions.
PN1892
What I was asking you about, on that page that has handwritten 12 on it, which actually does make up exhibit P&O8, which is your first statement, the last entry:
PN1893
Barry Hartland sought Tony's assurance that he would remove the FTR from his file as Glen Woods, Jamie McMeekin and he left the room and Tony agreed to do this.
PN1894
?---That's right.
PN1895
So Kirsty Bundt's note and your own note confirms that you had agreed before the end of the meeting to remove the FTR from Barry Hartland's file?---That's correct.
PN1896
And the reason that the diary note was shown to you - that is the diary note of Mr Hartland - during that meeting?---I didn't actually see the diary. The diary was put on the table and it was taken by Mr Wood to have a look at it, and on that basis when the discussion was taking place between Mr Wood and myself in regards to interrupting in the meeting, Barry had spoken to me just at the conclusion as Mr Wood had been standing up, and at that time he indicated to me, because I have dealt with Mr Hartland on a number of occasions, he asked me if I could fix the FTR up in regards to the sick day on one particular issue, and I said that I would.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1897
In other words, it was a done deal by the conclusion of the meeting that the FTR would be fixed up?---For Mr Hartland, yes.
PN1898
So it's just nonsense for you to suggest that there were conversations later involving Mr Hartland, that is apart from this meeting where you were convinced the FTR should be removed?---Because I had discussed with him on other issues that were - there was other FTRs that were recorded on his personnel file about - in Microster - about FTRs that were recorded. So there's been subsequent issues, yes.
PN1899
You were trying to tell the Commission before the luncheon adjournment, weren't you, that after this meeting on 2 February 2004, you had other different discussions with Barry Hartland which led to this particular FTR being removed from his file?---That's right.
PN1900
And that's incorrect, because you had already had a done deal at the end of this meeting, 2 February 2004, for this particular FTR?---That particular - but there was other ones. Can I just clarify in regards to this, that the issue that arose out of these FTRs being recorded was prior to the implementation of Microster, and a lot of the issues that were there were to actually clarify and be able to update the information that was recorded in this system for some of these employees.
PN1901
And I want to go to - it's your second statement. For the record, it's exhibit P&O8, it's the reply statement. Do you see in paragraph 18, the last - that's my error - P&O10 - - -
PN1902
THE DEPUTY REGISTRAR: It's the statement in reply.
PN1903
MR DOCKING: Paragraph 18. Yes, you're right, Registrar.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1904
The last sentence says:
PN1905
These latter meetings were not rescheduled because there were insufficient stevedoring employees and human resources employees at the Darling Harbour site to conduct these meetings.
PN1906
?---That's correct.
PN1907
You're not seriously suggesting that P&O, for human resources and in industrial relations in the State of New South Wales, between 2 February 2004 and today's date, has not had adequate human resource employees to conduct the meetings with the six other employees?---There's two employees that work in HR, that being Brian Reilly, the HR Manager, and a HR Co-ordinator for the whole of New South Wales.
PN1908
Are you still seriously saying that?---That is the case. Yes.
PN1909
That there are inadequate human resource employees between 2 February and today's date to conduct these meetings?---Some of those employees have since transferred out of Darling Harbour and are now based at Port Botany.
PN1910
Are you seriously saying these meetings have not been reconvened because of inadequate human resource employees engaged by P&O? You're taking many seconds?---I'll answer no to that - that question.
PN1911
So you don't - no, you don't really say it's because inadequate human resources. Is that correct?---That's correct.
PN1912
You just made that up, didn't you? That part of your statement that suggests:
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1913
Inadequate human resources to conduct these meetings since 2 February 2004.
PN1914
?---The answer to that is, yes, there was a lack of human resource employees at Darling Harbour site. And there still is only two employees that are to - working in human resources.
PN1915
But you made up the suggestion that part of the reason was because of insufficient human resource employees, that that provided part of the reason for not conducting these meetings since 2 February 2004?---No, that was my belief in the human resources, because I was part of that human resource employees, at that time. There was myself and Brian Reilly.
PN1916
Did you discuss that belief with anybody else?---Yes.
PN1917
Who?---Mr Reilly.
PN1918
When did you discuss that with him, that this was part of the reason, insufficient or inadequate human resource employees why the meetings didn't take place again since 2 February 2004?---I discussed that with him on a number of occasions, the lack of human resources employees. But that's something that's out of my control and Mr Reilly's.
PN1919
Sir, please attend to the question. Why the meetings for 2 February 2004 have not be rescheduled includes as part of the reason, insufficient or inadequate human resource employees. When did you discuss that specifically with Mr Reilly?---I couldn't give you a date.
PN1920
Have you ever?---Yes, I have.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1921
Then I wanted to get your assistance. Paragraph eight of the same statement, the bottom of page two. You make reference to the word, "Hinder". At the date of this statement, what did you understand to be the meaning of the word hinder?---The meeting was prevented from being able to come to a conclusion, with the outcome of that meeting being finalised.
PN1922
And what did you understand at the date of your statement to be the meaning of obstruct?---That we were prevented from being able to bring these meetings to a conclusion.
PN1923
But I covered before the luncheon adjournment - that's exhibit P&O9 of your two page typed document, last paragraph. The two references to "decided" in that last paragraph, you know are a reference to P&O, through Mr Reilly making those decisions?---That's correct.
PN1924
And do you see, your last paragraph in exhibit P&O9 contradicts your suggestion as to why the meetings didn't take place on 2 February 2004, doesn't it, that you advance in your statements?---No, I don't agree on that.
PN1925
Finally, paragraph 24, your second statement the reply statement. You say you've:
PN1926
Never heard an employee, union official other than Glen Wood, or management representative, swear of make such inappropriate comments.
PN1927
Do you see what I'm referring to?---Paragraph 24, was it?
PN1928
Last sentence, that last two lines?---Yes, that's correct.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1929
You know Mr Davis, who was then a manager of P&O?---No.
PN1930
You'd never met that gentleman?---No.
PN1931
So have you never heard a management representative tell a union official to piss off?---No.
PN1932
Do you say if you heard that, would you expect Mr Blood to do something about counselling and disciplining that management representative?
PN1933
MR BARTON: Well, I object to the question, Registrar. He's being asked to speculate on what the managing director of P&O may or may not do in a hypothetical situation.
PN1934
THE WITNESS: That's not my call.
PN1935
MR BARTON: It's not a fair question.
PN1936
MR DOCKING: I'll rephrase the question. If that was brought to your attention that a senior manager of P&O told a union official to piss off, is that something that you would refer to somebody more senior than you, to consider whether there should be some counselling or disciplining undertaken of that management official?---In all honesty, I couldn't give you an answer, because I've never been confronted with that situation. It would be something that I would have to make a decision on that basis on hearing that.
PN1937
Have you never heard management swear, using words like piss off to each other?---To each other? I can't say that I have, no.
**** ANTHONY JAMES STONE XXN MR DOCKING
PN1938
You've never heard management talking to each other and saying fuck and/or fucking?---Not in my experience, no. I don't use that language myself, and I would find that if someone was using that language, that I would find that it would be inappropriate. But in saying that, I've never been confronted with that, so - - -
PN1939
Have you never heard the rank and file workforce - - -?---Yes, I have.
PN1940
- - - use fuck and fucking?---Yes.
PN1941
Including to their supervisors?---I haven't had any experiences, no.
PN1942
And did you find it unacceptable for the rank and file workforce to talk to each other and use fuck and fucking?---That's not my call. I mean, I don't judge people, it's not my call.
PN1943
Thank you, Registrar.
PN1944
THE DEPUTY REGISTRAR: Anything further, Mr Barton?
PN1945
MR BARTON: No, nothing further.
PN1946
PN1947
MR BARTON: Sorry, Registrar, can you just - Registrar, the final witness for the applicant is Mr Brian Reilly. There are two statements of Mr Reilly. The first was made on 26 May 2004. And - sorry, Registrar, do you have a copy?
PN1948
THE DEPUTY REGISTRAR: Yes, I do. Thank you, Mr Barton.
PN1949
MR BARTON: And then there's a second statement in reply that was made on 25 August 2004. I understand there may be some objections to the statement, Registrar.
PN1950
MR DOCKING: If I deal with the first statement. Paragraph nine, I object in its entirety as self-serving hearsay. The Registrar might be inclined to admit it consistent with previous rulings, not as to its truth. But the same would apply in this category, I may as well identify those which fall in the same category. Paragraph 12, in its entirety. They were the two objections to the first statement.
PN1951
MR BARTON: Registrar, we don't concede that this amounts to hearsay. The statements are evidence of conversations that the witness had with the people identified. They should be admitted on the basis before. To the extent that they do contain hearsay, we obviously don't press beyond the same grounds as before, the truth of the content of that. But it's very difficult for us to see how there's any hearsay in this. It is simply a record of a conversation, on two occasions.
PN1952
THE DEPUTY REGISTRAR: I'll admit them on the same basis as before.
PN1953
MR DOCKING: Registrar, then turning to the second statement. There's a whole series of paragraphs that are objected to that fall in the first class. Going to page two, it is part of paragraph three. I object to the third line, the words:
PN1954
And is still expected to comply with the right of entry provisions.
PN1955
Until the end of that sentence. The Registrar will see that the same assertion is made in paragraph 15 third line, paragraph 17 third line, paragraph 20 second line, paragraph 21 - - -
PN1956
THE DEPUTY REGISTRAR: Sorry, Mr Docking, could you just slow down a moment, please?
PN1957
MR DOCKING: Sorry.
PN1958
MR BARTON: I've only got the first one, could you start again?
PN1959
MR DOCKING: Okay. Did the Registrar get the passage objected to in paragraph three of the reply statement that begins with the words:
PN1960
And is still expected to comply with the right of entry provisions.
PN1961
THE DEPUTY REGISTRAR: Yes.
PN1962
MR DOCKING: To the end of that paragraph.
PN1963
THE DEPUTY REGISTRAR: To the end of the paragraph. I thought that you said to the end of the sentence.
PN1964
MR DOCKING: I apologise. It's the end of the paragraph.
PN1965
THE DEPUTY REGISTRAR: So it is to the end of the paragraph?
PN1966
MR DOCKING: It is. I then object to paragraph seven the third line, beginning:
PN1967
Is required to comply.
PN1968
Until the end of the paragraph. Paragraph 15 - all of these begin with:
PN1969
And is required to comply.
PN1970
Until the end of the paragraph. The same applies to paragraph 17, from the third line. The same applies to paragraph 20, the third line, to the end. Paragraph 21 the third line until the end of that paragraph. Paragraph 25 the third line, until the end of the paragraph. Paragraph 28 third line, until the end of the paragraph. Paragraph 31 third line, until the end of the paragraph. Paragraph 33 third line until the end of the paragraph.
PN1971
Registrar, I rely upon that written submission I handed up. It's clearly argumentative, clearly impermissible opinions being expressed, it's a matter for submission. In addition, whilst Mr Wood's belief and intent is of relevance, that is a matter for him, not for other witnesses to try to enter his mind and suggest what he was doing and how he was acting. I can understand why the employer has sought to include it, because there was a complete deficiency of this type of evidence in their primary statements. But it's not going to overcome the appeal decision in Ferguson by a witness making this sort of submission and impermissible opinions in a statement.
PN1972
MR BARTON: Registrar, I think the objection is misconceived. Mr Reilly is not purporting to draw a legal conclusion about the effects of the Workplace Relations Act. What he is giving evidence of is the requirement of expectation of P&O Ports that Mr Wood comply with the provisions of the Act. Whether he was legally obliged to do that or the Act had that effect, of course, is a matter for submission, but that is not the purport and effect of what Mr Reilly is saying. What he is clearly saying is that P&O Ports expected Mr Wood to comply with those provisions. And that's really the answer to every one of those objections.
PN1973
MR DOCKING: Well, I press the objection. That is not what he says at all. And, in any event, he's not able to express after the event an expectation. It really is worthless because it's just their submission. He's not possibly qualified to express an opinion, which is what an expectation is, after the event. Mr Wood has referred to the contemporaneous correspondence of Mr Blood, which is totally inconsistent with that as being an expectation. An example of what Mr Blood said contemporaneously during the period and not when trying to make out a case appears in Mr Wood's statement, just for convenience of identification, page 5, paragraph 21 and 22.
PN1974
The Registrar can see the second quote in paragraph 21. They revoke their enterprise agreement right of entry and say from this time, 1 April 2004 onwards, any right to enter P&O Port sites is that provided by the relevant provisions of the Act. I find it staggering that someone in Mr Reilly's position tries to contradict Mr Blood's contemporaneous letters in the relevant period. It's just so obviously a submission to try to make up a glaring deficit in P&Os case.
PN1975
MR BARTON: Registrar, if I can refer you to P&O - sorry, Registrar, I'm having trouble reading my own writing - P&O11 at page 11. It's Attachment RMB1.
PN1976
THE DEPUTY REGISTRAR: Sorry, Mr Barton, which document are you referring to?
PN1977
MR BARTON: It's P&O11 and it's the statement of Rachael Brady of 26 May.
PN1978
THE DEPUTY REGISTRAR: Thank you. I've got that now.
PN1979
MR BARTON: This is on page 11 of that statement. You will see there's a letter, Registrar, from Mr Blood to Mr Wood dated 30 June 2003 which, of course, pre-dates the events we're referring to. And you will see in the middle paragraph it says:
PN1980
Over the past three years we've established a constructive relationship with the MUA and notwithstanding our previous position we are prepared to grant you access, however, prior to granting you access we seek your written confirmation that you will at all times abide by the requirements of right of entry set out in the P&O Ports Enterprise Agreements and the Australian Workplace Relations Act 1996.
PN1981
That is a clear expression of the expectation of P&O and it's reinforced over the page by a letter from Mr Wood in which he - you will see he says in the second paragraph:
PN1982
I've made myself aware of the provisions outlined in the current enterprise agreement and provisions outlined in the Workplace Relations Act regarding this issue and I confirm my preparedness to best conform with these provisions.
PN1983
So there's a clearly expressed expectation on the part of P&O confirmed by Mr Wood's adherence to that. That is what Mr Reilly is referring to.
PN1984
MR DOCKING: Might I have the final reply because it was my objection? How can a legal practitioner seriously say what was just stated. Mr Reilly doesn't say, "And I draw upon this correspondence to express that expectation". It might be the submission they want to make at the end of the case, but it just keeps reinforcing it's their submission in argument. It's not something subject to giving of evidence in this sort of Tribunal.
PN1985
It's clear from cases like King v Freshmore how one applies the section that does say the formal rules of admissibility do not apply. You still ask, "What do the rules say?" And the rules would never let in that sort of opinion evidence. Mr Blood can be called if they want to press that. I'm happy to cross-examine Mr Blood.
PN1986
THE DEPUTY REGISTRAR: In relation to paragraph 3 I'm satisfied that the expression that appears there commencing in the middle of the line "and is still expected to comply with" as an expression of expectation on behalf of the witness rather than an expression of the legal opinion. Whether or not that expectation is borne out as a decision by me remains to be seen, but I'm prepared to allow that part of the sentence up to the end of that sentence in.
PN1987
MR DOCKING: I take it then that ruling would apply to the balance of those paragraphs as well?
PN1988
THE DEPUTY REGISTRAR: In relation to the - yes, the remainder of paragraph 3, that is my ruling. However - and this - I think that the remaining statements, although they refer back to paragraph 3, I do think that they do go further in that there isn't any expression of an expectation. It's just really a statement that the witness I don't believe is in a position to make, that he's required to comply with the right of entry provisions contained in the Act. I think that that - I would only be permitted to retain those remaining statements on the basis that there's a clear link to the expression of an expectation in paragraph 3.
PN1989
MR BARTON: Registrar, I think that is really our submission, that it's not a requirement - he's not saying requirement in the legal sense, he's saying expectation of the company. And that's reinforced by the fact that it refers back to paragraph 3 of the statement. Registrar, just in relation to - I think this is - I didn't address the objection to the last sentence in paragraph 3 about the supplementation of the right of entry provisions contained in the Act. That probably is a conclusion about the legal effect of the interaction between the EA and the legislation, which we can make submissions about.
PN1990
THE DEPUTY REGISTRAR: I would agree, Mr Barton. I think it is the conclusion. I would only be prepared to admit it on the basis that it's Mr Reilly's expression. His view rather than - - -
PN1991
MR BARTON: Well, I mean, I - - -
PN1992
THE DEPUTY REGISTRAR: And it probably is more - my view is that at one level - although I don't need to sort of prevaricate about this, but they are things that are probably more appropriately dealt with in the form of submissions, given that all it is is an expression of his view of what either his own or P&Os expectation is. And I don't think it could be put higher than that in its current form.
PN1993
MR BARTON: Yes. I can't add anything further, Registrar. But in relation to the other references to compliance we say it's the same form. It's a reference to the expectation of the company rather than legal consequences of the legislation, which is probably a matter for submission. I think I'm agreeing with your suggestion, Registrar.
PN1994
PN1995
THE DEPUTY REGISTRAR: Look, I propose that we proceed on the basis that they be allowed in as - but with that clear sort of proviso that I've expressed previously, and to put that beyond doubt, to make it clear that this evidence - these statements could not be relied upon to basically put from the witness box the inferences or submissions that should really be put at the end of the case.
PN1996
MR BARTON: Well, Registrar, just again, for clarity, we would not be putting to you that this evidence, of itself, would establish that point about the consequences of the legislation. We couldn't - we will be making submissions to you, but we won't be arguing that this, in itself, gets us there on that point, fairly obviously.
PN1997
THE DEPUTY REGISTRAR: I must say, Mr Barton, that, you know, although I've sort of ruled on this, I suppose, at some levels I shouldn't be revisiting it. I think the consequence of all of that logically is probably that it should just be excluded really. I mean, given that you've acknowledged that and given what I've said about the limitations that must be placed on it, I think, to some degree, it would probably be easier if we were just very clear about it and said that all those statements are excluded. Sorry, I know I'm causing problems to both sides to changing my mind mid-course, but I think it is a bit unclear. No, look, let's just move on. I'll stick with my original ruling, with those provisos and that strong footnote, if you like, to the matter.
PN1998
MR BARTON: Thank you, Registrar.
PN1999
MR DOCKING: I'll adopt Mr Barton's last comments of my submissions in final submissions.
PN2000
PN2001
MR BARTON: Mr Reilly, could you please give the Commission your full name and address?---Brian Leslie Reilly, (address supplied).
PN2002
And, Mr Reilly, you've prepared two statements for the purposes of these proceedings. You have - there's a statement that was made on 26 May. Do you have a copy of that with you?---Yes. I do.
PN2003
The contents of that statement, Mr Reilly, are true and correct?---That's correct.
PN2004
I tender that statement, Registrar.
PN2005
PN2006
MR BARTON: And, Mr Reilly, you prepared a second statement on 25 August 2004. Have you got a copy of that statement?---Is that the statement in reply?
PN2007
Statement in reply, yes?---Yes.
PN2008
Do you have a copy of that?---Not 25 August - 2 August.
PN2009
Do you have a copy of your statement in reply?---Yes.
PN2010
And what's the date of that?---2 August.
**** BRIAN LESLIE REILLY XN MR BARTON
PN2011
Sorry?---2 August.
PN2012
I'm just wondering whether the witness has got the final version of the statement.
PN2013
THE DEPUTY REGISTRAR: Perhaps we could just go off the record for a moment while that's clarified. Would that be of assistance?
OFF THE RECORD [3.03pm]
RESUMED [3.04pm]
PN2014
MR BARTON: Mr Reilly, you have a copy of a statement in reply dated 25 August?---That's correct.
PN2015
Could you take a moment to read that statement, please?---Certainly.
PN2016
THE DEPUTY REGISTRAR: I think we'll go off the record for a few moments to enable the witness time to read the statement.
OFF THE RECORD [3.05pm]
RESUMED [3.10pm]
PN2017
MR BARTON: Thank you, Registrar.
**** BRIAN LESLIE REILLY XN MR BARTON
PN2018
Mr Reilly, you've read that statement?---Yes.
PN2019
And the contents of that statement are true and correct?---That's correct.
PN2020
I tender that statement, Registrar.
PN2021
PN2022
MR BARTON: Thank you, Registrar.
PN2023
THE DEPUTY REGISTRAR: Mr Docking?
PN2024
PN2025
MR DOCKING: I'll take you to your first statement. Paragraph 4, page 1, second line, you make reference to "Glen Wood's request". Do you see what I'm referring to?---Yes.
PN2026
And what occurred was that Mr Wood, on behalf of the employees, sought to be present for a further meeting, and it was agreed to by the employer?---Yes.
PN2027
And before 1 April 2004, you didn't send any correspondence to Mr Wood setting out what was P&Os expectation about the conditions under which he would enter premises?---No.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2028
After 1 April 2004, you've provided no such correspondence to Mr Wood?---No.
PN2029
You understand that's the role of somebody like Mr Blood to send such correspondence?---Yes.
PN2030
And you've never communicated to Mr Wood, you have, P&Os expectations about the enterprise agreement?---In what regard, sorry?
PN2031
In any regard?---It would depend - - -
PN2032
It's not been your role?---It would depend on the matter at hand.
PN2033
Well, that's a fair comment. You may have had some face-to-face discussions with Mr Wood about differing opinions between the interpretation of parts of the enterprise agreements?---Yes.
PN2034
But you've never had the role to communicate to him the expectations of P&O about the right of entry in the enterprise agreement?---No.
PN2035
And you've never had the role, have you, to communicate P&Os expectations about right of entry under the Workplace Relations Act?---No.
PN2036
You're in no position to express opinions on behalf of P&O about what expectations it had of Mr Wood for right of entry under the enterprise agreement, are you? Well, given you never communicated it to him, you never formed an expectation?---I believed the whole time that he was complying with the terms fo the right of entry - conditions of right of entry, as I said in my statement.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2037
That he complied with - say if he attended a disciplinary meeting, you know the enterprise agreement allowed the employee to elect to have a representative?---Correct.
PN2038
And that could be a representative who doesn't even have a right of entry under the Workplace Relations Act?---Correct.
PN2039
So the right of entry of Mr Wood, when he attends disciplinary meetings, has nothing to do with his attendance if the employee has elected Mr Wood to attend?---If Mr Wood is coming on site, then he has to phone up and give us notification that he's coming on site.
PN2040
Yes. But if he attends as the employee's nominated representative for a disciplinary meeting, Mr Wood doesn't need any right of entry under the Workplace Relations Act because the certified agreement allows for the employee to elect a representative?---Mr Wood still phoned us and contacts me to let me know that he's coming in to represent the person.
PN2041
He's always done that, hasn't he? He would give you the courtesy of knowing in advance, "I'm going to attend for the employee"?---Mm.
PN2042
Is that right?---Yes.
PN2043
But back to my question, in attending as the employee's representative, Mr Wood doesn't need a right of entry under the Workplace Relations Act because the certified agreement allows the employee to elect a representative?---That's my understanding.
PN2044
It's always been your understanding?---Mm.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2045
Isn't it?---Yes.
PN2046
I just want to deal with that matter involving Mr Geoff Thomas. By the time he took his life, he had been terminated from employment by P&O?---His employment had been terminated. Yes.
PN2047
And do you know about how long before his unfortunate death that termination of employment took place?---Oh, only a short while.
PN2048
A matter of - - - ?---A month or something, three weeks. Yes.
PN2049
And P&O organised for Mark Sutton to attend his funeral. Do you know that?---I'm aware that some representatives went. Yes.
PN2050
But you certainly didn't go?---No. I didn't go.
PN2051
I just want to again by reference to this first statement, which is exhibit P&O 14, handwritten page numbered 7. Who took these notes commencing page 7?---I don't have a page 7.
PN2052
You haven't been given the attachments?---No.
PN2053
I'm happy if there's a clean copy if we can hand it to the witness. This is your first statement not your second statement?---I've got the attachments on the second statement, but not on the first.
PN2054
I'm asking about the first statement?---I know that, I just said I don't have that attachment.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2055
This BLR1 which has handwritten 7 on the first page and handwritten 8 on the second page, who created that note, and it does continue to a third page numbered 9?---That would have been Tony Stone, I believe.
PN2056
I just want you to clarify for me on page 8, it's the second GW. You accept Mr Wood said to the effect, "Not Tony. I am saying the company not him"?---It's written there so I can only assume that that's correct.
PN2057
And I just wanted you to, if you can, explain, there is then, in brackets, "latter provided, or there's an opening bracket but no closing bracket?---I don't know I didn't write them, so I don't know. As I said, Tony Stone wrote them.
PN2058
But you say in paragraph 4, last sentence of this statement:
PN2059
I've read this file note and it contains an accurate description of what occurred -
PN2060
don't you?---That's right.
PN2061
Well, what's - - -?---I was referring to the paragraph above that.
PN2062
Didn't you know that this file note included Mr Wood saying, "Not Tony. I am saying the company not him"?---That was after Mr Wood realised what he had said.
PN2063
Well, ultimately, if it has to be sorted out it's a matter for the Commission, but you accept that Mr Wood did say something using those words that I just asked you about?---Yes, and I also accept the paragraph before it.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2064
And the reference to "not him" you understand was Mr Wood referring to you?---Probably, yes.
PN2065
And given you said this file note contains an accurate description can you help at all to explain what the bracket later provided means?---No, I can't. That was last year, it was 18 months ago or something, I can't remember.
PN2066
It's just too long ago to have an accurate recollection of what was said?---Well, what's in that bracket that says "later provided," yes.
PN2067
Had you forgotten that it did include "Not Tony, I'm saying the company not him"?---As I've already stated, I haven't forgotten the comment that was made. I did go to the morgue. I did actually see the body and to have that brought up and thrown back in my face I haven't forgotten that and it was a direct comment to me about me. I haven't forgotten that.
PN2068
And - so you always remembered Mr Wood said, "Not Tony, I'm saying the company not him"?---As I said to you, when he realised what he had said that's what he stated, yes.
PN2069
And - for the moment I'm not criticising you but this was a matter that upset you greatly at the time?---Most definitely.
PN2070
So very difficult for you to have a clear recollection of what everyone said at that meeting because you were upset?---I was upset but I must still say to you the reason I was upset because it was a personal attack on me as an individual and not on the company. It was on me as an individual.
PN2071
And even on your version Mr Wood sought to clarify it immediately to say I'm saying the company not him?---After he'd already said "you." And as I've said to you, and I will repeat myself once again, after he realised what he had said.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2072
Well, you can read Mr Wood's mind, can you?---Oh, for sure, but that's what's happened.
PN2073
You say you can read Mr Wood's mind?---No, I'm not saying that, no.
PN2074
Now, going to your statement, page 5, paragraph 16, you were consulted, were you, by Mr Stone about some meetings programmed on 2 February 2004?---Yes, that's correct.
PN2075
I will show you this document, which was a copy of exhibit P&O 9, have you seen this document before? I'm providing a clean copy, Registrar?---I believe I've seen that.
PN2076
When have you first seen that document?---That would have been by Tony so he would have shown that to me at the time.
PN2077
I need you to keep it for the moment. You say you would have. Do you actually know or are just guessing?---I believe I would have seen it.
PN2078
What does that mean? You just said before - - -?---I can't - look, I see that many documents I can't remember if I've actually seen it or not. I see so many documents.
PN2079
And what I want to take you to - it's called exhibit P&O 9 in these proceedings, it's the last paragraph on the second unnumbered page. Do you see it says:
PN2080
Due to this issue it was decided that other meetings that had been arranged for today to be postponed to another time.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2081
Do you see what I'm referring to?---Mm.
PN2082
Because it's sound recorded you have to say "yes" or "no"?---I'm sorry, yes.
PN2083
Or no or I don't know or whatever's appropriate. You are the one who made that decision, "It was decided that other meetings that had been arranged for today to be postponed to another time"?---That's correct, yes.
PN2084
And is that what you told Mr Stone, that was the decision taken?---That's correct.
PN2085
And then it reads:
PN2086
Other employees may have been prepared to hold the meetings with just a site committee/union member present, however, it was decided to arrange another date so that these meetings could all be conducted on the same date.
PN2087
?---That's correct.
PN2088
You were the one who made that decision as well?---That's correct.
PN2089
And you were the ultimate decision-maker for both those decisions referred to in that last paragraph of exhibit P&O 9?---Correct.
PN2090
On behalf of P&O?---Correct.
PN2091
And as we know those meetings have never been rescheduled?---No, I don't believe they have been, no.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2092
And did you read a short time ago when there was a short time off the record to permit you to read the statement dated 25 August 2004 what's in paragraph 29 of that second statement which suggests:
PN2093
I know, however, that absence management meetings were not rescheduled with the employees whose meetings were supposed to take place on 2 February 2004 due to a lack of resources at the Darling Harbour site.
PN2094
?---Yes, that's consistent with what I said, yes.
PN2095
And where do you work - your work address at the moment?---Port Botany terminal.
PN2096
And since 2 February 2004 until today's date you don't seriously say that P&O in New South Wales has had a lack of resources to conduct the meetings that were programmed for 2 February 2004?---We have conducted some issues not with those particular individuals but we have conducted some absence management programs earlier.
PN2097
I'm concentrating on the six employees programmed for 2 February 2004 for present purposes. You are not seriously suggesting that P&O in New South Wales, without looking at other states for assistance, has not had enough resources to reconvene those meetings if it chose to?---For a while there we didn't actually have the resources to do it, that's correct. We have now but we didn't have then the resources.
PN2098
For how many months have you had the resources?---Probably about three months, four months.
PN2099
So today's - I will just have to check - 23 November, the eleventh month, so you've had the resources since July/August to reconduct those meetings?---I've conducted meetings, not with all of those individuals. I have conducted meetings though, yes.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2100
It's just wrong and misleading to suggest in a statement 25 August 2004 that those meetings were not rescheduled because of a lack of resources?---Why is it?
PN2101
Because you've had resources for at least the last three or four months to reschedule those meetings with the six employees?---What we look at is a rolling 12 months for absence management and that continually revolves around, so if anyone had have come out in those last 12 months, which is the way I've actually explained to you that I have actually conducted some meetings, and that's with the people now whose absences are only satisfactory and I've had meetings with those individuals from Darling Harbour, yes. They may not been the same people because it's a rolling 12 months absences.
PN2102
What about for the six who were scheduled 2 February 2004?---I don't even remember who they were, mate, I wouldn't know.
PN2103
So some you may have actually had the meetings?---I might have, yes. I couldn't tell you.
PN2104
Did you ever bother going to someone like Ms Fenson for assistance to get resources to conduct these meetings?---Why?
PN2105
Because it's claimed that there was a lack of resources. Didn't you seek assistance?---I don't understand what you're getting at. I've got to say to you I don't understand what you're getting at.
PN2106
Because it's nothing you've made up to suggest that the meetings were not reconvened that had been scheduled 2 February 2004 because of a lack of resources?---I thought I explained to you that there was a lack of resources. Do I have to keep repeating myself?
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2107
Sir, you can argue with me as much as you like and it will be a matter for me to make submissions about that at the end of the day. Do you understand?---Yes, sure.
PN2108
So are you saying that from 2 February 2004 until July or August 2004, there was a lack of resources available to P&O to reconvene those meetings that had been scheduled for 2 February 2004?---That's correct.
PN2109
Did you seek assistance from Ms Fenson?---No, no.
PN2110
Did you seek assistance from Ms Brady, the now national adviser?---No.
PN2111
Did you seek assistance from any other state office that deals with human resources that does this type of work for P&O?---No.
PN2112
Was the reason; there was just no need to have the meetings?---No, not at all.
PN2113
So you say there was a need, but you chose not to seek assistance?---That's correct.
PN2114
And you knew that assistance was always available if you really needed to have these meetings conducted, didn't you?---I suppose so, yes.
PN2115
I then want to go to this statement, printed 25 August 2004. If you go to paragraph 5; do you know that there's an agreement between Australian Automotive Terminals Ltd, also known as AAT, and the MUA?---No, I'm not a party to that so I really don't know.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2116
Well, I'll show you a copy of this document, and I apologise, it's the only copy I've got and there is some green highlighting. I'll just show you. Just to make the record clear, I'll show you a copy of an agreement that was certified 26 February 2003 by Commissioner Redmond. Have you never seen this agreement before or a copy of it?---No, I have not seen any agreement with Australian Automotive Terminals at all.
PN2117
So in expressing your opinion in paragraph 5, obviously it's made without any knowledge of what's in that certified agreement that I just showed you?---Yes, all I've said in there is my understanding.
PN2118
Without any recourse to the certified agreement?---Mm.
PN2119
Might that certified agreement be marked for identification and I'll get some copies made tonight without any highlighting?
PN2120
Have you ever actually had a role in commissioning the security called FBI security in place at the Glebe Island site?---No.
PN2121
It's just outside your responsibilities, is it not, the security arrangements at that Glebe Island site?---Yes, correct.
PN2122
So you're in no position to express an opinion, because you've never had a role for organising the security?---I didn't think I was referring to organising security in that paragraph.
PN2123
Well, you purport, in the last sentence - you talk about the role of AAT or FBI security. It has never been your responsibility to organise what you refer to in that last sentence. What I'm referring to there is that if Mr Wood comes on to see any P&O employees and he talks to P&O managers. That's what I was referring to.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2124
When have you had that responsibility for the Glebe Island site?---I have New South Wales HR responsibility.
PN2125
When have you specifically had that responsibility for the Glebe Island site, to work out the arrangement between Mr Wood, AAT and FBI security to attend Glebe Island - - - ?---I was referring to the P&O - not to AAT and FBI.
PN2126
When have you ever had responsibility for that arrangement for even P&O's operation at the Glebe Island site in relation to Mr Wood?---I have human resource responsibilities, so if I'm over there conducting meetings or whatever, then I would assume that Mr Wood, if he wanted to come on site, would actually talk to me or talk to the manager on site.
PN2127
But you've never had any of that direct experience yourself with the Glebe Island site and Mr Wood?---No, not lately, no.
PN2128
Do you know, last week, that he wanted to attend a meeting? He rang P&O about going to the Glebe Island site and they told him to go through the security at the Glebe Island site?---No, I didn't know that.
PN2129
Well, don't you know that that's the ordinary arrangement?---No, no.
PN2130
You can't comment, what arrangement has been applied for Mr Wood and the Glebe Island site for P&O, can you?---I've given my opinion, yes.
PN2131
But you can't express an opinion, because you have never found out what was applied in practice to Mr Wood?---No, what I have explained is if he was coming on site, then he would notify the manager on the site if we were going to meet with him.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2132
But that's for P&O Port Botany, isn't it?---No, that's also for Glebe Island or Darling Harbour or wherever.
PN2133
When do you say you've ever been consulted by anybody about Mr Wood specifically visiting the Glebe Island site for P&O?---I can't remember.
PN2134
If you then go to paragraph 12 of this 25 August 2004 statement; have you ever looked at, before now, any parts of Mr Stone's first statement of reply statement?---No.
PN2135
And do you see in your paragraph 12, you say in the last two and bit lines:
PN2136
His comments were directed towards me. It is possible Glen Wood made these comments after the meeting had been initially terminated.
PN2137
?---Yes. I do read that, yes.
PN2138
And do I need to refresh your memory to see what it was in Mr Wood's statement you were referring to?---If you don't mind, yes.
PN2139
I'll give you a clean copy of Mr Wood's statement, opened up at paragraph 50 page 10, for that purpose. What you were responding to is; Mr Wood, in his statement, paragraph 50, said - he said, words to the following effect:
PN2140
I told you before, I wasn't commenting about you. I was commenting about the company. It's the way the company calls these meetings and conducts these interviews. That causes people to put a noose around their neck.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2141
Do you see what I'm referring to?---I can see that comment, yes - that statement, yes.
PN2142
So do I take it, in paragraph 12, you have said that Mr Wood did say those words or words to that effect?---My paragraph 12 refers to the fact that Glen is commenting, in paragraph 50, that he never made the comment directed at me. My reply, in paragraph 12, clearly says that I do believe - and my recollection is such - that he actually said, "you put the noose around Thomas' neck". That's what that refers to. And I - at no stage did I hear Glen Wood refer to the company when making those comments.
PN2143
So where you say it's possible he made those comments after the meeting - - - ?---What I was referring to - - -
PN2144
- - - does that allow that he may have said them and you just don't remember?---No, what I'm referring to is: this paragraph here in 50 - you go to 50 in Glen Wood's statement. And it says, "I told you before, I wasn't commenting about you". What I'm saying is: I don't remember if he said that or not, going down the stairs after the meeting. That's what I'm referring to.
PN2145
So your reference to "it is possible", does that mean - - - ?---That he made that comment there, going down the stairs.
PN2146
Oh, you accept he did say it?---No, I said that "it is possible". That's what I'm saying to you, going down the stairs. But not the initial comment. The initial comment was clearly directed towards me - about me putting the noose around Mr - - -
PN2147
So do you say Mr Wood had not made any reference to "the company" before walking down the stairs?---That's the way I read that.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2148
Now, is that your evidence; that Mr Wood made no reference to the company before walking down the stairs?---As we said, if you read Tony Stone's statement, which is what I'm believing you're referring to, Mr Wood was, again, trying to reiterate - trying to reinforce - a second statement, there, that said - he said something about the company. What I'm referring you to is the first statement - the first paragraph - which is also in there, that says, "you put the noose around Thomas' neck". That's what I'm referring to. We're both referring to two different matters.
PN2149
Not at all, sir, because you've realised now, because I've already taken you to Mr Stone's note, BLR1. Go back to it - page 8 to your first statement. The note that you accepted in your own statement as being an accurate description of what occurred, had Mr Wood referring to - not Tony - I'm saying the company not him, before anybody was on the stairs, doesn't it?---That's what I just said to you. I said that to you.
PN2150
And so do you allow for the possibility that he also said it on the stairs, the reference in paragraph 50, whilst proceeding down the stairs?---Yes, I've said that, yes. That's what's in my statement.
PN2151
Why is that missing from this note, BR1 or BLR1, once you were on the stairs that there's no reference to Mr Wood clarifying and making it clear he was commenting about the company?---Because - I mean, I don't know why it's not in there, but all I can say to you once again, is that my assertion and recollection is that Glen said - it was to me, and then Glen was backtracking because he realised how - what initial it was.
PN2152
Look, I have already covered with you, you can't enter Mr Wood's mind, can you, to know what he was thinking and why he said things?---No.
PN2153
You've already accepted that?---That's right, yes. We've had that discussion.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2154
And let's go back to your reply where, at the end of paragraph 12, you say:
PN2155
Whilst I clearly recall what Glen Wood said at this time, and that his comments were directed towards me, it is possible that Glen would have made these comments after the meeting had been initially terminated.
PN2156
?---Yes, and that was on the way down the stairs, which is referring to his paragraph 50.
PN2157
And I want you to assume Mr Stone's statement in reply, exhibit P&O10, page 6, he says, also in response to paragraph 50 of Mr Wood - part of what he says is:
PN2158
It is possible that these comments were made by Glen Wood after the meeting had been -
PN2159
I withdraw that -
PN2160
after the meeting had initially been terminated.
PN2161
Do you make that assumption, that that's what Mr Stone says as part of his paragraph 6, statement in reply?---I don't know. I haven't seen his - - -
PN2162
You can make that assumption. Is it just a coincidence that you two even use the similar wording?---I suppose so.
PN2163
Are you sure someone hasn't suggested what to put in your statement?---Absolutely not.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2164
It would just be a coincidence where the wording is similar?---It might be, I don't know, but absolutely not.
PN2165
I then want to take you to your reply statement, this is 25 August 2004. At paragraph 30, that last sentence, you refer about:
PN2166
The task of driving visitors around the site is commonly performed by P&O Ports managers or supervisors.
PN2167
In paragraph 46, in response to Mr Daly, you say something similar:
PN2168
The task of driving visitors around the site is commonly performed by P&O Ports managers or supervisors.
PN2169
You know Mr Daly provided an example of the roster routinely issued for the bus driver - because it's sound recording, is that yes?---I'm sorry. Yes. Yes.
PN2170
Have you every actually seen P&O Ports managers or supervisors driving the bus at Port Botany?---Most definitely. There's all different buses. There's not one bus. It's not one bus. There is one bus that the employees use, which is the bus driver allocated to that particular role. There are other buses that we use for visitors which is what managers and supervisors drive the visitors around in. Yes, that's correct.
PN2171
So the bus that there's an allocated driver for, you've never seen managers or supervisors drive that bus?---They - I don't know. There's other buses. They're all different buses. I don't know the numbers.
PN2172
And who do you say - which managers or supervisors have driven these other buses you have just identified - by name?---It can be anyone. I can drive them.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2173
Someone you have seen, by name?---Well, Mark Hume, Mark Sutton. You know, lots of people.
PN2174
You have seen all of those people?---Most definitely, yes. We have lots of visitors.
PN2175
Then I want to take you to paragraph 32. There's reference in your paragraph 32 to Roy Cummins. What position did that person have?---He was the general manager.
PN2176
Of what?---Port Botany.
PN2177
And do you see that - was this in your presence, Roy Cummins said words to the following effect:
PN2178
The notification that you have provided to enter P&O premises does not comply with the Act. You will not be granted access today.
PN2179
?---That's my recollection of what was said in front of me, yes. Jim Daly was there as well.
PN2180
And you understood it, didn't you, that after 1 April 2004, Mr Wood was trying to exercise a right of entry under the Workplace Relations Act. If P&O believed he had not given 24 hours notice to Port Botany, that P&O would not grant him access?---That's correct.
PN2181
And that was well understood, wasn't it, amongst management?---Definitely.
PN2182
And was that something you talked to Ms Brady about, that access would not be granted by P&O management to Mr Wood at Port Botany if he had not given 24 hours notice?---That's correct.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2183
Have you provided Ms Brady about any information about Mr Wood entering Port Botany after 1 April 2004?---Yes.
PN2184
What information did you provide her about Mr Wood's entry?---The times in and out as per our security pages - everyone - visitors' book that everyone signs in and out.
PN2185
Just so the record is clear, I will show you - it's called MFI4 at the moment. I'm not suggesting you've seen some highlighting before, but can you just satisfy us these are the pages, or a copy of them, that you're referring to?---Sure. They would be. They would be from the visitors' book.
PN2186
You know that a summons was issued and copies were made of relevant pages so that they could be produced to this Commission?---Yes.
PN2187
Thank you. And if you look at paragraph 34, the second line, you talk about:
PN2188
To the best of my knowledge Glen Wood had not entered P&O Ports Port Botany Terminal since he was denied entry on or about 9 June 2004.
PN2189
?---Yes, up until the date of that statement, which was August.
PN2190
So to deny him entry, management had a system in place at Port Botany that would prevent Mr Wood entering unless management agreed to him entering?---Regarding in complying with the requirements of the Workplace Relations Act, yes, right of entry.
PN2191
And Mr Wood just couldn't turn up at Port Botany and con his way past the receptionist or secretary and get entry after 1 April 2004 without management agreeing?---I can't answer that. How do I know?
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2192
Well, according to the system that was in place, you understood he was not to be allowed in without management approval?---That's my understanding, yes.
PN2193
Yes. You're not suggesting that Mr Wood ever entered after 1 April 2004 at Port Botany P&O without that approval of management?---Yes, that's - that's my understanding.
PN2194
Mr Wood couldn't just turn up to the secretary and say, "Let me in.", without management approving his entry. That's your understanding?---That's my understanding.
PN2195
And in fairness to you, you understand that Mr Wood went away from August and September - he was overseas?---Correct.
PN2196
And this proceeding was originally set down in mid-September, is that your understanding?---Correct.
PN2197
But since these proceedings didn't continue, Mr Wood is now entering Port Botany from time to time during meal breaks?---Yes, by complying with the terms and conditions of the Workplace Relations right of entry conditions.
PN2198
By that you mean he gives a written notification, 24 hours notice?---And some indication as to why he's attending.
PN2199
I'm sorry? Does he have to tell you why he's attending, according to P&O, if he wants to attend a meal break?---He always says talking to the members, or whatever.
PN2200
Do you say he's required to tell you that?---I believe he needs to give us an indication, yes.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2201
Who told you that?---That's my understanding.
PN2202
Who gave you that understanding?---That's my understanding. No-one has give it to me. That's my understanding.
PN2203
Where did you get that from?---Just my belief.
PN2204
What did you form your belief on, what facts?---I believe that that's the requirement under the Workplace Relations Act.
PN2205
Isn't he able to just come in and see members during a meal break without telling you what he wants to talk to them about?---We have asked him to comply with those terms and conditions and he has complied with them.
PN2206
Isn't he allowed, according to your understanding, to give 24 hours notice that he's going to enter at Port Botany during a meal break, but he doesn't have to tell you why?---That's not my understanding.
PN2207
And when Mr Wood attends the site committee meetings - you know of those meetings?---I do know of those meetings, yes.
PN2208
Do you actually attend them yourself?---Sometimes, yes, if I'm available.
PN2209
And when such a meeting is held at 8.05 am, that's not at a meal break time or other break, is it?---No.
PN2210
If you knew how Port Botany really operated, you would know, look, 8.05 am, nothing to do with a meal break or other break of the stevedoring employees, wouldn't you?---Correct, yes.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2211
So you know he's attended site committee meetings at about 8 am where he hasn't had to give 24 hours notification because management, sensibly, have agreed, site committee meeting, he can attend?---That's not my understanding. I believed he still had to give 24 hours notice that he was attending a site committee meeting.
PN2212
How did you get that understanding, that to attend a site committee meeting out of meal breaks or out of any other break, that he had to get permission and give 24 hours notice to get that permission?---I suppose the reason being is because it is a site committee meeting and the site committee are the people who have been given permission to actually meet about issues. If they actually invite a member from the head office, then that person has to notify us that they're coming in to attend. That's my understanding. Whether it's Glen Wood or Warren Smith, or whoever, they notify before.
PN2213
So the members could ask someone to attend a site committee meeting from the MUA and that person doesn't need to have a right of entry to attend a site committee meeting?---They do, and they always notify us that they're coming in.
PN2214
No. That person doesn't need a right of entry under the Workplace Relations Act to attend a site committee meeting if they're invited by the employee representatives to attend?---That could be correct.
PN2215
And, further, the person, if so invited by the employee representatives on the site committee, gets P&O management's permission to attend?---That's correct.
PN2216
And such a person wouldn't get entry into Port Botany to attend a site committee meeting without the permission from P&O management?---Correct.
PN2217
You can't get through the reception without management's permission to attend a site committee meeting, can you, at P&O Ports Port Botany?---I actually can't answer that because I don't know. I mean I suppose if somebody turns up to reception and says, "I'm going in there to the site committee meeting", I suppose they could, I don't know. They're not security, they're a receptionist.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2218
But there is security at P&O Port Botany, isn't there?---Not in that area there. Not in the reception area.
PN2219
There's security to be called if needed?---If required, yes. If required, yes.
PN2220
And is it the case now that the company even has an electronic record because Mr Wood has been given a swipe card when he enters P&O Port Botany?---That's correct. The same with all employees, etcetera.
PN2221
So management know exactly now by an electronic swipe card when he entered and when he left?---That would be correct, yes.
PN2222
And is it the fact that Mr Wood's swipe card in terms of its electronic recognition is wiped after that entry that he's undertaken and is not re-activated until permission is given next time?---I actually can't answer that. As you said before I'm not responsible for security.
PN2223
Well, have you been told that's how it is working?---No, I haven't been told.
PN2224
Do you know Mr Davis, as a former senior manager of P&O?---I know of him. I've never met him.
PN2225
And if you were told that Mr Davis told Mr Wood to piss off is that something that you would refer up the line to Mr Blood?---It wouldn't come to me.
PN2226
Pardon?---That wouldn't come to me.
PN2227
Who would it come to?---Why would that come to me? I don't understand why you think that would come to me.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2228
Well, the fact that Mr Davis, as a senior manager, tells a union official to piss off, it's not something important enough to be referred to you?---No.
PN2229
Because it's the sort of language you've heard management and union officials use to each other?---No, actually to be honest with you since I've been there I haven't heard too many managers at all swear. In fact, I can't remember any in those particular instances in union meetings or whatever. It just doesn't happen.
PN2230
You talk about it just not happening. You've been at workplaces before where that's the sort of language used by both management and union officials?---No, not where I've worked it hasn't been acceptable.
PN2231
Where do you say you've worked for it not to be acceptable?---We treat - we have a professional approach, that's all. So it's just not acceptable.
PN2232
No, but where?---I worked for P&O Ports for seven years and prior to that Energy Australia.
PN2233
So let's deal with P&O Ports. If it's not acceptable would you expect Mr Blood to act if Mr Davis said to Mr Wood "Piss off"?---I don't know. That's up to Tim Blood. As you said I can't read minds.
PN2234
Now, you know the system in place. The receptionist at P&O Port Botany actually calls management to see if Mr Wood should be allowed in. That's the system in place when he turns up?---Most definitely. She will call me or some other manager. That's correct.
PN2235
And which other manager apart from you who they would call?---It would be Andrew Adam or it would be Richard Johnson or whoever would be available.
**** BRIAN LESLIE REILLY XXN MR DOCKING
PN2236
PN2237
MR BARTON: Mr Reilly, you were asked some questions about the resources available to the Human Resources Department. Just for clarification, how many people are there in the HR Department?---I have one HR Officer and myself and a return to work co-ordinator.
PN2238
And apart from absence meetings what other responsibilities fall on the HR Department?---We look after all recruitment, training, workers compensation, personnel-related matters, discipline, you name it; everything comes into our area and we also look after P&O Trans Australia, Smith Brothers, all those elements.
PN2239
And how would you describe the workload?---It's very - I would regard it as very heavy. I mean, we've got only a couple of people to nearly 900 employees and I think that's a pretty heavy workload.
PN2240
And so absence meetings aren't by any means the only thing that occupies your mind?---That's correct.
PN2241
And makes up what sort of a proportion of your duties and responsibilities, do you say?---That's difficult, but it certainly - you know, probably 10 per cent maybe. Sometimes up to 20 per cent. It just depends on what's happening.
PN2242
Mr Reilly, you were asked some questions about the incident in which Mr Wood referred to Mr Thomas and I want to take you to some of those paragraphs because - just to clarify the sequence. But were you - sorry, I will ask it this way. Which P&O employees were responsible for counselling Mr Thomas?---It was myself.
**** BRIAN LESLIE REILLY RXN MR BARTON
PN2243
And were there any other people at your level counselling Mr Thomas or did it fall only to you?---It was mainly to me, Chris.
PN2244
And so for all intents and purposes the company, in the context of Mr Thomas, was you?---Correct.
PN2245
If I could take you - do you have a copy of Mr Wood's statement there still in the witness box? Do you have a copy of Mr Wood's statement?---I'm just having - witness statement of Glen Wood, yes.
PN2246
Could I take you to paragraph 48?---Yes.
PN2247
And you will see there that Mr Wood says that when this matter was raised for the first time he referred to - he said the way the company organises and conducts these meetings and undertakes the reasons, the reason that some people end up putting a rope around their neck. Can I refer you to your statement in reply, paragraph 10. Do you have that?---Yes, I do.
PN2248
Where you refer to paragraph 48 of Mr Wood's statement?---Yes.
PN2249
In which you - sorry, just one second, Mr Reilly. If I could refer you to paragraph 5 of your first statement?---Yes.
PN2250
You have that?---Yes, I do.
PN2251
Where you say - approximately mid-way through the meeting you said to the employer words to the effect, "I've given my commitment to go back and review the minutes of the meeting. If there are an errors the letter will be corrected". And then you say:
**** BRIAN LESLIE REILLY RXN MR BARTON
PN2252
Following this Glen Wood suddenly pointed his finger at me and shouted words to the following effect in an aggressive manner, "The way you are conducting these meetings you are forcing employees to put a rope around their neck and do what one employee did recently".
PN2253
Do you see that?---Yes, I do.
PN2254
And you will see there's a conflict between your evidence and that of Mr Wood where Mr Wood says that he referred to the company rather than using the word "you"?---Yes, I see that.
PN2255
Do you stand by your statement, Mr Reilly?---Most definitely.
PN2256
MR DOCKING: Well, I object, because it's inaccurate. There's a conflict internally within Mr Reilly's version and that's why I got into it here to BLR1. It's not fair to say there's just a conflict between Mr Wood and this witness. Look at page 8 of the first statement. And it says:
PN2257
Not Tony. I'm saying the company, not him.
PN2258
In his reply statement Mr Reilly has denied paragraph 10 that Mr Wood referred to the company in making these comments. It's something I was just going to deal with in submissions, the obvious of conflict. So it's not fair to say it's just a conflict between this witness and Mr Wood. There's an internal conflict between Mr Reilly and Mr Stone's file note which Mr Reilly adopted.
PN2259
MR BARTON: Well, that's a generalisation, Registrar. Mr Reilly's evidence, which is inconsistent with Mr Wood's, is that the first time this was raised Mr Wood used the word "you" as opposed to "the company". And Mr Stone's note then refers subsequently to that. And this is P&O9. Subsequently to that Mr Wood tried to recover his position saying, "I was referring to the company". So the conflict is really between Mr Wood's statement and Mr Reilly's. I'm simply asking Mr Reilly, having seen that, whether he stands by his statement in paragraph 5.
**** BRIAN LESLIE REILLY RXN MR BARTON
PN2260
THE DEPUTY REGISTRAR: I will allow that question.
PN2261
MR BARTON: Mr Reilly, I'm asking you whether you stand by your statement in paragraph 5 of your first statement?---Yes, I do.
PN2262
Mr Reilly, you were asked some questions about what was described as a system, without any elaboration about what that might be, at Port Botany. You're familiar with the layout at Port Botany and the reception area?
PN2263
MR DOCKING: Well, I object to the reference "without any elaboration". For example, at the very end of his cross-examination there's specific reference to the system and there was also in the other questions. It's just the reference to "without elaboration". It's not a fair reflection of his evidence or the questions asked.
PN2264
THE DEPUTY REGISTRAR: Mr Barton, is it possible to ask that question without the reference to "without elaboration"?
PN2265
MR BARTON: I will have a go, Registrar.
PN2266
THE DEPUTY REGISTRAR: Thank you.
PN2267
MR BARTON: You were asked some questions about a system in place at Port Botany when people enter premises there?---Yes.
PN2268
And you're familiar with the layout of the reception area?---Yes.
PN2269
Is it possible for someone to enter - and perhaps this is before the swipe card system was introduced - is it possible for someone to enter that area without the receptionist seeing them?---Prior to this, yes.
**** BRIAN LESLIE REILLY RXN MR BARTON
PN2270
Sometimes the reception might not be manned?---I was just going to say that; that they could be at the ladies or upstairs helping out.
PN2271
Yes. And the current arrangement with the swipe card, is that to get into the reception area as well?---That is correct.
PN2272
So a person holding a swipe card, a valid swipe card, could use that even if they weren't the lawful holder of that swipe card?---That's correct.
PN2273
So it would be possible, for instance, for - - -
PN2274
MR DOCKING: Well, I object to all of this, because his evidence is there's no suggestion Mr Wood has entered since 1 April 2004 without permission. Why is this possibly relevant? It's just the worst type of prejudicial irrelevant material being adduced which has no application to the specifics of Mr Wood. Not even P&O suggest he's entered without permission.
PN2275
THE DEPUTY REGISTRAR: Mr Barton, you do appear to be straying quite a long way from the evidence in relation to specifically Mr Wood's entry into the premises. I'm just wondering where you're going.
PN2276
MR BARTON: Registrar, it's to do with the suggestion that Mr Wood has only entered with permission. I'm simply testing whether it is possible that Mr Wood may not have done that. There's also the issue about the timing of Mr Wood's arrival. Much has been made about the fact that he arrives other than at mealtimes. But nothing has been said about what happens when Mr Wood actually arrives. So, for example, Mr Wood might well arrive at four minutes past 8 but then not actually speak to any employees until the relevant meal break. So that's the line of questioning.
**** BRIAN LESLIE REILLY RXN MR BARTON
PN2277
MR DOCKING: This is just getting absurd. It's got nothing to do with this case. No one is suggesting that Mr Wood has done anything at that time. In fact, there's no complaint, when he enters at Port Botany made at all, pre-1 April 2004 and post-1 April 2004. This isn't wharf 8, Darling Harbour. This is not the disciplinary meetings about which complaints are made pre-1 April 2004. This is just completely irrelevant and prejudicial to Mr Wood in an unnecessary way.
PN2278
THE DEPUTY REGISTRAR: Mr Barton, I think the line of questioning is probably further removed from what I'd be prepared to allow at this point in time.
PN2279
MR BARTON: Very well, Registrar, I have nothing further.
PN2280
PN2281
MR DOCKING: Might I just get back from Mr Reilly, there was Mr Stone's two-page note and Mr Wood's copy statement.
PN2282
MR BARTON: Sorry, Registrar.
PN2283
THE DEPUTY REGISTRAR: That's not a problem.
PN2284
MR BARTON: Registrar, those are the witnesses for the applicant. We're just checking to see whether there are any other documents we'd like to tender at this stage. There's no further evidence from the applicant, Registrar.
PN2285
THE DEPUTY REGISTRAR: Thank you, Mr Barton.
PN2286
MR DOCKING: Registrar, what I wanted to do - and I've had some discussions about this and I think there's agreement, there's a witness, Mr Robert Edward Lee, who has a two-page statement, and I'm told there are some objections to that and they'll have to be dealt with. He has to attend a funeral tomorrow in the Central Coast region. He is waiting outside now. I'm prepared to take the unusual course of Mr Wood going outside, even though it would be in his case as the respondent, and Mr Lee being cross-examined after he adopts his statement and after the objections are dealt with. I say unusual, because obviously the respondent is entitled to be here, but to try to meet the difficulty Mr Lee has got, I'm happy to take that course. I note the time but I'm hoping his cross-examination - I'm told it's not going to be that long.
PN2287
THE DEPUTY REGISTRAR: Yes, can I indicate that I don't have a difficulty in sitting a little later this afternoon, assuming that's acceptable to the representatives for the applicant.
PN2288
MR BARTON: Registrar, I have no difficulty dealing with Mr Lee. I don't know that - I assume then that Mr Wood is going to be called. I think it would be appropriate to commence with him tomorrow.
PN2289
MR DOCKING: I've got no objection to that course.
PN2290
THE DEPUTY REGISTRAR: Yes, on that basis then I think that we can proceed this afternoon with the evidence of Mr Lee.
PN2291
MR DOCKING: And Mr Wood will go outside.
PN2292
THE DEPUTY REGISTRAR: Thank you, Mr Docking, I think that's appropriate.
PN2293
MR DOCKING: And the objections can be dealt with before Mr Lee enters.
PN2294
THE DEPUTY REGISTRAR: Yes. Sorry, Mr Docking, could you just give me a moment. Thank you, Mr Docking - sorry, Mr Barton, do you have any objections?
PN2295
MR BARTON: Yes, Registrar. Paragraph 3 from the third line:
PN2296
Glen is also well known to stevedoring employees and other members of the MUA. He's well liked and held in high regard by the MUA membership -
PN2297
down to the end of the paragraph. This witness can't speak for every stevedoring employee, every member of the MUA or the MUA membership as a whole. He can say what he might think, to the extent that that's relevant, but he certainly can't speak for thousands of un-named people and can't speculate about the state of mind of those people.
PN2298
And the same objection is taken to paragraph 4, the first sentence where it talks about a reputation. This witness isn't in a position to talk about anything other than his own view of Mr Wood. Given that this is only a short statement, shall I run through all the objections?
PN2299
THE DEPUTY REGISTRAR: I think that would probably make sense at this stage.
PN2300
MR BARTON: In paragraph 5, the third line at the end:
PN2301
In my 31 years it has been my experience that management -
PN2302
etcetera, down to the end. This is just simply a general statement without any specifics. It carries the same objection that Mr Docking has raised in relation to similar types of evidence in the applicant's statements, impossible to test in any way without details. It's also of no relevance.
PN2303
And then in relation to paragraph 6, from the words:
PN2304
My observations indicate that the branch -
PN2305
down to the end of the sentence. Firstly, this witness is not employed by the MUA, he's not an official of the MUA, not in a position to indicate, speak on behalf of the MUA in that sense. But also, this evidence is irrelevant, and if I can refer you to Australia Post v Doyle - - -
PN2306
THE DEPUTY REGISTRAR: Sorry, Mr Barton, I hate to interrupt. Are you objecting to, in paragraph 6, the last sentence as well?
PN2307
MR BARTON: Yes.
PN2308
THE DEPUTY REGISTRAR: So from, "My observations indicate" to the end of the paragraph.
PN2309
MR BARTON: Yes, and, Registrar, in Australia Post v Doyle, which I think you're familiar with, a decision of Deputy Industrial Registrar McCarroll, he dealt with similar argument and said:
PN2310
It's asserted by the respondent that in the exercise of my discretion to revoke the permit ...(reads)... such a consideration should properly be included in my deliberations in this regard.
PN2311
In our submission the consequences of revocation are not relevant, they're not referred to in the legislation as relevant to the matters you need to be satisfied about, and so we object to it on that basis. And sorry, just relevance generally, the concern of this one member has absolutely - or carries no weight at all, but it's irrelevant to the issues you have to determines.
PN2312
THE DEPUTY REGISTRAR: Mr Docking.
PN2313
MR DOCKING: Thank you, Registrar. I can indicate that I can lead some short oral evidence from Mr Lee which will include that he is on the Ports Committee of Management of the MUA. He's also a delegate at Port Botany, matters of that sort. In the past he's been on the Port Botany occupational health and safety committee. Therefore he is in a position - I press his evidence by way of opinion both as to his own opinion and a lay opinion which is even permitted under the Evidence Act 1995 based on what he himself has seen, heard or otherwise perceives, due to the role of the type I just identified.
PN2314
Therefore, the paragraph 3 he is in a position to express a lay opinion. The same applies for paragraph 4. I note it's always going to be a matter of what weight the Commission ultimately chooses to apply to paragraphs 3 and 4. Going to paragraph 5, I don't think I've been successful in having excised any general statements of the type in paragraph 5. I've dealt with them in cross-examination of witnesses. I would have thought even based on some of the evidence of the employer's own witnesses that would be an undisputed fact, the last sentence of paragraph 5.
PN2315
Then dealing with paragraph 6, that the sorts of roles I indicated Mr Lee can briefly describe, confirms why he can make observations of the type in paragraph 6. As to this issue in paragraph 6, the reference to - I think it was Doyle - I'm afraid our authorities are being copied at the moment so I don't have them here, but I'll be taking the Commission to some cases right back to the Clothing Trades Award case (1962) - that was the year I was born so I am feeling old. It must be an old case[1962] CthArbRp 295; , 100 CAR 424, and that deals with the principle that rights of unions and unions' officers, including the important right of entry which they've enjoyed for many years and justifiably regard as a fundamental importance to the proper importance of functions, is a consideration in a right of entry case.
PN2316
I also ultimately will take the Commission to the Full Bench in ANZ Banking Group v the FSU, which approves an earlier Full Bench comment dealing with the essential importance in the act of right of entry and how it deals with rights which shouldn't be abrogated without a clear expression of intention. In my submission it's going to be a legal argument.
PN2317
Paragraph 6 should be let in, I'm happy for it to be let in conditionally or subject to my convincing the Commission that it's properly used in the exercise of what is a judicial discretion, or I should say a discretion under a statute as to whether, even if I'm wrong, and any of these grounds are made out, which I say they won't be, it still leaves the Registrar with a discretion as to whether there should be revocation or not. And the sorts of matters in paragraph 6 are relevant to that discretion. So I'm content if they're let in on a conditional basis, to be dealt with in final submissions. That's the response to the objection, unless there was some other matter I needed to address.
PN2318
THE DEPUTY REGISTRAR: Having regard to the foreshadowed evidence in relation to the positions held by Mr Lee, I'm prepared to allow the statements in paragraph 3 and 4 with the proviso that - well, it's not so much a proviso, but with the observation that, obviously, there will be a question of weight to be determined in relation to that evidence. In relation to paragraph 5, I think, given the years of experience in the industry and, again, this is probably going to, ultimately, be a question of weight and other evidence, but I'd be prepared to allow that in.
PN2319
I do have major reservations, at least of a preliminary nature, into paragraph 6 but, on the basis of the conditional - the proposal that it be conditionally admitted, subject to later legal argument - I think that there is an issue there that will need to be overcome but, given that you've foreshadowed legal argument in relation to that, I'll allow that paragraph in as well.
PN2320
MR DOCKING: I can get Mr Giddins to get Mr Lee outside.
PN2321
THE DEPUTY REGISTRAR: Oh, sorry.
PN2322
PN2323
MR DOCKING: Could you please state your full name?---Robert Edward Lee.
PN2324
Mr Lee, you reside where?---(Address supplied).
PN2325
You're presently employed by Patricks Stevedores Holdings Limited?---Correct.
PN2326
In what capacity?---I'm a - I'm a waterside worker, multi-skilled.
PN2327
And in terms of the Maritime Union of Australia, are you on what's called the Ports Committee?---Yes.
PN2328
Can you just explain what that involves, briefly?---It's a committee of all of the different areas the Maritime Union cover. There's the tugs, the ferries, the linesmen, the - oh, all of the industries, but I'm also - if that's not the committee you're talking about, I'm on the committee at work as well, the work which is the Port Botany Industrial Committee. I don't - I'm not sure which one you mean.
PN2329
I'm going to come to Port Botany, but the Ports Committee meets from time to time at the MUA Sydney office?---Correct.
PN2330
Then dealing with Port Botany, I understand you're on a number of committees there?---O. H. and S. and the Site Committee.
PN2331
The OHS Committee is the Workplace Occupational Health and Safety Committee?---Yes.
**** ROBERT EDWARD LEE XN MR DOCKING
PN2332
The other committee at Port Botany?---Is the Site Committee, which is the industrial side of it.
PN2333
And for how long have you been on the OHS Committee?---Eight years - seven, eight years.
PN2334
And the other committee at Port Botany?---A little bit longer, maybe nine years.
PN2335
And how long have you been an MUA delegate for the Port Botany site?---Since I've been there. I started there from - I come from the union in about '89, and I got on as a delegate, but not on the committee.
PN2336
And the Port Committee that meets at the union offices from time to time, that type of committee, how long have you been on that?---Oh, six years, seven year, it might be - it might even be longer than that. It could be eight years as well, longer.
PN2337
I'll show you these two pages. Hopefully, you've got your - folding glasses?---They fit in your pocket all right.
PN2338
Just handed to you, is that a two-page statement comprising six paragraphs you have made in this matter?---Yes.
PN2339
Is that statement true and correct, to the best of your knowledge and believe?---Yes.
PN2340
I tender the statement of Mr Lee dated 24 June 2004.
**** ROBERT EDWARD LEE XN MR DOCKING
PN2341
PN2342
MR DOCKING: I have no further questions.
PN2343
THE DEPUTY REGISTRAR: Mr Barton?
PN2344
PN2345
MR BARTON: Mr Lee, you're currently employed by Patricks Stevedores. That's correct, isn't it?---Yes.
PN2346
And you've been an employee with them for about 13 years?---Yes, approximately. Yes.
PN2347
And so it would be - - - ?---Just to correct that, I was at Australian Stevedores, but it was Patricks, you know.
PN2348
Not P&O?---No. No. The opposition.
PN2349
And it would be fair to say, then, Mr Lee, that you haven't attended any internal meetings at P&O Ports in that 13 years?---Correct.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2350
You're not familiar in any way because of any direct experience with the way the management of P&O Ports relates to its employees?---No direct experience whatsoever.
PN2351
And you wouldn't, for instance - you've given some evidence about your experience that the waterfront is a fairly colourful place, and people swear a lot. You - - - ?---Yes, yes.
PN2352
- - - given evidence in paragraph 5. You've got no direct experience that that, in fact, is the case within P&O at the present time or, in fact, has been the case at P&O in 13 years - in the last 13 years, have you?---That would be correct.
PN2353
And, for all you know, it may be a totally different place to the rest of the waterfront. It's possible, isn't it?---Yes, possible.
PN2354
You're not familiar with P&O management policies with regard to harassment, or bullying, or unacceptable workplace conduct?---No.
PN2355
And so when you made the statement about your experience, that was a general observation, but something that wouldn't necessarily apply to P&O because you have no direct knowledge of that?---That would be correct.
PN2356
Now, Mr Lee, the MUA is, of course, a union that's been around for a very long time, albeit in some different manifestations, but it regards itself as a union that complies with, and takes very seriously, its obligations under the Workplace Relations Act?---Yes.
PN2357
And its role as an industrial party?---Yes.
PN2358
And representing the interests of its members?---Yes.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2359
And it would be unacceptable to the MUA, wouldn't it, for one of its officials to conduct himself in an abusive manner?
PN2360
MR DOCKING: I object. He's not in a position to make any admissions on behalf of the MUA. I said quite clearly he could offer some lay opinions on his direct experience. There's even a Federal Court case saying a branch official is unable to make admissions on behalf of a union. There would need to be shown that Mr Lee has the authority to make such an admission.
PN2361
MR BARTON: Well, I'm not seeking to make - asking the witness to make an admission on behalf of the MUA. I'm asking his opinion.
PN2362
THE DEPUTY REGISTRAR: With that clarification, I'm prepared to allow that question.
PN2363
MR BARTON: Mr Lee, I'll try and make this a bit clearer. In your view, as a member of the MUA, you would - it would be unacceptable to you, wouldn't it, for an official of the MUA to conduct himself in an abusive manner?---I'd expect him to act responsibly, yes.
PN2364
Yes. And so it would be unacceptable for an MUA official to act in an abusive way towards you?---Most definitely.
PN2365
To another member of the MUA?---Certainly.
PN2366
In fact, to anybody?---Yes.
PN2367
And it would be unacceptable to you, as a member of the MUA, for an official of the MUA to act in an aggressive way towards you?---Yes.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2368
And, in fact, to act in an aggressive way towards any other member of the Maritime Union?---Yes.
PN2369
Any employee of the Maritime Union?---Yes.
PN2370
And, in fact, any other person?---In the union, yes.
PN2371
Well, anyone at all - - - ?---Yes.
PN2372
in the work context?---Yes.
PN2373
I'm not talking about up the pub?---No.
PN2374
And, in a similar way, it would be unacceptable to you, as a member of the MUA, for an official of the MUA to act in a threatening or intimidating way towards yourself?---Correct. Yes.
PN2375
Or towards another member of the Maritime Union?---Yes.
PN2376
Or, in fact, to anyone in a work context?---Yes.
PN2377
The MUA - sorry. And, Mr Lee, you do have knowledge of Patricks and the approach of that company to the kind of conduct I've just been describing?---Do I have knowledge of it?
PN2378
Yes, in your capacity as a delegate?---Yes.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2379
And you've given some evidence about the colourful nature of the waterfront industry but, in a general way, the kind of conduct that I've been describing, abusive language, aggressive behaviour, threatening and intimidating conduct, that's not acceptable at Patricks either, is it?---I don't think it's ever directed at the persons. It's said in a context where it's not actually directed at anybody, if you understand what I'm trying to say. It's not a personal thing when I hear language and things like that. It's not directed at you.
PN2380
But if - - - ?---It's like being a barmaid in a pub and you hear somewhere swear, if it's not directed at you, you don't seem to take much - you know, you don't take it to heart.
PN2381
People would shrug and say, "Oh, well, it's just the way people speak"?---To a certain degree, yes.
PN2382
But if it was directed at somebody at Patricks, it would be unacceptable to the company?---To the company, yes.
PN2383
It would be unacceptable to the MUA if conduct of that nature was directed towards one of their members?---Yes. Yes.
PN2384
Say, by a member of management at Patricks?---Yes.
PN2385
And, as a member of the MUA and as an employee of Patricks, you would expect Patricks to take action against somebody if they behaved in that way?---If they did, they'd be taking plenty of action because it's quite a common thing, a bit of language around the waterfront.
PN2386
Yes. But we're distinguishing between the language, as you describe it, not directed at anybody, and the language that is directed at someone, that is abusive, that is threatening, that is intimidating, that constitutes aggression. That's a different type of conduct, isn't it?---Yes, but I've heard heated arguments, heated debates that are not directed at anyone where people get revved up.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2387
Yes, but we're not talking about things that aren't directed - - -
PN2388
MR DOCKING: Can he be allowed to finish?
PN2389
THE WITNESS: I've heard heated debates about that, where people are getting real loud, on the other side as well, and it's not directed directly at the person. It's in the context of what they're arguing about.
PN2390
MR BARTON: At Patricks, management takes a view about unacceptable conduct constituted by obscene language, doesn't it?---Well, if they do, I just sat on an enterprise agreement where one of their directors give me a bit of a gobful of language, so I mean - and that's one of the directors.
PN2391
But it's the case, isn't it, that Patricks has a policy that all employees are entitled to a non-hostile workplace?---Most definitely, that's their policy. Yes.
PN2392
And they do take action against employees that breach that policy?---I don't think there's every been one - a discrimination one brought in Patricks since - in my knowledge, since I've been there. It's - - -
PN2393
I'm talking about taking disciplinary action in the nature of dismissal?---Yes. Yes.
PN2394
And, in fact, Mr Wood was dismissed from Patricks for this very reason, wasn't he?
PN2395
MR DOCKING: I object. It's something that, if they want to visit that with Mr Wood, and if they want to get into the area of revealing instructions off another client in another case, because Freehills acted for Patricks in that case, let's deal with that directly with Mr Wood.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2396
MR BARTON: Well, it's a matter of public record. It's a decision of this Commission, Registrar. I'm entitled to ask the witness.
PN2397
MR DOCKING: Well, I object to it. He's not entitled. He's just said - he's just excluded why he should be asking the questions. He's saying, "I can just use the decision." Certainly, nothing is served, and it was dealt with in the interlocutory ruling on trying to get material pre-P&Os disputes, and the Commission ruled that that sort of material could not be, or wasn't going to be in a summons for production. It dealt with specifically - I raised the previous revocation application case that Patricks pursued against Mr Wood, and the decision was never handed down. It was vigorously defended. I think the Registrar clarified that there had been no decision and a right of entry had been returned.
PN2398
THE DEPUTY REGISTRAR: Yes, that's correct. I think, in the context of the return of summons argument, Mr Docking, I ruled in relation to that more to do with the lapse of time and relevance, rather than the other points that you were making.
PN2399
MR DOCKING: Well, the same argument would apply. And, Mr Barton - just let me make it clear now, is he suggesting Mr Wood was terminated for swearing, aggression and abusive behaviour? I'm told by Mr Giddins, who appeared for the MUA, that's wrong. Mr Wood, it is suggested, was dismissed for not following a lawful direction, so - I appreciate he may not have been in that case personally, but that's what I'm told by Mr Giddins, who was in the case.
PN2400
THE DEPUTY REGISTRAR: Mr Barton, I - - -
PN2401
MR DOCKING: So it's on a false premise as well.
PN2402
MR BARTON: Well, the decision of the Commission will speak for itself. I won't press the question with the witness, Registrar.
**** ROBERT EDWARD LEE XXN MR BARTON
PN2403
THE DEPUTY REGISTRAR: Thank you, Mr Barton.
PN2404
MR BARTON: Mr Lee, you've given some evidence about some concerns you have about if Mr Wood's permit were to be revoked and, of course, holding a permit with right of entry, again, speaking in your capacity as a MUA member, that's something that you think is important - - - ?---Of course.
PN2405
- - - for union officials to have that right of entry?---Yes. Definitely.
PN2406
And wouldn't that, in your opinion, mean that a union official should be particularly vigilant to ensure that his conduct doesn't put that permit at risk?---yes.
PN2407
To conduct himself properly?---Yes.
PN2408
And not to jeopardise the work of the union by having his permit revoked as a result of his conduct?---Correct.
PN2409
The onus would be on the official to conduct himself in that proper manner?---Yes.
PN2410
No further questions, Registrar.
PN2411
PN2412
MR DOCKING: You were asked about Patrick, and some things were positively put to you about Patrick, not as a question but positive assertions and, at one stage, you said one of the directors gave you a gobful in an enterprise agreement meeting. You referred to EA, so who was that person?---Bill Clayton.
**** ROBERT EDWARD LEE RXN MR DOCKING
PN2413
And when you say he gave a gobful, what sort of language did he use?---Oh, he's quite colourful. I don't actually want to repeat - he's got a thing with words like, you know, he says, "That's got a snowflakes in hells of f-ingwell flying in this place," and all that sort of - "That's got no legs. It won't dance." He's got a colourful way about him with a bit - a bit more colourful language than that at times, when Bill goes off the Richter scale.
PN2414
Well, I gather you're concerned, because there are other present, using the sorts of words that Mr Clayton uses?---Yes.
PN2415
It's not the first time you've heard this senior person at Patrick - - - ?---No, no, no.
PN2416
Can I do it a shorthand way, "F" words?---Yes, plenty of them.
PN2417
Shit?---Oh, that's only a minor one. It doesn't get used as often as the "F" word.
PN2418
The four-letter word beginning with C?---Yes. Correct.
PN2419
Thank you, Registrar. I take it there's not going to be any dispute - I will clarify for the record, because I remember there's one old English case that they were a bit reticent about saying the actual language.
PN2420
So I just want to clarify, the "C" word is c-u-n-t?---Yes. I haven't got a problem saying it, but I try not to say it in front of females.
PN2421
Thank you, Registrar.
**** ROBERT EDWARD LEE RXN MR DOCKING
PN2422
PN2423
MR DOCKING: Might I take the staff, and I'm sure it's both sides of the bar table, for sitting on to permit Mr Lee to give his evidence.
PN2424
MR LEE: Yes. I've got to go to a funeral tomorrow, thanks.
PN2425
THE DEPUTY REGISTRAR: Thank you, Mr Lee. We appreciate your attendance. Thank you, Mr Docking. Unless there's anything further for this afternoon, on that basis this matter is adjourned until tomorrow at 10 am.
ADJOURNED UNTIL WEDNESDAY, 24 NOVEMBER 2004 [4.36pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
CORY STEPHEN GUNTHER, ON FORMER OATH PN1044
CROSS-EXAMINATION BY MR DOCKING PN1044
MFI #3 ORIGINAL PHOTOGRAPHS PN1258
RE-EXAMINATION BY MR BARTON PN1355
WITNESS WITHDREW PN1405
NATHAN RODNEY BUTSON, SWORN PN1410
EXAMINATION-IN-CHIEF BY MR BARTON PN1410
EXHIBIT #P&O7 STATEMENT OF MR N.R. BUTSON PN1416
CROSS-EXAMINATION BY MR DOCKING PN1417
WITNESS WITHDREW PN1439
ANTHONY JAMES STONE, SWORN PN1475
EXAMINATION-IN-CHIEF BY MR BARTON PN1475
EXHIBIT #P&O8 STATEMENT OF ANTHONY STONE DATED 26/05/2004 PN1481
EXHIBIT #P&O9 FILE NOTE OF MEETING WITH MR WOOD PN1485
EXHIBIT #P&O10 STATEMENT OF ANTHONY STONE DATED 25/08/2004 PN1492
CROSS-EXAMINATION BY MR DOCKING PN1494
WITNESS WITHDREW PN1589
RACHAEL MARIE BRADY, SWORN PN1602
EXAMINATION-IN-CHIEF BY MR BARTON PN1602
EXHIBIT #P&O11 STATEMENT OF RACHAEL MARIE BRADY DATED 26 MAY PN1620
EXHIBIT #P&O12 STATEMENT OF RACHAEL MARIE BRADY DATED 24 AUGUST PN1624
EXHIBIT #P&O13 FACSIMILE NOTIFICATION, EMAIL AND LETTER PN1635
CROSS-EXAMINATION BY MR DOCKING PN1637
MFI #4 MARKED-UP COPY OF PORT BOTANY PORTS P&O ENTRY RECORDS PN1790
EXHIBIT #MUA1 LETTER OF BILL GIDDINS TO NICHOLAS TURNED DATED 16/09/2004 PN1791
RE-EXAMINATION BY MR BARTON PN1835
WITNESS WITHDREW PN1854
ANTHONY JAMES STONE, ON FORMER OATH PN1860
CROSS-EXAMINATION BY MR DOCKING PN1860
WITNESS WITHDREW PN1947
BRIAN LESLIE REILLY, SWORN PN2001
EXAMINATION-IN-CHIEF BY MR BARTON PN2001
EXHIBIT #P&O14 STATEMENT OF BERNARD LESLIE REILLY DATED 26 MAY PN2006
EXHIBIT #P&O15 STATEMENT OF BRIAN LESLIE REILLY DATED 25/08/2004 PN2022
CROSS-EXAMINATION BY MR DOCKING PN2025
RE-EXAMINATION BY MR BARTON PN2237
WITNESS WITHDREW PN2281
ROBERT EDWARD LEE, SWORN PN2323
EXAMINATION-IN-CHIEF BY MR DOCKING PN2323
EXHIBIT #MUA2 STATEMENT OF ROBERT EDWARD LEE DATED 24/06/2004 PN2342
CROSS-EXAMINATION BY MR BARTON PN2345
RE-EXAMINATION BY MR DOCKING PN2412
WITNESS WITHDREW PN2423
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