C2004/4633, Transcript of Proceedings [2004] AIRCTrans 4690 (3 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 15249
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/4633

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Brunel Technical Services Offshore Pty Ltd
for an order to stop or prevent industrial action

SYDNEY

4.03 PM, WEDNESDAY, 24 NOVEMBER 2004

CONTINUED FROM 22.11.04

THESE PROCEEDINGS WERE RECORDED BY WAY OF VIDEO LINK

PN120

THE SENIOR DEPUTY PRESIDENT: There are no appearances here in Sydney. Are there any changes to the appearances in Melbourne?

PN121

MS A. GOOLEY: Yes, thank you, Your Honour. I seek leave to appear on behalf of behalf of the Australian Workers Union.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Gooley. I would be happy for you to remain seated when making any submissions. Are there any changes to the appearances in Perth?

PN123

MR P. CARTER: Yes, ma'am. I appear for the CEPU.

PN124

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Carter.

PN125

MR C. SAUNDERS: Your Honour, I appear for the AMWU in lieu of MR EDMONDS who is in Melbourne today.

PN126

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Saunders. Is there any opposition to leave being granted to Ms Gooley to appear for the AWU?

PN127

MR CAMERON: No, Your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: No. Leave is granted, Ms Gooley. Mr Cameron?

PN129

MR CAMERON: Your Honour, the situation as it currently stands is that there is a meeting with the men taking place on the Seamac 1 with a view to deciding whether they will lift their night-shift strikes or whether they will not. I had anticipated being in a position to report to the bench right now as to whether that meeting had succeeded in securing a lifting of the strike or whether it had not. Unfortunately, I am yet to receive any advice in that regard and it is assumed that the meeting is still continuing. In those circumstances we would continue to press for orders.

PN130

I trust, your Honour, there is on the file an affidavit sworn by Mr Marcel Anthony Johnson. The affidavit was provided on the basis that it was then anticipated that Mr Johnson would be in Darwin as we appear here before you now and that he would be discussing the helicopters matters with the safety representatives from the barge. As it transpires he will not be leaving until tomorrow, with a view to having those discussions. So he is available here in Perth to give oral evidence to supplement his affidavit and also to make himself available for cross-examination.

PN131

Now, whilst I may be guardedly hopeful that we might be at the end, or near the end, of this matter and that indeed we might at some stage soon get advice that the matter has been resolved, I would nevertheless be very loathe to waste the hour that we now have simply in the hope that we might be at the end of the tunnel. I would therefore propose, your Honour, that the most expedient manner in which to proceed would be to initially take evidence from Mr Johnson on the basis that assuming we resume here tomorrow he will then not be available to us and I, at the very least, would like to get him through the witness box today.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Cameron, I do have a copy of that affidavit and its annexures. Have you served that affidavit on each of the unions that you propose an order, if issued, be directed to?

PN133

MR CAMERON: I can advise your Honour that, yes, it has been; on the basis that I personally faxed it myself.

PN134

THE SENIOR DEPUTY PRESIDENT: All right. Well may I assume that if we were to proceed for the balance of now this video-link, I think it is some 50 minutes, to call Mr Johnson to ask any additional questions, to allow cross-examination, at some stage you might be interrupted and it may perhaps be - well, with some update in the news as to whether there has been a resolution of the employees?

PN135

MR CAMERON: Perhaps it might be sensible if I was at this stage to arrange for at least one of the people here to be outside the court room with a mobile phone switched on.

PN136

THE SENIOR DEPUTY PRESIDENT: Well they can stay in the court room with a mobile phone switched on silent, also. I would just be concerned that if we were to proceed in the manner in which you advice, and in five minutes time it is not necessary, the sooner we all know that the better. But in any event, first things first, let us find out what the unions wish to say about your proposal. Mr Saunders?

PN137

MR SAUNDERS: Ma'am, there are a couple of technical issues I would like to raise. The appendices to the new service, the 127 orders. Perusing the annexures it seems that every employee is named. That is not the case when it comes to whatever action may be taken out on the barge at this particular time. So there are people who are on off-shifts who aren't on the barge and I would suggest that it would be inappropriate and improper that those people - if an order was to issue - that such an order would apply to those people who aren't on the barge.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes.

PN139

MR SAUNDERS: Secondly, for the Senior Deputy President, is that I note that the application of the 127 order is served on the State organisation. So I take it that they are pursuing the State union and not the Federal union.

PN140

THE SENIOR DEPUTY PRESIDENT: Well the draft order that I have in front of me is proposed to bind, presumably, the Federal union; it doesn't mention the WA branch. The comment that you just made relates to service; does it?

PN141

MR SAUNDERS: Service and I would suggest is that the Federal Branch is the Automotive Food Metals Engineering Printing and Kindred Industry Union and the State branch is the Automotive Food Metals Engineering Printing and Kindred Industry Union of Workers, Western Australia branch. So it is a hybrid of both. I am not sure who they want to serve it upon. I take it, because the service was on the State organisation and the hybrid for the proposed order of the State - it is a State organisation; they may want to clear that up.

PN142

THE SENIOR DEPUTY PRESIDENT: Well you have certainly now put them on notice in relation to that matter. Are there any other matters that you want to raise? My need first is to rule upon whether we will use the time available to hear any evidence from Mr Johnson and to allow each of you to cross-examine him.

PN143

MR SAUNDERS: Well, ma'am, without going into submissions I would have to say that the AMWU has been kept out of the loop in the last four to six hours; we are not sure what the people on the barge have been told. I understand that there has been some sort of conference hook-up with a number of people, which included the safety reps on the barge and the delegates. But as for the Federal or State organisation we have got no paperwork that indicates what was said, or put to the delegates, and what they are deciding.

PN144

I think that is a bit unfair for this organisation to be sitting here today when this applicant, this employer, seeks to bind this organisation with 127 orders when it comes to probably the most important part of the dispute, when a meeting is being conducted by the parties and yet the office has been excluded from any of that information that has been put to the workforce, or to the delegates to be put to the workforce; I think that is extraordinary and I think it is inappropriate and improper.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I can imagine that those submissions and if necessary evidence to establish those submissions may be relevant to the issue that if I was inclined to grant an order whether the order should be in the terms as sought and, in particular, whether the order should extend to your union, and if it does extend to your union to what extent any obligation should be placed upon your union.

PN146

I don't think we're going to get close to any of those matters in the next three-quarters of an hour. Are any of the submissions that you have made and the observations you've made and the concern you've expressed about where your union finds itself relevant to the question of whether I should hear now the evidence of Mr Johnson and allow you an opportunity to cross-examine him if you wish?

PN147

MR SAUNDERS: If the Commission sees that is appropriate and he won't be in town tomorrow then I've got no objection to putting Mr Johnson in the witness box.

PN148

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Carter?

PN149

MR CARTER: We've got similar concerns and complaints as to the AMWU submission just given by Mr Saunders. I have to say also that I haven't been in the office since yesterday afternoon and I've received no paperwork regarding this issues besides the notification of the hearing at 1 o'clock today.

PN150

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Gooley?

PN151

MS GOOLEY: Your Honour, this morning at 11.13 our time I faxed to Mr Adams a notice advising him that I acted for the Australian Workers' Union and asked him to address any correspondence to our address. We only became aware of this affidavit when we walked into the Commission this afternoon. I'm not sure whether a copy was faxed to the AWU office but it certainly wasn't faxed to our office.

PN152

On my cursory examination of this material it goes, it seems, to a secondary issue. The first issue, and I'm not sure what evidence is going to be called in relation to this, is the question of whether there is any engagement in industrial by at least the union parties that are before you today and I would have thought that that was a necessary piece of evidence to go on before you prior to any consideration to being given to granting 127 orders against the unions before you today and particularly the AWU.

PN153

Secondly, it appears from the orders that they're seeking to expressly bind individuals in relation to the 127. As far as I am instructed none of those persons have been advised of the application and none of those persons have been advised of this hearing and, therefore, none of those persons have been given an opportunity to get advice in relation to this matter as it affects them as individuals because you would be aware, your Honour, that individuals in this situation have a defence to any claim that they're engaging in industrial action which goes to the question whether they have a reasonable belief that there's an eminent risk to their health and safety and in that they're in a slightly different position to the unions who are before you.

PN154

We are going to want to call evidence from the employees about that risk and we're going to need the co-operation of the applicant in these proceedings to ensure that those people can be brought to shore so that they can give that evidence.

PN155

In relation to the evidence of Mr Johnson it seems to me that that evidence goes to the question of the issue about whether there is - the issue of whether the employees have a reasonable belief that there's an imminent risk to their health and safety is in relation to that evidence and given that the employees aren't in a position to respond to that evidence there seems to me little point in calling Mr Johnson to give evidence at this point in time because the employees themselves may wish to be represented and participate in the cross-examination of his evidence.

PN156

Can I also say that we're not aware of what is occurring on the barge at the moment. We see very little value in therefore proceeding with Mr Johnson's evidence. What it may have been more useful to do is to determine what other evidence the applicant intends calling in this matter and to see whether the applicant can facilitate in the assistance of calling evidence, at least on behalf of the AWU, at a subsequent time.

PN157

THE SENIOR DEPUTY PRESIDENT: Ms Gooley, I think your notice of appearance was just for the AWU.

PN158

MS GOOLEY: That's correct. I haven't had an opportunity to receive any instructions from the people on the barge.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Cameron, can address in a moment the attempts that might have been made since this matter was on before me on Monday of this week to bring the application and the details of the order sought to the attention of the individual employees but what I would wish to attend to is the desirable position of having Mr Johnson give any additional evidence today on the basis that this matter may proceed tomorrow.

PN160

If it does proceed tomorrow there are a number of matters starting with procedural and service matters as well as, by that stage, the issue about what evidence might need to be called can be attended to, the terms of any orders that could issue that, in any event, would be able to have a practical effect given the definition of industrial action in the Act. I had not overlooked any of those arguments and the need to have them; I was well aware of them on Monday of this week.

PN161

Given that if Mr Johnson is not called now I understand he will not be available to be cross-examined tomorrow do you wish to say anything further about that? I might have to make a ruling in the circumstances tomorrow, for example, where there might be an attempt to tender Mr Johnson's affidavit and I might have to consider whether the matter is of sufficient urgency. I may consider depriving you of the opportunity to cross-examine given that you haven't taken up the opportunity today. Ms Gooley?

PN162

MS GOOLEY: I understand what you're saying, your Honour, but this evidence which, as I say, I received for the first time this afternoon - - -

PN163

THE SENIOR DEPUTY PRESIDENT: I don't overlook that. That is, of course, another issue again. When did you say that you were alerted? 11.13?

PN164

MS GOOLEY: Yes, I have a fax - unfortunately I've been interstate - report which indicated it went to Mr Adams at 11.13 this morning. That was of the first things I attended to was to advise your office, your Honour, that we were appearing for the AWU and advance a representative of the applicant.

PN165

THE SENIOR DEPUTY PRESIDENT: Hold on just a moment, Ms Gooley? All right. Mr Cameron, the first thing we need to attend to is the question of whether Ms Gooley should be required to cross-examine Mr Johnson now given that she was not provided with a copy of this affidavit until she came into the Commission this afternoon.

PN166

MR CAMERON: Your Honour, I guess we reiterate the points that you've already made that if he flies to Darwin tomorrow as would appear to be sensible to seek a resolution of this matter then clearly he won't be available for cross-examination tomorrow.

PN167

THE SENIOR DEPUTY PRESIDENT: Yes. Did you serve a copy of this affidavit on Ms Gooley and, if so, at what time?

PN168

MR CAMERON: I was not aware of her involvement in this, your Honour, until quite late in the piece. I think it's been said that the facsimile message was addressed to Mr Adams. I can advise that Mr Adams, like myself, was not in our office for all of this morning. We were at the offices of Conoco Philips being part of a group seeking to steer us towards some sort of a resolution so, no, I daresay no affidavit was forwarded directly to her, however, it is my belief that another member of our organisation, the Mines and Metals Association, a Mr Tony Caccamo, faxed a copy of that affidavit to all of the unions involved.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, well, I don't know when that was done and if that was done after the time that Ms Gooley indicated that her firm had been retained. Let's use the next 25 minutes as well as possible. My ruling is this; you may call Mr Johnson, you may seek to tender his affidavit, you may ask him any additional questions that you wish. At that stage I will call on Mr Carter and Mr Saunders to cross-examine if they wish and I will not require Ms Gooley to cross-examine unless during that period, namely in the next 25 minutes, you can say something further to satisfy the need that Ms Gooley was served with the affidavit, namely an affidavit was forwarded to her firm and we will just tackle where we go from here at or about five o'clock when the link is going to be picked up by someone else.

PN170

I should alert you that I am holding time for tomorrow to resume the hearing should that be required. At any time during the evidence of Mr Johnson for the next 35 minutes, if there is any good news or, indeed, any bad news, would you interrupt or those instructing you interrupt you and report that to us. Is there a person in the court room in Perth who is able to administer an oath or affirmation to Mr Johnson? Yes? Would you please do that?

<MARCEL ANTHONY JOHNSON, SWORN [4.25pm]

<EXAMINATION-IN-CHIEF BY MR CAMERON

PN171

MR CAMERON: Mr Johnson, have you recently sworn an affidavit in relation to the matters currently before the Commission?---Yes, I have.

PN172

Could the witness be shown and perhaps I'll need to do this myself, your Honour, would you please have a look at that document and can you identify it for the Commission?---Yes, your Honour. This is the affidavit I swore yesterday and those are my signatures at the bottom of the page.

PN173

Are you still satisfied that it is true and correct in every particular?---Yes.

PN174

THE SENIOR DEPUTY PRESIDENT: Mr Johnson, can you have a microphone a little closer to you? Is there one of these little points that could be drawn a little closer to you? Yes, proceed, Mr Cameron.

PN175

MR CAMERON: I tender that affidavit, your Honour.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes, I might identify the document that I have received and ensure we're all working on the same document. It is an affidavit of Mr Johnson dated 23 November 2004, comprising 20 paragraphs and having three pages annexed to it. The annexures are entitled pilot pre-flight procedures - - -

PN177

MR CAMERON: Your Honour, may I be permitted to interrupt just there? There is one small issue which I've raised with the unions party to this matter prior to proceeding. The affidavit as it currently appears is perhaps slightly misleading in that it appears to have annexures to it. That is no more nor less the case than them having been bundled together by some official in the Registry.

PN178

In fact the affidavit, as I've already advised the unions, actually stands alone and the other documents should not be stapled to it. It makes it appear as if they are intended to be annexures, but in fact they are not. They are, in fact, documents that have been circulated amongst the crew on the Seamac 1.

**** MARCEL ANTHONY JOHNSON XN MR CAMERON

PN179

THE SENIOR DEPUTY PRESIDENT: All right, you seek to tender the affidavit of Mr Johnson comprising some 20 paragraphs on three pages?

PN180

MR CAMERON: That is correct, your Honour, that is all that is sought to be tendered at this stage. Those documents that appear to be annexures, I hadn't tendered.

PN181

THE SENIOR DEPUTY PRESIDENT: Yes, all right. We'll mark that document Brunel 1.

EXHIBIT #BRUNEL 1 AFFIDAVIT OF MR JOHNSON COMPRISING SOME 20 PARAGRAPHS ON THREE PAGES

PN182

THE SENIOR DEPUTY PRESIDENT: Mr Carter or Mr Saunders, do you want - I'm sorry, are there any further questions you wish to ask of Mr Johnson?

PN183

MR CAMERON: In the interests of time, your Honour, I'll perhaps just restrict myself to one question.

PN184

Mr Johnson, would it ever be possible to give an unequivocal guarantee that a helicopter departing from Darwin Airport could always be airborne within 45 minutes?---There could be no guarantee of that.

PN185

Perhaps I'd better get you to elaborate on why that is impossible?---Your Honour, we're dealing with an unique area of operations in the Timor Sea. I think six months of the year is affected considerably by the weather patterns. We're also looking at an area of operation of the helicopter services which exceed what they call a point of no return for the helicopter. It reaches a point where it cannot legally or with adequate fuel return through to Darwin should

**** MARCEL ANTHONY JOHNSON XN MR CAMERON

there be a problem with (1) the aircraft or (2) with the facilities off shore. The requirements of pre-flight planning of the air crew need to be done gradually prior to the departure of the aircraft. We're also open to acts of God with the aircraft, your Honour, breakdowns we're subject to, closures of Darwin Airport from time to time due to the weather, restraints coming in from the Timor Sea, also the availability of fuel with the fuel truck and all the other issues that do affect us.

PN186

THE SENIOR DEPUTY PRESIDENT: Mr Cameron?

PN187

MR CAMERON: Yes, I have no further questions, your Honour.

PN188

THE SENIOR DEPUTY PRESIDENT: Yes, now Mr Carter and Mr Saunders, do you have any agreement between the two of you as to who wants to go first? I have no strong view myself.

PN189

MR CARTER: Given Mr Saunders closer proximity to this job, I'd seek that he goes first.

PN190

THE SENIOR DEPUTY PRESIDENT: Mr Saunders, I think it's been ruled upon.

PN191

MR SAUNDERS: I don't like the vote. Yes, Ma'am.

<CROSS-EXAMINATION BY MR SAUNDERS [4.30pm]

PN192

MR SAUNDERS: Mr Johnson, I note in your affidavit that you are employed by Brandridge Pty Limited?---Yes, I am.

PN193

For how long?---That is my company. I've had that company since 1993. Are you employed directly or indirectly with that company for all that time.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN194

Your company has experienced, reading your affidavit, in a number of areas, you highlight there "have operated in Australia", is that under that company Brandridge?---No, that was with Woodside Energy Limited. I was employed directly with Woodside.

PN195

How long has Conoco Philips engaged your services?---I started on 1 September this year.

PN196

And the reason for your engagement?---The reason for my engagement was to review the current processes of the supply chain primarily with logistics.

PN197

And the logistics for, for example, the helicopter transportation to and from the barge, that was done prior to your employment?---Yes, sir, it was.

PN198

Who did that on behalf of Conoco Philips?---I don't really know the answer to that. Primarily during the project phase and the contract associated with the current Canadian helicopters, I'd say derivative from that contract, I believe.

PN199

So you're not aware of anyone who had the responsibility prior to you coming on board in 1 September '04?---No, I'm not.

PN200

When you took up your service or your company took service with Conoco Philips, did they give you documentation about transportation to and from the barge as an ordinary change-over crew?---No, they didn't. I wasn't specifically employed for that, for the taking of material one way.

PN201

THE SENIOR DEPUTY PRESIDENT: May I ask you to just pause for a moment? Mr Johnson, your answers have been clear until that last answer. We have a reporter here in Sydney that I suspect might have had the same difficulty recording it as I was in hearing it. Is there a member of the Registry in court who can ensure that the microphones are placed in the best possible position for us to clearly hear Mr Johnson's evidence?

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN202

THE WITNESS: There is nobody but I'll try this one, your Honour. Is that better?

PN203

THE SENIOR DEPUTY PRESIDENT: Who is speaking?

PN204

MR SAUNDERS: That's Mr Johnson, sorry.

PN205

THE SENIOR DEPUTY PRESIDENT: No, loud and clear, yes, very good, better we hear you than see you, Mr Johnson, so stay where you are and Mr Cameron, would you please ask the last question again.

PN206

MR CAMERON: Mr Saunders, I think you mean, your Honour.

PN207

THE SENIOR DEPUTY PRESIDENT: I am so sorry. Mr Saunders, yes.

PN208

MR SAUNDERS: Yes, Ma'am.

PN209

The question was were you given any paperwork on the transportation to and from the barge of crew change outs?---No, I was not. Further to that, I was not employed specifically to look at barge component orders. I was employed to look at the supply function, but not that.

PN210

And what's that entail?---Just to put together the expediting function pertaining to ..... freighter around the world which has a component of aircraft.

PN211

So the transportation filled from the barge for a normal change out of the employees wasn't your responsibility?---No, sir.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN212

And you're not aware of whose responsibility that was prior to you coming on board?---No, I'm not.

PN213

So when did you become involved in the transportation to and from the job of the change out of employees?---I was asked yesterday afternoon or about midday yesterday if I could assist them in the matter.

PN214

So prior to yesterday afternoon, you've had no knowledge of the change out, the ordinary change out of crews to and from the Seamac 1?---No, I haven't.

PN215

Do you know who would have that responsibility with inside Conoco Philips?---I'm not sure that it rests with Conoco Philips. I believe it's with the pipeline project but I stand corrected on that. I really don't know.

PN216

So you don't know whether it's Conoco Philips, Saipan or Brunel or whoever?---No.

PN217

Okay. That's fine. So, as of yesterday - who sought to have you get involved in this matter?---It was the Manager of supply of chain for Conoco Philips.

PN218

So it was Conoco Philips. Did they give you any documentation at that particular time when they asked you to get involved?---No, it was all verbal in that particular time. Since that time, I've accumulated documentation.

PN219

Roughly what time was that yesterday?---About midday.

PN220

Midday yesterday. So, roughly 25 hours ago?---That's correct.

PN221

In that verbal information that was given by Conoco Philips to yourself, did they go to Medi Vacs that have been experienced in the past?---No they did not.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN222

So they haven't asked you to comment on past Medi Vac evacuations or they haven't asked you to comment on past Medi Vac operations?---No, never.

PN223

Did they raise the issue of the Medi Vac which happened at approximately, the accident that happened at 2000 hours on Saturday?---Indirectly, it's been part of the scope, yes, but not directly.

PN224

So you haven't explored that Medi Vac to the extent whether there was a problem with it or there wasn't a problem with it?---Yes I have. I've managed to obtain the flight logs that was maintained by Canadian helicopters out of Darwin.

PN225

Okay. Your affidavit goes to experiences and you say that you're confident in both rotary and fixed wing aircrafts. Is that right?---Yes. That's correct.

PN226

How much experience have you got in those areas?---It's going back some 30 years.

PN227

In both areas?---In both areas.

PN228

Are you a pilot in your own right?---No, I'm not.

PN229

Than you've done the exams, you say?---Yes I have.

PN230

You've done the theory?---I've done the theory. I've also done 30 odd hours on control. I did that to improve my position as a consultant. I've never been employed as a pilot nor do I wish to.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN231

Why is that, it's unsafe? Don't answer that. Just for the record you've done the - your affidavit says you've done the exams. So, you've done the theory but not the practice?---I've not validised my pilot credentials.

PN232

Have you got the affidavit there?---Yes.

PN233

You say that under point 6:

PN234

The areas in which I've operated are Australia.

PN235

?---The North West Shelf, which is Western Australia, out of the Timor Sea. I was primarily in charge of setting that operation up, the oil refinery, Woodside, and I've operated out of Port Lincoln in South Australia in the Great Australian Bight. Other areas in Australia are when we follow rigs around the coast so it's on both the East Coast and the West Coast.

PN236

Have you been employed by Conoco Philips prior to this?---No, I haven't, and I'm not currently employed by Conoco.

PN237

Sorry, you're a consultant to Conoco Philips. Have you ever been a consultant for Conoco Philips in Europe?---Have you ever operated in Europe?

PN238

Yes?---I've been based at Aberdeen, in Italy and areas in between where the rigs have moved when they've been mobilised from one location to the other.

PN239

Africa?---Africa, Western Sahara through to Mauritania down through Dacca, the Ivory Coast, Liberia and transited through places like Sierra Leone.

PN240

China?---China, was in the Quandong Province, it was in the South China Sea, those areas that I worked was the SEamac 1, two years ago.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN241

And Indonesia?---And Indonesia, through to the ..... island, and East and West Timor. Yes, it was Indonesia then.

PN242

You said that you were engaged, or your company was engaged on the North West Shelf. By who?---No, I was employed directly by Woodside Petroleum at that stage. I was their team leader aviation.

PN243

What dates were they roughly?---1996 to - - -

PN244

THE SENIOR DEPUTY PRESIDENT: I may need to place a time limit on you, Mr Saunders, to allow Ms Gooley an opportunity to cross-examine. If you have any other questions, you should consider that I am not able to allow you to cross-examine for very much longer.

PN245

MR SAUNDERS: Thank you, Ma'am. I take it that we could recall Mr Johnson at a later date in these proceedings.

PN246

THE SENIOR DEPUTY PRESIDENT: I don't know the answer to that, Mr Saunders, because I just don't know what course this application will take.

PN247

MR SAUNDERS: Well, if necessary I'd qualify that.

PN248

THE SENIOR DEPUTY PRESIDENT: And, clearly, you may make the application depending on the course it takes. I will then need to rule on the application if it's made.

PN249

MR SAUNDERS: All right. If I could go back to the evidence you gave on oath to Mr Cameron earlier in the examination, you said that at no time could a helicopter company guarantee for a Medi Vac a time limit when it would leave the airport. Is that correct?---That's correct. I think it was 55 minutes.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN250

Approximately?---Approximarely.

PN251

You can't guarantee any time. That's what you're saying?---That's what I'm saying.

PN252

So, it's not whether it's 45 minutes or 35 minutes or 24 hours. You can't guarantee it, can you?---No.

PN253

Is there a procedure in place between CCH and Conoco Philips about Medi Vacs?---With Conoco Philips at a Dhili, yes there is.

PN254

Out of Dhili but not out of Darwin. I believe that procedure is with the project operator - - -

PN255

Have you seen any documentation?---I have a copy of it here, yes.

PN256

So, the diagram, the appendices were accidentally attached to the affidavit. We have it numbered and it's those squares and arrows. Is that the procedure for a Medi Vac?---Medi Vac, yes.

PN257

Is there any other documentation to go with it?---There's a banking page of the business.

PN258

And then we've got half a dozen dot points and four sub-headings. Is that it? Is that your understanding that's all we've got?---Yes.

PN259

You're not aware of any other paperwork?---I'm not aware of any other paperwork.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN260

Do you know who put that procedure together?---I believe it was the safety officer within Brunel.

PN261

Do you know the name of the safety officer within the Brunel?---Bill Vardy.

PN262

Bill Vardy. Do you know when that was put together?---Initially, I would have thought but I don't know for sure. No, I don't but I believe this copy has been updated twice.

PN263

Have you ever seen a copy of the original receipt?---No I have not.

PN264

So, on your testimony that is that there's no guarantee of any time that the flight can leave Darwin to Medi Vac a person off the project? Were you involved in the hook-ups this morning?---Yes, I was.

PN265

Did you indicate any time proposals to the shop stewards or safety reps on - time proposals for Medi Vacs?---There was certainly a lot of discussion around at the time about both day and night Medi Vac procedures, and I did go into some detail to try and explain the processes around putting together a flight.

PN266

So at no time has anybody in your presence indicated how long it takes to Medi Vac a person off the CMAC?---Well, I think they were working on the premise of a 90 minute which is a reasonable target, I think.

PN267

Your evidence today is that you can't put a time on it and you're now telling me that people may have said or did say, but not you, but in your presence, that 45 minutes is a target; is that correct?---No, what I did say is that I can't guarantee a particular time. We in the industry do work to a premise of 90 minutes, which is fair and reasonable, but that is subject to the prevailing conditions, so I cannot put my hand on my heart and give you a guarantee.

**** MARCEL ANTHONY JOHNSON XXN MR SAUNDERS

PN268

And no one else in your presence has given that sort of guarantee?---Not that I'm aware of, no.

PN269

THE SENIOR DEPUTY PRESIDENT: I think that's about as long as I'm able to allow you, Mr Saunders. Obviously you are able to make an application, depending on the course this matter takes. Mr Carter, did you wish to ask any questions of Mr Johnson?

PN270

MR CARTER: No.

PN271

THE SENIOR DEPUTY PRESIDENT: Ms Gooley.

PN272

MS GOOLEY: Yes, your Honour. Obviously having reserved our rights there is a question I do wish to ask Mr Johnson.

<CROSS-EXAMINATION BY MS GOOLEY [4.47pm]

PN273

MS GOOLEY: Mr Johnson, is there any technical reason why a crew could not be engaged to be on duty at night?---There is no technical reason but there are technical governance in the application of those duties.

PN274

I'm not referring to people, Mr Johnson, who are - you've described them as being required to sleep but people who are rostered to be on work at night at Darwin Airport?---No, there's no technical reason. I say there are governing factors that you're going to put a flight crew on duty at a particular location and there are standards and procedures that need to be enforced, to be put in place.

PN275

Would they be the standards and procedures that are required to be in place during the day?---If you had a dedicated crew at the airport, yes.

**** MARCEL ANTHONY JOHNSON XXN MS GOOLEY

PN276

Thank you. In relation to the other matters raised, obviously I need an opportunity to get instructions to enable me to further cross-examine Mr Johnson, but that was the only issue I wished to raise today, your Honour.

PN277

THE SENIOR DEPUTY PRESIDENT: Yes. We need to consider where this application goes from here. I may assume, may I, Mr Cameron, that having received no report from the meeting of the men that - - -

PN278

MR CAMERON: Well, I was just waiting until the end of cross-examination to intervene with that, your Honour.

PN279

THE SENIOR DEPUTY PRESIDENT: Yes.

PN280

MR CAMERON: Unfortunately I must say yes, I do have a report regarding the outcome of the meeting and the advice I have is that the previous resolution continues to stand. That previous resolution was that there be a 45 minute response time imposed upon all Medi Vac flights, be they mercy flights or be they not. I suppose that puts us in a situation where we're compelled to call evidence to simply show that that is utterly impossible.

PN281

Our position that we will endeavour to put forward by way of evidence will be that we are doing the very best we can, we are being as reasonable as we possibly can, but we are being confronted with a demand that is simply impossible to achieve. On that basis obviously we're going to have to continue to pursue the section 127 orders.

PN282

THE SENIOR DEPUTY PRESIDENT: Yes. Now, we have available tomorrow some time and some additional time may become available depending on whether other members' hearings take a little less time than expected. At the moment we are currently booked 12.30 to 2.00 pm eastern standard time, which is 9.30 to 11.00 am tomorrow morning. We are told that the member who has the facility booked for the remainder of the day believes it

**** MARCEL ANTHONY JOHNSON XXN MS GOOLEY

is likely - and that's as high as I can put it - that their hearing will only take about 15 minutes instead of the remainder of the day. As we adjourn tonight it is likely that other than a 15 minute or so break, the facility will be available from 12.30 until let's say 4.30 and Perth time that will be 9.30 to 1.30.

PN283

That is where I will be leaving the matter today. I can only ask the parties to continue to discuss the matters in issue and I can only observe that which you all know, that putting to one side the interesting questions about the order, the service, the terms of the order, the implications for this issue of the fact that there is an exemption in the definition of industrial action, all of those interesting questions, I can't help but think that the matter at issue might not better be resolved by discussions. It seems to me that if what is being asked is impossible for anyone to reasonably give, well, what more can I say? Ms Gooley?

PN284

MS GOOLEY: May I make a suggestion?

PN285

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN286

MS GOOLEY: I think as Mr Lee has indicated in the past, the primary position of the AWU is that it's not engaged in industrial action, but it is interested in seeing if this matter can be resolved and settled, and it wants to assist in that process. On 22 November Mr Lee sent to Mr Adams a proposal in terms of a way that might facilitate having this matter settled which would involve a meeting in Darwin of the delegates and the union officials and the representatives of the variety of companies that are involved in this in Darwin to see if those people, sitting around, can actually put together a reasonable proposal to settle this matter.

PN287

It would seem, certainly from the AWUs point of view, a far more productive use of everybody's time to see if the dispute can be resolved and the AWU wishes to do everything it can to assist that, but there needs to be some process put in place to enable that to occur so that the employees on the barge can be confident that all steps that are reasonable to be taken are taken to ensure that in the event of an accident or illness they're removed from that barge as quickly

**** MARCEL ANTHONY JOHNSON XXN MS GOOLEY

as is practical. That's what Mr Lee suggested to Mr Adams on the 22nd and we would ask whether you would consider whether that was something that you might make a recommendation about in terms of trying to get this matter resolved.

PN288

THE SENIOR DEPUTY PRESIDENT: The difficulty is this, that the 127 is going down one route and it is, frankly, even if the order issues, I am concerned that it will not resolve the core of the difficulty here. One very significant problem we have is that the order cannot bind the operators of the Medi Vac helicopter, it cannot bind CASA. It cannot require a guarantee to be given by anyone who's just not in a position to give a guarantee that genuinely can be adhered to.

PN289

You've all been in this game for long enough to probably all be harbouring the same concerns I have. Also, Ms Gooley, frankly there comes a time too where the employees have got to consider whether the exemption from the definition of industrial action, that is they are concerned about an imminent risk to their health and safety. That question needs to be tackled. I don't know, I haven't heard the evidence from any of them. What I have heard, and I assume it is not contentious, is the employees themselves are demanding a 45-minute response time. I am assuming they are demanding that of the only person they can make a demand of, namely their employer, and what I've heard so far, and no one has said anything to the contrary, the employer cannot give it and if the employer did give it, it would be entirely disingenuine. The employer is not capable of enforcing it.

PN290

I think we've just got to tackle this issue in the discussions that have been foreshadowed. I make no comment about whether they should be in Darwin. I make no comment about who should participate other than people should participate who are able to persuade the employees that all that can be possibly be done has been done to ensure their prompt evacuation if, unfortunately, they're in an incident.

PN291

What needs to be considered, of course, is what persuasion are the employees thinking they are imposing upon the employer by continuing the industrial action. I have said enough. The matter will now be adjourned for further hearing. It's a section 127 application. The applicant is entitled to insist that the Commission hears it and deals with it as urgently and as quickly as practicable. I must do so.

**** MARCEL ANTHONY JOHNSON XXN MS GOOLEY

PN292

I very much hope in the interim though further discussions occur. The matter will be the subject of a further notice of listing we will send out tonight to each of you. If there's anything I need to know between now and 12.30 eastern standard time about the fate of the application let me know. The Commission now adjourns.

<THE WITNESS WITHDREW [4.59pm]

ADJOURNED ACCORDINGLY [4.59pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MARCEL ANTHONY JOHNSON, SWORN PN171
EXAMINATION-IN-CHIEF BY MR CAMERON PN171
EXHIBIT #BRUNEL 1 AFFIDAVIT OF MR JOHNSON COMPRISING SOME 20 PARAGRAPHS ON THREE PAGES PN182
CROSS-EXAMINATION BY MR SAUNDERS PN192
CROSS-EXAMINATION BY MS GOOLEY PN273
WITNESS WITHDREW PN292