C2003/2492, Transcript of Proceedings [2005] AIRCTrans 1385 (27 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11885-1

COMMISSIONER RAFFAELLI

C2003/2492

APPLICATION BY AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, THE
s.111 (1)(b) - Application for an award. Not consent
(C2003/2492)

SYDNEY

9.44AM, TUESDAY, 14 JUNE 2005

Continued from 3/6/2005

Hearing continuing

PN330

THE COMMISSIONER: There's no change to appearances, are there?

PN331

MR HATCHER: If it pleases the Commission, there are a few what we might characterise as housekeeping issues to attend to.

PN332

THE COMMISSIONER: Yes.

PN333

MR HATCHER: We approached the Commission in chambers earlier this morning by consent with the applicants on an application to vacate the Thursday afternoon and Friday afternoon hearings and we understand that those have been made. I think since the last time we were on transcript, too, there has been an alteration to a special fixture that was made for Tuesday, the 21st, for a view in Melbourne of the vessel, the Stradacona.

PN334

That has been moved to Friday this week, the 17th. In view of the fact that we have vacated the afternoon of Friday, the 17th, we would propose, if it meets the Commission's convenience, starting that view at 10 am rather than nine am.

PN335

THE COMMISSIONER: Yes.

PN336

MR HATCHER: It just ensures that travel in the morning by air will not create difficulties as sometimes occasioned by either Mascot or Tullamarine.

PN337

THE COMMISSIONER: Yes.

PN338

MR HATCHER: And the other administrative or housekeeping matter, Commissioner, at this stage is we have had some subpoenas issue which we would now call on, one to a Mr Galbraith and one to Informa Australia. I wonder could we have access to the materials that have been produced, if it please the Commission.

PN339

THE COMMISSIONER: One didn't produce anything, I understood, Informa.

PN340

MR HATCHER: No production at all?

PN341

THE COMMISSIONER: Not that we have seen.

PN342

MR HATCHER: I see.

PN343

THE COMMISSIONER: And in relation to Mr Galbraith, I understood the key material has been given to you.

PN344

MR HATCHER: We have had some material produced. We were just wondering whether that is all that has been produced in answer to the subpoena or whether that is all that was felt relevant.

PN345

THE COMMISSIONER: Well, I think it hasn't all been produced, because it was assumed that you weren't after all of it, but do you see he thinks that what you are after is a particular - which I think has been produced. I am sorry, Mr Hatcher, we have got another 11 documents we just haven't printed off.

PN346

MR HATCHER: I see, they have been received?

PN347

THE COMMISSIONER: Yes, and we thought between my chambers and Mr Seck, well, one in particular is the one that you are after which we have given. The other 11, however, are on our system and perhaps for completeness we will print them out.

PN348

MR HATCHER: If it please.

PN349

THE COMMISSIONER: It probably won't assist you that much, but you will see.

PN350

MR HATCHER: Thank you, Commissioner.

PN351

MR McNALLY: Can we have access to those, too, only out of curiosity?

PN352

THE COMMISSIONER: Yes. It will take some while, but it is coming through. Is that all you wish to say at this stage?

PN353

MR HATCHER: Yes, Commissioner.

PN354

THE COMMISSIONER: Mr McNally.

PN355

MR McNALLY: If the Commission pleases. I would like to just open briefly, if the Commission pleases, to mainly remind all of us of the road we have already travelled. Could I hand up a summary of what I am about to say? The road we have travelled to date of course was originated by an application on 22 January 2002 by the Maritime Union, the Institute and at the time the Australian Maritime Officers' Union made application under section 113 of the Workplace Relations Act for the purpose of making CSL Pacific Shipping a respondent to the Maritime Industry Seagoing Award and the matter was referred to a Full Bench on
27 September 2002.

PN356

The Full Bench made a finding. Could I hand up to the Commission a copy of the Full Bench's decision for convenience, for reference at a later time. At paragraph 320 of the decision and that is set out in the notes to the submissions an industrial issue was found under section 5 of the Workplace Relations Act. The parties were the three unions and CSL Pacific.

PN357

The subject matter of the industrial issue is whether the terms and conditions of employment corresponding with some or all of the terms and conditions of employment are applicable to maritime employees whose employment is covered by the Maritime Industry Seagoing Award 1999 should be accorded to the maritime employees engaged on the ship CSL Pacific in respect of any class of or all voyages to and from a port in Australia. In so finding the existence of an industrial issue or dispute, the Commission had this to say:

PN358

We are satisfied that an industrial issue as found is a matter pertaining to the relationship between employers and maritime employees ...(reads)... on the employee than would be the case in terms and conditions under the award as available.

PN359

We emphasise that paragraph, that decision, believing that it may become relevant when my friend addresses on his case, we having taken into consideration various matters that he has raised during the course of submissions and programming of the hearing. On 17 December, sir, you made a similar finding in respect to the ship, the Stradacona, a similar finding of an industrial issue.

PN360

The decision of the Full Bench was challenged in the High Court and I hand to the Commission a copy of the High Court's decision for convenient reference at a later time, so the jurisdiction was found to exist by the Full Bench of the Commission and that finding was confirmed by the High Court of Australia. The Commission will recall that we then turned our attention to dealing with an application by CSL under section 111(1)(g) which was instituted by the company.

PN361

There were 26 grounds which I will briefly deal with a little later in these submissions because the Commission as presently constituted grouped the three grounds into seven topics and dealt with each topic in this way. The topics were the international law issue, the Navigation Act issue, the domestic public policy issue or the Australian Government policy issue, consequences on the Australian cement industry, CSLs arrangements with its employer, sixthly, the inability to settle the union's demands and, seventhly, the inability to part settle the union's demands.

PN362

In respect of the first issue, that is the international law issue, after verifying - I am now reading from paragraph 7.1 of the notes, after verifying in the light of the evidence the correctness of the Full Bench's description, in its decision of 27 September 2002, paragraph 100, of CSL Pacific as being a serial participant in what a person in the street might otherwise conceive to be an Australian coasting trade and finding that the Stradacona is a vessel that seems to be engaged substantially on the Australian coastal work, the Commission notes these matters.

PN363

There was nothing to suggest that Australian local law and in particular the Workplace Relations Act 1996 is subject to the application of international law. Secondly, there were decisions of foreign Courts that provide the basis for due respect to be given to the law of the flag and there are outcomes in foreign Courts where the law of the port has been applied.

PN364

Thirdly, none of the foreign tribunals were dealing with circumstances where the foreign flagged vessel was engaged almost exclusively on voyages within the relevant port State and, finally, the only Australian case cited, Morgan v Foster have not applied the law of the flag to foreign vessels. Having noted those four matters, the Commission concluded that the application of international law and custom in these circumstances did not justify termination of proceedings.

PN365

In relation to the Navigation Act argument, the Commission after noting that the Navigation Act made provision for the application of award wages in licensed vessels who are deemed to be engaged on the coasting trade did not make such a provision applicable to permit vessels, the Commission concluded that no inference should be drawn, that the Parliament did not intend the application of Australian labour law to foreign vessels.

PN366

The Australian Government policy issue, the Commission concluded, did not provide a basis for the Commission to cease dealing with the industrial issue before it and the consequences for the Australian cement industry, the Commission in relation to the impact on the cement industry, should the MISA be applied to CSL, the Commission found that some of the consequences of the application suggested by the witnesses were speculative, but accepted that it was speculation by persons who have an understanding of either or both of the maritime and cement industries.

PN367

It was noted that the evidence was not challenged. However, it was noted that the underlying basis for the conclusions relating to - however, it was noted that the underlying basis for their conclusion related to the application of MISA. The Commission expressed the view that different considerations for the cement industry may be occasioned should a different form of award be applied.

PN368

The Commission considered that the consideration of matters raised as to the adverse consequences now pertaining under MISA was premature and it was not satisfactory at this stage that the Commission ought not regulate the employment. The Commission concluded that the considerations suggested a form of regulation more in line with accepted standards and exigencies of the industries concerned, considerations that ought be dealt with at a later time, so it is probably valid to observe that the jury is still out on that issue.

PN369

Fifthly, the Commission accepted in relation to the CSL arrangements with the employees, the Commission accepted that CSL had an agreement with its employees and that it is governed by agreement between CSL and ITF, the body to which two of the unions were affiliated and clearly that the agreement militates in favour of the Commission deciding to proceed further.

PN370

I assume that is a reference to proceeding further with the application that was then framed. The sixth grouping was the inability to settle the union's demands. The Commission concluded that unchallenged evidence measured against important objectives of the Workplace Relations Act provides a basis for upholding CSLs application that no further proceedings occur in the public interest in respect to the application that CSL added to the list of respondents of MISA.

PN371

The final grouping is the Commission expressed - was the inability to part settle the union's demand. The Commission expressed concern firstly that the industrial issue in respect of each vessel had been found to exist which invited further deliberation by the Commission as to whether the issue ought to be settled or partly settled and, secondly, that the vessels concerned were involved in work which the person in the street might characterise as Australian.

PN372

The Commission concluded that given the ability to part settle the industrial issue and settle them in a variety of ways and that it is possible that such outcome may provide an answer to CSLs criticism as to the cost impost occasioned by the award regulation, it was premature to cease dealing with the matters. Having dealt with each of the public interest grounds, the Commission concluded and I have set out the finding in the Commission in full, that the Commission should refrain from further dealing with the application under section 113, but would not refrain from proceeding further with the finding of industrial dispute and in the final paragraph, in respect to the application to vary the award, by adding CSL as a respondent - I am sorry:

PN373

Balancing the considerations I have dealt with above, I am not persuaded that in order to dismiss or refrain from further dealing with the applications before me, as they relate to industrial issues found to exist ...(reads)... seemingly of some weight, that a different form of award to which currently applies in the industry be made.

PN374

In respect of the 26 clauses earlier in the notes upon which the applicants for the section 111(1)(g) order rely, paragraphs 1 to 3 deal with the issue of arrangements with employees. Paragraph 4 and 5 of the grounds relate to the international law issue. Paragraphs 6, 7, 8 relate to the arrangements with employees issue. Paragraphs 9, 10, 11, 12, 13 relate to the consequences for Australian cement industry, as does 14.

PN375

Paragraphs 15, 16, 17 relate to the Australian Government policy issue and paragraphs 18, 19 and 20 relate to the consequences for the Australian cement industry. Paragraphs 21, 22, 23 relate to the inability to settle the union's claim issue and paragraphs 24, 25 and 26 deals with navigational issues. Some of those issues have been settled. I wish simply to record those at the outset, to ensure that they are not some repeat argument on issues that have already been decided.

PN376

I didn't hand up, but I meant to hand up a copy of your decision, sir, of 14 August 2003 which dealt with the first - I apologise for that - the first section 111(1)(g). The Australian Institute of Marine and Power Engineers and the Maritime Union filed an application for a new award which reflected an argument that in effect the issues raised by that application or those applications had already been settled by the first section 111(1)(g) argument.

PN377

I hand up a copy of your decision in that matter of 3 February where the application under section 111(1)(g) was dismissed. In that decision, an explanation can be found of the effect of the first decision. I summarise those into four points. The second decision indicates that the first decision disposed of the union's roping-in application.

PN378

Secondly, that the first decision contemplated the further consideration of the settlement of the industrial issue. The third point that the decision emphasised was that in upholding the section 111(1)(g)(iii) objection in the first decision, it was specifically directed at MISA. Finally, the application, the new application that the unions file and the decision in the first 111(1)(g) argument provides the ability for CSL to put forward its objections to provisions and proposals for increases in the award that is proposed for it.

PN379

The balance of the notes deal very briefly with the summary of the principles - of the legislation, the relevant parts of the legislation, the Workplace Relations Act. I can deal with that later. The statement of principles, I can deal with that later, but what we say is that putting aside jurisdiction arguments and section 111(1)(g) arguments, the contemplation of the legislation as emphasised through statements of principles, in particular principle 11 dealing with first award matters, is that the whole scheme of the legislation contemplates that the principle object of the Act is to provide - it has been said many times - a framework for co-operative workplace relations which promotes the economic prosperity and welfare of the Australian people.

PN380

Part VI of the Workplace Relations Act underscores and bestows the functions and powers upon the Commission and in so doing, the sections of that part make it abundantly clear that the Commission has to have regard to the principles of the Act and in particular the principles of part VI and those principles include wages and conditions of employment - those principles include the necessity to prescribe wages and conditions of employment as proposed by a system of enforceable awards established and maintained by the Commission and awards are to act as a safety net of fair minimum wages and conditions of employment and in fixing those wages, those safety net wages, the relevant minimum wage rates in other awards provide that the rates have been adjusted for previous National Wage Case decisions are relevant and the principles emphasise the necessity that wage relativities between awards be based on skill, responsibility and conditions under which the work is performed and the whole concept is to put in place Australian wages and conditions.

PN381

One matter has to be emphasised. We are not fixing rates of pay, we are not fixing conditions. What we are doing is we are fixing safety nets in those areas. What the Act further contemplates is when that is fixed, as a minimum, as a minimum, then agreements can be imposed or encouraged and imposed which actually fix the terms and conditions to operate. We are seeking to fix a minimum safety net standard.

PN382

In regard to the history that we have briefly outlined and the Act and the principles that we have briefly referred to, three matters should be emphasised and become clear. The Workplace Relations Act contemplates the making of safety nets - I have made that point - upon which are to be built workplace agreements suitable for the workplace in question.

PN383

The award comes first, the agreement comes second, the agreement first and the award second. The only basis for refusing such a safety net award is lack of jurisdiction and the public interest considerations contemplated by section 111(1)(g) and CSL we emphasise should not be permitted, I am not suggesting they will, but we will be watching them in any event, should not be permitted to re-argue jurisdiction or section 111(1)(g) arguments which have already been decided and disposed of by the Commission.

PN384

We have had the opportunity of considering the earlier decisions and of considering the evidence that has been filed in reply on behalf of CSL Pacific Shipping Inc. Some of the relevance of that evidence we don't yet appreciate, but it seems that in response to the decisions and the case of CSL Pacific as disclosed in their reply, evidence, indicates some need to amend at the appropriate time the application as filed by the Maritime Union of Australia.

PN385

Can I hand up a document which was served on the respondent? There's a couple of changes to the application which was originally filed, which was exhibit 6. In clause 4.1.1, we have deleted the clause as originally drafted. Originally the clause indicated the award applied to the company, the Maritime Union of Australia and employees engaged, employed as maritime employees in or in connection with the vessel.

PN386

Of course, an award can only be made to cover persons who are eligible to be members of the Maritime Union of Australia, so the new words we have inserted is that:

PN387

This award applies to the union and its members and to the company in respect of their employees who are eligible to be members of the union and who are engaged or employed on the vessel.

PN388

We have deleted in response to some of the comments in the affidavit which the Commission will be referred to of Mr Oz and Mr Sorenson and for the purpose of these applications, we have deleted any claim in respect to allowances, so part 4 has been deleted from the application. There was a clause which was clause 30 which provided for leave for consultation meetings.

PN389

They are the traditional monthly stop work meetings, we call them, that occur on a monthly basis in each capital city of Australia and we have deleted any claim for that in response to matters that we raised, that will be raised in the evidence of the respondent, but we have amended the schedule. Page 25, appendix 1, which is the position description, when the vessels concerned were Australian vessels, they were manned by integrated ratings.

PN390

Having regard to the evidence that has been served on us, particularly the evidence of the master of the Stradacona, these vessels are manned by bosuns, able seamen, motormen and cadets. In Australian vessels, the evidence will reveal, bosuns are no longer engaged. This is peculiar to Australia and to some extent New Zealand.

PN391

Chief integrated ratings are engaged rather than bosuns and able seamen are engaged rather than integrated ratings. Motormen are engaged rather than integrated ratings and cadets are on these vessels. In addition to putting in definitions or job descriptions for those occupations, we have amended the schedule, appendix 2, by prescribing for salary and overtime.

PN392

The original claim continued with the concept of salary. Having regard to what the Commission said in its first 111(1)(g) decision and having regard to what we perceive at this stage as being a preference by CSL Pacific Shipping Inc to provide for overtime, we have readjusted the rates of pay on the final page of the appendix 2. Does the Commission see the final page?

PN393

THE COMMISSIONER: Yes.

PN394

MR McNALLY: The salary as prescribed is the salary calculated on the basis of 56 hours a week. That is eight hours work per day. We have excluded from that calculation what I refer to as casual overtime, so that the overtime above eight hours per day that may be worked would be paid for at an hourly rate. It is something akin to what has happened on the Iron Chieftain by way of certified agreement, except we have reduced it to safety net standards.

PN395

For example, the salary prescribed for the able seamen, it is annual salary, is the amount of salary received by an integrated rating if you exclude the casual overtime part of it. We have provided for a guaranteed minimum overtime provision of 10 hours a week or 20 hours a fortnight which may or may not be pressed having regard to the reaction of the company during the course of these proceedings.

PN396

I am not sure that the Commission can in the absence of consent really arbitrate on the question of guaranteed overtime, so I have some reservations as to that aspect of the claim. We have provided for the classifications as worked on the ship in respect to which the union have coverage, so there's provision for bosuns, chief cook, second cook, stewards, caterers, ratings, able seamen, motormen and cadets and then there is a provision for all other maritime employees and we will address further in relation to those matters as the proceedings proceed.

PN397

What we did want to do is to from the outset and a couple of weeks ago we notified the respondent - we didn't want to be met with a caught by surprise argument, we have indicated that that is an alternative to the application that is filed which meets something of what was said in the 111(1)(g) argument and meets some of what we understand is in the evidence. If the Commission pleases.

PN398

THE COMMISSIONER: Mr McNally, the third column, annual guaranteed overtime, that is 52 times 10 hours a week, is it?

PN399

MR McNALLY: No, sorry, it is 27 times two hours a week. If that is implemented, what will happen is while - - -

PN400

THE COMMISSIONER: 10 hours a week you mean?

PN401

MR McNALLY: Yes, 10 hours a week, 27 weeks. While the crew member is on the vessel, he will receive his salary divided by 52, plus his overtime, so when he goes on leave, he will actually get less.

PN402

THE COMMISSIONER: Yes, and 36 is just the - 36 times 27 gives you 9,720. That is right, isn't it?

PN403

MR McNALLY: Yes, 36 times 10 multiplied by 27.

PN404

THE COMMISSIONER: And it is those two columns that you are saying, to which that final comment of yours applies, that is this is what should apply, but if it is not consented - - -

PN405

MR McNALLY: No, it is the final column.

PN406

THE COMMISSIONER: Well, the second column - - -

PN407

MR McNALLY: Double time, seven day shift worker, metal trades, double time overtime rate. I might have rounded it off a bit. I have some reservations at this stage as to whether the Commission can say, okay, we order the wages and overtime and we fix the minimum amount per week. I have got no doubt that the 10 hours will in fact happen because of the short runs of these ships. What I would propose to do is to call - - -

PN408

MR HATCHER: Before my friend does that, I wonder whether he has now sought leave to amend? Can I tender correspondence dated 8 June 2005 in which we sought clarification of the document we were said to have received weeks ago?

PN409

THE COMMISSIONER: Yes.

PN410

MR HATCHER: And so we ask for clarification as to whether this is an application for leave to amend. We also ask for clarification of whether there is envisaged any application for leave to amend in respect of the other matter before the Commission, that is the AIMPE Award application, given the considerations that are said to excite the MUA to make application if they do for leave to amend.

PN411

THE COMMISSIONER: Yes, Mr McNally.

PN412

MR McNALLY: If I can deal with the second matter first. We won't be pressing the claim for allowances in respect to the engineers. We won't be pressing the claim in respect of the stop work meetings for engineers. Other than that, the application as filed will be pressed.

PN413

I am very flexible as to whether we amend the claim now or whether we indicate to the Commission that an award in those terms will be something that we can live with. We are in the Commission's hands. There may be some further amendments down the track arising from - in response to my friend's comment, if the Commission wishes us to seek leave to amend, then we would do so.

PN414

THE COMMISSIONER: Mr Hatcher.

PN415

MR HATCHER: I don't want to be unduly difficult about it, Commissioner, but we do wish to be reasonably candid. We say that it is not jurisdictionally available for the Commission to grant an award in the terms sought in the possible amendment advanced by the MUA. Differing considerations arise on what has just fallen from my friend as to AIMPE, but on the possible amended application by MUA, we say it doesn't have any rational tendency to settle the industrial issue which has been identified by the Full Bench.

PN416

Now, for that reason, we would formally oppose leave to amend because we say it would be a futility, but whether the Commission wishes to hear us on that now or just accept that we have put everyone on notice that that is the position we adopt in relation to it, we are in the Commission's hands.

PN417

THE COMMISSIONER: But is that the attitude you say to exhibit MCN6?

PN418

MR HATCHER: Exhibit MCN6 didn't raise the same problems, Commissioner. The industrial issue that has been identified is not an industrial issue between our client and its employees. There is no role for the Commission in our respectful submission in determining appropriate wages and conditions to apply to our client's employees.

PN419

The only role for the Commission is to settle an industrial issue or industrial dispute in a generic sense of the kind dealt with in metal trades so long ago, that is, to settle a claim that arises by reason of the desire of the unions to protect the conditions of their members.

PN420

Now, it is only an award which has a rational tendency to protect the conditions of their members that can be made in settlement of that industrial issue. If it doesn't attend on the same classifications, it cannot have that rational tendency. As I say, I am content to expand on the law in the area. We propose doing it in our opening. We can do it equally now. That is a matter for the Commission's convenience.

PN421

THE COMMISSIONER: You say that - the cost impost is the same, isn't it? If you look at the classifications in MCN6 and these, the classifications are different, but the rates or the cost impost on the employer is the same, isn't it?

PN422

MR HATCHER: Well, that may or may not be the case, Commissioner. The difficulty is that it invites attention to the value of the work performed by the employees of our client and that is not the task that the Commission embarks upon in a metal trades type award. If one has regard to financial clinic, the High Court were there very keen to say you have got to be very alive to what role the Commission has when it comes to deal with the position of non-members of unions and its role is a very limited one.

PN423

There is only a question of whether the award will be extended to cover the employer of non-union members in order to protect the position of the union members and it will only be so extended where the provisions of the award have a rational tendency to achieve that end, so in Financial Clinic, of course, the Court found that it would have a rational tendency to resolve the industrial issue to prescribe that a contribution be made to a superannuation fund, but beyond that, to say which superannuation fund the money would go into was starting to deal with the relations between the employee and the employer and that wasn't the subject of the matter before the Commission.

PN424

Now, there are all sorts of complications in applying metal trades to an industrial issue under the Industrial Relations Act 1996 because as my learned friend has correctly observed, we have moved to a concept of safety net minimums and the award's obligations on making an award, the Commission's obligations on making an award are now quite different to what they were in the 1930s and when one goes, indeed, to metal trades, one sees that the rationale underpinning the majority judgment in metal trades was that because the Commission can prescribe preference, it must be able to prescribe that the wages and conditions applying to union members will apply to non-union members, that being something lesser than an absolute preference of employment.

PN425

Now, of course, the Commission can no longer prescribe preference. That doesn't have the effect of denying the legitimacy of the jurisprudence underpinning metal trades and the fact that the Commission's finding of industrial issues sustained examination by the High Court is testimony to that, but one still needs to approach it consistent with the doctrines emanating from metal trades.

PN426

THE COMMISSIONER: Yes, thank you.

PN427

MR HATCHER: As I say, Commissioner, I can expand quite a bit more, taking the Commission through the authorities that lead to that, if it is of assistance at this point, but that is the substance of our objection.

PN428

THE COMMISSIONER: Yes. Mr McNally, what do you say about that?

PN429

MR McNALLY: Well, the matter should be debated and disposed of, if the Commission pleases. Why I say that is a lot of evidence will become irrelevant if what my friend puts is correct. Could I remind the Commission that - if I could direct the Commission to section 108 or 112, the first 111(1)(g) argument. I have paraphrased it this morning and to paragraphs 117, 124. The Commission said and I read it, unless the Commission wishes to do that itself:

PN430

I have noted the evidence and the submissions concerning the impact on the cement industry should awards be applied to CSL ...(reads)... exigencies of the industry concerned, considerations that ought to be dealt with at a later time.

PN431

And then down at 117:

PN432

The Commission's statement of principles last established in the safety net review decision May 2002 and provisions of the Act such as section 89A ...(reads)... no further proceedings occur in the public interest with respect to the application of CSL and to the respondent.

PN433

And then we go from there to the conclusions which I dealt with this morning where the Commission clearly indicated that even having dismissed MISA, which were the conditions that applied to the ship before its transfer to foreign registration or the ships, that the Commission would be able to proceed further and address the appropriate award that would apply to the ships.

PN434

Now, the evidence clearly establishes that whilst the crew is performing in general terms the same functions as performed by integrated ratings, they are called something different. An integrated rating can work as an able seaman. An integrated rating can work as a motorman. An integrated rating can work in all these occupations, the evidence will reveal, but clearly the intention of the Commission was to proceed forward and to put in place, leaving aside jurisdiction or section 111(1)(g) considerations, put in place an award that produces a level playing field, if you like, in respect to considerations reflected in the decisions that my friend has referred to.

PN435

I am not sure whether I fully understand my friend's argument, but no doubt he will develop it, but that is what quite frankly we are doing. We are proceeding forward with our understanding of what the Commission's decision was in the first 111(1)(g) case, as explained in the second 111(1)(g) case. If the Commission pleases.

PN436

MR HATCHER: I take it from all that, Commissioner, that I am addressing the matter that I raised, to foreshadow. Can I first deal with this notion that somehow there is an estoppel on dealing with matters that were debated before the Commission in the section 111(1)(g) proceedings? The section 111(1)(g) proceedings were an application by our client to dismiss or refrain from hearing the particular application.

PN437

It is akin to in an ordinary Court, it has been so characterised in the High Court, to a strike-out application, that the tribunal ought not hear the case and the approach of the Court in those cases is always to proceed with caution, but the Court's decision, other than a decision on essential facts necessary to come to its conclusion is an interlocutory decision, so it may come to a final view on fact that leads to its decision which can create an estoppel and so much was accepted by the Full Bench in the appeal and so much has been accepted by the Commission in the rulings on evidence, but it doesn't dispose of the proceedings unless successful.

PN438

Now, the way a case would proceed in an ordinary Court is we might say that the applicant unions have no case at law. If you took their evidence at its highest, it doesn't reach the test and we would run an application to strike-out their application in the proceedings and that is the test we would have to meet. Taking their evidence at its highest, could it at law give rise to the relief that they seek?

PN439

That is in the nature of a 111(1)(g) case. If we lose that, it doesn't mean we don't have a right to defend the case. Indeed, at the close of the applicant's case, we can rise and say they haven't made good the prima facie case. Now, at that point, we say accepting their evidence as we must because we have not led any evidence, you wouldn't grant the relief they seek.

PN440

We no longer have to say you cannot, but we say you would not, so at this stage discretion comes in and there is a whole debate in the authorities about whether making such an application puts the respondent to an election as to whether they will call evidence or whether they won't. The effect of the authorities seems to be if you do it on a question of law, then you are not put to an election.

PN441

If you ask the tribunal to exercise discretion or to come to conclusions of fact, then you probably will be put to an election, but if one is unsuccessful there, one can still proceed to defend the case and to successfully defend a conclusion, so my friend's propositions about what we are entitled to argue at this stage and what we are not entitled to argue at this stage as a result of the 111(1)(g) are simply misconceived and so much is apparent from the face of the Commission's decision.

PN442

I think in at least two places, the Commission said it remains open to CSL to convince me that no award should be made and in any event, the Commission can't confer jurisdiction on itself. If we are correct about the jurisdictional limitations formulated by or occasioned by the finding of industrial issue, then we are correct as to that and no 111(1)(g) finding, no award finding, or no decision making an award can overcome the jurisdictional limitation.

PN443

We are entitled to press that jurisdictional limitation as far as it will run, so in our respectful submission it is simply misconceived to suggest that we are not entitled to put these arguments. Now can I perhaps expand on those arguments? We have prepared a folder of authorities, if I might hand that up.

PN444

THE COMMISSIONER: Can I just interrupt you, Mr Hatcher, and ask you this? Wasn't it envisaged in the first 111(1)(g) decision that while roping in to MISA, that application ought be dismissed, but the Commission ought proceed with hearing, (1) whether no award should be - hearing whether some other award should be made and which you would respond by saying, no, don't make any award, or perhaps make something less, but it seems to suggest that, I think there's comments there, it might be different from MISA.

PN445

MR HATCHER: Yes.

PN446

THE COMMISSIONER: Now, why didn't you take issue with that if what you are saying is right, that it is a case of making an award on a non-unionised employer on the basis that you are protecting the wages of the unionised employer, if you do something much different from that and you give them another type of award, well, you are not doing what the High Court said you have got a right to do?

PN447

MR HATCHER: Well, there's a few answers to that, Commissioner. The first one and perhaps most important as our assessment was, we wouldn't be granted leave to appeal from such a decision because there had been no adverse impact on our rights. That is, we were still entitled to argue that no award should be made, that so much was clear on the face of the decision and it would be wrong to argue that the Commission couldn't make an award other than MISA because so much is clear from Financial Clinic.

PN448

You can make an award in accordance with the dispute finding that is not completely reflective of the Financial Clinic. To take an issue in point, it may be that the Commission would say, well, when one looks at the question of leave, one is looking to the relations between the employer and the employee rather than the relations between our clients and the MUA and so I wouldn't be inclined to include leave as a factor in the award that I would make in settlement of the industrial issue.

PN449

Now, we could debate whether that would be available or not available, but clearly in Financial Clinic, the High Court said the award that the Commission should have made so far as it affected non-members was an award that was different, that was only part of the award that the Commission made so far as it affected union members. It should not have included that provision that nominated the super fund, admittedly on a four/three split and one can understand how fine this area of law is, but it is ultimately jurisdictional.

PN450

Can I first take the Commission to the judgment of the High Court in Re Maritime Union of Australia and Others Ex Parte CSL Shipping Inc which is to be found at tab 6. At page 407 of the report, 406 more correctly, in paragraph 11 of the High Court judgment, the Court says this:

PN451

On 27 September 2002, the Full Bench of the Commission made the following finding as to its jurisdiction. We find that an industrial issue exists in this matter ...(reads)... in the ship CSL Pacific in respect of any class of or all voyages to or from a port in Australia.

PN452

Now, the terminology, if I might interpose, we say is quite deliberate:

PN453

Terms and conditions of employment corresponding with some or all of the terms and conditions of employment applicable.

PN454

It is not the determination of appropriate terms and conditions of employment. It is only whether terms and conditions which correspond to those already applicable should be made applicable and the importance of that is made clear in the next passage:

PN455

We are satisfied that the industrial issue as found is a matter pertaining to the relationship between employers and maritime employees. The subject matter at issue ...(reads)... pertains to the relationship of the employer and the employees who are members of the organisations party to the issue.

PN456

And if I can interpose there, it is not a claim that relates to the conditions between our client and its employees. It is only a claim or an issue relating to the relationship between our client and the union and its members:

PN457

This is so -

PN458

The Commission continues -

PN459

- because the employer's non-observance of standard minimum conditions of employment for maritime employees engaged in maritime trade and commerce within or about Australian territory ...(reads)... employment of maritime employees who on the evidence are engaged regularly in the carriage of goods by sea between Australian ports for and on behalf of Australian shippers.

PN460

Now, if it please the Commission, that is important if one goes back to the Full Bench and if I can invite the Commission as presently constituted to reflect upon that case, the Commission as presently constituted having formed part of that Full Bench. In large part, the case was about the jurisdiction of the Commission to deal with the conditions of employment of foreign nationals engaged on a foreign vessel and the argument was that there was no Australian issue to be determined and the Full Bench were very careful in our respectful submission in formulating the issue that fell within Australian domestic law and how it came to fall within Australian domestic law and that formulation was approved by the High Court and that is the only case we are here to meet, a case that deals with the relations between our client and the union and its members, not a case that deals with the relations between our client and its employees.

PN461

THE COMMISSIONER: Mr Hatcher, this is a pretty significant - I am not giving a bouquet to anyone, but it seems to be a pretty significant point that you are raising and I am not sure that I am in a position to rule on it quite as quickly as perhaps - that would allow these proceedings to now proceed expeditiously. It is a case of where you draw the line, isn't it, and how can we say, well, the proposed MCN6 would not offend the metal trades rationale, but the proposed award does?

PN462

It is hard to draw the line and it is a little bit - and, of course, between now and the end of these proceedings, the Commission might, if it was minded to make an award, might depart from MCN6 and might go a bit towards the proposed order, but maybe not all the way. Now, until the Commission knows what departures and the provisions that it thinks ought be made, it is hard to know whether there is an offence to the metal trades rationale, isn't there?

PN463

I mean, I guess I am just asking both yourself and Mr McNally is there a way of dealing with this document or this proposed change that doesn't require the Commission to make a decision that really is a very difficult one to make at this stage?

PN464

MR HATCHER: Well, the Commission will recall when I rose I said I am content not to deal with it any further than to just identify the issue at this stage and certainly we are content to approach it on that basis. That is the basis upon which I first rose. It is my learned friend's invitation to me to deal with it as a threshold issue, but we say it is clear in relation to this. We make no concession that MCN6 is jurisdictionally available.

PN465

THE COMMISSIONER: I understand.

PN466

MR HATCHER: In this version of the application, we say it is clear on its face that it is not jurisdictionally available. If it is not preserving the conditions of union members enjoyed under MISA, if it is seeking to deal with the actual relationships between our client and its employees, then it must offend metal trades.

PN467

It doesn't have any tendency, let alone a rational tendency, to resolve the industrial issue that has been identified. I am in the Commission's hands. I can continue to take the Commission through the argument or, as I said when I first rose, I can deal with it when we open our case and put it in the context of the overall case we argue.

PN468

THE COMMISSIONER: Mr McNally, what do you say? Particularly my difficulties in dealing with this matter so early on and letting you know that I am not going to - some difficulty in saying, well, yes, it does offend the Court's established decisions. Where does that leave us, or is there a way of - you commenced by saying you don't promote it, but make it clear to everybody that when you are addressing MCN6 or when you are addressing the award, there are a number of things that you possibly won't press and therefore it was more for the convenience of everybody that you presented this document, but, of course, we seem to have gone further than that and the ability of the Commission to make this document is now brought to the fore I think a bit early on this for my purposes.

PN469

MR McNALLY: We have sought leave to amend the claim which my friend has objected to. Part of what I want to do is to meet the convenience of the Commission and if it is more suitable for the Commission to rule on that down the track, then that doesn't really offend me. I don't think there is much doubt that a union can create an industrial dispute with an employer in respect of the employment by that employer of employees who are not members of the union concerned, provided the union concerned has eligibility rules that cover that area.

PN470

That is point one. Point two is that in proceeding to settle an industrial dispute, the Commission must have regard to what current working conditions are and that is one of the points that my friend argued and to some extent is still - I didn't intend to say it, but just to digress for a moment in response to something my friend said. I didn't want it suggested the section 111(1)(b) is dead as far as this case is concerned.

PN471

The submissions were simply that we can't re-argue issues already decided, but if the Commission accepts as a basic proposition that a union can create a dispute with an employer in respect of employees, even if those employees aren't members, then I would have thought the matter is not terribly complicated. What the facts will reveal is that prior to the introduction of integrated ratings on the Australian coast, we had a system in place that was world-wide.

PN472

The world-wide system has been introduced back onto these vessels, but they perform the same job. They are just called - overall they perform the same job, but it is a different system of operating. Now, surely there is nothing in the financial sector case or any of those cases before it, there is nothing I am aware of, that suggests that the only occasion the Commission can deal with a case such as this is when the conditions of employment that the union seeks to impose are identical with those that they have in the industry generally.

PN473

There is no principle such as that. The starting point in these proceedings is have we got jurisdiction and I think it is pretty well decided we have. The finishing point is having a look at how this operation operates and we are fortunate to have the evidence of the master who will describe what functions it performs. We will have evidence that will indicate that the functions performed by bosuns and able seamen are the same functions as performed by integrated ratings.

PN474

Where is the difference? The system is different. There is nothing in the financial sector that says you can't look at what the job is in deciding what the award is. Financial sector simply says that you can create a dispute even though you haven't got members directly involved in the employment and that is what we rely upon. Having said that, perhaps I have expressed too much confidence in the validity of what we say, but having said that, the case becomes a simple exercise that we have to put in place an award, a safety net award unless there's public interest considerations that yet haven't been decided against that proposition.

PN475

Our evidence will, if it goes to plan, satisfy the Commission that the jobs that are being performed are much the same as the jobs that have been performed in the past with some differences, with some differences. One of the differences will be there's certain experts on the vessel now that do work that shore labour used to do. There's nothing in financial sector that suggests you can't do that. If the Commission pleases.

PN476

THE COMMISSIONER: Yes, thank you. I think in the circumstances and the need to proceed as efficiently as possible, what I propose to do is note that the unions have sought to apply to alter their application. I will rule on that application in due course and that means at the end of the proceedings. In the meantime, perhaps for convenience and because it is not evidence, it is only a submission document, I will mark this document.

EXHIBIT #MCN7 PROPOSED AWARD DOCUMENT

PN477

THE COMMISSIONER: Now, obviously the ability of the Commission to countenance that document you will deal with more fully perhaps at a more convenient time for all of us.

PN478

MR HATCHER: Yes, indeed, Commissioner. Might we also reserve liberty to lead further evidence as we may be instructed to deal with the amendments that are brought in by that document.

PN479

THE COMMISSIONER: Yes. Proceed with this document which is now exhibit MCN7.

PN480

MR McNALLY: Exhibit 1 in these proceedings were exhibited in the engineers' application, the marine engineers' application at a time when the Maritime Union wasn't proceeding. Could I formally tender that in both lots of proceedings? That is the affidavit of Mr Keats.

PN481

THE COMMISSIONER: Do we need to mark them? I don't think so.

PN482

MR McNALLY: No.

PN483

THE COMMISSIONER: No. They just apply to both. Yes.

<JAMES WILLIAM SMITH, SWORN [11.09AM]
<EXAMINATION-IN-CHIEF BY MR MCNALLY

PN484

MR McNALLY: I wonder if it could be noted, if the Commission pleases, that Mr Sorenson is in Court? He is a witness. I reserve the right to comment on that at a later stage.

PN485

MR HATCHER: Yes, well, my friend can comment. To the extent we need to have a principal of our client - - -

PN486

MR McNALLY: I am not asking him to leave. I am just asking him to be noted.

PN487

THE COMMISSIONER: Yes. He is not pressing the point, but he is noting the point.

PN488

MR McNALLY: And he is not a principal of the respondent, in any event.

PN489

You full name is as stated, James William Smith, and your address is as stated, (address supplied)?---Yes.

PN490

You are a marine engineer by occupation?---Yes.

PN491

Do you produce a statement which was prepared by the solicitors for the union and signed by you? Did you have a look at that document?---Yes.

PN492

I tender the statement, if the Commission pleases, of James William Smith. You will recall we had some objections about admissible parts of the original statement of Mr Smith. We have deleted the clauses of the original statement which were rejected by the Commission and they are highlighted by text changes.

PN493

MR HATCHER: The document that my friend has just handed me is different in one respect to the document that we were served with. If that is the only respect, it is not a difficulty, but if it is more than that - I am sorry about this, Commissioner.

PN494

THE COMMISSIONER: No, no, I understand.

PN495

MR HATCHER: If it please the Commission, I am assured by my learned friend, Mr Keats, that the only differences between the document that we were served with and the document that is now sought to be put in evidence are the title and a minor change to paragraph 3. That being the case, we have no objection to the tender.

**** JAMES WILLIAM SMITH XN MR MCNALLY

EXHIBIT #MCN8 STATEMENT OF JAMES WILLIAM SMITH

PN496

MR McNALLY: Mr Smith, you hold a current certificate as an engineer class 1, steam and motor, from the Australian Maritime Safety Authority?---Yes.

PN497

And do you annex to your statement part 3 of marine orders issued by the Australian Maritime Safety Authority which sets out the requirements for obtaining certificates of competency as a chief engineer?---Yes.

PN498

I think the original copy that was attached to your original statement was the old version. The new version has since been issued. In addition, do you hold a certificate as a marine engineer class 1, steam and motor, for the Waterways Authority of New South Wales?---That is right.

PN499

And is that a State-registered certificate?---It is.

PN500

Which is issued upon production of your AMSA certificate?---That is correct.

PN501

You attach to your statement as annexure B your resume. Is that correct?---Yes.

PN502

You first went to sea on 30 April 1962 and you commenced as an eighth engineer and you first commenced on the Arafura, is that correct?---That is correct.

PN503

Now, prior to that first job at sea, what had you done in order to obtain your certificate that entitled you to go to sea?---In Australia you had to have either your Leaving certificate or part A of your second engineer's certificate. I had my Leaving certificate, then I undertook a four-year training at BHP ending with a qualification of fitter and turner.

PN504

And did that involve you going to technical college?---Yes, it did, two days a week and one night a week.

PN505

What sort of work did you perform at BHP?---Mainly during the whole time of fitting, a moderate amount of machining, mainly fitting, in all sections of BHP plant, a lot of it in the boiler house and machinery houses like that.

PN506

And when you went to sea in 1962, you were eighth engineer?---That is correct.

PN507

Has the number of engineers now reduced since then on vessels generally?---That is correct, yes.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN508

Tell us about that?---At the time I went to sea, there was eight engineers, two engineers on each watch, a senior engineer and a junior engineer and now, because of the increase in automation and alarming systems, they have reduced the requirement from one engineer per watch to - sorry, from two engineers per watch to one and that engineer is on watch for 24 hours on an unmanned basis.

PN509

Just tell us a bit more about those alarming systems. Is that is what is referred to as the - - -?---UMS.

PN510

That is unmanned engine room?---That is right.

PN511

How does that work, in terms of how does it operate?---There's alarm systems where hundreds of points around the engine room are monitored and if one of those exceeds its parameter, an alarm sounds. Now, it sounds in the engine room, in the accommodation, in various public rooms, in the cabins of the engineer that is on duty and if he fails to answer that alarm within a set time, it rings in the chief engineer's accommodation.

PN512

And then the engineer on watch and any other engineers that are required attends to the - - -?---The engineer on watch attends the engine room, cancels the alarm, takes whatever steps necessary. If he requires additional assistance, he contacts the first engineer in the first instance and if additional expertise is required, he contacts the chief engineer.

PN513

How do you compare that system with the system that operated in 1962 when you first went to sea?---The original system was very much hands on and instead of having alarms, you did continual patrols of the engine room, using your eyesight, all your senses, touch, et cetera, you did the monitoring personally.

PN514

How would you compare the machinery that was then in place on vessels generally compared with now?---The machinery in place then was basic, because you didn't have any automatic controls.

PN515

Hydraulics?---You had very little hydraulics, et cetera, and all you had was your main engine, two, three generators and a couple of pumps and then they started putting automation on all of this and all the controls and then all the equipment to drive the automation, air compressors, hydraulic pumps and all the associated equipment and technology.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN516

What effect, if any, did that have on the work pattern of engineers?---It took the engineer back from hands on and put them in the control room, but it freed him up to do - did free them up to do more maintenance, but there was a great increase in the maintenance required because of the extra equipment.

PN517

Extra equipment was put on in relation to the automation?---Automation, et cetera, yes.

PN518

So there is a chief engineer and eight marine engineers on the vessel when you joined it in 1962, two electrical engineers?---Yes.

PN519

And three Chinese fitters?---That is correct.

PN520

They were fitters, but they were Chinese nationality?---They were Chinese fitters picked up in Hong Kong.

PN521

What did the ship service? Where was its voyages?---It was a general cargo vessel sailing between Australia and Japan and occasionally Hong Kong.

PN522

And you last went to sea as a chief engineer on the River Embley which was an 83,000 tonne bulk oil carrier and it was managed by ASP Shipping Pty Limited, is that correct?---That is right.

PN523

And you accepted a voluntary redundancy on 2 January 2002 and you have since worked as a marine engineer with the ferries, is that correct?---That is correct.

PN524

If I could go to your resume and fill in the gaps between 1962 and the year 2000, what was the next vessel you joined after the Arafura?---The motor vessel Salamara, P&O.

PN525

And what sort of a vessel was that?---General cargo again, sailing from Europe to the Far East and back.

PN526

And you joined there as a fifth engineer, is that correct?---That is correct.

PN527

You worked for Lotus cars. You had experience and were involved in the car racing industry at various times of your life, is that right?---For about three years, yes, I was involved in motor racing as a mechanic.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN528

And did you return to that after your service on the Salamara?---Yes.

PN529

Burns Philp, 2 March 1967?---Yes.

PN530

What were the vessels you served on there as sixth engineer and fourth engineer?
---Tralagi, Montoro, Braeside, they were all general cargo vessels.

PN531

There was no containerisation then, was there?---No containerisation, no. It was all general cargo.

PN532

And then from 1969 until you finished at sea, is that correct?---Yes.

PN533

You worked at Clutha Developments which was variously named?---Yes, and ended up as ASP Ship Management.

PN534

Do you have a copy of your statement there with you?---Yes.

PN535

Page 64, I think it is, you have got a date from 27 November 1969 until
2 January 2000 and from 26 December 2002 to 8 January 2003. Did you go back to sea after 2000, did you?---Sorry?

PN536

See the second line at page 64?---Yes, sorry, yes, I went back there for two weeks or something I think it was to relieve an engineer because of a family problem.

PN537

And you also worked on tankers?---Yes, I had 18 months tankers. The tankers were motor ships, so that is where I acquired my tanker endorsement - sorry, my motor endorsement, my chief steam ticket.

PN538

I want to talk now about electrical engineers. When you first started, there were electrical engineers on the vessels?---That is correct.

PN539

What work did they perform?---All electrical maintenance, lighting, circuits, motors, generators and, well, in the early days the limited amount of electrical equipment you had on board, they maintained all of it, the winches, the motors on winches, et cetera.

PN540

And as part of the overall reduction in crew numbers in the Australian fleet, were electrical engineers taken off vessels?---They were, in the mid-90s.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN541

And who performed the work that they used to previously perform when they were removed?---All the engineers on the Australian coast were sent through a training course at Newcastle for five weeks which qualified them as electricians and from then on, they did the electrical maintenance on board the vessel.

PN542

And since then, have engineers generally performed the work that electrical engineers used to do, or is there some difference?---The vast majority of it they performed. Because of the change in the technology, there is some that they haven't got the technology to cover, but basically they cover most of it. They cover all the hands-on maintenance.

PN543

When you say because of the change of technology, could you elaborate upon that?---There's a lot of electronics and other automation equipment on board that you have to bring in technology from outside that even electricians wouldn't have been able to do. You still need the experts in that field. You had the company representative come and they would look after some, but they might change cards, et cetera.

PN544

Do you say cards?---Cards, yes.

PN545

What sort of equipment are you talking about now? GPSs?---All automation equipment is run by that sort of equipment today and the last vessel I was on, it had Honeywell systems and the cards that were on that had to be sent back to America for overhaul, so no-one could touch them in Australia even.

PN546

That type of equipment wasn't on the vessel when electrical engineers were there?---Yes, it was, and the electricians couldn't touch it either, so that hasn't changed greatly. They didn't do it then and we don't do it now.

PN547

In paragraphs 12 to 15 of your statement, you describe the function performed by the chief engineer?---Yes.

PN548

And does the sea-going qualifications of chief engineers accord with marine orders part 3 which is attachment A of your statement, is that correct?---That is right.

PN549

Is the chief engineer the management point of contact for all engineering matters and is responsible for safe and reliable operation of all mechanical machinery or electric equipment on board the vessel as well as having overall responsibility for all operations of engineering staff whilst the vessel is at sea and in port?---That is correct.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN550

I don't think that requires any elaboration. The official day of a chief engineer was from 8 am until 5 pm, seven days a week, is that correct?---Yes.

PN551

And was the engineer required to be available on a 24-hour day to deal with various tasks that included - and you then set out the various tasks?---That is right.

PN552

They include firstly any emergency concerning the mechanical, electric equipment on board the vessel?---Yes.

PN553

That is not just in the engine space?---No, that is anywhere on board the vessel.

PN554

And is responsible for all standby. What is standby?---Entering and leaving port or in confined waters, the engine room is manned physically against UMS so the UMS engineer and the chief engineer are required to be in the engine room for the duration of that standby.

PN555

That is entering and leaving port and in confined waters. Could you explain that?
---Part of the Barrier Reef, et cetera, are considered confined waters and there are parts there where the engineer - we were on standby.

PN556

And parts of some ports like Port Kembla? Are there some wharfs there that require hand engine rooms? You may not know that?---No, I can't answer that.

PN557

The chief engineer provides technical assistance to the other engineers and also providing hands on assistance. Just elaborate upon that?---Well, sometimes in an emergency, the scope of the work is that the chief engineer has to get his own hands dirty and with all this automation of equipment, et cetera, you find that the chief engineer may have expertise in a certain area that some of the others don't specialise in or have and so he does some of the fine tuning of some of the automation equipment that the others don't or, you know, in some respects the chief engineer likes to keep track of what has been done with it.

PN558

Does the chief engineer also provide technical guidance to the master and the first mate when and as required?---That is correct.

PN559

What sort of technical guidance? Could you give us an example?---Well, if they want to do some maintenance, you advise them, or you advise them what your requirements are or the service limitations of all the equipment, when they are planning their voyage, et cetera, you advise them of the limitations of your speed or the equipment you have to give and what they want.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN560

And the chief engineer has to ensure that all maintenance on board the vessel is carried out in a safe and proper manner?---That is correct.

PN561

Planning maintenance surveys and equipment overhaul to fit in with the vessel's operating requirements. Could you expand upon that, please?---The time in port of vessels today is reduced greatly.

PN562

Sorry, the time?---Time in port is reduced greatly, so the amount of work that has got to be done has got to be planned very well, otherwise you won't get it done in the time that you are in port and if operating machinery has got to be shut down and it has got to be up and running again in time to leave port again.

PN563

There is a fair bit of maintenance work that can only be done whilst in port, because it involves machinery that is - - -?---There is a lot of machinery that can't be touched at sea. Even though it is not running, it is a standby position so that if the primary running piece of equipment fails, the standby equipment automatically takes over. This is part of the UMS certificate. Otherwise, by taking that equipment out of service, you break that certificate.

PN564

What effect generally does that have, this shortening of the period in port have, the turn-around period?---It has made the work load on the engineers in that period of time increase considerably and it has increased the amount of shore labour that has got to be involved in the maintenance to get the work done in the time allocated.

PN565

I want to talk for a little while about shore labour. Is shore labour used on Australian vessels?---Yes.

PN566

Just expand on that?---As I said, a lot of it is used in that case where the work load in the time frame in port doesn't allow the ship's staff to do it all. It is used because they have technical expertise, as I said about automation, that you don't carry on board the vessel.

PN567

What do you mean, you don't carry? You don't carry the expertise or the equipment?---Expertise in the people with the expertise and the equipment that they - at times the equipment that they use to monitor or whatever, to repair or fix the machinery that they are looking at.

PN568

Could you give us an example such as pipes or - - -?---Pipe work is another matter. The size of pipes that are renewed by shore labour are usually outside the scope of the ship staff. Ship staff renews small piping. Larger piping, the shore labour will come on board, remove the pipe to their workshop, where they take a set of it which means they set it up so they know they can make a dead copy of it. They then return the other, the old pipe to the vessel, reinstate it and the following voyage, they will return the vessel and - - -

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN569

It might be patched up in the meantime?---Well, normally the ship's staff have done a patch at any rate.

PN570

I see. In 13.8 you suggest the chief engineer carries out limited classification society surveys. What are classification society surveys?---There is a classification society every - every piece of equipment comes under Lloyd's and it has to be surveyed every five years or various equipment has got different times on it and I as chief engineer was licensed to carry out a limited amount of those. Some equipment I could not touch, but other equipment I was fully licensed to do the survey of and the ship staff would prepare it, I would survey, inspect all the parts, then observe it working after it had been reassembled and the Lloyd's surveyor would come on and he would probably - sometimes he would sight it working. Other times he would take my word entirely on it and he would sign it off.

PN571

Does the chief engineer witness the testing of all machinery after overhaul or survey?---Yes.

PN572

And liaise with the company superintendents, the masters, the deck department concerning the vessel's operational requirements?---That is correct.

PN573

And liaise with shore contractors and surveyors which I think you have dealt with?---Yes.

PN574

And create and update procedures manuals for the engineering staff of the operations of all machines?---Yes, that is a big thing today with the requirements of procedures manuals. For every procedure on board you can think of, there has got to be a procedure written for it.

PN575

We have dealt with standby and the other duties performed by the chief engineer, providing various weekly reports to the company, detailing such matters as plant performance, maintenance carried out, safety meetings, safety tests, survey work, fuel use and chronology. Is that correct?---Yes, that is correct.

PN576

I think you have had the opportunity of perusing - would have a look at that document?

PN577

MR HATCHER: I wonder if my friend is moving on to another section, if the Commission were minded to - - -

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN578

THE COMMISSIONER: Yes, we might adjourn for 10 minutes or so.

<SHORT ADJOURNMENT [11.40AM]
<RESUMED [11.56AM]

PN579

THE COMMISSIONER: Thank you.

PN580

MR McNALLY: You have described what a chief engineer - what the function of a chief engineer is. Is what you have said typical of in your experience all chief engineers on vessels on the Australian coast?---Yes.

PN581

I don't think you have actually sailed on a self discharging - - -?---No, I haven't.

PN582

I will show you this document. It is the relevant part of the affidavit of master of the Stradacona which has been served on us by CSL. You have in fact read the whole affidavit, I think, haven't you?---I have.

PN583

I don't know whether I need to make that an exhibit or not, but I propose to take him through it. My friend will eventually be tendering the whole affidavit, I suppose.

MFI #AFFIDAVIT OF MASTER OF STRADACONA

PN584

MR McNALLY: This may probably be reply stuff.

PN585

THE COMMISSIONER: What stuff?

PN586

MR McNALLY: It may be evidence in reply to the affidavit, but it will save bringing the witness back in.

PN587

THE COMMISSIONER: Yes.

PN588

MR McNALLY: And we are having the inspection later this week, anyway.

PN589

You have read that affidavit before?---I have.

PN590

I want to go to paragraph 41 through to 46 which describes the function performed by the chief engineer on the vessel Stradacona?---That is right.

PN591

Firstly the captain will depose that the chief engineer is responsible to the master for the safe and efficient operation of all machinery, electrical equipment and engineering systems on the vessel, including the engine room, deck and SUS discharge equipment, self-unloading?---Self discharge, yes, whatever that means.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN592

Is that any different to - - -?---None whatsoever, apart from that issue.

PN593

It is the same as what - - -?---Australian chief engineers, exactly the same.

PN594

And it goes on to say it is his job to supervise the other engineers, tradesmen and all engine room crew on board to ensure that all plant and equipment is maintained in good working order. I think that is the same as Australia?---Yes.

PN595

The chief engineer must plan ahead to determine what parts need to be ordered and to plan a schedule of maintenance for the vessels. Does that apply on Australian vessels?---Yes, it does.

PN596

He is also responsible for making sure that equipment is tested and any faults are repaired. The same on Australian vessels?---Correct.

PN597

If the other engineers are not able to fix a problem, the chief engineer is called in as an expert to find a solution. I think you have already said that?---Hopefully.

PN598

That is the same in Australia?---Yes.

PN599

At 44, the chief engineer keeps records of all works that have been carried out and of the parts that have been ordered and replaced. Does that happen on Australian vessels?---It certainly does.

PN600

He also provides forecasts of the plant and equipment that will need to be replaced over time. That is the same on Australian vessels?---Yes.

PN601

The chief engineer maintains monthly records showing work performed in each of the areas for which he is responsible. Does that happen on all Australian vessels?
---It does and some records are recording it weekly, instead of monthly.

PN602

You have there a copy of VM3 which is a copy of a record of works carried out on SUS equipment from November 2004 to March 2005. I think you haven't been on a self-discharge vessel?---No, I haven't.

PN603

Would you just have a look at that clause - sorry, that annexure, I beg your pardon? I think you have already read it?---Yes, I have.

PN604

Is there anything in that annexure that you didn't understand?---No.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN605

And what do you say as to the work that is there recorded in relation to other Australian vessels?---This is the work that the engineers under my control have always done, they are qualified to and they do carry it out.

PN606

And what do you say as to the report itself?---It is very similar to the report I would have written. Ours are generated by a computer, but they are the same in the amount of work that is done.

PN607

Paragraph 45 of the affidavit, the chief engineer must ensure that the vessel is in good working order and is operational safely and efficiently. Same on Australian vessels?---Of course. That is the basic requirement of the chief engineer.

PN608

As the vessel travels from port to port, he is continuously checking the equipment and planning maintenance and repair schedules. Same on Australian vessels?
---Yes.

PN609

The chief engineer holds two meetings a day, 8 am and 1 pm, with engineering and maintenance crews to discuss and plan the work that must be performed. I think on Australian ships there is only one?---There's one meeting and usually this depends on individuals. The meeting is attended by the first engineer, not the chief engineer and the first engineer will liaise directly with the chief engineer on that.

PN610

Just while we are talking about the first engineer, used the first engineer be known as the second engineer?---He used to be, yes. That was altered a number of years ago.

PN611

So that you now have a first mate and a first engineer?---To keep the parity of naming level with the mate.

PN612

If we can go back to your statement, the statement on paragraph 16, the first engineer is responsible to the chief engineer for the day to day operation and maintenance of all machinery and electrical equipment and supervises the balance of the engineering staff and any shore contractors to ensure that all maintenance work is carried out safely, competitively and on time in that it is their responsibility that spares and stores are ordered, received and correctly entered into the system and put away and maintenance records are maintained. Is that correct?---That is correct.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN613

And you say the balance of the engineers on the River Embley, that is the second to the fourth, perform a rotation 24-hour UMS. That is what I think you already said?---Yes, that is correct.

PN614

On the 24-hour UMS watch day, the engineers would start at 8 am by performing the inspection of the engine room and machinery spaces and carry out routine maintenance as well as carry out periodic inspections and attending to all machinery, operational requirements until 5 pm?---Correct.

PN615

That would be followed by additional inspections of the engine room and machinery spaces from 9 pm until 7 am. Is that correct?---At 9 pm and 7 am.

PN616

I beg your pardon?---Yes, that is correct.

PN617

Paragraph 19, additionally whilst they are on unmanned machinery space watch, they must answer and attend to all engine rooms and machinery space alarms as well as being present in the engine control room for the duration of all the standbys that may occur within 24-hour UMS watch. In the event that they need assistance, it is usual for a first engineer to be called first and then if a greater level of technical expertise is required, the chief engineer is called and other engineers as the situation may require?---That is correct.

PN618

The UMS engineer is required to be in the engine room for between half an hour and an hour and a half prior to each standby, that is prior to coming into and leaving port?---That is the minimum, yes.

PN619

In this time, the UMS engineer prepares the machinery. On UMS day, marine engineers perform routine maintenance work from 8 am to 5 pm seven days a week whilst the balance of the time is in their leisure. They can be called to assist subject to avoidance of exhaustion whenever a mechanical breakdown or machinery operate malfunctions occurs. Their other duties include testing and maintaining emergency equipment, fire pumps, emergency shut-offs, life boat propulsion plants, fire fighting appliances, lifesaving equipment, et cetera, attending the safety and managerial meetings and participating in safety drills usually once a week. Is that correct?---That is correct.

PN620

Then you deal with routine maintenance. Engineers perform mechanical, technical and electrical maintenance as opposed to fabric maintenance, the latter being performed by a rating complement under the control of the first mate. What do you mean by fabric maintenance?---The painting and upkeep of the hull, chipping.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN621

Not machinery or technical?---No, no, totally outside of mechanical maintenance.

PN622

Fabric maintenance includes such tasks as - well, you have got it there, brush work, chipping, painting, greasing, wire brushing and scraping and cleaning. Mechanical maintenance covers a variety of tasks, including oil changes, surveys, check that individual parts of a piece of machinery is sound, performance evaluations, complete overhauls and viable analysis of moving parts and, finally, you have noticed over the years that the gradual reduction of manning has increased the task of fatigue, especially when trying to allocate a fatigue free engineer for UMS duties following major breakdowns, given that during the breakdown, UMS duties must be maintained. This has been further exacerbated by the removal of engineers' assistants. What are engineers' assistants?---This is commonly referred to these days as a greaser or motorman and they assist the engineer with the maintenance.

PN623

I want to just dwell on that for a moment. Prior to the introduction of integrated ratings, there was on Australian vessels bosuns?---That is correct.

PN624

What used a bosun do?---The bosun was in charge of the deck section of the crew and he supervised their work on a daily basis.

PN625

And did he used to do what a chief integrated rating now does on the deck?---Yes. A lot of them are the same person. They went to a course in Tasmania and they changed their name from bosun to chief integrated rating. That was all that happened.

PN626

And is the chief integrated rating also able to work in the engine room?---That is correct, by the qualifications of the integrated rating, he is.

PN627

In fact, does that happen?---Not to my knowledge. It may do, but I have never come across it. Most of the chief integrated ratings are still ex-bosuns and they stay on the deck. They don't come near the engine room, unless there is a breakdown where they are needed.

PN628

When you had bosuns, who used to do the work on the deck? The able seamen, were they?---Able seamen.

PN629

And do able seamen perform - I am sorry, do integrated ratings in respect of deck work perform the same function as the able seaman used to perform?---As far as deck work goes, yes. It is purely a change of name in that respect.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN630

You refer to greasers?---Yes.

PN631

What were greasers?---They are assistants to the engineers. They assist the engineers with maintenance. There's one on duty 24 hours a day in parallel with the UMS engineer to assist him as required.

PN632

And I think greasers are called motormen overseas, are they?---I am not
100 per cent sure, but I believe so.

PN633

Who performs that work on Australian vessels now? Are they integrated ratings?
---Integrated ratings.

PN634

And what do you say as to those integrated ratings? Are they mainly integrated ratings who used to be greasers?---It varies, it varies. It is mandated that they do a rotating shift in the engine room in all the jobs, so you get either. Sometimes it has happened where some of the old greasers would prefer to be in the engine room and some of the old deck hands prefer to stay on the deck, so they do a swap.

PN635

Now, I might be able to shorten this a bit. Could we go back to the affidavit of the captain of the Stradacona, Captain Matvyeyer? And if I could refer you to the second engineer. You have read those paragraphs 47 to 51 before?---Yes, I have.

PN636

Is there anything there in the duties that the captain describes of the second engineer different than the duties performed by first engineers on other vessels on the Australian coast?

PN637

MR HATCHER: I assume my friend limits that question to vessels that this witness has had experience on.

PN638

MR McNALLY: No, I don't.

PN639

MR HATCHER: Well, I object.

PN640

MR McNALLY: All right, well, I will ask this first.

PN641

Is there anything to suggest to you that your experience of what the work is of second engineers or, sorry, first engineers, any different from the vessels you served on from other vessels?

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN642

MR HATCHER: I object.

PN643

THE COMMISSIONER: Yes, what is the basis of the objection?

PN644

MR HATCHER: Well, if he has no knowledge, then there is nothing to suggest to him that his knowledge is limited. I mean, clearly he cannot give evidence beyond his own knowledge. That is fundamental and the fact that he doesn't know that he lacks knowledge of things outside his knowledge doesn't establish that he has knowledge of things outside his knowledge.

PN645

THE COMMISSIONER: Mr McNally.

PN646

MR McNALLY: Well, I can ask a few more questions.

PN647

Have you spoken to other engineers about what work is performed and how ships are operated?---Yes, I have.

PN648

You have had experience of being on the crew as an engineer from 1963 until 2002 with breaks?---With a short break.

PN649

And are you on the executive of the Australian Institute of Marine and Power Engineers?---I am.

PN650

Do you read periodicals from time to time as to how ships operate?---Continually.

PN651

Sorry?---I continually read.

PN652

And you regard yourself as a bit of an expert as to how ships operate?

PN653

MR HATCHER: I object. How the witness regards himself is irrelevant. It is how the Commission will regard him.

PN654

MR McNALLY: I press the question.

PN655

THE COMMISSIONER: What is the objection to the question?

PN656

MR HATCHER: The witness has been asked whether he regards himself as an expert. I object to that on the basis that it is irrelevant.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN657

THE COMMISSIONER: Yes. It is a fair point, isn't it, Mr McNally. Is he an expert is okay, but not whether he considers himself an expert.

PN658

MR McNALLY: Are you an expert on the manner in which ships operate?

PN659

MR HATCHER: Well, I object. That is a question for the Commission. My friend has put all the material before the Commission I assume he relies on to invite the Commission to rule that the witness is entitled to give opinion evidence, but his opinion as to whether he is entitled to give opinion evidence isn't part of that factual matrix.

PN660

My friend can now ask the question he wants to ask and I will object and the Commission will rule as to whether the qualifications that he has put before the Commission are sufficient to enable him to give opinion evidence, but his opinion as to his expertise, he can't say whether he is an expert or not. Not even the most highly qualified expert can give evidence in Court that is probative as to whether or not they are an expert, because that is a function for the tribunal to determine.

PN661

THE COMMISSIONER: Mr McNally.

PN662

MR McNALLY: I have nothing to say.

PN663

THE COMMISSIONER: Well, I am not quite sure what your objection - well, what the thrust of your objection is.

PN664

MR HATCHER: Commissioner, I took an objection earlier on to the witness giving opinion evidence as to what occurs on vessels that he has not been on and my friend said, well, I won't press that question, I will ask him a few more questions. The purpose of those questions were no doubt to qualify the witness as someone who was entitled to have an opinion on those matters that might be regarded with respect, that is that he has expertise in the field.

PN665

If he establishes that to the Commission's satisfaction, that is that the witness knows enough about this industry to be regarded as an expert, then he will be entitled to ask the question that he wanted to ask, that is what occurs on other vessels on the Australian coast, but he has to satisfy the Commission, that is you, Commissioner, he has to satisfy you that this witness has sufficient knowledge of the industry to be regarded as an expert and so entitled to give opinion evidence and it can't factor in whether the witness regards himself as an expert or not. It is a matter for the Commission entirely to determine. There's not a lot turns on it.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN666

THE COMMISSIONER: Well, why isn't Mr McNally entitled to ask his question, not about whether he is an expert, but ask his question about his views on what occurs on vessels on which this witness has not served and you will both tell me how much weight or no weight I should give to that in due course? No witness is going is going to be capable ever of coming to the tribunal and giving evidence in respect of ships generally because they are usually stuck on a ship for quite lengthy periods, so no-one's experience is that wide ranging.

PN667

MR HATCHER: Commissioner, that would be - I would submit it is of no relevance if he doesn't have expertise, but the Commission may well say, well, I regard it as a question of weight, hearsay evidence can be admitted, but may not have much weight at the end of the day, depending on whether it is corroborated by other evidence or not.

PN668

That is entirely a matter for the Commission, but I took an objection that was rightfully available to me. My friend didn't press the question. He undertook instead to qualify the witness so that the witness could give opinion evidence in an unobjectionable fashion. Now, that is the course that was embarked upon. He was attempting to do that and then he asked the witness whether the witness was an expert.

PN669

Well, he would have to be an expert to be able to give an opinion on whether he was an expert and we get involved in this circuitous objection. My friend has put what he would and if he wants to put the question that I objected to and you didn't rule on, then the Commission might have to rule on it, but the question that the Commission is presently asked to rule on is whether this witness can be asked whether he is an expert and that is the question that I have presently objected to.

PN670

THE COMMISSIONER: In respect to that latter point, I think Mr Hatcher is right, isn't he?

PN671

MR McNALLY: Don't ask me that, sir. I won't press that. If I could ask this question, if the Commission pleases.

PN672

Are you aware of how first engineers perform their functions on vessels other than vessels that you have sailed on?---Yes, I am to a certain degree, yes.

PN673

And how do you become aware of that?---I talk freely to numerous engineers as part of my Institute thing. I chair the meetings there every month, so, yes, I talk to everyone and in my time at sea, there is always an interchange of people, engineers from other companies, other ships, and they tell you how they worked on this ship or that ship, so the knowledge does move around. It doesn't stay within the confines of any one vessel.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN674

And as chief engineer, do you have a responsibility to inform yourself as to how engineers work?---Of course.

PN675

And is that confined to the ships upon which you work or ships generally?---No, not at all. If you find that somebody else is doing something better, you follow it.

PN676

If we could go back to paragraphs 47 to 51 of the affidavit - - -?---Sorry?

PN677

47 to 51?---Yes.

PN678

Of the affidavit of Captain Matvyeyer, you have read that?---Yes.

PN679

Is there anything described there as being the function of a second engineer on the Stradacona that is different to the function performed by the first engineer on ships on the Australian coast?

PN680

MR HATCHER: Well, I note my objection, Commissioner, in view of the exchange earlier. I assume that the objection will not be successful, but I note it.

PN681

THE COMMISSIONER: No, it won't be successful, but the weight that I will give to it will depend obviously on vessels that he has been on that is of more weight than perhaps ones that he hasn't been on, but you will tell me that in due course. Yes, Mr McNally.

PN682

MR McNALLY: Do you remember the question?---Yes, basically exactly the same as the requirements of a second engineer on all the vessels, well, second or first engineer on all the vessels I have sailed on.

PN683

And you have no reason to believe that it is different to other vessels on the Australian coast that you haven't sailed on?---No reason whatsoever. I have reason to believe it is the same, the interchange that has gone on in my life.

PN684

And have you read paragraphs 52 to 56 of the affidavit of the captain of the Stradacona?---Yes.

PN685

Where he describes the functions performed by a third engineer on the Stradacona?---Yes.

PN686

And is there anything there described that is different to the functions performed by the second engineer on vessels on the Australian coast?

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN687

MR HATCHER: Commissioner, might I just note the continuing objection?

PN688

THE COMMISSIONER: Yes?---It is basically the same, but there is - the allocation of area responsibility may change slightly on vessel to vessel. This is the same with the fourth engineer, so what is allocated to the fourth engineer and the third engineer may swap around a little bit, but it is the same.

PN689

MR McNALLY: And if we could go on to complete that, 57 to 59, which is the fourth engineer or the third engineer on the Australian coast, I suppose those comments apply to that also, do they?---Yes, they do.

PN690

Have you read paragraphs 60 to 63 of the captain's affidavit?---Yes, I have.

PN691

And what do you say as to the work performed by the electrical engineer compared with the work performed by crew on Australian vessels?---The engineers on Australian vessels today are qualified to carry out electrical work and they do carry it out.

PN692

Perhaps we should go through it in a little bit more detail. The electrical engineer reports to the chief engineer, or that used to be the case. They are responsible for the planning, installation, starting up and maintenance of all analogue and digital electrical equipment facilities, power installations, parts and distribution systems on the vessel. How does that on other Australian vessels?---This goes back to what I said earlier about the chief engineer. Sometimes he will start some of this stuff up himself, but the engineers all do it.

PN693

And paragraph 61, the electrical engineer carries out tests to identify faults in the electrical equipment, including electrical drives, steering gear, mooring winches, fire pumps, pump compressors, engines, fire detection, signalling systems, warning systems and switchboards and carry out, prepares as necessary. Is that work performed by engineers?---This is all part of the planned maintenance scheme that we have in place on Australian vessels and that is carried out by the vessels' engineers.

PN694

And the duties of electrical engineers include assisting in the lay-out of electrical installations and circuitry transformers, cabling systems, switch gear and motor control systems. What is your comment on that?---Yes, they do.

PN695

It also monitors and repairs equipment, including communications and data systems, control systems and technical systems. Do you want to qualify that in any way?---There is a limitation on that. There is a limitation for anyone at sea doing it to my knowledge, that it needs expertise that can only be supplied by the manufacturer of the equipment in some instances.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN696

And what about paragraph 63, what do you say as to that?---I personally remove all that back to myself.

PN697

The chief engineer?---Yes, chief engineer. You had too many sticky little fingers in, otherwise.

PN698

And what about 64?---I cannot comment on self discharging.

PN699

I beg your pardon. I wonder if you would look at VM5 which is attached to the affidavit? It is pages numerated 91 through to the end of the extract, 96. You have looked at that before, have you?---Yes.

PN700

Are they functions that are performed by the engineers on a vessel, engineers on an Australian coastal vessel?---Again, this is normally part of planned maintenance system carried out by the engineers.

PN701

Each and every one of those? Do you understand them all?---Yes, I do.

PN702

And each and every one of those?---They are either part of the maintenance system or they are carried out as required as electrical maintenance.

PN703

I wonder if my friend would mind if I tendered Mr Smith's statement in reply? My friend can recall him for cross-examination in reply, no doubt, but it might save him coming back if my friend hasn't got any cross-examination.

PN704

MR HATCHER: We have some objections to the statement, but as to the procedure of putting it in at this point, we don't have any difficulty with that.

PN705

MR McNALLY: I wonder if you would have a look at this statement which you made on 6 June 2005? That is your statement in reply. Is the contents of that statement true?---Yes.

PN706

It is true?---It is.

PN707

I tender the statement, if the Commission pleases.

PN708

MR HATCHER: We have a number of objections to that statement, Commissioner. Perhaps if Mr Cross could deal with those.

**** JAMES WILLIAM SMITH XN MR MCNALLY
PN709

THE COMMISSIONER: Yes.

PN710

MR CROSS: Thank you, Commissioner. We have prepared an outline of our objections in relation to each and every reply affidavit. It might be convenient if we provide a copy.

PN711

MR McNALLY: Could I withdraw the tender, rather than hold matters up at this stage and I will recall the witness in reply?

PN712

THE COMMISSIONER: Yes.

PN713

MR McNALLY: Thank you. I am interested in keeping to the timetable. I have no further questions, if the Commission pleases.

PN714

MR HATCHER: The difficulty with keeping to the timetable is my friend has actually opened up the reply by taking the witness through the statements that have been provided. It is a matter for him, I expect.

<CROSS-EXAMINATION BY MR HATCHER [12.30PM]

PN715

MR HATCHER: Sir, the Arafura was the first vessel you went to sea on. What flag did that fly under?---The British flag, if I remember.

PN716

And the crew, what nationality were they?---All the officers were Australian and the crew was Chinese.

PN717

And the crew signed articles in Hong Kong?---As far as I know, yes.

PN718

Where did you sign articles?---Sydney.

PN719

And do you recall what holidays you had under those articles in 1962?---No, I don't.

PN720

The River Embley - no, I am sorry, the next vessel you worked on was the Salamara?---The Salamara.

PN721

That was British flagged as well, was it?---That was British flagged.

PN722

And what nationality were the crew on that?---The officers were all British.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN723

Well, apart from one - sorry, engineer?---We were British in those days and I was an officer. The crew were Pakistani, Indian and Chinese, to the best of my knowledge.

PN724

And what run was the Salamara doing?---Europe to the Far East.

PN725

And do you recall what ports?---London, Hamburg, Antwerp, then there is Singapore, Bangkok, Hong Kong.

PN726

When you moved off the Arafura to go and work at Lotus cars, do you recall whether there was a change in the amount of leave you were getting?---It never entered into my thoughts at that time. I was pleased to be working where I was.

PN727

What was the nature of your employment with Lotus?---The first time I was there, I was involved in the assembly of Lotus Cortina cars.

PN728

There is something inconsistent about Lotus and Cortina, really, isn't there?---Not really.

PN729

No? They were the ones that became the Ford Cortina?---No, they were Ford Cortinas in their original state. We modified them and put different engines in them and different suspensions under them and they came out the other end as - they were knock-down kits from Ford.

PN730

And they went in looking like an FC Holden and came out looking like a Suburu WRX?---Something like that in its day. That was my initial tenure at Lotus, before P and O. I went back there again.

PN731

When you went back there after your time on the Salamara, do you recall what happened to your annual leave then or the amount of leave you were receiving?
---From Lotus?

PN732

Yes, from the time you were at Lotus, from the time you went from the Salamara to going to Lotus, do you recall whether there was a change in your leave benefits?---At Lotus?

PN733

Yes?---I did not inquire.

PN734

It wasn't something that troubled you in those times?---No, not in that respect. Doing the job that I was doing, that was reward enough and we took leave when we wanted to.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN735

And you had, as you say, the sorts of jobs you wanted through until you went to Burns Philp?---That is correct.

PN736

Do you recall what vessels you were serving on with Burns Philp, what vessel you first went onto in March of '67?---The first one was Tralagi.

PN737

And how big a vessel was that?---I am not sure, small.

PN738

And what run was she on?---Sydney to Pacific Islands.

PN739

And what flag was she flying?---Again I am not sure. British probably, Australian crew, Australian conditions for officers.

PN740

And the crew?---Again they were Pakistani out of Singapore and Chinese fitters.

PN741

And do you recall what your leave conditions were in '67?---No, I do not.

PN742

Do you recall if they were different to the crew?---Yes, I am pretty sure they were.

PN743

And I think you told us that after the Tralagi, you were on was it the Montoro?
---Braeside, Montoro. Braeside I think was the next one.

PN744

And do you recall how big a vessel that was?---Around 15,000 tonnes, I believe.

PN745

And what run was she on?---Again, Australia/New Guinea.

PN746

And what flag did she fly?---I am not sure.

PN747

I see, and what nationality were the crew?---Again they were the same as the Tralagi.

PN748

You say Pakistani out of Singapore?---Pakistani.

PN749

With Chinese fitters?---Yes, out of Singapore.

PN750

And was the Montoro the same set-up?---Yes, to the best of my knowledge. I am not 100 per cent sure on that. There was one with Australian crew, but I am not sure.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN751

And that was pretty much the way things worked on the Pacific run in those years?---In that company.

PN752

Did you have any knowledge of other companies?---Not really at that stage, no.

PN753

You didn't fulfil your engineer's duties of speaking to engineers off other vessels from other companies?---There was very few other companies running in that area at that time.

PN754

And the Tralagi, is she still running?---No.

PN755

And the Montoro - - -?---The same for the rest.

PN756

When did they go out of commission, do you recall?---No, I don't recall when they went out of commission. Burns Philp went out of the industry in the early 70s. Some of those vessels went into other hands and were used for a number of years later.

PN757

Now, after Burns Philp, you went to Clutha. What was it that led you to leave Burns Philp to go to Clutha?---Burns Philp were winding up their shipping and as I hadn't been there for a great deal of time, I could see no advantage in staying, so I decided to change jobs.

PN758

Now, you tell us that when you were with Burns Philp, you served in positions - I assume you start at sixth engineer and worked your way up to fourth engineer?
---Look, I can't remember, actually. In Burns Philp, you tended to move around. There was a big pool of junior engineers at the time and junior engineers went up as far as third engineer, so you could be on one ship as sixth engineer, you would go on leave and come back and the next ship you would be third engineer.

PN759

I see, so it wasn't necessarily a career progression through the various levels of engineer?---No, you were in a block situation.

PN760

And the three vessels, did they all have eight engineers on board?---I couldn't tell you.

PN761

And when you started as sixth engineer at Clutha, how many engineers did they have on the vessel you started on there?---Seven. Sorry, it may have only been six. That was the old time when they had second engineer, so sixth engineer, you would be - - -

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN762

The seventh engineer on board?---Yes. You would be fifth engineer today.

PN763

I see, so you don't count the chief as one of the - - -?---No, you don't, so there's the chief and five, six engineers on the Clutha vessel.

PN764

And the Clutha vessel flew the Australian flag?---Yes.

PN765

And had an Australian crew?---Yes.

PN766

And worked in what area?---That was in the Weipa bauxite trade.

PN767

And a one-way trade?---Yes.

PN768

And a dedicated vessel?---Yes.

PN769

How many vessels were engaged in that trade?---Clutha at that stage had one, a bit later developed - within a few years developed into two and that vessel was delivered overseas.

PN770

Sorry, when you say that vessel, this is the first vessel you served on?---Sorry, yes, the first vessel I served on.

PN771

And the second vessel was also a dedicated vessel doing the Weipa to Gladstone run with bauxite?---The second two vessels were, yes.

PN772

And it was Clutha bauxite that was being carried?---No, Comalco, or whoever owned - Weipa and Queensland alumina. Sorry, who owned it, I don't know. It went from Weipa bauxite mine to Queensland alumina.

PN773

And in the period you were with them from 27 November '69 through to
January 2003, whether it be Clutha development or ASP Shipping management, they always had that contract?---Yes. They always had one of the contracts. There was two contracts for a number of years. ANL had one contract.

PN774

And when did that cease?---I don't know.

PN775

You didn't interrelate with the ANL crew?---Of course.

PN776

But you just don't recall when they stopped trading?---No. You asked me a question, I answered it. I don't know what date.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN777

You couldn't even tell us whether it was near the start or towards the end of the period?---In the middle.

PN778

And so they weren't on the run for terribly long, then?---Fifteen or 20 years, but ANL, as ANL, ANL eventually folded into ASP, so ANL did continue to be party to that service until today, they still are as such. The vessels that ANL built, I don't know who owns them today. Some people in this room might be able to enlighten you more than I can.

PN779

Yes, well, we are only asking for you to give your evidence at this stage. Do you recall the names of the vessels?---That ANL had in the early days?

PN780

Yes?---Darling River, Bogong.

PN781

Darling River and Bogong, was it?---Bogong was there briefly.

PN782

Do you recall any others?---There was another one. I can't think of the name off the top of my head, no.

PN783

And do you recall the names of the vessels that Clutha were operating there?
---Yes, the Ore Regent was the first one.

PN784

Ore?---Regent, r-e-g-e-n-t, and then there was the Clutha Oceanic, followed by the Clutha Capricorn, followed by the TNT Carpentaria and the TNT Capricornia.

PN785

The TNT Capricornia was a different vessel to the Clutha Capricorn?---Yes.

PN786

And what size were these vessels?---Which ones? The Ore Regent was 55,000 tonnes, the Oceanic and Capricorn were around - the Oceanic might have been close to 60,000. The Clutha Capricorn was the biggest ship ever built in Australia at 83,000 tonnes and the Clutha Capricorn and the TNT Carpentaria and Capricornia were 83,000 tonnes, as are the two ANL ships which are now a part of the system.

PN787

And to your knowledge, these vessels were in the time you were working that run manned by people performing the tasks that you had come to know on the Arafura as the tasks of bosun, able seaman, motorman or greaser, engineer and chief engineer?---In the early days, yes.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN788

Well, did anything other than the names change?---Basically, no, in fact, except for the engineers who we went and did electrical training, because proficient as electricians as well.

PN789

What electrical training did you do?---It was a five-week course that met the requirements of the controlling body, AMSA.

PN790

When you say you were qualified as electricians, you didn't get licences, you didn't get a licence as an electrician?---Not as such, no.

PN791

Well, when you say not as such - - -?---Well, we were qualified under the scheme we sailed under.

PN792

Yes, but you wouldn't be able to rewire a motor?---No-one on a ship I have ever seen has rewired a motor. That is a job for an expert that you would take it ashore to do.

PN793

So do you say that the electrical engineers that you saw on ships weren't qualified to rewire a motor?

PN794

MR McNALLY: Could we clarify the rewire the motor? If my friend is talking about a battery or a motor, that is one thing, but rewiring a generator, that is another thing. I just don't want to confuse him.

PN795

MR HATCHER: Well, the witness answered the question. He wasn't confused.

PN796

MR McNALLY: Well, I am.

PN797

THE COMMISSIONER: You can re-examine.

PN798

MR McNALLY: Thank you, sir.

PN799

MR HATCHER: So is it your evidence, sir, that the electrical engineers that you used to sail with on the vessel weren't qualified to rewire a motor?---I couldn't attest to that, but I say the equipment and stuff was not on board the vessel to enable them to do it and it was never done on board. What their qualifications were, I don't know.

PN800

Can you tell me what you studied in your five weeks' electrical training?
---Electrical.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN801

Well, what did you do? Basic wiring? Did you learn how to change a light bulb, for instance?---No. We all knew that before we got there. Also, by the way, we had also had previous electrical knowledge as part of our engineering courses, so we knew the electrical technical part of it long before we went to this course.

PN802

So what did the course cover, then?---Fault finding, a big part of it was electrical safety and wiring, basic maintenance of electrical equipment.

PN803

Well, what did you learn about the basic maintenance of electrical equipment?
---How to do it.

PN804

Well, how do you do it?---It is a pretty open question.

PN805

Give me an open answer?---Well, it depended on the bit of equipment you were overhauling.

PN806

Well, what did you study in your five weeks? You must have had some particular equipment in front of you?---I can't remember. I am sorry, I can't recall it.

PN807

I see. How long ago was it that you did this?---1991 or '92, early 90s.

PN808

The technology on the TNT Carpentaria, how did that compare to the technology on the Arafura?---Vastly different.

PN809

In what respect?---Well, the Arafura had no automation. It was all hands on to operation and the other one was fully automated.

PN810

They both had engines, presumably?---Yes.

PN811

Did they both have the same number of engines?---Yes.

PN812

Was the only difference between the engines that it was larger on the Carpentaria than it was on the Arafura?---The engine was more modern, it was American against British. Yes, the main engine was basically the same technology.

PN813

What was different in attending to the engine on the Carpentaria to attending to the engine on the Arafura?---Attending to the actual engine on both vessels is very minor, as being a steam turbine, they require minimal attention. It is the boiler plant and all the ancillaries that require the vast majority of the maintenance and attention.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN814

Now, what was the difference between the boiler plant, then, on the Carpentaria and the Arafura?---One was oil fired, one was coal fired.

PN815

And what difference - well, sorry, which one was coal fired?---The Carpentaria was coal fired.

PN816

The Carpentaria was coal fired?---That is right.

PN817

And the Arafura was oil fired?---Yes.

PN818

What was the difference brought about by the change in fuel in terms of the work of the engineer?---An incredible increase in work load, because it had a coal transfer system, a coal burning system, an ash transfer system, an ash overboard transfer system, all of which, because you are moving rough materials which caused a lot of work.

PN819

And what was the nature of the work that it caused?---Many and varied.

PN820

Can you give me some examples?---Overhauling coal crushers, overhauling coal distributors on the boiler, overhauling ash equipment.

PN821

And when would that overhauling work be done?---As and when possible. Some of it was some by utilising spares. We had a fully operational spare for most of it. You changed out for the spare when you were in port and while at sea, you overhauled the spare, the worn out equipment.

PN822

Can I just inquire, Commissioner, whether we are sitting through until one?

PN823

THE COMMISSIONER: Yes.

PN824

MR HATCHER: Thank you.

PN825

And on the Arafura, did you not need to overhaul those pieces of equipment?
---They weren't there.

PN826

The delivery system for the oil just didn't have any equivalent?---No way in the world, no.

PN827

What else was different between the two vessels in the engine room? They both had generators, for instance?---No. One had generators, one had alternators.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN828

And what was the difference in the work required of the engineers brought about by having a generator rather than - - -?---Very little difference in work load.

PN829

What work was involved in tending to the generators or the alternators?---Which vessel?

PN830

Well, the generators I assume on the Arafura and the alternators I assume on the Carpentaria?---All right, the generators there, they were diesel generators and they required constant maintenance.

PN831

What form of maintenance? Do you just mean oiling it or were they breaking down all the time?---No, that is not maintenance, that is ongoing operation.

PN832

Well, what do you mean by constant maintenance?---Stripping down and renewing valves, whatever required doing, bearings.

PN833

And this was constant?---Yes. There's four of them.

PN834

So one was continually out of service?---I wouldn't say that.

PN835

Well, you tell me what you mean by constant?---Well, there was one - I don't say there was one continually out of service. You didn't run all of them all the time, so one was always available to do maintenance on.

PN836

And how many engineers would be engaged working on that one?---Usually one.

PN837

And how did that differ from the alternators on the Carpentaria?---The Carpentaria had two alternators. One was a diesel and one was a steam turbine. The steam turbine required less intensive maintenance. It still required maintenance. The diesel required probably more maintenance than the Arafura one.

PN838

And how many engineers did you have on the Carpentaria?---Six. Initially an electrician as well.

PN839

You went on the Carpentaria in - - -?---1983.

PN840

Yes, so there were six in 1983 and an electrician. How many were on there in April '92?---Six and no electrician.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN841

And when you went back to ASP for that two week period in 2002/2003, what vessel did you serve on then?---It was the TNT Capricornia, but it wasn't named that at the time. They have all changed their names that many times, I have lost track of them.

PN842

And how many engineers were on the vessel then?---The same. It is an identical vessel to the Carpentaria.

PN843

When you say the same, that is six engineers, no electrician?---Yes.

PN844

And when you say it is an identical vessel, it also was coal fired?---Yes, four coal fired vessels are on the run.

PN845

Now, do you have your affidavit in front of you?---Yes.

PN846

Can I just take you to paragraph 19 of your affidavit?---Yes.

PN847

Do you see there you say:

PN848

Whilst they are on UMS watch, they must answer and attend to all engine room and machinery space alarms.

PN849

The they you are referring to there is the engineer who happens to be on watch?
---The UMS engineer for that 24-hour period.

PN850

And they have to attend to all engine room and machinery space alarms, as well as being present in the engine control room for the duration of all standbys occurring during their watch?---That is correct.

PN851

So do we understand then that they can be anywhere in the vessel unless it is a standby period, but if it is a standby period, they must be in the engine room?
---No. When it is not a standby period, they must be within call of the alarm system.

PN852

And you earlier told us the alarm system was in the cabin?---In the engine room, throughout the accommodation spaces.

PN853

I see, so he couldn't go forward on the vessel?---No, he can't. That has always been a problem. If that happens at night, when he needs to for some reason, he calls out another engineer who either does it or takes over while he goes. He can't be out of call of the alarm system.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN854

And when it is a standby period, he is alone in the engine room?---No. As I say, the chief engineer is there as well.

PN855

I see. Well, you say in paragraph 19 that:

PN856

In the event that they need assistance, it is usual for the first engineer to be called first and if a greater level of technical expertise is required, the chief engineer is called.

PN857

?---This is referring to his normal UMS watch, not the standby part of it.

PN858

I see, and when he is on UMS watch, is every day of the week treated the same as the next while he is at sea?---Yes.

PN859

So his duties don't change during the week?---No.

PN860

And how about the duties of the chief engineer, do they change during the week?
---No.

PN861

He is on duty all through the seven days of the week?---Yes, he is on call 24 hours a day, seven days a week.

PN862

Do you know of the concept of ship keeper? Have you heard of that notion?
---Yes, I have.

PN863

Can you describe to the Commission what a ship keeper is?---It is a very old term. I haven't heard it for years. It is when, before UMS systems came into place, engineers did a 24-hour ship keep or gear turn as it was also known as, where they were active for the 24 hours or part thereof.

PN864

So far as you are concerned, the ship keeper was pre UMS?---Definitely.

PN865

You have no doubt about that?---Yes. Well, in my understanding of what you mean by ship keeper.

PN866

And you say that in the way in which you have developed your understanding, talking to other engineers about which you earlier gave evidence and from your capacity as an official of the union, you would know the way other engineers would refer to the term ship keeper?---Yes.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN867

Is that a convenient time, Commissioner?

PN868

THE COMMISSIONER: Yes. We will adjourn and resume at 2.15.

<LUNCHEON ADJOURNMENT [1.04PM]

<RESUMED [2.19PM]

PN869

MR HATCHER: Mr Smith, you answered Mr McNally earlier today, that you had some role in the institute?---That is right.

PN870

What role is that?---I am the Treasurer of the Sydney branch and I am the Counsellor.

PN871

How long have you been a counsellor?---Too long. Ten - ten years I think it is, roughly ten years.

PN872

In that time you have become familiar with the awards and agreements that the Institute holds, awards and agreements either made by or certified by this Commission?---Not really no.

PN873

It is not something that has excited your attention?---It does not come across my brief, no.

PN874

Do you know of any member of the Institute engaged on an ocean going vessel operating on the Australian coast who is not covered by a certified agreement?
---No. I do not know - I am not sure what you mean.

PN875

You understand the distinction between an award and an agreement don't you?
---Yes.

PN876

You understand that the award is the instrument made by the Commission?---Yes.

PN877

But the agreement is something in excess of the award that is agreed to by the Institute and the employer?---Yes.

PN878

Do you know of any members of the Institute who are engaged on ocean going vessels, whose conditions of employment would otherwise be regulated by the award, but do not in fact - - -?---No I do not personally know of any no.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN879

Is that something that has come up at AIMPE council meetings?---Not to my memory, no.

PN880

If an employee is covered by an agreement in excess of the award it would not have much impact upon whether he was employed or whether someone else is employed, if the other person was employed on the award conditions. Would it?
---I do not - I am sorry I do not follow you.

PN881

I will not press that question. The reason why the Institute presses this application in this Commission, on your understanding, is to have Australian seafarers back on the Stradacona in the Pacific. Is that the case?---No, not to my knowledge, no not exactly.

PN882

What is your understanding of why the Institute presses this award application?
---To make an equal playing field on all - for all working on the Australian coast.

PN883

If the award was to apply that would not give you an equal playing field would it?---I do not know what is in the award.

PN884

But you have already told us that you know of no member of the Institute whose conditions are regulated by the award, they have all got the benefit of agreements over and above the award?---No I did not say that. I said I do not know of anyone who has or has not. I am sorry, I cannot define.

PN885

You have sat on the council for ten years?---Yes.

PN886

You just do not know what of the instruments that the Institute has carriage of on behalf of its members, that apply to its members?---Not in that respect no, and not off the top of my head, no.

PN887

Let us just go back for a minute then to the ship keeper, you say that that is a term that has not been around for years? Since UMS came in?---Not in my knowledge no, it is not a term used anywhere - to where I have been.

PN888

What are the safety rounds that the duty engineer performs that you were talking of earlier?---Sorry, in which respect?

PN889

Under UMS?---Yes.

PN890

There is a duty engineer?---Yes.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN891

The duty engineer has to do a safety round?---You are talking about the one at 9 o'clock at night or?

PN892

Do you say that he does more than one safety round a day?---Yes.

PN893

Right?---Well it is part of his round - that is part of the rounds at night and in the morning. They are - safety is part of it. It is rolled into it, it is not - it is not exclusively safety, but a safety round you know, is a part of it. There is no potential hazards, fire hazards or et cetera.

PN894

He does a round that is partly to look at safety and partly to look at fire hazards?
---Safety and fire hazards were the one - no I mean that is something - that is part of it. That is part of the rounds, the other part of the rounds is check all machinery and to check an overview of the machinery you know, look for other problems.

PN895

How long does this round take him?---How long is a piece of string. It depends on - it depends on the circumstances.

PN896

How long did it take you when you were duty engineer?---It could take you half an hour and it could take you an hour, it could take you an hour and a half.

PN897

Do you have your affidavit in front of you?---Yes I do.

PN898

Have a look at paragraph 18 for me?---Yes.

PN899

You see he starts his day at 8 am?---Yes.

PN900

By doing a round?---Yes.

PN901

He then goes off and does routine maintenance and so forth until 5 pm, and then he does an additional - I assume that is the inspection of the engine room and machinery space is what we are talking about is the safety round, at 9 pm?---Yes.

PN902

And another one at 7 am?---Yes.

PN903

What is the point of the 8 am one when he has done one at 7 am?---No different person. One is handing it over so he has ensured that he has handed over a good engine room to the oncoming engineer at 8 o'clock.

PN904

You say that this goes on seven days a week?---Yes.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN905

To your knowledge on every vessel on the coast?---Yes.

PN906

It would be wrong, indeed misleading, from your knowledge of vessels on the Australian coast, to say that on a Saturday the UMS engineer only does a safety round - I am sorry, on Sundays - the UMS engineer only does a safety round?
---No, he does more than a safety round.

PN907

You say it would be wrong and misleading if someone were to say that on a Sunday an engineer on an Australian vessel would only do his safety rounds?
---The UMS - are you talking about the UMS engineer?

PN908

A UMS engineer?---He does no more than his safety rounds? Yes, that is wrong.

PN909

That is wrong?---And as I said before they are not just safety rounds. Safety is a small part of it.

PN910

So you would say that the engine room check is something more than the safety round?---Yes.

PN911

What more is involved in the engine room check to the safety round?---Checking all machinery, you know, as a back up to the UMS system, to satisfy himself that, you know, everything is okay, check the bilges, make sure that everything - he has no pipes, water leaks, no anything untoward in the engine room. So that to try and reduce the number of callouts during the night to zero. And plus to keep the machinery - plus he may have standbys during the night or day.

PN912

On your evidence he has got standby all day?---No I did not say that.

PN913

I am sorry, yes, "He is standing by", yes?---Yes, different.

PN914

Different, yes. Now these standbys, you told Mr McNally?---Yes.

PN915

That the standby is whenever you are in restricted waters?---I said it can be when you are in restricted waters. It is up to the master to call that, and on the vessels I was on the top of Cape York was always a standby, every time. Up to five or six hours.

PN916

Not within the Barrier Reef?---Not within the reef itself, unless there was exceptional circumstances.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN917

So when you say the top of Cape York it is just as you go around the tip and in through the pass behind the Barrier Reef?---Yes.

PN918

Apart from that it was only when the pilot was about to come on board and take the vessel into port?---Yes and also for dropping off the pilot and picking up the pilot. For the Barrier Reef pilots.

PN919

They came on board at Cape York?---At times yes and Cairns, off Cairns.

PN920

You would put them off at Gladstone?---Cairns sometimes or sometimes we carry them on to Gladstone.

PN921

There would be one pilot come on at Cape York who would get off at Cairns and then another one - - -?---No, no, no. No we did not have a pilot - we - in the early days it was not necessary to have a pilot for the southern part of the reef.

PN922

When you say the early days what time are you talking about there?---I am not sure when that ended, we still - it would depend on the pilot I think, right till the end we still put the pilot off at Cairns at times.

PN923

When you were on the P & O vessel out of London?---Mm.

PN924

That you gave evidence of, that was doing the trip to Hamburg and then across to Hong Kong and so forth?---The far east.

PN925

The Salamara. How long did that voyage take?---Five months roughly.

PN926

Were you on the vessel for the full five months?---No I went ashore occasionally, but basically for what you are asking, yes I was on the vessel for five months.

PN927

Then you had shore leave?---No.

PN928

No?---No. I was on there for two trips, ten months straight.

PN929

You did ten months straight?---That is right.

PN930

Is that what you had signed on to do?---I cannot remember what the articles were on that particular - at that time. I - no sorry I cannot remember what the articles were.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN931

On the Arafura, that was you told us, going from Sydney to Japan, occasionally Hong Kong?---Yes.

PN932

How long did that voyage take?---A couple of months.

PN933

You took shore leave in Sydney only?---No I took no shore leave actually.

PN934

You took no shore leave. So from April '62 through to January '63?---Yes.

PN935

You were continually on the vessel?---That is right.

PN936

Is that what you had signed up to do when you went on the vessel?---That was the understanding, yes.

PN937

On the Burns Philips vessels, the three vessels that you gave evidence of, how much shore leave did you take on those vessels?---Look I cannot remember exactly.

PN938

Roughly?---I do not know, say three months a year. I do not know, I would not have a - - -

PN939

For those two and a bit years that you were on it, you would have taken in total around six month's leave?---I would say so, yes.

PN940

When you signed on with Clutha in December '69, do you remember what leave you were getting?---No I do not exactly, no.

PN941

Roughly?---I do not know, a hundred days a year. No, no sorry we were working a hundred days a year. I - sorry I cannot remember what the leave factor was.

PN942

Is it something that has not been important to you in terms of where you would choose to work or not work?---It was a - sorry, you - would it would have been the decision in - part of the decision where to work?

PN943

Yes?---At that stage no I do not think so.

PN944

At what stage did it become important to you? I only ask that because you say at that stage?---Well I do not think it ever has, because you know, the leave factor has changed, if you see that my last job was 30 years and one month. So the leave factor changed during that period of time, but so I did not seek alternative employment.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN945

You were just grateful to receive the extra leave?---You could say that.

PN946

Did you use it to pursue any other interests?---Yes.

PN947

Is that when you became involved with the Institute?---No not 30 year's ago.

PN948

No?---No. I have been involved with the Institute since the early 90s. To a more - to a bigger extent yes. Well before I used to go to meetings, put it that way.

PN949

When you say you used to go to meetings, just meetings among - - -?---Monthly day meetings.

PN950

Monthly day meetings held among the people employed by your employer?---No.

PN951

No?---Held by the Union every month when I was home. When I was on leave and living in Sydney.

PN952

All the time you were working on the Clutha vessels you were living in Sydney were you?---No, I lived all over Australia.

PN953

While you were working on the Weipa Gladstone run?---Yes.

PN954

The vessels that are working on the Australian coast now, how many could you sort of thing of off the top of your head from your knowledge with the Institute and so forth?---In what respect? The name of or?

PN955

Well can you just number them? If you remember their name, if you just remember the run that they have or had to - - -?---I do not know, about 25.

PN956

In '69 what was the figure?---Better than a hundred I image. I cannot - look I would not have a clue what it was in '69.

PN957

Certainly you would agree with me that there are a lot less - - -?---It is considerably more than what it is today.

PN958

There are a lot of different vessels doing different trades along the Australian coast now?---Yes.

PN959

Do you see a lot more foreign flag vessels doing Australian coastal runs?---Well I do not see them but I believe there is.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN960

That has been the subject of some conversations at the council meetings?---It has.

PN961

It is a matter of some concern to the Institute?---Yes.

PN962

The concern is that there is work there that is not going to members of the Institute?---That is part of it.

PN963

It is that concern that leads to this litigation?---No I do not believe that is - that is part of the concern - part of the reason, but not the total reason no.

PN964

What else figures?---The you know, the thing - the thing of the whole of the Australian coast.

PN965

But if all the members of the AIMPE are engaged under certified agreements, you cannot impose a certified agreement by a law, you would understand that wouldn't you?---Yes.

PN966

There is no way that you could get what you characterise as a fair thing on the Australian coast is there?---I am not sure on that one, I just.

PN967

Let me take this a step at a time?---Yes, I think you better.

PN968

The Pacific and the Stradacona are not the only two vessels trading on the Australian coast under a foreign flag, are they?---No.

PN969

There is many, many vessels doing work on the Australian coast, operating under a foreign flag. You would agree with that?---Yes in different ways they are, yes. Not in the same manner.

PN970

Those vessels, even if the crew were paid the rates under MISA, they would not be being paid the same rate as members of the Institute are being paid? That is the case isn't it?---Correct.

PN971

Because members of the Institute have negotiated agreements in excess of MISA?---Yes.

PN972

Having the crews of those vessels paid under MISA does nothing to protect the employment conditions of members of the Institute, does it?---No, in that respect.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN973

MR McNALLY: I do not want to object, I am not too sure this is terribly fair I think. I mean it is verging on law isn't it? For example - well I do not want to say too much in front of the witness, but there is a number of legal considerations in relationship of awards and AWAs. Awards being basis - if that is the area we are getting into. The other issue that concerns me there are foreign ships that I do not want to say too much about this, could the witness go outside, sir, because I do not want to put words into his mouth.

<THE WITNESS WITHDREW [2.41PM]

PN974

MR McNALLY: My friend's point is that certified agreements are in place on all ships, well I think they are, we cannot think of any that are not, so there is no problem about that issue. Of course the Act requires that there be an underpinning award, upon which is built certified agreements or AWAs. And of course then we get involved in the no disadvantage test and all those sort of things. Well I am not sure this witness is qualified to answer those questions. That is what concerns me.

PN975

The second point that concerns me is my friend has confused overseas trade with ships that come from overseas then deliver a cargo down the coast and go overseas again. With ships actually for all intents and purposes, engaged in the coastal trade. There are foreign ships engaged in the coastal trade with a respondent to MISA. That is foreign registered ships. And there is foreign ships that come and go that are not subject to MISA.

PN976

What the Institute is concerned about is the ships that stay here. My friend is not making that point to this person. If the Commission pleases. And I am not sure that the line of questioning would be able to assist the Commission very much. But having said that I will sit down.

PN977

THE COMMISSIONER: Well in cross-examination, I do not know whether assisting the Commission is that important as long as it is not untoward. I mean it does verge on the legal but I am not so sure that he needs to be pulled up at this stage, Mr McNally. You know the limitations on this witness's capacity?

PN978

MR HATCHER: Yes. I thought I was endeavouring to stay well within them in the way I was framing the questions.

PN979

THE COMMISSIONER: Yes, proceed.

PN980

MR HATCHER: Thank you.

<JAMES WILLIAM SMITH, RECALLED [2.43PM]
<CROSS-EXAMINATION BY MR HATCHER, CONTINUING

PN981

MR HATCHER: Mr Smith, the Burns Philips vessels that you worked on, I think you earlier gave evidence that you were not sure whether they were British flagged or not?---No I am not a hundred per cent sure, I am pretty sure they are though. They were, not all of them, but the ones I worked on were.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN982

The three that you nominated?---Yes.

PN983

THE COMMISSIONER: We know there is no Australian registration on them.

PN984

MR HATCHER: The conditions of the Pakistani crew, do you know what regulated their conditions?---No I do not.

PN985

Is that something that you have not troubled about since you have had a more active interest in the Institute?---No.

PN986

You have not had cause to reflect on the conditions under which you were engaged?---I was engaged or they were engaged?

PN987

You were engaged?---That and then how the crew were paid.

PN988

So your focus is only on engineers? You are not troubled about the position of the crew, is that - - -?---I was not in those days no.

PN989

Did you pause to wonder why it might be that Burns Philips might engage a Pakistani crew on the vessels?---Yes, because it is cheaper.

PN990

You understood why they might want to engage a cheaper crew?---To save money.

PN991

Well it is more than save money, isn't it?---To me it is not.

PN992

You have told us about the one hundred odd vessels that used to trade on the Australian coast in '69 and it is now down to a bit more than fingers and thumbs, but not much more than fingers and thumbs?---Yes.

PN993

You know what has brought that about is rising costs of Australian freight, that is freight by shipping. Don't you?---I have not thought in that terms, that is part of it, but there is a lot of it, you know, it is not as simple as that.

PN994

You know don't you, that at one stage British ships had British crews, British registered ships had British crews?---Yes.

PN995

Then as they started to lose their trade to other nations, they started engaging Australian officers and Pakistani crew?---Yes.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN996

You know that they did that to try and retain their trade?---Or make a higher profit.

PN997

How would they make a higher profit if they were competing against other nations which had lower costs?---Who is to say they were? I do not know.

PN998

It is not something that you paused to reflect on?---No.

PN999

It is not something that you have troubled over at all, sitting on the council of the Institute, considering what action the Institute should take in the face of the decline in the Australian shipping industry?---No.

PN1000

So far as you are concerned you simply want to get either Australians on the Australian coast or have no one on the Australian coast. Is that the case?---I did not say that.

PN1001

Well is that your position?---No.

PN1002

You would prefer to have non-Australian crews on the Australian coast if it meant we could retain vessels servicing the Australian coast?---Can you say that again please?

PN1003

It would be your preference that we have, as the British ships that you have worked on did, cheaper non-Australian crews working on the vessels on the Australian coast if it meant we could retain vessels trading on the Australian coast?

PN1004

MR McNALLY: Could I remind my friend, if the Commission pleases, that in 1969 - - -

PN1005

MR HATCHER: I do not need any reminders from my friend, if he is wanting to object he can object, but with respect he does not rise to remind me of anything.

PN1006

MR McNALLY: I do. In 1969 as my friend should know there was no Australian registered vessels. They were not introduced until 1981. The position since '81 and now, to be fair, the Navigation Act itself protected British ships off Australia. If the Commission pleases.

PN1007

THE COMMISSIONER: Does that interest you?

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN1008

MR HATCHER: I am not sure how that is a basis for objection?

PN1009

MR McNALLY: Because you are asking about Australian ships back in 1969 when there were not any.

PN1010

THE COMMISSIONER: If you could rephrase your questions about '69.

PN1011

MR HATCHER: In 1969, sir, there were vessels on the Australian coast, a hundred odd you have told us. Trading on the Australian coast. You have told us that there are now some 25 that you can think of that are trading on the Australian coast under either a British or an Australian flag. There are a number of other vessels that are trading on the Australian coast now, but not using a British or Australian flag. That is the case?---Yes.

PN1012

In 1969, the vessels that were trading on the Australian coast were applying the equivalent then of the Maritime Industry Seagoing Award now?---As I understand it, yes.

PN1013

The purpose of this case is to have my client, CSL Pacific, apply those conditions rather than to operate as the British registered vessels you worked on, the Arafura, the P & O one and the three Burns Philips ones, of having a crew that was non-Australian operating under non-Australian conditions?---Yes. The - the engineers did not work under - the officers did not work under it.

PN1014

Is it the Institute's position that only the officers need be retained under Australian conditions - - -?---I cannot answer that question.

PN1015

Would you not think it preferable that Australia retains some maritime trade service than that it maintain Australian conditions which are uneconomic on the Australian coast? I do not ask you to agree that the Australian conditions are uneconomic, I ask you to assume that the Australian conditions are uneconomic?
---I have got to say yes.

PN1016

You think it would be better that we did retain shipping on the Australian coast, even if it meant - - -?---No, no, no sorry.

PN1017

You think it is better that the ships go?---No I do not want the ships to go, no.

PN1018

You have access to the AIMPE website I assume?---I have but I have never opened it.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN1019

Did you attend the conference at the Capri Plaza Hotel in Newcastle on 18 November 2003?---No I did not.

PN1020

Have you had a report of what the Shadow Minister Mr Ferguson had to say then?
---I cannot recall.

PN1021

Do you recall that he was - - -?---I do not think I have ever read it.

PN1022

Would it have been reported to you that in part of his address - - -?---No it has not been reported to me.

PN1023

Well just wait for my question. In part of his address he observed that the problem with the permit system was that there were now vessels doing trade on the coast that was otherwise going by rail?---So?

PN1024

Did you hear that that was - - -?---No I did not hear that. As I said I have not heard anything of that.

PN1025

From your perspective it would be a good thing if there maritime opportunities to take trade away from rail?---Yes.

PN1026

If making our shipping industry more efficient takes trade away from rail, that is a good thing?---Yes.

PN1027

If to do that we have got to do what the British registered vessels did that you worked on years ago, well so be it?---No, sorry my ideology is - says no, sorry.

PN1028

You say this is just a perplexing problem and we will have to hope it sorts itself out? Is that the case?---Yes I suppose it is. You know, it is not as simple as that either is it? You know, if we had more government subsidies there would be less chance than what we have got.

PN1029

There are so many other ways of doing things?---That is right.

PN1030

That whilst ever the situation remains as it is and we have an unsubsidised Australian shipping industry, we are going to run into this problem, aren't we?
---Yes we are.

PN1031

The Institute, to your knowledge, has subscribed, affiliated itself to the International Transport Federation?---Yes.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN1032

That organisation has attempted to deal with shipping as a global industry. Hasn't it?---Yes.

PN1033

The Institute supports that approach. Doesn't it?---I cannot answer that.

PN1034

Well you sit on the council?---Still, I cannot answer that kind of question.

PN1035

You authorise the affiliation fees?---Yes.

PN1036

Well do you not think you are getting your money's worth for your affiliation?---I will not answer that either.

PN1037

You understand that part of the ITF role is to standardise conditions by way of ITF agreements throughout the global shipping industry?---Standardise the minimum.

PN1038

Yes?---Not - standardise the minimum is my understanding.

PN1039

You understand that beyond the minimum ITF encourages the unions to which the seafarers would belong, that is those from their country of origin, to negotiate on their behalf?---I cannot comment on that.

PN1040

You do not know?---No I do not.

PN1041

Was it not something that you considered when you were authorising the funding of this litigation?---No.

PN1042

You never turned your mind to what the funding for the ITF was for, as opposed to the funding of this litigation?---No.

PN1043

Are you aware whether the Institute has committed itself to enforcing ITF agreements?---As far as I know they have.

PN1044

Would you regard it as conforming with an obligation to enforce ITF agreements to attempt to impose some other regulation on seafarers represented by their national union to have agreed to something other than the instrument that you are seeking to impose upon them?---I am not sure on that question.

PN1045

If you had, as an Australian seafarer, negotiated an agreement that covered your working arrangements on the Arafura and the Arafura was regularly trading to Japan. You came into Japan and the Japanese government said, "Any vessel coming into this country will give its seafarers no more than two days per seven days worked, as leave, 104 days a year. You would be affronted by that wouldn't you?---Totally different situation. One you are saying that this - these vessels are working permanently on the Australian coast, we were visiting the Japanese coast.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN1046

I see but there is no distinction drawn under the Workplace Relations Act between vessels travelling on the Australian coast and vessels travelling to or from ports in Australia, is there?---I am not qualified to answer that.

PN1047

You have not turned your mind to that?

PN1048

MR McNALLY: He is not qualified to answer, he said.

PN1049

THE WITNESS: I am not qualified to answer it.

PN1050

MR HATCHER: Undoubtedly Mr McNally will continue to assist you?
---That is a may be.

PN1051

MR McNALLY: No I was just repeating what he said, my friend obviously did not hear him.

PN1052

MR HATCHER: Sir, when you were working on the Arafura you were competing with vessels that were manned by Australian crews?---Not to my knowledge.

PN1053

To your knowledge, in the middle 60s there were no vessels operating between Australian and Japan in the bulk haulage, general bulk trade, that were Australian manned?---I was not in the bulk trade to Japan, I was in the general cargo.

PN1054

In the general cargo trade then?---Not to my knowledge, it is 40 odd years ago.

PN1055

When you were on the Europe Asia run, were there any vessels operated by Australians competing on that run?---No there were not to my knowledge, no.

PN1056

Australia is a country surrounded by water, most of the trade we got in the 60s came by sea, did it not?---Yes.

PN1057

There were no vessels, to your knowledge, that could or would compete effectively in that industry?---In what industry?

PN1058

In the same industry you were serving on with P & O?---I do not know, I cannot answer that.

PN1059

You were able to answer a minute ago that there were no vessels doing it?---Yes. The reason they did not do it is beyond me.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN1060

Again that is not something that troubled you when you sat on the council of the Institute determining this award application against my clients, was appropriate?
---No.

PN1061

Not something that was raised by anyone in the meeting?---Not something that happened 40 years before, no.

PN1062

The impact upon the maritime industry in Australia was not raised? The impact of imposing Australian conditions on vessels plying the Australian coast, was not raised?---I was not - I might not have been at - at these - all of these meetings. I only go to the monthly day meetings and federal council meetings. A lot of these things are not discussed at these meetings. These decisions are not taken at the council meetings.

PN1063

Where are these decisions taken?---At the federal executive level.

PN1064

You are not provided with the minutes of the federal executive?---I do read - yes I am provided with them.

PN1065

You read them?---Yes I read them.

PN1066

You have not seen any discussion of these considerations in the federal executive minutes?---I cannot recall, no.

PN1067

Would the Commission bear with me one moment? Sir, you have access to those federal executive minutes?---What right now?

PN1068

Do you retain them?---No.

PN1069

You do not?---No.

PN1070

You destroy them do you?---Yes.

PN1071

But you could get access to them through the Institute?---If I needed to, yes.

PN1072

I call for the production of the federal executive minutes concerning this litigation. The federal executive minutes of the Institute.

PN1073

MR McNALLY: I have not got them.

**** JAMES WILLIAM SMITH XXN MR HATCHER
PN1074

MR HATCHER: We will accept production tomorrow.

PN1075

THE COMMISSIONER: We will leave it till then will we, that point?

PN1076

MR McNALLY: No, they are not produced.

PN1077

THE COMMISSIONER: Sorry

PN1078

MR McNALLY: They are not produced.

PN1079

THE COMMISSIONER: Well why do you seek them now Mr Hatcher? Why didn't you seek them before now?

PN1080

MR HATCHER: Because they have become relevant from the cross-examination of this witness, Commissioner.

PN1081

THE COMMISSIONER: Why is it relevant from cross-examination of this witness any more than prior to the cross-examination of this witness?

PN1082

MR HATCHER: Well that is something I should address in the absence of the witness, Commissioner.

PN1083

THE COMMISSIONER: Yes. You can go outside again Mr Smith.

<THE WITNESS WITHDREW [3.03PM]

PN1084

MR HATCHER: Does the Commission have the statement of Mr Smith?

PN1085

THE COMMISSIONER: Yes.

PN1086

MR HATCHER: The Commission will look in vein for any disclosure that Mr Smith sits on the council of the Institute. The Commission will look in vein for any disclosure of the fact that the Arafura was manned by a Pakistani crew with Australian officers, or that the Burns Philips vessels, which are not even disclosed, were manned by a Pakistani crew and Australian officers, Pakistani or Indian with Australian officers.

PN1087

THE COMMISSIONER: Yes.

PN1088

MR HATCHER: These are matters that must have been on this man's mind in our submission, or that is the effect of the evidence we wish to lead from him. They are matters that he would, we would put, have wanted to satisfy himself on when authorising the conduct of this litigation.

PN1089

THE COMMISSIONER: What do you mean by authorising the conduct of this litigation?

PN1090

MR HATCHER: He sits on the federal council. He has indicated that he has had to consider the Institute's conduct of this litigation, what they seek to achieve. Yet there is not consideration of these issues that must have been important to it, we will submit. He says now that he has no recollection of what is to be found in the minutes. We will submit in due course that if there was no consideration in the minutes of the implications for Australian shipping, of the prospect of, as was clear from some of the questioning, the fact that MISA would not protect the conditions enjoyed by members of the Institute.

PN1091

None of this was considered and it goes to the genuineness of the application. Something that we have clearly put in issue when, the Commission will recall, at the last directions hearing we invited our friends to lead some evidence to address their genuine concerns. Something that remains singularly absent from the evidence that they have called.

PN1092

THE COMMISSIONER: Yes, Mr McNally, what do you say?

PN1093

MR McNALLY: Firstly, I am confused. The cross-examination wandered in and out of overseas shipping trade, overseas ships coming to Australian and incidentally to coming to Australia, working up and down the coast. We are not interested in those ships. We are interested in ships that operate on the Australian coast, or substantially operate on the Australian coast.

PN1094

The cross-examination wandered in and out of ITF agreements. ITF agreements, as we all should know, are directed at flag of convenience ships. They are not directed at any ships other than flag of convenience ships. What this case is all about, is a flag of convenience ship that is elected to depart from the international trade and to join the Australian coastal trade. That is what it is all about. None of the questions involved that issue.

PN1095

If there is an ITF agreement in place, so be it, if there is not, so be it. But the Workplace Relations Act applies, the Commission has held that it applies, the High Court has held it applies, the Full Bench has held it applies. We are invoking the jurisdiction of the Commission to put an award in place. The relevance of what the Japanese do or the relevance of what any other country does, the relevance of what ships are registered in Australia before a system of registration was in place, they have nothing to do with this case.

PN1096

Arising out of all that line of questioning, my friend suddenly demands to see some ill described executive meeting to be produced while he has a witness in the box is not even on the executive. If my friend wants to issue a subpoena, so be it. It better be pretty precise as to what he wants in the subpoena before we could consider production, but we are not producing the minutes. Which we have a right not to do in pursuance to a call for them. If the Commission pleases.

PN1097

THE COMMISSIONER: Yes. Mr Hatcher?

PN1098

MR HATCHER: We are ..... to the call, if my friend is saying as I understand him to say, that there will be no objection taken to short-service of a subpoena, we will - - -

PN1099

MR McNALLY: We are not accepting service, if you want to service a subpoena on the Institute, do so.

PN1100

MR HATCHER: Well it is short-service that I dealt with. I was not suggesting it would be served on you. Sorry Commissioner, to engage in an exchange at the Bar table.

PN1101

THE COMMISSIONER: Well Mr Hatcher I am reluctant to ask to have this witness produce those documents, or through him have these documents produced. He is not on the federal executive, I do not think it is going to assist me much if he is taken to perhaps try to explain what appears in minutes, et cetera. He is on the council and I am not sure what his level of interest is or capacity to interpret or to understand what the executive has decided. Now Mr McNally is right, you want to get the executive minutes of the ..... will you take steps to do so. But you will have to specify a little bit and to say short-service, well short-time for the material to be produced or returned, well I guess that is up to the others to indicate their ability to sort of speedily meet that summons.

PN1102

MR HATCHER: If it please Commissioner. Would the Commission have regard, we invite the Commission to have regard to the fact that we have complained that no evidence is led by the unions, the applicant unions, to establish the genuineness of the claim. And we have clearly put it in issue. There was no disclosure of any union official from AIMPE being available to us, it is only in cross-examination that we find that this gentleman is on the council of the Institute. And it is the only opportunity we get to test the genuineness of the claim. I mean obviously we can make submissions about their failure to call material, but this witness gives us our only access to the genuineness of the Union in actually pressing the application.

PN1103

THE COMMISSIONER: Well you can make your point as you have now, and you undoubtedly do so. But the witness comes here as an engineer of many years of service and his evidence really focuses on what Australian engineers, if I can call it that, do on vessels. It is a little bit - well I would be surprised if the Union holds - that would be probably untoward if the Union holds Mr Smith up as somehow an official of the Union. I do not think they have come along and suggested that. And so say, "He is an official of the Union, and the other side had ample opportunity to ask questions about the role".

PN1104

I mean I do not think they are saying that and if they are going to say that well Mr McNally would need to jump up now. True it is that he is on the council, I am unaware of what that means exactly. You obviously know a little bit more than I as to what - apparently this council means federal council all of a sudden, that only came out in later answer.

PN1105

MR HATCHER: Yes.

PN1106

THE COMMISSIONER: So I think going back to my original point, I think it is inappropriate to call for material that is, you know, is not of the council it is actually of the executive, and presumably it goes to council.

PN1107

MR HATCHER: Well he did - - -

PN1108

THE COMMISSIONER: As a routine and might be endorsed.

PN1109

MR HATCHER: He gave that evidence.

PN1110

THE COMMISSIONER: But he is not here as a representative of the Union in that capacity, rather he is here as an engineer. But if you want to go further with it, you can seek somebody to come along in this capacity to answers questions or alternatively you will just make your point, which is still fair enough, and that is that we have not heard from someone with this.

PN1111

MR HATCHER: Of course we will make that point that not only have we not heard, but when we have attempted to enquire it has been resisted vigorously. If it please the Commission.

PN1112

THE COMMISSIONER: If we could have Mr Smith please?

<JAMES WILLIAM SMITH, RECALLED [3.13PM]
<CROSS-EXAMINATION BY MR HATCHER, CONTINUING

PN1113

MR HATCHER: Sir, you have given evidence that you sit on the council of he Institute, that is the federal council isn't it?---Yes.

PN1114

That is the supreme governing body of the Institute?---I am not sure of that, no the - I am not sure of that.

PN1115

In any event the executive has the day to day running of the Institute?---Yes.

PN1116

And reports to the council on how it fulfils or discharges its obligations?---Yes. All right, yes.

PN1117

Thank you sir, that is the cross-examination.

PN1118

THE COMMISSIONER: Yes, Mr McNally?

<RE-EXAMINATION BY MR MCNALLY [3.14PM]

PN1119

MR McNALLY: Just to remove the possibility of some conflict of understanding, you and my learned friend talked about rewiring a motor. What did you mean about rewiring a motor?---It is when an electric motor is burnt out and the units are burnt out beyond repair.

PN1120

Yes?---Yes. Now you have said that, that brings me to another possible interpretation of connecting - reconnecting the wiring to a motor, yes we have done that.

PN1121

That is a simple process?---A simple process, follow the colour code or.

PN1122

Plug in?---Whatever and check it.

PN1123

A little later on you were asked about the number of engineers on the TNT Carpentaria and I think you were asked about the number of engineers on various occasions in your evidence. When you say six engineers and one electrician for example, or six engineers and no electrician, do you include the chief?---Well that is what I was trying to do, so yes I had to go back and think of the first and you know the old ..... so I could have got that wrong because of that confusion, sorry.

PN1124

The six you talked about, did you include - - -?---Which - on which vessel?

**** JAMES WILLIAM SMITH RXN MR MCNALLY
PN1125

You were talking about the TNT Carpentaria?---TNT Carpentaria. Yes, chief and five.

PN1126

You were asked questions about standby concerning the reef, the vessel when it enters port is on standby and when it leaves port it is on standby?---Enters and leaves port, till it is clear of the port limits, yes.

PN1127

I think you have already been asked this, but in case you have not, on all the jobs that you had back to 1967 is it?---62.

PN1128

Have they been jobs covered by the Maritime Industry Seagoing Award or its predecessor?---All except the P & O vessel.

PN1129

Yes?---Which was under - was out of - it was sailing out of England so whatever the relevant award in England, UK was at the time.

PN1130

It was registered in England?---Yes it was.

PN1131

It was not a flag of convenience vessel, it was registered in its - - -?---It was registered in the UK. Look, sorry, I am not a hundred per cent sure on that.

PN1132

Okay. That will do?---Yes, sorry I am not. Whether it was actually registered in England or Hong Kong.

PN1133

Yes?---I cannot.

PN1134

Nothing further sir. Might this witness be excused?

PN1135

THE COMMISSIONER: Yes.

PN1136

MR HATCHER: Well we object to him being excused, given that his evidence in reply has not been given. He might be released for the moment.

PN1137

MR McNALLY: Well excused until recalled?

PN1138

THE COMMISSIONER: Yes. Thank you Mr Smith, you can go for now?
---Thank you.

<THE WITNESS WITHDREW [3.17PM]

PN1139

MR McNALLY: We call Mr Nokes.

<PHILIP KEITH NOKES, SWORN [3.18PM]
<EXAMINATION-IN-CHIEF BY MR MCNALLY

PN1140

MR McNALLY: Your full name is as stated, Philip Keith Nokes (address supplied). Is that correct?---That is correct.

PN1141

Where is North Arm Cove?---Port Stevens.

PN1142

Port Stevens. Pardon me for a minute. You have made a statement in relation to this matter. Is the document I show you a copy of the statement?---Yes it is.

PN1143

I tender the statement, if the Commission pleases.

PN1144

MR HATCHER: Again if I can enquire of my friend or those instructing him, whether this is the statement we were served with? It does not appear to be, again.

PN1145

MR McNALLY: Commissioner, there are a number of things are confusing my friend and in this regard the statement that was originally served only had the Institute heading it did not have the Seamen's Union heading, that has put everything back a page. At the top.

PN1146

MR HATCHER: Again I accept my friend's assurance that that is the only change.

EXHIBIT #MCN9 STATEMENT OF PHILIP KEITH NOKES.

PN1147

MR McNALLY: You commenced your employment as a marine engineer as an indentured trainee with BHP in January 1969?---That is correct.

PN1148

That is at Newcastle, was it?---Yes.

PN1149

What sort of work did you do whilst you were at the steel works? It was at the steel works I presume or was it?---Yes it was the steel works. We spent most of our time in the ship repair gang and then we moved through the various mills and other sections of the steel works plant for three months usually at a time.

PN1150

Did you go to tech college or some college?---Yes, technical college.

PN1151

What qualifications did you receive?---It was called a marine engineering diploma certificate.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1152

What institution did you do that through?---Newcastle Technical College.

PN1153

You obtained a certificate as a eighth engineer I think at first, did you?---Well that allowed me to go to sea as an eighth engineer, yes.

PN1154

You became a permanent seagoing employee in September 1973 upon the steamship Iron Yampie, is that right?---That is correct.

PN1155

You describe that as a geared twin decked vessel, what does that indicate to a layman?---Basically a twin decked vessel is a vessel that has another separate deck below the main deck for stowage of cargo and a geared vessel is any vessel that has deck cranes or derricks.

PN1156

What sort of cargo did the Iron Yampie?---Mainly while I was on it, steel products around the coast. Back loading from Western Australia with pink iron or iron ore.

PN1157

You worked there for five months as eighth engineer, working under the control of the first engineer. Then you worked two four hour watches separated by eight hours?---That is correct.

PN1158

Seven days a week. Is that the picture?---(inaudible response)

PN1159

In 1975 did you obtain your engineer class two motor certificate?---That is correct.

PN1160

So you had steam and motor did you?---No, I had just the motor certificate.

PN1161

From then you worked as the third and the second engineer on the Iron Somersby and progressively worked on the Iron Cumberland, that was a geared bulk carrier. What does that indicate?---Just a - it was a - what is termed a handy sized bulk carrier with deck cranes.

PN1162

With deck cranes?---Deck cranes.

PN1163

Not a self-unloader?---Not a - well not a self-unloader as classed as a self-unloader, no.

PN1164

You worked on the Iron Monarch, which was the first gas turbo roll-on roll-off vessel in Australia I think, wasn't it?---That is right.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1165

You worked on the Iron York and the Iron Arnhem, both were twin decked vessels, is that correct? In 1979 you obtained your engineers class one motor certificate and joined the Iron Baron. That was a heavy lift twin decked geared vessel as a second engineer. Is that right?---That is correct, yes.

PN1166

A heavy lift I am sorry. In 1980 you were promoted to first engineer on the Iron Baron. You continued working on that vessel and the Iron Kirby, they were handy sized geared bulk carriers. Is that right?---That is correct.

PN1167

What do you mean handy sized though?---Handy size is just a tonnage range from say 15,000 to 45,000, 50,000.

PN1168

You were a first engineer on those vessels?---Yes.

PN1169

In 1984 you were promoted as chief engineer on the Iron Kirby?---That is correct.

PN1170

You remained in unbroken service as chief engineer in BHP working on the Iron Kestrel. Is that correct? A handy size geared bulk carrier. The Iron Monarch, which is the roll-on roll-off, and the Iron Capricorn, which was again a handy sized geared bulk carrier, the Iron Prince, the heavy sized geared bulk carrier. In 1990 you worked on the Iron Baron, the first handy sized geared bulk carrier in the BHP MIDC fleet. What do you mean by that?---Well there was other ships on the coast that were changed over to MIDC prior to that, I think the Lindsay Clarke may have been the first one or the Portland. But the Iron Baron was the first ship in the BHP bulk fleet to carry MIDC crew.

PN1171

It had a crew of 21 didn't it?---21 crew.

PN1172

Sorry?---21, yes.

PN1173

Most of those ships were unloaded using the ships cranes and cargo grabs?
---Mostly, yes.

PN1174

You were seconded in 1992 to the technical department firstly, in relation to the construction and commissioning of the Iron Chieftain, is that correct?---That is correct.

PN1175

It is the Iron Chieftain is it yes?---Yes.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1176

You went to Korea, was it built in Korea was it?---Yes, at the Hyundai shipyard in South Korea.

PN1177

In November 1993 you brought the vessel back to Australia and stayed on the vessel until November 2000. You were heavily involved in the technical development of the vessel. Was that a self-unloading bulk carrier?---That is correct.

PN1178

Currently you are serving on the Sugar Australia vessel, Pioneer. Is that also a self-unloading bulk-in bulk-out refined white sugar vessel managed by TK Shipping?---It is bulk-in bag-out. It was - - -

PN1179

Bulk-in bag-out, I am sorry?---It is a self-unloading bulk carrier in a number of ways.

PN1180

I want to talk about the Iron Chieftain. That was a self-discharger with gear. Is it similar to the type of equipment that one would find on the Stradacona or the CSL Pacific?

PN1181

MR HATCHER: I object.

PN1182

THE COMMISSIONER: Yes.

PN1183

MR McNALLY: I am not sure why my friend objects.

PN1184

THE COMMISSIONER: Yes, I know.

PN1185

MR HATCHER: The witness's qualification to answer the questions.

PN1186

MR McNALLY: Have you seen the Stradacona?---I have.

PN1187

How many times?---A number of times, three or four times I guess.

PN1188

Would you describe that ship in relation to the - - -?---It is a self-unloading bulk carrier but with a different system to the Iron Chieftain, and I am not familiar with the system as such.

PN1189

Have you seen the CSL Pacific?---I have.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1190

A number of times?---A number of times.

PN1191

How would you describe that vessel?---It is a self-unloading bulk carrier, with a different system than the Iron Chieftain.

PN1192

How are the systems different?---Basically the Iron Chieftain is what we call a bottom unloader where the cargo is gravity fed basically, into a conveyor system at the bottom of the vessel. And as I understand it the two CSL ships are top unloaders, where the cargo system scrapes from the top down.

PN1193

Is that the only difference?---Well there is a vast difference in the - to the cargo plants, but that is the difference as I understood it.

PN1194

What do you say about hours and work in relation to ship keeping and unmanned engine rooms?---In what way?

PN1195

What about the hours of work for starters?---At present and for some years now we have worked seven days a week. With, as I said in my statement, a regulated seven days a week, eight hours a day, which as I meant as referred to in the MIDC guidelines that the companies operate under these days. Those hours increase quite significantly, depending on what ship you might be serving on. But in the Iron Chieftain certainly I have stated the 65 to 70 hours a week as an average. That can go from a normal eight hour out of a day sometimes to a 15, 16 hour day. Depending on what the ship is doing at the time.

PN1196

Why is that?---Well - - -

PN1197

What does that relate to? Type of ship?---Especially on the Iron Chieftain and then the Pioneer, my current ship, it depends on what the cargo plant is operating. That depends on whether you are on standby, it depends on operating conditions of the engine room, perhaps field quality. It depends on a number of situations that you can, as an engineer, you are exposed to.

PN1198

Give us some examples?---Well say the Iron Chieftain, you are discharging iron ore in Port Kembla, basically that operation certainly when I was in that vessel, involved a ship keeping engineer, that was supplied, the first, second or third engineer, in rotation. Then it was our practice on that ship, that the chief engineer was always on the vessel while cargo was being discharged. And certainly if the duty engineer who was responsible for callouts based in the engine room and the cargo plant, could not handle the workload or needed an extra hand, the chief engineer was called. So that could result in possible work all night, which it did on a number of occasions, or it could involve no callouts for the chief engineer or maybe a callout in the engine room for the duty engineer.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1199

How much of that is related to the fact that it was a self-unloader?---Quite a deal of that is related to the ship being a self-unloader. Even the Pioneer, although it is a different - different product and a different system, basically there is - the cargo plant is another engine room and the duty engineer and myself as the chief engineer, is responsible for the safe operation and the running of that plant.

PN1200

You used the word ship keeper, what does that indicate?---Ship keeper is an old term from some many years ago that was just carried on in the UMS era. The ship keeper is the - either the first, second or third engineer who is in charge of the engine room for 24 hours a day. And in that situation he is in charge - responsible for any callouts, any adjustments while taking inspections, anything to do with the operation of the machinery.

PN1201

Do you perform standbys on the Iron Chieftain and the Pioneer?---Yes, it is standard practice for the chief engineer to be on standby whenever the - the main engine is in standby mode. That is in all cases, shifting ship in Port Kembla across to load coal, in and out of port, depending - it could be up to two hours depending on whether the master carries a pilot exemption. And the same in Whyalla and indeed the same in the Pioneer coming into Sydney, coming into Mackay, into Singapore where you are on standby for up to four hours at a time.

PN1202

Is there a port, a wharf, an area in Whyalla that standby had to occur whilst you are in port?---On some occasions. The - the ore loading jetty is open to the conditions of the Gulf of - of Spencer Gulf. On a number of occasions I recall the engine being on standby with heavy winds.

PN1203

For what period of time?---A couple of times in excess of four or five hours.

PN1204

Callouts occur, you say in 17, when an additional technical role is required to assist in matters of maintenance or emergency. There is additional paperwork to be performed by the chief engineer, requiring additional hours either early am or after five. Is that correct?---That is certainly the case.

PN1205

Dealing with maintenance, you say:

PN1206

As vessels become more and more technologically advanced the amount of day to day maintenance required is increased in both planned and breakdown areas.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1207

I wonder if you would just explain that paragraph?---Well the - with the advent of technology it is - it has been as what I describe as a bit of a two edged sword. Because while we - we as engineers can enjoy some new technology that technology also has to be maintained. And with certainly vessels like the Chieftain, the Pioneer and - and most new vessels now have a level of technology today where it is not totally free of breakdown. And obviously all this technology has to be tested, some - some has to be tested for class - classification, society, regulations. So in that point I - I mean that the technology has actually increased the planned maintenance section of - of say if it is like the Pioneer or the Iron Chieftain - because a planned maintenance system must encompass all of those different sections of automation. It cannot be just left alone to - to perhaps breakdown. We have to maintain this - this equipment and - and make sure that it is actually going to operate when it is needed.

PN1208

At paragraph 20 in your statement, you say:

PN1209

The first engineer allocates the daily work as required by the chief engineer and also receives the planned maintenance jobs, usually from the computer based system of work required completion during the current month.

PN1210

Just expand on that would you please?---The - on both the Chieftain and the Iron Chief and the Pioneer, I personally set up a - a system of planned maintenance exemptions for the class survey of both those ships. That - that involves a recognised computer based system that allows us to maintain the machinery on a - on a basis of rather than having to survey every item on the machine every once every five years, it allows us to actually develop a system and run it and not be subject to visits by a class surveyor every time you open a piece - open a piece of machinery. Now that - with that in place that - that system, I am not sure if it is still on the Iron Chief or not, but the Pioneer the planned maintenance system encompasses the whole of the cargo system, the engine room, the deck hydraulics, the winches, the windlasses, greasing, normal from monthly battery checks right through to main engine unit overhauls. It is not a simple checklist system, it is, and I mention there 88 items for one month last year I think. There are actually 88 items of planned maintenance that require anywhere from half an hour to days of input provided.

PN1211

Is the idea of the planned maintenance system to, so far as possible, provide a hundred per cent availability of the vessel?---That is certainly the aim of it and as the ship develops and the planned maintenance system develops as we gauge better service life for some parts, machinery parts or some systems, then that allows us to develop the planned maintenance system to hopefully attain a hundred per cent availability for the ship.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1212

So if there is nothing to do you go ahead with your planned maintenance with the objective of preventing any - - -?---Planned maintenance was a very big part of the maintenance task in a ship - - -

PN1213

Bit like putting a new battery in the torch before it goes flat? Is that the idea?
---Well yes.

PN1214

When did you join the Pioneer I am sorry? I just cannot pick it up here?---In 2000.

PN1215

When you left the Iron Chieftain, what was its state of maintenance? Was it - - -?
---The Iron Chieftain had a significantly developed planned maintenance system. It was computer based, the same system that I am using on the Pioneer. We had a DNV class exemption for an approved planned maintenance system.

PN1216

What was its availability in relation to the hundred per cent goal?---Fairly close to a hundred per cent, we - we did have some incidences of breakdowns which stopped the discharge of the vessel, but we were fairly close to a hundred per cent, as I remember.

PN1217

It ran from Whyalla to Port Kembla and Port Kembla back to Whyalla carting coal one way and iron ore the other?---That is correct.

PN1218

How long did the trip take in normal seas?---Roughly took a four day run from Kembla to Whyalla.

PN1219

That is pretty rough water there is it?---It can be if it has taking considerably longer than that. Some - - -

PN1220

What about from Melbourne to South Australia?---Melbourne to South Australia?

PN1221

Yes?---That is in Bass Strait weather so I would say normally 30 hours, 36 hours maybe.

PN1222

Whilst the ship is at sea what are the IRs doing, on the Iron Chieftain I am sorry or a self-discharging vessel?---On both - both those vessels, the IRs are actively engaged in getting the plant ready for discharge in the next port. In the case of the Chieftain it may have been washing the loop and tunnel spaces out, or it might have been greasing, it might have been assisting engineers, doing some hydraulic work. Normally on, certainly the Iron Chieftain, almost always engaged to get the cargo plant ready for the next discharge.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1223

I will come to dig out in a minute. The engineers perform mechanical maintenance you say in 22 as opposed to fabric maintenance, can you describe what you mean by fabric maintenance?---Fabric maintenance is a term that seems to have crept into the industry. A general term for the fabric maintenance is the appearance of the vessel which is chipping and painting.

PN1224

In 23 you describe what mechanical maintenance means, I will not go into that. I want to talk about dig out, which you deal with in paragraphs 25 to 29 of your statement. Do you want to refresh your recollection? Have you done that? I want to go to 26. You say:

PN1225

In my experience the spillage occurs regularly next to the conveyor system when trying to remove the last portions of cargo, but also when the discharge rates are required to be increased to meet departing times.

PN1226

Could you expand on that please?---In some instances in say discharging coal in Whyalla, it is normal practice to birth on the - on the high tide and the aim was to shift ship on the next tide, to load iron ore. So depending on the moisture content of the coal or the way the coal flowed, how it was loaded, whether it was compacted, dictated whether we could actually attain that. On many, many occasions we did attain a discharge of coal in less than 24 hours, sometimes - I think the - the record might have been 20 hours. To do that the system had to be running as close to its peak which was 3000 tonnes an hour basic figure, but peaking up through to three and a half thousand, with most of the time out getting down to the bottom of the holds when the cargo is almost out. The operators driving the system to try and get the maximum amount onto the belt. Sometimes during those times we would get simple spillages off the tunnel belts which would accumulate in the tunnel spaces. Similarly with iron ore, but we found that getting down to the bottom of the iron ore cargoes we would get pallets which are around iron ore balls or chips, and they would just bounce off the belt, so we did actually get spillages around most of the conveyor systems, especially more so in the loop elevator. Which maybe not at the time, but if they were significant spillages, they would have to be cleaned up at the time because of the - - -

PN1227

So the quicker the discharge the more spillage?---Could be that way. So - it depended fairly significantly on the skill of the operators, we - we tried to keep the same deck officers in that ship just for that reason. It is an extremely hands on discharge system and the more experienced, we found, the less the spills.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1228

You have read your whole statement have you?---Yes.

PN1229

Is it all true? There is nothing that you want to retract or alter?---No, not at all.

PN1230

Have you also had access to and read the proposed statement or the affidavit of the master of the Stradacona, Captain Matvyeyer?---Yes I have.

PN1231

Do you have a copy with you there?---No.

PN1232

Have you read and understood paragraphs 41 to 46, where the captain explains the duties of the chief engineer on the Stradacona?---Yes I have.

PN1233

Do you have any comment to make in relation to those responsibilities and the responsibilities for vessels such as the Iron Chieftain or the Pioneer?---There is - the responsibilities of the chief engineer are basically, from my experience, they are - they are similar to - to the master's definitions here that basically this is what I would call a generic list of responsibilities for the chief engineer. Some management systems would include some differences perhaps, but that is pretty much the job of the chief engineer.

PN1234

On a vessel on the Australian coast?---Yes.

PN1235

I wonder if you could have a look at VM3, which is at page 72 of the document and goes through to page 86. You have looked at that before have you not?---I have.

PN1236

Are there any tasks there that you do not understand?---No not at all.

PN1237

How do they compare with the type of work that is done on the vessels that you have been on, on the Australian coast, in particular the Iron Chieftain and the Pioneer?---All these jobs are what I would consider to be engineering jobs or - or jobs carried out by engineers on any shift.

PN1238

On the Australian coast?---On the Australian coast.

PN1239

Engaged in the Australian coastal trade. Is that right?---Yes.

PN1240

Did you read paragraphs 47 to 59 of the statement of the master?---Yes I have.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1241

There he describes the functions and duties and the tasks performed by second engineers, third engineers and fourth engineers. Do they coincide with the tasks performed by the first engineer, second engineer and third engineer on the Australian vessels that you have worked on, on the Australian coast?---Certainly the second engineer is very similar.

PN1242

As the first engineer, is that?---As the first engineer, sorry.

PN1243

Yes?---The second and third engineer on the Australian coast the second and third engineer are given specific areas of responsibility, which do not necessarily look the same as these, but in essence it is the same - the same sort of system where our second engineer is responsible for the generating engines and part of the main engine cylinder head overhauls. The third engineer is responsible for purifiers, air compressors and so that - - -

PN1244

So jointly they do the same work?---Jointly they do the same work just different - different areas.

PN1245

Did you consider work performed by electrical engineers, in paragraphs 60 to 64?
---Yes.

PN1246

Did you consider VM5, which is to be found at page 92 to 96 of the document?
---Yes I have read these sections.

PN1247

Who performs that work on the other vessels on the Australian coast operating on the Australian coastal trade?---In my experience the ship's engineers carry out this work.

PN1248

Did you consider the functions performed by the deck mechanics set out in paragraph 71 and 72? It says that:

PN1249

The prime responsibility of the deck mechanic is to maintain and repair the self-unloading equipment. That equipment includes bucket elevators with all hydraulic systems related to them, cross holds an boom conveyors and screw conveyors. They perform their role under the supervision of the chief engineer. The deck mechanic and deck and engine fitters are welders certified by Lloyd's Registry and they can carry out manual, metal arch and gas metal welding.

PN1250

Do you wish to comment on those two paragraphs in relation to the comparison with the work done by engineers on other vessels on the Australian coast in the coastal trade?---Certainly since the arrival of the Iron Chieftain and certainly the Pioneer, the engineers cover this whole area. And if we have a suitable integrated rating that has suitable experience, then they would assist the engineers in this area.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1251

Depending on the individual with the greater rating?---Depending on the individual.

PN1252

Deck fitters in paragraph 73 and 74; who performs that work on vessels on the Australian coast operating in the coastal trade?---The same - the same as the deck mechanics. The engineers do that work.

PN1253

The engine room fitter, paragraph 75 through to 79?---The same applies there.

PN1254

Who does that work?---The engineers do that work.

PN1255

On the various vessels that you worked on since you went to sea, have you worked principally on the Australian coast?---That is true.

PN1256

Have your terms and conditions been regulated or underpinned by the Maritime Industry Seagoing Award 1999 or its predecessor?---That is correct.

PN1257

That is since you started. You have always worked on salary?---Yes.

PN1258

Your leave has increased over the years until it became what it is today?---Yes.

PN1259

Do you have another job whilst you are on leave?---No I do not, I look after my children.

PN1260

Do you recall when the integrated rating was introduced?---Yes I do, very well.

PN1261

About 88 or 89 I am told, by the cheer squad. Before that the crewing had titles such as greaser, bosun, able seamen, do you recall that?---That is correct yes I do.

PN1262

In relation to what a bosun did then and what a chief integrated rating does now, is there any difference?---Depending on the individual chief integrated rating, there is - there can be some difference.

PN1263

Yes?---Most certainly in a self-unloading vessel situation the chief integrated rating has a direct input and a direct influence over many areas of - of well what we might call unskilled maintenance and some getting into the skilled area.

PN1264

Where is the bosun?---The bosun typically was under the old - old regime I guess, it was - could still be quite a useful person but would be - but with the advent of MIDC which some of us may not have liked, but it did produce a fairly close knit group of people. And as we have reduced down to 17 that - - -

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1265

That is a crew of 17, yes?---A crew of 17, I find that it is a far more efficient way of running and maintaining a vessel. Certainly self-unloading vessel where as a chief engineer I - I cannot - I have not got time to police what people are doing, I have to assess what levels of - of knowledge or what levels of skills individual people have and then we - we as engineers, maybe myself and the first engineer, can allocate tasks as per what we perceive as - as being beneficial to the - to the running of the vessel. But certainly with the advent of MIDC and the - the demise of the electrical engineer, we - a number of chief engineers certainly saw that as an elevation of marine engineering in Australia here. And I think we have embraced that to the point where we handle all these tasks that the - traditionally the electrician or the electrical engineer did over those years under the - under the direction of the chief engineer. To the point now where - certainly from my point of view and the engineers that I have working with me, we are quite capable of handling that area.

PN1266

What about the old greaser, what duties did he do?---The old greaser was a very handy chap. As we see in the integrating grading system, sometimes we - we see old greasers who do maybe you know, do have a bit of an infinity for - for the engine room, but also they have to fit into the system that they have to be able to - to do all the tasks of an integrated rating - - -

PN1267

On the deck and in the engine room?---Both on deck and in the engine room and we basically rotate those people so that - - -

PN1268

Those integrated ratings you mean?---Those integrated ratings rotate for - and spend a week each in the engine room.

PN1269

Performing the work that subject to increase in technology, that the greaser used to do?---That is correct.

PN1270

What about the able seaman in comparison with the integrated rating on the deck?---Well the able seaman in days gone by was, certainly on the coast here, was perhaps not a - not a well utilised person, but now with the system of integrated ratings, they - those people that were able seamen beforehand, in my opinion, have progressed through the system and some have even progressed to attaining navigation qualifications. And there is two - two integrated ratings on the Pioneer at present doing that and they - they have basically expanded their job knowledge.

**** PHILIP KEITH NOKES XN MR MCNALLY
PN1271

What do you say about career paths and integrated ratings?---Those who want - want to attain further in their career, the career path is there. As I have said there is - there is two integrated ratings on the Pioneer, they are progressing through the watch keeping time. They will both go to - to college to attain their second mate's certificate, hopefully. I have seen only two IRs become engineers in my time since MIDC started but there is obviously more on the coast. I do not know what are the numbers.

PN1272

Do you see an integrated rating as the ship rights?---As a ship right?

PN1273

Yes?---Well they handle the job of a ship right. Traditionally the ship right - apart from doing timber work on the old ships perhaps, the ship right was more or less in most ships, in charge of pumping ballast, sanding ballast tanks, clearing anchors, some traditional task like that. The duty - the integrated ratings can handle most of those tasks.

PN1274

Are we going to quarter past four, sir or 4 o'clock?

PN1275

THE COMMISSIONER: I am in your hands.

PN1276

MR McNALLY: Well is that a convenient time? I think I am finished but I just want to think about it.

PN1277

THE COMMISSIONER: I see. Yes, okay, we will resume at 11 o'clock tomorrow morning.

PN1278

MR McNALLY: Thank you.

<ADJOURNED UNTIL WEDNESDAY 15 JUNE 2005 [4.04PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MCN7 PROPOSED AWARD DOCUMENT PN476
JAMES WILLIAM SMITH, SWORN PN483
EXAMINATION-IN-CHIEF BY MR MCNALLY PN483
EXHIBIT #MCN8 STATEMENT OF JAMES WILLIAM SMITH PN495
MFI #AFFIDAVIT OF MASTER OF STRADACONA PN583
CROSS-EXAMINATION BY MR HATCHER PN714
THE WITNESS WITHDREW PN973
JAMES WILLIAM SMITH, RECALLED PN980
CROSS-EXAMINATION BY MR HATCHER, CONTINUING PN980
THE WITNESS WITHDREW PN1083
JAMES WILLIAM SMITH, RECALLED PN1112
CROSS-EXAMINATION BY MR HATCHER, CONTINUING PN1112
RE-EXAMINATION BY MR MCNALLY PN1118
THE WITNESS WITHDREW PN1138
PHILIP KEITH NOKES, SWORN PN1139
EXAMINATION-IN-CHIEF BY MR MCNALLY PN1139
EXHIBIT #MCN9 STATEMENT OF PHILIP KEITH NOKES. PN1146