C2005/420, Transcript of Proceedings [2005] AIRCTrans 2308 (8 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13304-1

COMMISSIONER THATCHER

C2005/420

TOTAL MARINE SERVICES PTY LTD
AND
MARITIME UNION OF AUSTRALIA, THE
s.127(2) - Appln to stop or prevent industrial action
(C2005/420)

TOTAL MARINE SERVICES PTY LTD
AND
MARITIME UNION OF AUSTRALIA, THE
s.99 - Notification of an industrial dispute
(C2005/421)

PERTH

12.07PM, TUESDAY, 25 OCTOBER 2005

Hearing continuing

PN1

MR M LLEWELLYN: I appear on behalf of Total Marine Services Pty Ltd.

PN2

MR M WALTON: I seek leave to appear on behalf of the Maritime Union of Australia.

PN3

THE COMMISSIONER: No objection, Mr Llewellyn?

PN4

MR LLEWELLYN: No, there's not, sir.

PN5

THE COMMISSIONER: Leave is granted, Mr Walton. Mr Llewellyn, I've set both matters down. How would you like to proceed?

PN6

MR LLEWELLYN: Sir, at this point in time we have the vessel tied up alongside in Dampier and the crew refusing to sail the vessel, so the more immediate presence for us is the 127 orders we're seeking. The section 99 was to try and head off that, if we didn't get to the stage where we had the vessel jacked up. We're now at the situation where the vessel was due to have sailed at 1700 hours yesterday and the crew refused to sail it and are continuing to refuse to sail the vessel.

PN7

THE COMMISSIONER: So you wish to press on with the 127 application?

PN8

MR LLEWELLYN: Yes, we do.

PN9

THE COMMISSIONER: Thank you, Mr Walton.

PN10

MR WALTON: The only thing is that we don't know of any section 127 application. We haven't been served. We've been given a notification from the court, but my instructions are we haven't been served with any documents whatsoever, other than the notification at 12 o'clock today. The only information we have is notification from the court. We haven't been served.

PN11

THE COMMISSIONER: I see. I mean, there would have been some contact from my chambers yesterday, I take it, considering that the matter was to be heard I think yesterday afternoon, it was set down for hearing yesterday afternoon and the MUA was advised.

PN12

MR WALTON: Sir, I have no instructions on that point other than the fact that I was notified about this matter at about 10.30 this morning. I've been in court in the Supreme Court from 11 until about 5 minutes ago and from the MUAs perspective, my instructing solicitor has been in contact with the MUA national office and State office and haven't been served at all is my understanding. We certainly have the notification, but that is obviously from the Commission.

PN13

THE COMMISSIONER: This was the notification for the matter to be heard at
2 pm yesterday afternoon?

PN14

MR WALTON: That's correct, and I have sighted the notification that it's to be listed today at 12.

PN15

THE COMMISSIONER: Well, there's not a lot to be notified, I take it, because it was only lodged yesterday morning, following which I set it down for 2 o'clock yesterday afternoon. Do you need any time just to acquaint yourself with it? I hear you say you've received it since 10.30 this morning.

PN16

MR WALTON: That's just the notification, sir. I haven't received any documentation other than that at all. I haven't received the - - -

PN17

THE COMMISSIONER: At this stage you haven't sighted the application?

PN18

MR WALTON: No, not at all. I think it's as fundamental as that, sir.

PN19

THE COMMISSIONER: Mr Llewellyn.

PN20

MR LLEWELLYN: Sir, the application was actually sent to the MUA Sunday night, at the same time it was lodge in the Commission. It was actually sent to both the national office and Mr Cain's email address where it was delivered.

PN21

THE COMMISSIONER: Do you have any evidence of that with you?

PN22

MR LLEWELLYN: Not with me, no. I wasn't aware it was an issue yesterday when the MUA contacted me and asked for the matter to be adjourned. They certainly seemed to know what it was about at that point in time, as did
Mr Dolman when I spoke to him yesterday as well, so I'm surprised that they haven't received it since they appear to know all about it and that was a phone call I received from Mr Corriston yesterday seeking to have the matter adjourned.

PN23

THE COMMISSIONER: Very well, I propose to adjourn for 10 minutes to allow Mr Walton to view the document and then on return I will hear from you as to whether you seek an adjournment, but it's a fairly straightforward matter, I should have thought.

PN24

MR LLEWELLYN: I have got a spare copy.

PN25

THE COMMISSIONER: I will adjourn for 10 minutes.

<SHORT ADJOURNMENT [12.11PM]
<RESUMED [12.26PM]

PN26

THE COMMISSIONER: Thank you, Mr Walton. You've had an opportunity to acquaint yourself with the application, have you?

PN27

MR WALTON: I have, Commissioner, I've had an opportunity to do that and there's a number of issues which are extremely relevant to this matter in terms of obviously what - I will give a very brief description of what the position of the MUA is.

PN28

THE COMMISSIONER: I think we've got a problem today because the air conditioning seems to be really loud.

PN29

MR WALTON: I'll speak up.

PN30

THE COMMISSIONER: And if you can't hear me, just give me a prompt.

PN31

MR WALTON: I am obliged. The scenario for the MUA is quite clear. These are as you would expect a series of safety concerns on behalf of the MUA which have been raised with the master of the vessel. In terms of the particular grounds of the 127 which I have just had a quick opportunity to consider together with
Mr Cain is that some of the grounds obviously we would have extreme difficulty with, but fundamentally, the MUAs position is this is a significant safety issue regarding this vessel, one that's been raised with the master and with Total Marine previously and continues to do so.

PN32

If it's a safety concern from the MUAs position, they are at a loss to see why they're here today. However, I predicate this on the fact that if, as I expect my friend to say, well, he wishes to proceed, if the evidence is required to be called which we're happy to do so, it will have to be done through the safety reps in Karratha.

PN33

The key issue, I think the fundamental issue, that WorkSafe were called. In terms of ground 4, that ground 4 is denied, but the issue is that there's been a list of safety concerns which I received via email and I've considered, most notable is the issue of unencapsulated asbestos and the issue there - - -

PN34

THE COMMISSIONER: Sorry, what is the issue?

PN35

MR WALTON: Amongst other things, I suppose the key issue is unencapsulated asbestos on board the ship and whether there may be certification for that vessel. However, we would be interested to know the exact certification, where it was obtained from and whether a current certification can be obtained. Now, I focus on that point, but there are other issues such as oil spills. WorkSafe were called and - - -

PN36

THE COMMISSIONER: But just to clarify, this is about the vessel. It's nothing to do with what might be on, the cargo or anything like that? It's about the basic vessel?

PN37

MR WALTON: It's the vessel itself. Obviously when you say cargo, there's an issue of overloaded tanks, oil falling into the ocean and possibly in the wharf area at Karratha. That brings with it a possibility of EPA involvement. Needless to say, WorkSafe had been called and that they attended this morning, but were refused access to the vessel. Now, my understanding is that refusal was relayed to the master of the vessel by my friend beside me.

PN38

Now, I anticipate that there may be an argument as to jurisdiction for WorkSafe. The issue and my concern and most certainly the MUA concern is that whilst it can't be as frankly put as, well, what have you got to be scared of, the issue can be that there clearly - from the MUAs position, there is a legitimate safety concerns which I'll list before you, but if it's not a WorkSafe issue or AMSA who have the requisite jurisdiction, it may well be that WorkSafe do have the jurisdiction to board the vessel and check the vessel for any safety concerns, but the fact is they were refused access to that boat. Now, it may well be that - - -

PN39

THE COMMISSIONER: Just before we go into this too much further, because I don't want to hear your whole story - - -

PN40

MR WALTON: Of course.

PN41

THE COMMISSIONER: - - - but the order says quite clearly that it's not seeking to, you know - it's seeking to recognise 4G of the Act and I think the words say something like for the avoidance of doubt, this order does not apply to action by an employee if the action is based on a reasonable concern by the employee about an imminent risk to his or her safety, et cetera, and I'm sure you're aware of the case law. That doesn't mean at its widest, that means a specific thing, so the question that we need to get to at some stage is is there industrial action happening or not?

PN42

MR WALTON: Well, from the position of the MUA, it's not so much industrial action, it is a legitimate health and safety issue.

PN43

THE COMMISSIONER: Well, within the definition of the Act?

PN44

MR WALTON: I would suggest so, sir, yes. That would be my submission. When you say imminent risk, it's very hard to classify asbestos exposure as imminent risk.

PN45

THE COMMISSIONER: Well, it's just this. You see, I think this is the fourth day that I've heard about this vessel. The vessel has been around in my personal knowledge for some time and I'm just wondering. I thought it had already been sailing with members of the union, this particular union, on board and I'm sort of - perhaps I need to hear from Mr Llewellyn a bit further before we go too much further, but if there is an industrial action happening and if there's no attempts to conciliate, there's been no application from the union to the Commission for assistance in respect of any industrial dispute that might be happening, this is where I'm placed. I have a 99 application, but it seems to be from Mr Llewellyn. It's not going anywhere.

PN46

MR WALTON: Well, before I sit, sir, I would say that conciliation and I suppose my final submission would be that if evidence is inevitably needed to be called, which I suggest that it would be, the practicality of that is that the people who can give evidence on that point are in Karratha and I suspect that the link-up we would submit would be ready by tomorrow morning, first thing tomorrow morning, but that would also allow conciliation to take place. Conciliation hasn't taken place at all and it may well be that those issues can be sorted out, but the practicality of the MUA giving evidence on these legitimate safety issues is one which is beyond my friend to give.

PN47

THE COMMISSIONER: Perhaps we just need to hear the evidence from
Mr Llewellyn and see where that takes us.

PN48

MR WALTON: I am obliged.

PN49

THE COMMISSIONER: Thank you very much. Mr Llewellyn, what is happening and what are you seeking? I assume you're going to present some evidence or some sort of evidence.

PN50

MR LLEWELLYN: Absolutely. Sir, what you said earlier was right. This is the fourth time issues with this vessel have come before the Commission, the last occasion before Senior Deputy President Lacy on 23 September where we sought 127 orders at that point in time for a refusal to sail the vessel.

PN51

THE COMMISSIONER: Has the vessel been sailed up to this point in time? I understand it's - - -

PN52

MR LLEWELLYN: The vessel actually came into port again last Friday. It's had one crew change since it's last been before you. The vessel has now been operating, probably the seventh or eighth week of operations.

PN53

THE COMMISSIONER: And, what, it comes in for a crew change, does it?

PN54

MR LLEWELLYN: It came in on this occasion because it needed to recertify some of its testing equipment and that was as a result of losing a piece of equipment which they're still trying to - - -

PN55

THE COMMISSIONER: When did it come in?

PN56

MR LLEWELLYN: It came in apparently on Friday. We weren't actually notified that it was coming in, but it came alongside in order to discharge the sludge tanks and that was after a meeting with the MUA delegate and the chief engineer at 2 am.

PN57

THE COMMISSIONER: Perhaps you should get in the box and give me some of this. I'd rather hear that than from the bar table.

PN58

MR LLEWELLYN: I am happy to do that. I was going to open with a summary of where we are in the first instance.

PN59

THE COMMISSIONER: Very well.

PN60

MR LLEWELLYN: Sir, perhaps in the first instance, this issue was first notified to the company on Sunday, the 23rd, when we received notification from the vessel's master that he had had Chris Cain from the MUA and Paul Asplin from the Australian Workers' Union on board the vessel. Mr Cain served a notice which doesn't comply to attend the vessels in Dampier.

PN61

We'd never raised an issue with that previously and still don't. However,
Mr Asplin didn't serve any notice whatsoever and attended the vessel in any event. During that visit, the master has instructed us that Mr Cain demanded the contracts for the Russian geotechnical crew which are not employees of Total Marine. The master was then advised that the Australian crew had not signed on to articles.

PN62

THE COMMISSIONER: Sorry, he advised about the contracts for the Russian crew?

PN63

MR LLEWELLYN: He demanded the contracts for the Russian geotechnical crew.

PN64

THE COMMISSIONER: I see, he demanded to see them?

PN65

MR LLEWELLYN: Yes. The master had also been advised that the Australian crew had not signed on to articles, the general hard lying nature of the vessel, but no detail of it. In terms of the Russian crew, demanded copies of their contracts.

PN66

THE COMMISSIONER: What is it about the hard lying. The crew get paid a hard lying allowance, do they?

PN67

MR LLEWELLYN: There is an agreed hard lying allowance, yes.

PN68

THE COMMISSIONER: And what was the demand in respect to that?

PN69

MR LLEWELLYN: Well, it was just the general hard lying of the vessel was the issue raised.

PN70

THE COMMISSIONER: I see.

PN71

MR LLEWELLYN: The Russian crew - they demanded copies of the contracts, the master was informed there was an issue as to the rate of the vessel which is a matter that's been before you previously and then demanded three coaches a day, two into Karratha and one into Dampier to allow the crew to leave the vessel and go into town. The party chief, who is the Fugro representative on board, who is our client, was then informed - - -

PN72

THE COMMISSIONER: I am just trying to get this down, the coaches?

PN73

MR LLEWELLYN: Coaches, taxis.

PN74

THE COMMISSIONER: A request was made, what?

PN75

MR LLEWELLYN: To provide three coaches a day for the crew to be able to go into town. Two of those coaches were to take the crew into Karratha and one was to take them into Dampier, so it was to allow the crew to leave the vessel and go and engage in activities in town.

PN76

THE COMMISSIONER: Karratha and?

PN77

MR LLEWELLYN: Dampier.

PN78

THE COMMISSIONER: Okay.
MR LLEWELLYN: As I said, the party chief who is the Fugro representative on board the vessel and Fugro is our client was then informed by Mr Cain that the union could not take action over these issues, but there were a number of safety issues. When Mr Cain was asked to provide details of those safety issues, he refused, which could lead us only to one of two conclusions, one there is either no issues worth mentioning or Mr Cain wanted to put his crew or keep the crew at risk rather than raise issues to be rectified.

PN79

Now, I don't believe the latter to be the case, but in any event, you'd have to ask the question about why the issues couldn't be provided to the company representative on board. Mr Cain stated unless the issues were rectified by the next morning, the vessel would not sail. When asked to contact TMS, he stated words to the effect that he did not waste his money calling us.

PN80

There was an attempt to contact Mr Cain by myself and messages left on his mobile phone, none of which have been returned. I spoke to Mr Corriston yesterday who stated that he was not aware of what the issues were and that
Mr Cain would have to speak to me. I was then subsequently notified by your chambers that Mr Cain had been able to contact your chambers to inform your chambers that he was unavailable to attend for these proceedings and to request it to be put off.

PN81

Now, apparently Mr Corriston had no trouble gaining Mr Cain, but obviously I need to remove from my phone the message that says it's me calling, but in respect to - following that, we contacted the master. The delegate had come back on board the vessel and I asked the master to speak to the delegate to find out whether there was any dispute. The delegate at 1300 hours informed the master that - - -

PN82

THE COMMISSIONER: Delegate at 1300 hours, when?

PN83

MR LLEWELLYN: Yesterday. Informed the master that there was no dispute on the vessel. However, that position could change. It was with that information that we sought this matter to be adjourned yesterday on the basis that there didn't appear to be a dispute. We were then advised that the MUA delegate had turned in and gone to bed.

PN84

At 1355 hours yesterday, five minutes prior to when the hearing was meant to have commenced, the delegate got out of bed, went and got the master up and handed him a list of not negotiable demands. That list of not negotiable demands was that TMS issues a certificate section 8A of the Seacare Act as we were informed and I'll deal with these as I go through it, to which we've conducted an investigation and can't find any certificate 8A under the Seafare Act or Seacare Act.

PN85

There is a declaration the vessel owners may make under the Navigational Act for 8A, but certainly that's beyond Total Marine's capacity to do anything about. He then wanted to be provided - the next demand was to be provided with details of the Russian crew's wages and conditions.

PN86

THE COMMISSIONER: Do you have a copy of this list? Are you intending to give me that as evidence?

PN87

MR LLEWELLYN: I will give you the report from the master and the log entries from the master when I give evidence.

PN88

THE COMMISSIONER: The certificate section 8A?

PN89

MR LLEWELLYN: Yes.

PN90

THE COMMISSIONER: The second thing?

PN91

MR LLEWELLYN: That he be provided with details of the Russians' wages and conditions, for the Russian employees on the vessel who are not employees of Total Marine, that the rate for the vessel be 107 per cent.

PN92

THE COMMISSIONER: What is it?

PN93

MR LLEWELLYN: Well, that the MUA crew get paid 107 per cent rate for the vessel.

PN94

THE COMMISSIONER: 107 per cent of the Russians'.

PN95

MR LLEWELLYN: No, 107 per cent of the schedule. They currently get paid 100 per cent. The MUA crew want to be paid 107 per cent to operate that vessel.

PN96

THE COMMISSIONER: This is about the classification of the vessel.

PN97

MR LLEWELLYN: Yes, and that the crew be signed on to articles. Now, in relation to the latter, we don't sign any of our crews to articles. Section 19 of the certified agreement deals with that issue.

PN98

THE COMMISSIONER: Which section?

PN99

MR LLEWELLYN: Section 19, or clause 19, which deals with the issue of coverage for the Nav Act and Seacare - or Seafarers' Rehabilitation Act. I am instructed that articles haven't been signed the end of the roster system and no-one at AMSA now administers articles in any event. The delegate was provided with clause 19 of the agreement. He was also informed that the Russians - he would not be provided details of the Russians' wages, as it would breach privacy legislation.

PN100

He was advised the claim for 107 per cent would not be granted and with that, the master was then informed that the vessel wouldn't sail. He informed the master that the crew were awaiting WorkSafe attending the vessel at 8.30 this morning and that there were a number of safety issues, but refused to identify those issues to the master.

PN101

Once that was communicated to us, we asked the master to bring the delegate back up and informed the delegate that it would breach the Nav Act to fail to report safety issues to the vessel master and that notation was being made in the log. The delegate subsequently went off and provided a preliminary list. At this stage we had the pilot attending the vessel, waiting to sail the vessel and we subsequently dismissed the pilot because we could not sail the vessel. Now, the preliminary list that was provided - - -

PN102

THE COMMISSIONER: Just tell me, what is the crew of this? There is a master?

PN103

MR LLEWELLYN: There's a master?

PN104

THE COMMISSIONER: And there's engineers?

PN105

MR LLEWELLYN: Yes, the crew is the master, a chief officer which is your first mate - - -

PN106

THE COMMISSIONER: So you say there's no industrial action by the other two unions?

PN107

MR WALTON: No.

PN108

THE COMMISSIONER: I see.

PN109

MR LLEWELLYN: The issues that were delivered to the master yesterday afternoon and this is the preliminary list was that there was asbestos between deck levels, between the engine room and the control room.

PN110

THE COMMISSIONER: Sorry, the asbestos is - - -

PN111

MR LLEWELLYN: Between the deck levels, so it's between the plate basically. Incidentally, I will just pause on that. The MUA were provided with a copy of the asbestos management report, together with the asbestos removal plan that was undertaken together with notifications of where there was any asbestos aboard the vessel and that was also the subject of the last proceedings before Senior Deputy President Lacy.

PN112

Unfortunately, I only have two copies of that left, but there's a CD report because it's too large to email to people and that showed there was only one area of asbestos and that was reported to the crew at the inductions that I attended on
17 October and that's the current crew and the only place of asbestos currently is inside the boiler, which is the boiler lining and the seal on the door of the boiler.

PN113

The boiler, incidentally, is not used and that room is sealed and not entered into by anybody. The other issues that were raised is lifeboat wires need to be inspected and tested, despite the fact there's certification on board for it. The anchor wires needed to be inspected and tested, despite the fact there was certification on board for it.

PN114

THE COMMISSIONER: Sorry, after the boiler, there was the anchor wires.

PN115

MR LLEWELLYN: Sorry, lifeboat wires, the winch and anchor wires.

PN116

THE COMMISSIONER: The winch?

PN117

MR LLEWELLYN: Winch and anchor wires and the request was to inspect them. The other issues is the derrick wires which is something that the marine crew don't use. However, the master pointed out to me that the derrick wires had been condemned until they could be replaced, as a result of losing a piece of equipment from the derrick or losing a piece of equipment they had actually lowered down into the sea from the derrick.

PN118

THE COMMISSIONER: You're saying these derrick wires aren't used?

PN119

MR LLEWELLYN: The MUA don't come into contact with them at all. The next issue that was raised with the master was the forward upper pod room contains some chemicals that may be dangerous, at which point I should tell you that the MSDS sheets are on board for all of those chemicals, so it would have been a relatively simple matter to have them checked.

PN120

The next issue, the crane wires, which are also certified on board. There was a HSE issue raised which was over the showers and toilets being in a bad condition. The issue of the toilets had already been addressed the previous day and there was agreement to fix that when it makes port call on the 26th because they need to put some new cisterns on them apparently and the last issue that was raised was that the hand washing station - - -

PN121

THE COMMISSIONER: When you say the 26th, 26 November?

PN122

MR LLEWELLYN: 26 October. It's making a port call in another three days. It has to come in to convert to operating in shallow waters, convert some of the equipment on board.

PN123

THE COMMISSIONER: Just for an overview, this vessel was going to depart yesterday and come back?

PN124

MR LLEWELLYN: On the 26th.

PN125

THE COMMISSIONER: On the 26th? What was going to happen then?

PN126

MR LLEWELLYN: It would convert over to shallow water, so it would take on some different equipment and - - -

PN127

THE COMMISSIONER: I am just wondering about when would the crew be required?

PN128

MR LLEWELLYN: Well, they were required today to sail the vessel and they will be required to work through that period of time. The next crew change is not scheduled until 15 November. The delegate at that point stressed to the master that this was only a preliminary list and they'd find some more. Now, it was at that point that we contacted AMSA who I should say have conducted two port State inspections on this vessel, one when it first arrived in Dampier and another one on 18 November - 18 October, rather, sorry, which was when the last crew change occurred.

PN129

THE COMMISSIONER: And they did that where?

PN130

MR LLEWELLYN: In Dampier.

PN131

THE COMMISSIONER: And when was the first one? Six or seven weeks ago?

PN132

MR LLEWELLYN: A couple of days before 23 September, when we were last before the Commission. As a result of the way in which this dispute has progressed, we contacted WorkSafe. We also contacted AMSA.

PN133

THE COMMISSIONER: When are you doing this? Yesterday?

PN134

MR LLEWELLYN: Yes.

PN135

THE COMMISSIONER: Who did this contacting?

PN136

MR LLEWELLYN: We contacted - - -

PN137

THE COMMISSIONER: Who is we?

PN138

MR LLEWELLYN: Myself and Stuart McLean from the IGL Group who is the group employee relations adviser.

PN139

THE COMMISSIONER: I cut you off. You contacted AMSA?

PN140

MR LLEWELLYN: AMSA and spoke to one of the surveyors in Fremantle who informed us that WorkSafe had no jurisdiction on this vessel, being a foreign flagged vessel.

PN141

THE COMMISSIONER: It hasn't got a certificate under the Navigation Act?

PN142

MR LLEWELLYN: AMSA actually had the jurisdiction as a result of the port State. We spoke to the chief executive officer of WorkSafe yesterday and again today who confirmed there was no jurisdiction and my understanding after I spoke to Mr Nielsen, who is the inspector in Dampier, this morning he wasn't going to attend the vessel and we haven't had any notification from the vessel that he did attend the vessel this morning.

PN143

THE COMMISSIONER: You're not aware of his attendance this morning?

PN144

MR LLEWELLYN: The master was to ring me as soon as Mr Nielsen attempted to attend the vessel, but Mr Nielsen spoke to me prior to leaving his office and informed me that he wasn't going to attend the vessel because he didn't have jurisdiction.

PN145

THE COMMISSIONER: Mr Nielsen from WorkSafe?

PN146

MR LLEWELLYN: Yes. He is the inspector in Karratha. That phone call took place this morning, so the situation we're in at this point in time is that we have the vessel tied up alongside at approximately $70,000 per day, with the crew refusing to sail the vessel.

PN147

THE COMMISSIONER: You say what, 70,000 a day?

PN148

MR LLEWELLYN: Yes, that's the approximate cost to have that vessel alongside for each day in loss.

PN149

THE COMMISSIONER: Are you talking about Total Marine Services?

PN150

MR LLEWELLYN: A combination of Total Marine Services and our client.

PN151

THE COMMISSIONER: Who is Fugro, is it?

PN152

MR LLEWELLYN: Fugro, f-u-g-r-o. Clearly in our view, in terms of what is taking place and that is the request for the removal of the Russian crew is clearly a secondary boycott under the Trade Practices Act and in our view also breaches 298P of the Workplace Relations Act. Now, that's the situation we're in currently. We obviously seek to have that vessel sail.

PN153

I've had the vessel's master prepare the minutes from the meetings that have occurred on site and he's provided them to me together with copies of the ship's log which I'm happy to tender and do intend to do so. Now, that's the position we're in at the moment. We want this vessel out of port and we don't want to be in this situation again in three days' time when it comes back because so far on each occasion this vessel has hit port, we've had to come here and this is the last occasion from our point of view we're going to do it. Now, that's the reason why we didn't want to pursue the section 99.

PN154

THE COMMISSIONER: In my experience, since I've been here, you know, it's been more likely that you've lodged section 99s. I haven't seen too many 127s from Total Marine Services.

PN155

MR LLEWELLYN: Well, we are on this occasion, because quite literally we've had enough of it and so has our client with this particular vessel and we have absolutely no faith at all that when this makes a port call, if we manage to get it out of port, if it makes a port call again in three days time, that we're not going to go through this again and again on 15 November. Now, that's the situation. I'm happy to take the witness box and give evidence and I would tender the documents I've had sent to me from the vessel.

PN156

THE COMMISSIONER: Let me just hear from Mr Walton for a second.

PN157

MR WALTON: As you would expect, sir, I've got comments in relation to most of those and - - -

PN158

THE COMMISSIONER: I sort of want to know is this vessel about to leave, do you know?

PN159

MR WALTON: Well, from what my friend said, it came yesterday and it was - it was supposed to leave yesterday and it was supposed to come back tomorrow, so I take that - that was the original plan, supposed to sail yesterday, come back tomorrow, that was the original plan, so there's a three-day - - -

PN160

THE COMMISSIONER: Sail Monday, come back Wednesday.

PN161

MR WALTON: Wednesday, so that's a three-day block, so I presume from what my friend says that he hopes for it to sail today/tomorrow for another three-day block, so a three-day block of work hasn't actually been carried out and then it's going to come back to be adjusted for shallow waters. That's my understanding of what my friend said. These issues have been raised and obviously it was the safety rep from the union who is to bring it to the attention of the master, not the delegate as such. Now, the fact that my friend is aware of that is obviously that it has been raised with the master, but quite of concern for myself is that there's a concession from my friend, I would remark that it was a concession that the vessel - his comment - was brought back in to be inspected, even though it was certified. Well, that's my recollection.

PN162

MR LLEWELLYN: That's not what I said at all.

PN163

MR WALTON: Some of the material on board that vessel - - -

PN164

MR LLEWELLYN: I object to that. If my friend is going to quote me, at least quote me accurately. AMSA have conducted two port State inspections with the vessel - - -

PN165

THE COMMISSIONER: No, no, I think the question - Mr Llewellyn, while you're on your feet, I'd just like to hear from each of you separately, but what was the reason that the vessel came into port yesterday?

PN166

MR LLEWELLYN: Well, the vessel actually came into port on Friday.

PN167

THE COMMISSIONER: Why did it come into port on Friday?

PN168

MR LLEWELLYN: It needed to recertify one of its geotechnical tools which aren't operated by the MUA.

PN169

THE COMMISSIONER: Okay, thank you. I'd like to hear from you,
Mr Walton.

PN170

MR WALTON: Okay, so let's be certain about this. The vessel came back in to recertify certain equipment on board that vessel, that's agreed, so it has come back in to be recertified. My instructions are that along with the derrick wires which has been broken, has broken, resulting in full loss of equipment which also housed a one-tonne acid battery and is now sitting on the ocean floor, 500 metres down, which again I don't wish to misquote my friend, but there was that I recall a note that something was lost, there's clearly an issue regarding recertification of certain equipment which my instructions are, are in the vicinity of where the members, MUA members, work and it doesn't need me to say that the fact that a derrick wire has broken resulting in the full loss of equipment and what seems to be quite heavy equipment. Now, I think that is an established fact, there is an issue on board this vessel. Now, it may well be that - - -

PN171

THE COMMISSIONER: I don't want to sort of go over this - we've got limited time here this afternoon.

PN172

MR WALTON: Of course.

PN173

THE COMMISSIONER: And I don't really want to go over this and then go over it again. I am trying to establish whether or not from your point of view you understand that the vessel is about to sail or it's not about to sail and if it's not about to sail, well, I think I will say to Mr Llewellyn let's hear your evidence, unless you're going to say to me that you understand the vessel is about to sail or you say to me, you know, the vessel is going to sail and we want the Commission to convene a conference on ongoing issues or the vessel is about to sail, if AMSA is going to give a certificate or something or other. I'm just trying to head off a bit of time here.

PN174

MR WALTON: I agree. I don't know because it seems to me that we've been in a stalemate because of these issues and obviously because of the adjournment from yesterday.

PN175

THE COMMISSIONER: Okay, we'll hear it, then. If we don't hear a full one, we can - there's the option of an interim order, we can hear evidence later. I am guided by the parties on this. It seems that the boat is not going anywhere.

PN176

MR WALTON: The boat is not going anywhere, it's not going anywhere today, so why not have the matter either adjourned through to tomorrow morning so that the totality of the evidence, we can have our evidence from safety reps brought in from Karratha and it would be my submission that would be a more practical, so you wouldn't have a situation where there's part heard evidence. The fact that between now and then may allow for conciliation, so I think that's a very practical consideration and it appears to me from my friend's submissions, although again I don't wish to misquote, is that the thrust of it seems to be this three-day block of work that needs to be carried out, then to come back to be adjusted.

PN177

THE COMMISSIONER: So you're saying that on the basis that the vessel won't be sailing today?

PN178

MR WALTON: Well, it seems to be that it's not ready to sail and that these issues need to be fully - - -

PN179

THE COMMISSIONER: Okay, let's hear from Mr Llewellyn on that point.
Mr Llewellyn, when is the vessel going to sail?

PN180

MR LLEWELLYN: The vessel was ready to sail at 1700 hours last night and that's why the MUA are currently off pay for refusing to sail it. The vessel is ready to sail now subject to a pilot attending the vessel which will attend the vessel in a maximum of three hours' notice, so within a three-hour period we can have the pilot on the vessel and the vessel heading out to sea. Now, the vessel has been ready to sail ever since yesterday afternoon and sits there currently read to sail. All we need is the pilot and the MUA to sail the vessel.

PN181

THE COMMISSIONER: And what do you say about conciliation?

PN182

MR LLEWELLYN: Well, we're not interested in it any more. Mr Cain had his opportunity to consider this over the weekend, he had it yesterday. The fact that he waited until five minutes before the hearing was due to start yesterday to even deliver the demands to the master gives some indication to the Commission about the MUAs modus operandi in this matter.

PN183

THE COMMISSIONER: What do you say about an adjournment until tomorrow morning?

PN184

MR LLEWELLYN: We want the vessel sailing now. Mr Cain had ample opportunity to bring his safety rep down yesterday if he wanted to do it. He could have had him here at 10 o'clock this morning on a flight out of Karratha.

PN185

THE COMMISSIONER: Perhaps he didn't know it was being listed last night.

PN186

MR LLEWELLYN: Well, he knew the vessel wasn't sailing yesterday and he certainly knew the matter was listed yesterday and he knew as soon as they told the master that this would get relisted. Certainly his members were aware, because the master instructed and we were trying to get it back before the Commission. Now, this is just simply a tactic to have this vessel tied up alongside, as was the tactic to visit the master yesterday and say there were no issues and then at five to two issue a list of demands and the delegate actually went to bed, then got out of bed to give the list of demands to the master.

PN187

THE COMMISSIONER: What do you say about it wasn't the delegate, it was the safety rep?

PN188

MR LLEWELLYN: Well, the master instructs me it was the delegate that issued it to him and according to the ship's log, it was actually Mr Ward and Mr Shanahan were the two people and they're listed on the ship's log as being the MUA delegates, Mr Ward being an IR and Mr Shanahan being a steward. Now, if one of those is the safety rep, maybe it was the safety rep and the delegate, but they've certainly identified themselves to the master as the delegates.

PN189

THE COMMISSIONER: Thank you, Mr Llewellyn.

PN190

MR WALTON: Sir, if I might just rise. Mr Cain wishes to address you very briefly about a couple of issues which I think are pertinent.

PN191

THE COMMISSIONER: I will tell you what is going through my mind,
Mr Walton. What is going through my mind is that in the light of Mr Llewellyn - you propose a course of action, Mr Llewellyn opposes it. It's Mr Llewellyn's application and what's going through my mind is whether or not I should at least hear evidence from Mr Llewellyn to decide whether or not an interim order could be made to allow such time as maybe to continue on tomorrow or Thursday or Friday, Friday it could be, in respect of - well, when there's more opportunity for further evidence, but that's what's going through my mind.

PN192

MR WALTON: In terms of an interim order, sir, ordering the boat to sail?

PN193

THE COMMISSIONER: On the basis that the order doesn't apply to industrial action covered by GI - 4G. That's what's been applied, that's what's been sought.

PN194

MR WALTON: My concern, sir, I appreciate - - -

PN195

THE COMMISSIONER: It's his application and I feel obliged in the interests of time to hear his evidence.

PN196

MR WALTON: I can see your position, sir. My concern is that whilst it is his application, he is making allegations against - - -

PN197

THE COMMISSIONER: Well, I haven't heard his evidence. He's just been talking from the bar table.

PN198

MR WALTON: One can presume, I would ask the Commission to infer that there's obviously going to be allegations made and - - -

PN199

THE COMMISSIONER: Well, Mr Cain is in the room and I understand that
Mr Cain was up there last night, so after Mr Llewellyn, you would be at liberty to allow Mr Cain, if he wants to give any evidence in respect of that, proceeding on that basis, if we go down that track.

PN200

MR WALTON: I just think about the quality of - - -

PN201

THE COMMISSIONER: This is not unusual for - to make an interim sort of approach when there's limited time and industrial action allegedly is currently occurring to this extent. I mean, my record shows I'll try and get deadlocked parties into conciliation and let sanity prevail wherever possible, but - - -

PN202

MR WALTON: That's the MUAs position without question about conciliation, but to fully explore this matter and to fully defend, which is it, whilst my friend is entitled to bring that application, it is also the entitlement of the MUA to present a cogent and practical defence to any allegations and to support the allegations which they have with the concerns for safety. Now, whether Mr Cain can do
so - - -

PN203

THE COMMISSIONER: Where I have the difficulty with that is that the application specifically excludes safety. It's only about industrial action, not industrial action to the extent that G is excluded from the order, so if you think you're taking action under that, you have nothing to fear from such an interim order. I mean, I referred you earlier to the case law and the case law says that just because you have someone who's concerned about safety issues on a vessel, that is not sufficient obviously.

PN204

MR WALTON: No, I appreciate that, but obviously the MUA position - it does fall within the contemplation of the Act and certainly falls - we simply reject the position that it's not industrial action. We say that it's the imminent risk, health and safety is the key issue and that the MUA aren't prepared to sail that vessel in the current state it's in based upon the safety issues. It's not about industrial action, but on the safety issues.

PN205

THE COMMISSIONER: Notwithstanding the other two unions don't seem to have a problem with it.

PN206

MR WALTON: Well, that's only from the bar table from my friend. My understanding about the Russian crew is denied, that there is no issue about the Russian crew from the MUAs perspective, but it may well be that it is the AWU who have made those demands and for the purposes of today, that should be excluded because we're very happy to focus upon the issues that - in response to my friend's application to focus on the points that the MUA can speak of and they are the legitimate safety concerns on board that vessel at this particular time and I would note and it's clear that it came in on Friday, to be recertified, for certain equipment and my friend is about to give evidence presumably about that and we would like to be in a position to be able to call evidence from people on board that vessel who are within - certainly can give accurate and precise best evidence of the conditions on board that vessel, given the fact that it came in to be recertified for certain equipment and from a practical perspective, I fully appreciate, sir, your position and I agree with that wholeheartedly. However on a practical position, whilst it is the applicant's application, the MUA is fully entitled in my submission to respond to it given what they believe is very high stakes and that is the safety concerns. The fact that a derrick wire has broken, resulting in the loss of cargo overboard, there's an issue based upon my instructions, that there's been recent examples of significant injuries because of that very problem, so to say that - - -

PN207

THE COMMISSIONER: Sorry, what did you say?

PN208

MR WALTON: Because there's been very recent examples of - - -

PN209

THE COMMISSIONER: Other vessels?

PN210

MR WALTON: Yes, yes, and from a practical perspective, it would be my submission that to bring the totality of the matters together is that it should be adjourned to first thing tomorrow morning, hear evidence from all the parties and it allows my friend to call better evidence I suspect than he will call himself, be able to bring to the court today. That would be my position, anyway, and that's the MUAs position.

PN211

THE COMMISSIONER: Have you got anything further to say on that,
Mr Llewellyn?

PN212

MR LLEWELLYN: Sir, we want to proceed to the interim orders. I mean, quite clearly this isn't a safety issue. My friend's suggestion would simply guarantee the vessel not being able to sail for another two or three days at $70,000 a day. The equipment he's talking about is recertified is a stake haul which the MUA have absolutely nothing to do with.

PN213

THE COMMISSIONER: He said they work in the vicinity of the - - -

PN214

MR LLEWELLYN: Well, they work on the same boat with - - -

PN215

THE COMMISSIONER: The derrick wire.

PN216

MR LLEWELLYN: The derrick is operated by the Russian geotechnical crew.

PN217

THE COMMISSIONER: You said they work in the vicinity of.

PN218

MR LLEWELLYN: Well, they're on the same boat, yes. That's about as close to the vicinity as you can get, but they have nothing to do with that equipment.

PN219

MR WALTON: I would be very intrigued to hear the evidence.

PN220

THE COMMISSIONER: Yes, maybe that's where we're at.

PN221

MR WALTON: Well, he can't give it from the - - -

PN222

THE COMMISSIONER: Just give me a moment. I will be back in two minutes.

<SHORT ADJOURNMENT [1.07PM]
<RESUMED [1.13PM]

PN223

THE COMMISSIONER: Can I just say that I do regret that the parties - there is obviously a matter in dispute between the parties of some sort it seems. Be it safety or whatever and I regret that the parties aren't able to resolve that pursuant to the dispute resolution procedures of the agreement. What I propose to do is to proceed to hear Mr Lllewellyn in respect to an application for an interim order and I propose to hear that and deal with that now with a view to whether or not an order should be made being timetabled subject to the availability of the Commission which is a bit of a problem I could say at the moment with the suggestion that it put off until tomorrow to be heard either by myself or Senior Deputy President Lacy on Friday. Mr Lllewellyn?

PN224

MR LLEWLLYN: Thank you sir.

<MICHAEL DANIEL LLEWELLYN, SWORN [1.17PM]

PN225

THE WITNESS: Just for the record, name is Michael Daniel Llewellyn, I am the industrial relations and personal manager for Total Marine Services Pty Ltd of (address supplied). So it in terms of the evidence this vessel was first inspected by the MUA back in February, approximately February of this year, at which stage an inspection report was provided by the MUA.. The vessel commenced operations in Australia in September where this matter has been before the Commission previously. There was a matter that came before the Commission on the 23 December, sorry September, seeking 127 orders because there was a refusal to sail the vessel. That matter was resolved that evening and the 127 orders weren't pursued. On Sunday 23 October I received a call from the vessel's master, or sorry the Australian master on the vessel, and by way of background this is a Russian flagged vessel. The legal master is the Russian master under Russian flag requirements and Russian legislation, the vessel must maintain a Russian national as the master, a Russian national as the chief engineer, and a Russian chief officer together with a Russian radio officer if there is to be a radio officer. Consequently we have a shadow master which is an Australian master or working under Australian laws anyway, he is actually a New Zealander.

PN226

THE COMMISSIONER: Is the Australian master an employee of Total Marine Mr Llewellyn?---He is, Stewart Wright is our employee. He contacted us Sunday afternoon and advised us that Mr Cain, Mr Bray and a Mr Asplin had been on board the vessel.

PN227

Mr Cain is the State Secretary of the Maritime Union?---State secretary of the Maritime Union Association, sorry Maritime Union. Mr Bray who I understand to be the assistant secretary of the that union and Mr Asplin who I understand to be an official of the Australian Workers Union. During that conversation I was informed that the vessel had actually come into port over the weekend and a matter of fact was in port Friday afternoon. The reason it had come to port is that they'd had an incident whereby a frame they use on the ocean floor when they attempted to retrieve it essentially the eyelets on the cable didn't hold and lost that and they'd also needed to recertify a cable they were used on the stacor which is a devise they lower down to measure the - or take soil measurements.

**** MICHAEL DANIEL LLEWELLYN XN
PN228

So what - are you talking, is this a derrick wire, the derrick wire he talked to you about?---The derrick wire would have been the wire that didn't hold to retrieve the frame on the ocean floor which weighs approximately five tonne. It was actually lowered onto the ocean floor. The casing is then - well it's lowered down with the casing, they retrieved the casing but not the actual frame itself.

PN229

So I'm just trying to picture this. Did he described how this broken cable would affect the ship?---Well generally it means they can't retrieve that piece of gear, it doesn't affect the operation. They will continue to operate the stacor without the frame, they are bringing in a new frame and they will retrieve the frame by fishing it. In other words hooking it with a grapple and pulling it back up. But rather than withhold - rather than stop the operation they are going bring a new frame in and they'll bring another vessel in to pull that frame off the ocean floor.

PN230

And this was caused by the wire breaking was it?---As I understand it, the actual eyelet didn't hold so where you have the eyelet formed, the eyelet pulled through.

PN231

And is there plans to do - what are the plans in respect of further work?---Well as I understand it the derrick wires on what I've given by the master have been condemned and will not be used and that information was actually provided to the crew when they eventually bought the list up yesterday afternoon or yesterday evening.

PN232

You were advised by the master that the - - -?---Derrick wires.

PN233

Derrick would not be used?---The derrick wires were condemned and will not be used.

PN234

The derrick wires will not be used?---And they had already been condemned prior to the MUA even attending the vessel. They were condemned from the moment it didn't lift the frame.

PN235

Okay?---So the port call was to recertify the stacor which is a piece of GA technical equipment that's used for taking the seabed measurements required for the GA technical survey.

PN236

And what's the problem with that? Just tell me about your understand of what he said to you about that?---Well it's a - what they do is, it's a piece of equipment they send down through the casing. The best description is when you're drilling you have a casing. What they do is drop the casing to the seabed.

**** MICHAEL DANIEL LLEWELLYN XN
PN237

This is all happening down there though, isn't it, it's not happening on the vessel?
---No it's all under water in depths of anything up to 3000 metres.

PN238

And what went wrong do you understand?---Well I'm not sure why they had to recertify the stacor but I gather it - - -

PN239

How do you spell the stacor, anyway okay?---It's s-t--a-c-o-r I think.

PN240

Yes, okay.?---But the stacor is basically a piece of equipment that they lowered through the casing and pressurise into the seabed to take measurements of the density of the soil - - -

PN241

And it needs to be recertified?---Yes and they need to recertify that.

PN242

That's not on the vessel, it's not part of the vessel?---No. No it's part of GA technical equipment that operates on the seabed. During that conversation the master informed me that they'd had a meeting with the delegates at 0.200 hours on Sunday morning, that's Sunday 23 October and that was the MUA delegates together with the chief engineer and there were a number of issues raised. Those issues were that the sludge tanks were filled and needed to be pumped out and the sludge tanks had been filled with bilged water as well as sludge and no-one could identify how that happened but nevertheless it happened and to maintain Fugro's conservation policy they needed to have that pumped out.

PN243

Yes?---So they came on side to essentially to get a sludge truck to pump it out. That sludge truck was ordered. That eventually turned up yesterday. There was an issue about repairing some toilet cisterns on the lower deck and there was agreement reached to repair those by replacing the cisterns on the port call on 26 October. There was a need to garbage off the vessel.

PN244

Obviously to be replaced on the 26th?---Yes.

PN245

Yes?---There was a need to remove garbage from the vessel. When you're in port you can't use the incinerators so arrangements were made to remove the garbage. The only other issue that was raised is the same issue that was raised before the Commission on the 23rd and that is there's communication difficulties between the Russians and the Australians and that issue was resolved onboard. So at 2.00 am or 2.20 am Sunday morning they were the only issues raised by the MUA. Following Mr Cain's visit we were advised that Mr Cain had advised a number of claims to the vessels.

**** MICHAEL DANIEL LLEWELLYN XN
PN246

So when did Mr Cain - when do understand Mr Cain attended the vessel?
---Mr Cain attended the vessel at 1100 and perhaps if ….. Commission if I tender a copy of the vessel log. This is an entry made in the official log which was sent down to me by the vessel master.

PN247

Sorry, this was a log which was sent to you. This is the vessel log that was sent to you by the vessel master?---Yes. It's an extract of the - a copy, a photocopy of the log maintained on the vessel.

EXHIBIT #L1 VESSEL LOG

PN248

THE WITNESS: As you will see by the vessel log it records, the MUA, where Mr Cain & Mr Bray were onboard for a meeting of the MUA members.

PN249

THE COMMISSIONER: Which page am I looking at?---Sorry page 51, it's the left hand column where you've got the comments written about tides if you go across there's a notation at 1100 hours and various notations regarding to that visit.

PN250

I'm looking at 1100 more along side DOW standby, is that what you're talking about on page 51?---So if you go to page 51 at the top of the page, it's 23 October Sunday.

PN251

Yes?---Which is on the right hand side of the page.

PN252

Yes?---If you move down you'll see basically an indented box with the tides are written and there's a comment commences there at 1100 MUA rep C Cain and Ann Brayon on board for meeting with MUA meetings, various demands provided to S Pyatovski who is the Russian master.

PN253

I see and you're drawing my attention to the notation beside 1400?---Behind 1100, next to 1100 I think, if we're on the same page.

**** MICHAEL DANIEL LLEWELLYN XN
PN254

Yes, your drawing my attention to that yes?---Mr Pyatovski is spelt
P-y-a-t-o-v-s-k-i. Now he is the legal master of this vessel according to the flagstone ….. At 1400 there was a meeting with Mr Cain and Mr Bray,
Mr Pyatovski, Mr Wright who is the Total Marine master onboard the vessel.
Mr Haiken who is the party chief which is our client's representative on board the vessel. Mr Ward and Mr Shanahan who I am instructed are the MUA delegates. Over industrial matters Mr Cain gave a list of demands including the removal of the Russian seafarers from the vessel and seeking the pay - seeking an increase in the pay and conditions for the Australian crew. It was at that point Mr Wright asked me to deal with the matter and I left a message for Mr Cain to ring me urgently. That was on the Sunday afternoon and I still haven't heard from him as a result of discussions within our office and with our client these applications were filed Sunday afternoon or Sunday evening. Perhaps in terms of that and those meetings the master has also provided with me or provided to me a copy of the minutes of the meeting to which he has a signed copy on board the vessel and they've been signed off by Mr Pyatovski the vessel master, Mr Wright the Australian master and Mr Haiken the site manager to be a represent - accurate representation of the conversations that took place on board the vessel between himself and Mr Cain on that day and on the subsequent days. We were advised that Mr Cain had spoken to the party chief And advised him of the issues and those issues included the Australian crew not - - -

PN255

Sorry, who told who what? I'm just trying to work out - is this your evidence or you going - - -?---Well I'm happy to put up the minutes that the master has provided along with the log entries.

PN256

Yes?---And speak to those minutes but this is the conversation directly between myself and our master informing me of the state of vessel.

PN257

Okay I will accept it that you're telling me what someone told you?---Yes.

PN258

Okay?---And I am happy to put those minutes up as well.

PN259

Yes.

EXHIBIT #L2 MINUTES RECORD MUA DISPUTE 23 TO 23 OCTOBER.

PN260

THE WITNESS: The issues that were raised were the seeking of the ITF agreements for the Russian crew which is the International Transport Federation, I am informed, contracts.

**** MICHAEL DANIEL LLEWELLYN XN
PN261

Sorry, this is what? What is exhibit L2?---L2 is a record of the meetings between the MUA and the people on board the vessel being the Russian master, the Australian master - - -

PN262

And the site manager?---And the party chief.

PN263

MR WALTON: Sorry, if I could just rise, sir, is the evidence that it's signed, L2 is signed by the master, the Australian master and the site manager?---That's correct.

PN264

My copy doesn't have any signatures?---Well the evidence was also that it was signed on the vessel and is maintained on the vessel as part of the ship's log and record of what occurred.

PN265

MR WALTON: So we got double you say?

PN266

THE COMMISSIONER: I will let you, you can - - -Well, the ship log is - if I can answer that, the ship's log is a legal document that is required to be filled out accurately and will stand as evidence on its own under the MAV Act.

PN267

MR WALTON: I can't see it?---Well my friend raises that but he was happy to produce the ship's log the last time we were here.

PN268

Well that's the last time we were here. Okay, we are here today it's a different day and I'm being asked to accept evidence into court, into the Commission which is I am told is signed but my copy and I believe the Commissioner's copy and your copy isn't signed so - - -

PN269

THE COMMISSIONER: Yes, I think the point is made, Mr Llewellyn, who gave you this?---Sorry, Mr Wright the Australian master emailed it to me.

PN270

Have we got a copy of the email?---Yes I do. It's in the blue file over there.

PN271

Do you want to go and get that. We'll just break for 30 seconds while we get some photocopies. Do you intend tendering those?---I've discovered - I want to make a quick call anyway so I'll be back in five.

PN272

MR WALTON: I'm obliged, sir.

<SHORT ADJOURNMENT [1.30PM]
<RESUMED [1.36PM]

**** MICHAEL DANIEL LLEWELLYN XN
PN273

THE COMMISSIONER: What I have is what purports to be an email from TMS master to Michael Llewellyn.

EXHIBIT #L3

PN274

THE COMMISSIONER: It says:

PN275

Please find attached the minutes for yesterday and today. Chris Haiken, the Fugro rep and I have signed originals as fair records. I will get log book copies to you first thing in the morning.

PN276

?---Sir, that was the attached minutes and subsequently log book entries which is exhibit L1 were scanned and sent to us today.

PN277

I see, well, I am just having a quick look at this. I am just looking at the matters which appear under O220 and I am looking at the matters which appear under 1100. I am just looking for the safety matters and I am having some difficulty.

PN278

?--- Well, perhaps if I take you through that as we go.

PN279

Yes?---At that point in time I am instructed by the master that the safety matters were requested and refused to be provided.

PN280

Where is this at?---This was at the meeting - if you turn over the page, Mr Cain was asked by C Haiken to address the remaining issues, TMS refused the issue that was raised - I might have to concede my friend it maybe hearsay but it was the master's view of the reported back the conversation Mr Cain had with
Mr Haiken that there was safety issues and he wouldn't provide them to the - - -

PN281

Mr Cain was asked by Mr Haiken to address the minutes remaining issues to TMS and he refused saying TMS must contact him although he had a busy schedule and may not be available

PN282

?---And I attempted to contact Mr Cain.

PN283

He said:

PN284

He hoped these issues could be resolved before the vessel was due to sail after discharging sludge the following day.

**** MICHAEL DANIEL LLEWELLYN XN
PN285

Is that what you are drawing my attention to?---Yes. I attempted to contact Mr Cain and left messages for him. Unfortunately, today, he hasn't seen fit to return those calls. We were subsequently advised by the master that Mr Cain was to re attend the vessel the next morning together with Mr Asplin who I issued instructions to the master Mr Asplin had no right of entry onto the vessel. The master subsequently reported to me he denied access to Ms Asplin and as a result Mr Cain and the MUA members left the vessel and held a meeting in the what he called, or what he explained to me was a hut on the wharf which I understand to be their lunch area. He did inform me that they left a gangway watch which is required while in port and that he would get back to me with any further information from the crew. He then spoke to me approximately between 12.30 and 1 o'clock when he informed me that the crew had returned to the vessel. I asked him if he had any information from the crew, he said he had had none so I instructed the master to get the delegate and asked the delegate if the vessel was going to sail that date bearing in mind all they were waiting for was a sludge truck that was on the barge alongside the vessel and it was waiting alongside the wharf rather than waiting to be unloaded. That sludge truck had just returned from being out at the island and they couldn't pump the sludge off until that truck had been unloaded and emptied its load. As a result of that the master bought the delegate up and he then contacted me to inform me that the delegate had informed him that they were not in dispute, however, that position might change. He then informed me that the delegate then turned in being that the delegate was on nightshift so the delegate turned in and went to bed. He then contacted me - - -

PN286

Sorry, I am just looking at the log book?---Sorry, the log book.

PN287

Sorry, the minutes which have been provided, this is L2, under 1355?---Yes.

PN288

You can see that it doesn't say who made those demands?---Well, it says:

PN289

The following - - -

PN290

I see?---Sorry, I wasn't reading that, I am just relating the conversation between myself and the master.

**** MICHAEL DANIEL LLEWELLYN XN
PN291

Very well?---The master contacted me at around about five past two and informed me that the delegate had been up and issued a log of demands that were non-negotiable. The master relayed that to me as the demands being that the crew required a section 8A certificate to be issued under Seacare which I informed the master I was not aware of any such certificate. The second issue was that they sort the Russian's wages and conditions to which I told the master to inform the delegate it would be illegal for that to be provided and they are not employees of Total Marine so it is not something we can provide in any event. The third issue was the 107 per cent to which I asked the master to inform the crew that issue was declined. The fourth issue was the crew sought to sign on to articles and the master thought that was related to the issue about the 8A certificate. As a result of that I returned to my office on the way contacting our Occ Health and Safety people and our Workers' Comp people asking them if they could provide any detail to me as to what a section 8A Seacare certificate might be. When I returned to my office I found from all of those people there was no such thing, they weren't aware of any certificate. Our master mariner, however, was aware of a section 8A notification that the vessel owners may make under the Nav Act but there was no requirement for that to be made. I asked the master to get the delegate back up and put to him that the issue of the Russian wages were not going to be provided, the 107 per cent was denied and we would look into the issue of the certificate and for the master to let me know if the delegate was going to allow the vessel to sail on that basis. The master rang me back about 15, 20 minutes later and informed me that he had passed that information on to the MUA delegate and the delegate had informed him that the vessel would not be allowed to sail. He subsequently informed me that the delegate had requested that the vessel or informed me that the vessel wouldn't be sailing and that a WorkSafe inspector would visit the vessel the next morning to investigate safety issues. When I asked the master what the safety issues were to see if we could address any of them, he informed me that the delegate had refused to inform him of the safety issues. With that we asked the master again to bring the delegate to the bridge and informed the delegate that he was in breach of the Nav Act unless he provided that information to the master and that a notation in the ship's log ought to be made to that effect. Now, my understanding is that notation appears on the second page, 52, of the extract of the log at 1530. Following that conversation with the delegate the master contacted me again and informed me that the delegate had gone away to consider their position. He later contacted me and informed me that the delegate had returned with a list of preliminary demands. The list of preliminary demands are contained in the minutes that I have provided in L2 and appear on the last page at 1705. Now, this is the first time in two days we have been made aware of any issue. Those issues being the suspected asbestos between the deck levels of the engine room and the control room and at that point I add the asbestos surveying material was provided to the MUA I think around about August from memory, I would have to go back and find the emails where it was sent and that was provided to the MUA delegate who - or the MUA official rather who inspected the vessel as it was provided to each of the three unions and we were told they were happy with those results. I do have two copies of the material that was provided. It is in CDrom form because when we print it out it prints out like War and Peace, but I am happy if the Commission wants to look at that, I am happy if my friend wants to take a copy but I understand Mr Cain was provided a copy so he probably still has one in his office a well in terms of the disc format.

**** MICHAEL DANIEL LLEWELLYN XN
PN292

Well, I think we will wait and see whether any issues turn on that?---The other issues that were raised the master informed me were the condition of the boat, life boat wires. The condition of the winch and anchor wires which are currently under certification and copies of which are on board the vessel and were the subject of the MUA inspections earlier this year and those certificates were available to be inspected on board the vessel, that they are currently in certification. The condition of the derrick wires to which the master informed me the derrick wires had been condemned since they lost the piece of frame that they left on the ocean bed. The four upper pod room had bagged chemicals in it that could cause a health hazard, albeit that the crew haven't identified which bags of chemicals, however he did inform me that the MSDS sheets were on board the vessel for all of the chemicals contained in that room. The other one is the condition of the crane wires which are also in certification currently and the conditions of the showers and toilets which had been discussed at 2.20 am on Sunday morning. The other one was the lack of hand washing facilities in the engine room due to waste water running into the bilge. Now, that was a result of the issues with the sludge tanks and what have you and that's the first time that's been raised despite the fact it wasn't raised by any of the engineers. At that point I instructed the master to get the MUA crew up and asked them if they were going to sail the vessel because at that point in time we had the pilot on board the vessel and the pilot had been on board the vessel for some time. I asked Mr Wright to ask the MUA crew if they were prepared to sail the vessel at which time the MUA crew informed him that they were refusing to sail the vessel. They were subsequently advised that they were taken off pay from that point for participating in industrial action. And on that basis the pilot was discharged on the basis that when requested the pilot informed us that it would be a maximum of three hours to get a pilot back to that vessel from the point we request a pilot to be available and on that basis we agreed to release the pilot. So currently the vessel has sat alongside, ready to sail as of 1700 hours yesterday afternoon and that's the position we are in currently. I asked the master to give us his view in terms of the issues that had been notified to him at this point and that's the definitive list even as of today that has been notified to the master. His view is none of those issues prevent the vessel from sailing and as I've said earlier, or as he's informed, the certification is on board for all of that equipment and that's the situation we are in at this point in time. So the only issues that we have outstanding as far as we can see are in the industrial issues that Mr Cain has raised on the vessel, albeit that they haven't been communicated to Total Marine Services at this point in time by the union, since Sunday anyway.

**** MICHAEL DANIEL LLEWELLYN XN
PN293

THE COMMISSIONER: Very well. Mr Walton.

<CROSS-EXAMINATION BY MR WALTON [1.49PM]

PN294

MR WALTON: Thank you, Commissioner.

PN295

Mr Llewellyn, do you know exactly and precisely where MUA members can go on the vessel?---Exactly and precisely where they can go?

PN296

Yes?---Well, I would imagine they can go anywhere they like, but exactly and precisely, no. I couldn't tell you exactly.

PN297

So you don't know?---They're not required to be in the derrick area and they've been told that.

PN298

All right. When you say not required, are you saying that at all times during a voyage on a boat that you're not on, you're saying that if they're not required to go to that spot does that mean they're physically prevented from going to that area, to any specified area?---No, it means they're not required.

PN299

But that's very different. Not required means prevented or forbidden, you would agree?---No. Not required means not required.

PN300

Yes. I am asking you a very specific question and what I would submit is fairly easy to answer. Would you agree that an area that's not required to go in is very different to being an area that you're prevented or forbidden to go?---Sorry, I thought you said not required means forbidden.

PN301

Yes. It's not the same, is it?---No.

PN302

So it's very possible that even though you're not required to go in that area, for all the vagaries of life on a vessel you may find yourself in an area which you are not required to be in?---Well, only if you intentionally walk into an area where you aren't required to be.

PN303

Or a direction from the master?---If the master directed them there, yes they could be directed there, but there's no requirement for them to be there.

PN304

So it's a possibility that even though an area may not be required, given the vagaries of life on a vessel, the possible orders that may be given by a master, an MUA member might find his way in areas on the vessel where he's not required to be. It's possible, isn't it?---Of course it's possible. I mean, he can fall overboard. That's possible as well.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN305

Exactly, by a stray wire. But given your previous answer that you do not know exactly where the MUA members, I put it to you that it's very hard to accept your evidence that MUA members may not be in areas where they're open or liable or in an area or a vicinity of an area where there could be danger?---Well, you're saying there could be danger, I'm saying there's not because the cables have been condemned and won't be used, therefore there's no danger there anymore. But in terms of answering your particular question the MUA were informed that they were not required to operate anywhere around the derrick area an they have not been used nor have they been directed to go in that area. So if they are wandering that area it's because they've chosen to go there.

PN306

I put it to you that the MUA members in fact two go in those areas by way of the vagaries of ship life or alternatively a direction of master or by order of the crew?
---Well, that's not our instruction from our client or our master.

PN307

Do you accept that the derrick wire snapped?---No. I understand the, for want of a better word, the eyelet gave way.

PN308

So the eyelet? What's the eyelet? You've obviously been on board the board, you've observed that specifically?---Well, I know what the wire looks like and it has an eyelet with a collet around it to support, hold it in a form where you can place hooks.

PN309

So eyelets are designed to snap, are they? To break?---No. I didn't say that at all.

PN310

So you're saying that you agree- - -?---Well, you're asking me about a wire that's been condemned and isn't being used. The eyelet gave way is what I told you.

PN311

No, I'm going to be very, very clear with you, Mr Llewellyn, and I'm going to spell it out because obviously we're having difficulty. So I'll ask you again. Is the eyelet designed to break in the fashion, whichever fashion it broke on that occasion, when there's a frame sitting at the bottom of the sea? Was it the master's intention as far as you're aware for the eyelet to snap or break- - -?---No, because the master wasn't operating it, of course it wasn't the intention otherwise the piece of equipment wouldn't be safe.

PN312

Okay. So then we can agree that there was a malfunction with the derrick wire?
---Absolutely, that's why it's condemned.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN313

All right. That was the first question I asked. So you agree that the derrick wire- - -?---Well, I told you that in evidence if you listened.

PN314

THE COMMISSIONER: Okay, let's all simmer down here.

PN315

MR WALTON: All right. Let's focus on this, Mr Llewellyn?---Happily.

PN316

We agree that the derrick wire malfunctioned. Now, you say that the eyelet broke. Did you see the wire?---No, I don't need to see it. The wire is condemned and not being used.

PN317

Mr Llewellyn, just focus on the questions and I'll ask you again. You didn't see the wire or the eyelet snap, did you?---No. It was under water.

PN318

So you agree that it malfunctioned, didn't you?---Well, it obviously didn't hold so it obviously hasn't done its job. So if you define that as a malfunction yes, it did.

PN319

Okay. Do you know how old that derrick wire or the eyelet was on board?---No.

PN320

You don't know? So you don't know if ever other wires or other similar type of equipment on board is of the same age or older or younger?---Well, the age is irrelevant. It's whether it's in certification or not.

PN321

So you're an expert in this area as well?---Well, if it is in certification the wire is certified safe to use.

PN322

THE COMMISSIONER: I think, Mr Llewellyn, try and just answer the question. You'll have your opportunity when you go back to the bar table to put it, otherwise we'll be here all day.

PN323

MR WALTON: So you don't know whether other wires or other equipment of that nature or other eyelets or other wires are of the same age at all?---No.

PN324

So do you think are any other wires that you don't know the age of under tension on board or while they're working?---That I don't know.

PN325

You don't know? You don't know how hold the derrick wire - is it possible that if there's wire eyelets of the same age as that derrick wire that malfunction, it's possible that they can malfunction again as well?---Anything's possible.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN326

Great, thank you?---The same as a brand new wire could malfunction.

PN327

Yes, exactly?---So that's possible as well so we won't use any new wire either.

PN328

So is it possible that the other wires are the same age and decay or for whatever reason- - -?---Well, you're saying they're decayed, I'm not. You're saying they're decayed, I'm.....

PN329

Keep on going?---It's possible a wire could break. A wire can break at any time.

PN330

So you've got no knowledge whatsoever of the quality of the wire on board that- - -?---No.

PN331

Do you agree that there was a loss of equipment when the derrick wire was broken?---Yes, it's on the sea bed still.

PN332

And you agree that that material was quite, you said in evidence that I think it weighed 5 tonne?---I think that's about the weight of it.

PN333

Okay. So it's fairly significant. Does the derrick wire hold the tension of that 5 tonne?---Well, it sits on the sea bed. I'm not exactly sure how they hold it there. The casing goes through it so I assume they lower it down by using wires from the derrick, but that's only an assumption on my behalf.

PN334

That's fine. Do you think obviously the derrick wire would be under quite a lot of stress when it is moving?---Well, without knowing what the rating of it is. I mean, the certificate would have the rating of that wire. It would have to be certified to take that weight.

PN335

So you agree that it has been condemned?---Yes. The master's informed me so I've got no reason to disbelieve it. The master's responsible for that.

PN336

Do you know when it was initially certified?---No.

PN337

Do you know when any of the other wires or equipment on board was certified?
---No, but I understand they're in certification.

PN338

In certification? Much like this derrick wire was in certification?---I presume so.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN339

Okay. So we're talking about a situation where this derrick wire was in certification and now it's not?---Well, now it's been condemned by the master as having a fault.

PN340

So it is possible, very possible because you've given evidence of it, that there's a derrick wire that was in certification and it's now out of certification because it's been condemned by a master?---No, it's out of certification because it broke.

PN341

Okay. Do you agree, probably not, that other equipment that could be certified as safe and safe to use could also malfunction and then be out of certification?---To answer that question the easiest way I can think of is I've seen lifting gear certified today and break tomorrow.

PN342

So it's possible?---Of course it's possible.

PN343

Great, that's all I was asking. So given the fact that you don't know there was a malfunction it's possible the derrick wire was in certification, is now out of certification because it's condemned and the fact that the people on board or the delegates have raised not only the derrick wire but other issues with the master that they may have a point?---No.

PN344

So what they're saying is completely irrelevant, even though you admit that this derrick wire broke, malfunctioned, it was in certification, it's now out of certification, it's condemned and based upon those facts MUA members or the safety delegate on board that vessel has brought those concerns, together with other related concerns, to the master you think they're effectively lying?---Well, the only way I can answer that is if I have to threaten somebody with legal action to produce safety issues, then he's obviously not concerned about it, was happy to work with it.

PN345

I'll get on to that in a second?---Well, that answers your question.

PN346

No, I'll be satisfied when I stop asking the questions if that's okay with you?
---Okay, fine.

PN347

The other issue is - okay, we'll get on to that point straight away. Now, can you point to me on L2 and also on L1 which delegate, which member on each specific occasion spoke to the master? If you can just point to that for us?---The MUA delegates which have been identified as Mr Shanahn and Mr Ward.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN348

And you can obviously identify which specific delegate raised what specific point with the master? If you could just point to it?---Well, the- - -

PN349

You can't, can you?---No. The MUA delegates is what is written there.

PN350

You can't though, can you?---Well, the delegates are Mr Shanahn and Mr Ward. Which one of them actually spoke, no. And to my way of thinking it's irrelevant. They presented the right.

PN351

Okay. I'm not asking you for your opinion. You'll get more than ample opportunity. I'm asking you a specific question and I said to you can you point specifically to which union representative or delegate, because it seems to me that you don't know whether they're a delegate, safety representative officer - actually, that's the first question. Do you know whether either these two members are safety representative or a delegate? You don't know?---They've identified themselves to the master as delegates.

PN352

Okay. So you don't know? You're giving evidence, not the master. You don't know?---Well, that's what I just said to you. They've identified themselves as the MUA delegates.

PN353

And you're basing that primarily upon this information you've got, L2 and L1?---The notation is in the ship's log which is a legal document and the minutes from the master, yes.

PN354

I'm not interested in your comments about the legal documents. I'm asking you specific questions- - -?---Well, I've answered it.

PN355

I'll ask you again to my satisfaction. You don't know, all you're basing your information on is L1 and L2. That's right, isn't it?---The extract of the ship's log which is a legal document and the minutes provided by the master.

PN356

THE COMMISSIONER: It's just L1, L2 and L3, isn't it?

PN357

MR WALTON: Yes, that's right.

PN358

You agree with me that they only say that they're delegates. Is that right? So the master hasn't specified, he's just said they're delegates. So from your perspective, your evidence today, you don't know whether they're safety delegates, you don't know whether they're entertainment delegates, you don't know whether they're - who knows. You don't know what type of delegates they are, do you?---Other than the master informed us that the MUA delegates had identified themselves as the delegates.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN359

As the delegates?---As the MUA delegates.

PN360

But you're obviously hearing what I'm saying as to whether they identified themselves on the information you can give today, whether they were safety delegates or whatever?---Well, they identified themselves as MUA delegates, I assume they are MUA delegates.

PN361

Assume - okay, that's all I need to know about that. The other point I'm saying is that on those L1 and L2 you can't tell me on this information, because I asked you that question before, you can't point to anything on those documents as to who said what to who about whatever specific issue. Would you agree with that?---It's not contained not the document, no.

PN362

So therefore you can't give evidence about it. Is that right?---No, that's not correct at all.

PN363

Okay, we can?---Yes, absolutely.

PN364

So you're doing to tell me which union representative said to what about what specific issue? How are you going to do that?---Well, because that's the report we received from the master, that Mr Ward was the one that came up.

PN365

Well, I think we'll move on from that point and we'll deal with that later. You agree that the tanks are filled and need to be pumped out. Is that right?---They were filled, yes.

PN366

And they needed to be pumped out?---Yes.

PN367

Why do they need to be pumped out? Why can't they just remain full?---Because they had sludge in them and you need to be able to have tanks you can put the sludge into.

PN368

Otherwise what?---Otherwise you have nowhere to put your sludge, obviously. I mean that's why they stayed there to pump them out yesterday afternoon.

PN369

I see. So it was inevitable that it had to get pumped out?---Well, I've already given evidence on that. That's contained in the minutes if you looked.

PN370

I'll ask you the question again?---The sludge was pumped out yesterday afternoon when the truck arrived to remove that as waste product from the vessel.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN371

And you agree that you have no idea? Your words were you couldn't identify why they filled. Is that right?---No, that's right. Somebody apparently left the pumps on to fill them up while it was waiting to come in to port.

PN372

Who was that?---Well, the Russians have been accused, but they deny it.

PN373

So you don't know?---No.

PN374

So it's speculation on your behalf, right? Speculation on your behalf?---What, that the pumps filled? No, it's not speculation. It's speculation about who may have filled it.

PN375

I'll ask you the question again, Mr Llewellyn. I said is it speculation on your behalf as to who filled the tanks or why the tanks were filled?---Well, no one knows how they got filled.

PN376

Okay. So it's speculation on your behalf? You're guessing?---No, I'm not. I'm reporting what was reported to me.

PN377

All right. So you agree, given your evidence, you say that you can't identify the reason why the tanks filled. Is that right?---That's right.

PN378

So is that normal or do you think that might be a problem?---No.

PN379

Not a problem at all?---No.

PN380

So why don't you believe in fill?---Because if they're filled there's obviously no room to put other sludge into it.

PN381

Okay. So it's not a problem but now there is a problem?---Six regularly pump out their sludge tanks while they're in harbour. That's what they do because if the tank fills obviously there's no room to put any more sludge in. So if you want to get rid of some waste oil you've got nowhere to store it.

PN382

So that may be a problem?---Well, that's why the ship stayed there and had the sludge tanks pumped out.

PN383

So that would be a problem?---To whom?

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN384

To the ship operator?---Well, it's a problem to operating the ships. If the tanks are filled without pumping them out, yes.

PN385

Don't go talking around the question?---I'm not talking around it. I've told you the ship stayed there to have the sludge tanks pumped out.

PN386

All right. Well, that's - - -?---The reason they had to stay there is because they were full, and if they're full you've got nowhere to put sludge so you've got to pump them out.

PN387

And you can't tell me why they filled because you don't have any knowledge whatsoever as to why they filled, and the information from L1 and L2 is that they don't know why they filled?---Other than they stopped when they were full.

PN388

So you would agree with me that if the master doesn't know why they're filling, and you agree that you don't know why they're filling, but they're filling?---Well, they stopped filling when the pumps were turned off. The question is who turned the pump off.

PN389

I'll go back again because I'll keep on repeating until - - -?---Well, so will I, so we'll be here all day.

PN390

That's fine. I'll ask you again. The master from the information on L1 and L2, okay, doesn't know why the tanks kept on filling. You agree - - -?---No, that's not on L1 and L2, none of that information is. What's on L1 and L2 is the request to pump them out. What you asked me is how they got filled, and I informed you that we were told by - - -

PN391

You don't know?---The master informed us it was because some pumps were left on. The Russians were accused of leaving the pumps on, they deny it. So the only question we don't know is who turned the pumps on.

PN392

And you don't know?---The tanks filled because those pumps were turned on. The pumps were turned off, the tanks stop filling.

PN393

The evidence you gave up is that you couldn't identify why they filled?---No, I couldn't identify who you were asking me, because I said the Russians were accused of it and denied it.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN394

All right. So you agree that the truck wasn't available Sunday and it had to come on Monday, yesterday, to be - - -?---Yes, well, it did come yesterday, yes.

PN395

So for that ship to sail, because you would need the tanks to be emptied?---Well, that was the decision made to comply with our environment policy, yes.

PN396

Right. So absent anything else those tanks were filled?---What do you mean absent anything else? I don't understand the question.

PN397

Okay, I'll spell it out for you. Focus on the tanks - - -

PN398

THE COMMISSIONER: I'm not sure how much relevant this is. I mean, we know - this is not an application about whether strike pay should be paid or not or whether it was. The fact is the pumps - the tanks were emptied, isn't it?

PN399

MR WALTON: The tanks were emptied on Monday.

PN400

THE COMMISSIONER: Monday.

PN401

MR WALTON: And he's making the allegation that they had to be put - - -

PN402

THE COMMISSIONER: That they were on - - -

PN403

MR WALTON: The ship was ready to sail Monday. That's my point.

PN404

THE COMMISSIONER: I see, okay.

PN405

MR WALTON: The point is, is that if you've tried, and it's been agreed on Friday, which is from L2, that the tanks needed to be emptied otherwise - you say there's no problem?---No. You need to have a look at L2 again. It was agreed at 2.20 am Sunday morning, that's what's on L2.

PN406

Okay. Before you say anything else, if those tanks needed to be emptied because you say there's nowhere for the sludge to go, and I presume that sludge is produced by the normal operation of your vessel, is that right?---From my understanding of it, yes, it's waste product.

PN407

All right. So you would need to have the tanks emptied or you'd need to have somewhere - for the vessel to operate you'd need the tanks to be emptied?---Well, I suppose if it wanted to be like vessels, if you go out past the 12 mile point and simply discharge it and keep operating. But Fugro's policy is under their - - -

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN408

It's speculation Mr Llewellyn?---Well, no, it's not speculation because the Mariner used to do the same thing. Now, it goes out beyond the 12 mile limit, as of next year it won't comply with Australian legislation. This ship could have done the same but it doesn't because it threatens the environmental policy. It doesn't stop the ship sailing. The issue was the tanks were pumped out yesterday afternoon and the ship was ready to sail at 1700 hours.

PN409

It doesn't stop the ship sailing?---No. Because the ship - - -

PN410

Even if it breaches the environmental policy of Fugro?---Well, that's up to Fugro, it's not up to me. They made the decision to stay there and pump it out. That's why the vessel stayed there and wasn't ready to sail until 1700.

PN411

THE COMMISSIONER: Mr Walton, whether the vessel was going to sail or not, the people - I'm not sure what you're saying, whether or not - is this leading to something, that there was no industrial action up until 5 pm yesterday afternoon allegedly?

PN412

MR WALTON: I'm saying in the - there is no industrial action sir.

PN413

THE COMMISSIONER: I see. Accepting that you've said it falls within (g), that is your submission, that you're saying that even if you put that aside the employees were working as normal, as they could normally have done up until 5 pm yesterday afternoon? I'm just trying to work out what the evidence you're trying to get.

PN414

MR WALTON: Well, that's amongst other things.

PN415

THE COMMISSIONER: I see, amongst other things, of course.

PN416

MR WALTON: Yes, there's certain points. But I'm trying to find out through cross-examination, as I'm entitled to do, what Mr Llewellyn's evidence is, because I find it confusing and I find it contradictory. So what I'm trying to ascertain is exactly what the situation over these tanks. Mr Llewellyn has said quite strangely that there's no problems with these tanks but they need to be - - -?---Well, I object to that. I mean, if my friend wants to quote my evidence at least quote - - -

PN417

THE COMMISSIONER: No, excuse me. I was just trying to get clear in my mind why we're focusing and spending so much time on the tanks that have been pumped out.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN418

MR WALTON: I can answer that very frankly sir. It's because of the manner in which Mr Llewellyn is answering the questions.

PN419

THE COMMISSIONER: I see. Yes, proceed. Mr Llewellyn, you will have your opportunity later.

PN420

MR WALTON: What time on Monday the 24th did the truck come and clean out the tanks, do you know?---It was some time between 1.30 and, I don't know, 2.30 I suppose, 3 o'clock.

PN421

What are you basing that belief on?---The conversations I had with the master when he told me he'd had the truck in, the fact that I spoke to the agent on board to find out when the truck would be removed, and he informed me as soon as the MUA had finished their meetings they could unload the truck, it would then go and discharge its cargo and come back and suck the sludge tanks of the vessel.

PN422

You see, you don't really know what time it was?---Well, the vessel was ready to sail at 1700, I know that for a fact.

PN423

How do you know that?---Because the pilot was on board ready to sail the vessel.

PN424

And who communicated that with you?---The master, and he also communicated that the crew were refusing to sail with us, and the truck had been and gone.

PN425

On the L2 - sorry, L1, go to 1100?---Actually I can tell you at 1345 the road tanker came alongside, it's an entry into the ship's log.

PN426

1.45?---1345, yes.

PN427

Just go to 1100, which is on the right hand side of the double page?---Sorry, which page?

PN428

Page 51?---Yes.

PN429

1100. Do you know if any safety issues were raised also at that time?---What, when Mr Cain came on board? No, there weren't any.

PN430

Right. Based on what information are you basing that belief on?---On the information received from the master.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN431

From that log book?---Sorry?

PN432

From that log book?---No, in direct conversation I had with the master on Sunday.

PN433

Right. So you're relying on your belief on what the master told you?---Yes.

PN434

Did you address any specific question to the master during that conversation as to whether Mr Cain spoke to him about safety issues?---To him directly or to - no. I asked him. He told me the safety issues had been raised with the party chief, and Mr Cain refused to give him a list of the issues, but waved a piece of paper around at him.

PN435

Do you agree that the minutes of the meeting are not signed by any member of the MUA?---No.

PN436

You agree that they're not signed?---They're not signed by any member of the MUA, absolutely.

PN437

Do you agree that they're not signed by the master or the other people?---No.

PN438

Do you know who drafted this document?---The master.

PN439

How do you know?---Because he informed me in the email, which is now L3 I think, from the master.

PN440

Do you know who drafted that?---The master.

PN441

You've taken that from the email that they were correct?---I've taken that from the conversation I had with the master about it.

PN442

These are the conversations that you had - - -?---And the fact that I asked - well, if you let me finish answering the question. Perhaps if my friend waits the answer will come to him. The conversation I had with the master where I asked him to minute the conversations, and he sent me a copy of the minutes.

PN443

I put it to you that these - the comments that you've made throughout your evidence today about these conversations had been made in evidence today to correct evidentiary flaws in your evidence?---No.

PN444

Fine. Do you know what the MUA members said at that meeting?---Sorry, at which meeting?

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN445

The minutes of these meetings?---Well, which meeting are we talking about?

PN446

All of them?---Only what's recorded on those minutes.

PN447

Okay. So you're basing your belief about what MUA members said at that meeting on the master's interpretation, if he wrote them, or the master, the Australian master or the site manager about what the MUA members said at these meetings?---Sorry, can you say that again?

PN448

THE COMMISSIONER: Isn't there also hearsay evidence by Mr Llewellyn in respect of what the master told him occurred at those meetings?

PN449

MR WALTON: The entire thing is hearsay.

PN450

THE COMMISSIONER: Well, I'm just saying. There's the two things isn't there? There's L2 and there's the hearsay evidence.

PN451

MR WALTON: Yes. I'm talking about basic - L2 in itself is hearsay evidence. Of course Mr Llewellyn, I would submit, is putting forward his belief or understanding - excuse me, his evidence about what MUA members reportedly said.

PN452

THE COMMISSIONER: I thought I heard him give hearsay evidence and this was tendered as cooperation of that hearsay evidence.

PN453

MR WALTON: Corroboration?

PN454

THE COMMISSIONER: Sorry. What did I say? Corroboration.

PN455

MR WALTON: I think that's where we're at. I think corroboration of again, as I said, double hearsay. As I understand it Mr Llewellyn is giving evidence based upon conversations held between himself and the master with the master reporting conversations he had and other people had with certain members of the MUA. That's how I understand it. And for that reason I think it's very difficult to accept, apart from the fact that also - do you agree - so you were basing your understanding of what MUA members said on what I've just said and also L2 and L1?---I'm basing the claims the MUA have delivered on this document is what has been reported to the master to report to Total Marine Services as part of his duty as a company representative.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN456

Do you accept that's hearsay?---No, I don't.

PN457

THE COMMISSIONER: Excuse me, can I just clear this up, and I'm sorry to interfere. But the meeting at 1400 on the first page one, it says Master S Wright. Isn't Master S Wright the master you've been talking about?---Yes. He's the one I've been having a conversation with.

PN458

Okay. And doesn't this say that Master S Wright was directly speaking to - present when C Cain laid out the following demands?---That's correct.

PN459

And in respect of the last page, 1705, it says:

PN460

MUA delegates concerns to Master S Wright.

PN461

And there's a list there?---That's correct.

PN462

And is that the Master S Wright who you were speaking to?---That's correct. It is required under the disputes procedure.

PN463

No. I'm just trying to work out this business about the double hearsay. I think it's once hearsay - - -

PN464

MR WALTON: Twice true.

PN465

THE COMMISSIONER: Once hearsay supported by L2 is where the evidence is at.

PN466

MR WALTON: The only problem is that my previous questions to Mr Llewellyn were that he can't state from this information, I put the question to him, which MUA delegate said what to whom.

PN467

THE COMMISSIONER: Yes, which who said, that's right, and he's admitted that.

PN468

MR WALTON: Because even 1705 on the last page, it says:

PN469

MUA delegates M Ward and M Jacques presented the following safety concerns to Masters S Wright, Pyatovsky, Hakin.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN470

As I said, I've got considerable concerns about the hearsay nature of this evidence.

PN471

Just from your own knowledge Mr Llewellyn, is a form 8A a requirement for a foreign flag ship?---Form 8A under what Act?

PN472

We've been talking about - well, you tell me. What do you think - - -?---Well, I don't know.

PN473

So you don't know?---Sorry, under what Act? I don't know until you tell me what Act you're referring to.

PN474

Well, you tell me - you've told me today that you've based all your evidence on these masters?---All right. There's a form 8A under the Navigational Act which is not required by a foreign vessel to issue.

PN475

Go to L2, the bottom of page 2 of 4?---Well, perhaps if I answer your question. I haven't based all my evidence on this. I've based my evidence on this together with the conversation I had direct with the master on the issues that were raised with him.

PN476

All right, 1355, and it's got - - -?---Sorry, where are we?

PN477

Page 2, bottom of page 2?---Yes.

PN478

It's got:

PN479

The following list of MUA demands was presented. Implementation of a form 8A.

PN480

Now, you gave - you spoke about the form 8A. What did you think it referred to?---Well, I was told it was under the Seacare Act, but the only form 8A I'm familiar with is under the Nav Act.

PN481

Okay. So you're familiar with the Nav, Navigation Act?---For a form 8A, yes.

PN482

Yes. But you're not familiar with any other form 8A?---Well, there's none other that I could find. I did a search of the legislation for the Seafarer's Rehabilitation and Compensation Act, which is what the master originally related to me, and couldn't find that, so we then looked to the Nav Act, and there is a form 8A under the Nav Act which Total Marine can't issue. It's up to the vessel owner.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN483

So the only thing that you know of in relation to, and what you were thinking of when you were giving evidence about this document, commenting on it, was form 8A of the Nav Act?---No. I've answered that question for you. When I gave my evidence what I was originally asked to issue was a form 8A under Seacare. We couldn't find that, and the only form 8A we could find was under the Nav Act, and we relayed that back to the master.

PN484

THE COMMISSIONER: That's my recollection of what he said?
---Unfortunately the MUA delegate didn't know under which Act it was.

PN485

MR WALTON: No, that's fine?---But we can't issue an 8A under the Nav Act, that's up to the ship's owners.

PN486

So on your understanding and your investigations that you did in respect of this matter, and what you've just said in evidence, you could only find a form 8A under the Navigation Act, is that right?---That's the only one we're aware of, yes.

PN487

That you're aware of, okay, in relation to this?---Yes.

PN488

Okay. And you couldn't find anything under Seacare Act or another Act?---Not for a form 8A, no.

PN489

So when you gave evidence today and when you spoke about this matter you were talking about a form 8A of the Navigation Act, and you said that it's not a requirement that you're responsible for, it's the ship's owners, is that right?---The ship's owners are the only ones that can issue it.

PN490

And that's your interpretation of it, is that right?---Well, that's what it says on the form.

PN491

That's your interpretation of it?---No. That's what it says on the form.

PN492

That's what your interpretation of the form is, is that right?---No. It says on the form it's lodged by the ship owner.

PN493

Okay, I'll spell it out?---It's not an interpretation, it's written on the form. I can read.

PN494

Well, my interpretation of L2, what it says at the front, is MV Bavenit, right, that's my interpretation?---Well, are you talking about the form 8A or are you talking about the minutes of the meeting?

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN495

When I say interpretation, don't worry, it's okay. It will be for a long time now, Mr Llewellyn?---Not as long as you think.

PN496

THE COMMISSIONER: Take your time Mr Walton, but be as precise as you can please.

PN497

MR WALTON: I am, sir. I'll refer specifically - - -

PN498

THE COMMISSIONER: I was hoping that we might have even a comfort stop after the applicant's case, but at the rate we're going we'll keep going.

PN499

MR WALTON: That's fine. I would only repeat my previous comment about the length of delay is from my point of view the reason, the manner in which Mr Llewellyn is giving his evidence. That's fine, okay.

PN500

Do you know which delegate provided the list to the master with the safety concerns?---Mr Ward as I understand it.

PN501

Mr Ward. How do you base that on?---Well, because that's what the master reported to me.

PN502

Okay, this is the infamous telephone conversations is it, one of those conversations, or is there any - - -?---Sorry, I don't have infamous telephone conversations.

PN503

THE COMMISSIONER: Let's just try and keep it flat and neutral if we can fellas?---I'm happy to if my friend would keep his questions to that rather than be inflammatory in my view.

PN504

MR WALTON: Do you know when the certificate was issued? You said that there was an asbestos material certificate contained on a CD-ROM I think we were talking about.

PN505

THE COMMISSIONER: No. The CD-ROM was the report which was provided to the MUA wasn't it?

PN506

MR WALTON: About the asbestos, is that right?---Asbestos removal report and the asbestos management plan.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN507

So a management plan and an asbestos removal report?---That's right.

PN508

Is that right? When was that - do you know the date of that?---Not off the top of my head. It was conducted by SGS prior to the vessel coming into Australia. It was one of the requirements from the MUA inspection.

PN509

Okay, so it was prior to the vessel coming to Australia. Do you know when the vessel came to Australia?---Around about the - I think the first port of call was the - actually it got into Dampier on the Monday of the week ending the 23rd.

PN510

Of?---September. So actually made alongside on the 24th I think - 22nd rather I think, or the morning of the 23rd. But it stayed out in port in Dampier from Monday through to Friday.

PN511

Do you know how long prior to coming into port, just say 23 September, the report was completed?---I know it was provided to the unions back in August, so sometime prior to that I would imagine, sometime between February and August.

PN512

So prior to August the report was completed, the vessel had been used since August, gone out on trips and all that sort of stuff?---No, no. It was coming to Australia after that.

PN513

Yes. But obviously it had been at sea?---Of course.

PN514

Okay. Except that asbestos - and you agree that there's asbestos on board don't you?---Yes. There's two areas identified from the report.

PN515

When is the last time you personally inspected the ship?---I didn't inspect the ship.

PN516

You've never been on the ship?---No.

PN517

THE COMMISSIONER: Sorry, I missed that last bit. What was the question?

PN518

MR WALTON: Just whether Mr Llewellyn said he had actually been on the ship or not.

PN519

THE COMMISSIONER: The ship?

PN520

MR WALTON: Yes, the vessel. I think I'm pronouncing it wrong anyway, Bavenit?---Bavenit.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN521

Do you accept that asbestos can move or decay or be brittle or break off or anything like that, do you accept that?---I'm not sure about move but it can certainly decay.

PN522

Okay. And if it decays it can form into fibrous material that can be carried by - transported by air?---Yes.

PN523

You agree?---Yes. Well, that's what asbestos does.

PN524

Okay. Do you accept, given that you're an officer of Total Marine, that asbestos is dangerous?---Yes.

PN525

And so you have no doubt that - well, I'll put the question to you. If it was found that there is loose asbestos that could provide a cause for concern for the health and safety of people on board, if that was the case. I'm not saying that's the case, I'm just putting the question to you. If it was found on board that asbestos material was loose, possibly fibrous and possibly in the air, in the atmosphere or capable of being transported by air, it's in that sort of state, that could provide a health and safety issue for people on board?---If it was in that state, yes.

PN526

Thank you. You haven't inspected the ship. So when the - and you say it's only in two areas, is that right, the bulkhead door or something?---No. It's inside the boiler lining.

PN527

Boiler lining, yes?---And the seal for the boiler door.

PN528

And what are you basing that opinion on?---On the SGS report that was filed, provided to the MUA and accepted by the MUA.

PN529

So that report only identifies asbestos in the boiler lining and the seal for the door, is that right?---The seal for the boiler door, yes. It's a rope seal as I understand it, or rope type seal.

PN530

Yes. No, that's all right. Now, do you accept that the MUA has raised the specific issue about asbestos on board that vessel?---Well, they did yesterday afternoon, yes.

PN531

Okay. So you accept that they have raised it and you're cognisant of it being an issue?---I'm cognisant of it being raised yesterday afternoon, yes.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN532

Was it ever raised prior, in relation to this boat, was it ever raised to your knowledge before yesterday?---No.

PN533

So you're denying that asbestos was ever raised as an issue on board that boat prior to yesterday?---No. You asked me to my knowledge was it raised prior to yesterday?

PN534

Yes?---The answer is no. Other than when an inspection was done in February and subsequently SGS undertook the report and the removal.

PN535

So we'll get this very certain. So to your knowledge you have no knowledge of asbestos issue being raised prior to 24 October other than in February when the SGS report was done?---No. In February when the inspection was done by the MUA we were aware there was asbestos on the vessel, that's why SGS were contracted to undertake the asbestos removal, provide the inspection report and provide an asbestos management plan if there was an asbestos left in situ.

PN536

That's fine. I just wanted to make sure about your knowledge and all that sort of stuff, and we're clear on that now.

PN537

THE COMMISSIONER: Mr Walton, sorry to interrupt. Do you have any idea how much longer you might go with this?

PN538

MR WALTON: Look, 10 minutes, 10, 15 minutes probably. I'm just coming towards the end of my comments.

PN539

THE COMMISSIONER: Very well.

PN540

MR WALTON: Probably 10 minutes.

PN541

THE COMMISSIONER: Take your time. I have another thing this afternoon that's all, and I'm just trying to manage everything, that's all.

PN542

MR WALTON: No, I appreciate that.

PN543

THE COMMISSIONER: So I'm trying to manage my time.

PN544

MR WALTON: Do you accept that the asbestos could have moved since September?---No, not from the boiler to the area between the engine room and the control room floors, no. That would require it to get up out of the boiler and walk up and put itself between the floor.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN545

All right. You appreciate you're not an expert on asbestos decay?---Well, I know it can't get out of the boiler and up in between the floor. I mean, that's common sense.

PN546

Well, you haven't actually - have you seen the - obviously you studied the engineering reports, the specifications of the bow then have you?---No, but I know what a boiler is.

PN547

Okay. So a boiler - - -?---If you're asking me if the material can get out of the boiler when it's a lining in the boiler and remove itself to another part of the vessel, that is common sense that it cannot do that.

PN548

So are you saying if it's been raised as an issue, which you agree that it has been done and you say it was done yesterday, you agree that asbestos if it's in that type of form, which I'm not saying it is on board in that type of form, but if it is in that type of form of it's loose it does propose a health and safety hazard. What if it was found in another area other than the boiler or seal to the boiler room door, what if it's alleged or what if MUA members on board, the safety delegate raised the issue of asbestos being found between and around the decks and the bulkheads?---Well, we haven't been told that's the area.

PN549

You don't know about that?---No. As I said, what we've been told is between the deck levels of the engine room and the control room, which I am informed is rockwall insulation.

PN550

So you're saying that you have been told - well, you've been told that there's been a report that it's been around the decks and the bulkheads?---No, between the deck levels of the engine room and the control room.

PN551

All right. That's not the boiler, is it?---No. It's the deck levels between the engine room and the control room.

PN552

THE COMMISSIONER: I made a note of that earlier, and that's why I'm sort of trying to make sure we don't just cover everything. I mean, cross-examine, yes, but that was admitted I think in evidence.

PN553

MR WALTON: No, that's fine. So has that been investigated by anybody since yesterday?---No. Other than the master has informed us that it's Rockwall insulation.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN554

So the master, do you know anything about his qualifications?---He is the master of the vessel and responsible ultimately for the occ health and safety of the vessel.

PN555

He doesn't work for James Hardy or anything like that?---I don't know. Do you?

PN556

No. Do you know if he's got any qualifications about - could I put to you that the master probably may not be an expert in asbestos identification?---No, as I'm not, as Mr Cain isn't, as others aren't.

PN557

Now, are you saying that you're aware that it's been raised as an issue that there's asbestos around the decks and the bulkheads, it's between the deck levels as you said. So you're saying that the MUA members are mistaken because the master told you that it's drywall? I'm talking about your knowledge?---Drywall, I didn't say drywall, I said rockwall.

PN558

Rockwall?---Yes, that's right.

PN559

Okay. So you're saying the MUA are mistaken about the presence of asbestos between the deck levels based upon what the master told you?---Yes. Yes, the report that there's only - - -

PN560

Hang on a second?---Well - - -

PN561

No, I'm asking you about - - -?---We have a report from the vessel which has been accepted by all the parties including your client - - -

PN562

Pre-August?--- - - - which identifies the removal of all asbestos from the vessel apart from the boiler, and that includes the test results, right? So your client is in possession of that and has been for some time.

PN563

We're talking about a pre-August report aren't we?---Well, yes, because that's when the thing was done.

PN564

And since pre-August the vessel has been in transit, it has been working?---Yes.

PN565

Okay. And do you accept that asbestos can decay?---Yes.

PN566

And do you accept that the master like myself - well, probably not like myself, but like Mr Cain and yourself is not an expert or not fairly familiar with asbestos identification?---That's why SGS were used.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN567

Okay. I'm putting to you - and also, sorry, are you saying that the MUA members are completely mistaken as to whether there's asbestos there?---Asbestos where?

PN568

Between the deck levels?---Yes.

PN569

So you're saying the MUA and its members must be mistaken, and you're basing that are you on what the master told you?---And the SGS report about the asbestos removal and the testing on the vessel.

PN570

Yes. Are you saying that TMS are happy to take the risk that, or you're happy to base your knowledge of the asbestos on the master thinking it's rockwall?---No. I'm happy to base it on the fact that there have been experts on the vessel that have done the asbestos removal and the asbestos report and the asbestos management plan, and that the master has also confirmed with me it is rockwall insulation.

PN571

So you're happy to take that risk?---Yes, especially as it took two days to even raise it.

PN572

And you're happy to confirm in writing that it's not asbestos?---Sorry?

PN573

You're happy to confirm in writing that it's not asbestos?---If that's necessary.

PN574

You would?---Yes.

PN575

So given - you would appreciate that asbestos is well know to be an incredibly dangerous product, incredibly, and once you contract mesothelioma your chances of recovery are zero, that you will die within a short period of time?---Yes.

PN576

You agree with that. And you're saying that you're basing your - you're happy, even though it's been reported to you yesterday, putting aside when it was reported to you, it was reported to you yesterday, you're happy to base your belief on the master who, you would agree, has as much knowledge as Joe Blow in the street that it's rockwall and the SGS report completed pre-August 2005?---Yes.

PN577

Would you think it would be prudent given the fact that you're not on the ship, I'm not on the ship, would it be prudent for TMS to take the precaution of just investigating it?---Well, let's put it this way. TMS takes precautions where it's necessary. In the issues that have been raised in this matter, and you've only got to look at the safety issues that were raised, and you've put a number of questions to me earlier about the use of the wires, the crew were so concerned about the crane wires yesterday that they unloaded the rubbish tips using the claim it was unsafe. Well, Mr Cain can shake his head, but the IR that was left on deck watch assisting in operation of the crane and the unloading.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN578

That's fantastic. We'll get back onto the relevant - - -?---So in terms of whether I think the claims are genuine, no I don't.

PN579

I didn't ask you - - -?---If I had any concern that they were genuine, yes, I would investigate them.

PN580

All right, we'll get back on track?---We are on track.

PN581

Okay, we'll get back on track and we'll talk about what I just raised about the asbestos?---If we had any concerns the claim was genuine we would investigate it.

PN582

And you're willing to take that risk?---Sorry, I've already answered that for you.

PN583

And that's yes. Now, MSDS reports, MSDS sheets in relation to the chemicals on board, okay?---Yes.

PN584

You said that they were present. Can I use the MDS sheet put in front of me and does that protect me from chemical poison?---No, but it will tell you what's in the chemicals before you touch them if you read it. Well, perhaps you can identify me what chemicals you're complaining about.

PN585

Well, I don't know about - - -?---Well, can you identify what chemicals are dangerous, because no one has to date?

PN586

No?---Tell me that and I'll tell you if the MSDS sheet will tell you what you can do about it.

PN587

Well, that's great Mr Llewellyn.

PN588

THE COMMISSIONER: Okay, well, nobody knows what they are, is that right?

PN589

MR WALTON: Because we haven't seen the sheets?---Because you haven't identified the chemicals. Tell me what chemicals are in danger?

PN590

THE COMMISSIONER: Hold on, who is asking the questions? I just really want to try and expedite this because I have an issue of timing. You know, I can't stay here till midnight, I'm on a plane.

PN591

MR WALTON: No, I appreciate that, sir.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN592

THE COMMISSIONER: And I don't wish to in any way prejudice.

PN593

MR WALTON: I understand that.

PN594

THE COMMISSIONER: But this cross-examination has been going on for almost an hour, coming up to an hour, and we need to ask everybody's cooperation to try and - - -

PN595

MR WALTON: I appreciate that, sir, and I'll just - - -?---Can I add something, sir? If my friend is going to ask questions about holding a piece of paper up for protection, I mean, that's a stage of ludicrous and I would not expect from a professional in his capacity.

PN596

Don't?---Don't what?

PN597

Make comments about my professional status from the witness box. Let's move on. I'm putting it to you that the MUA haven't been provided with MSDS sheets so they don't know what the chemicals are so they can't talk about it, they can't speculate because they want to know what the chemicals on board are because they have a legitimate concern about those chemicals. What do you say to that?
---The sheets are on board as standard procedure for all vessels.

PN598

Okay. So you don't know whether they have been prevented - MUA members have been prevented from access to those MSDS reports do you?---Well, no one is prevented from access to them, that's why they're on the vessel.

PN599

Do you accept, or I put it to you that the MUA delegates or the MUA hasn't actually seen those reports?---Well, that's an issue for the MUA. You asked me if they were prevented from seeing them.

PN600

Yes?---They are open access to anyone on the vessel.

PN601

Do you agree that why inspection of this product has revealed serious health and possible life threatening illness, approximately 100 bags are stowed in the upper forward pod room and in an unconcealed area. This same area houses many assorted chemicals including soft drinks, water bottles and other consumables. Upon further reading into the product and acquiring information fact sheets over the Internet it may - well, it states that the hazardous - it can be health - if it's inhaled?---Sorry, what product are we talking about?

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN602

All you have to do is just deny it because you - - -?---Well, tell me what product.

PN603

I'm just putting it to you?---Well, I can't answer it because you haven't told me what the product is.

PN604

Okay, that's fine. Now, I put it to you that we don't know what the product is because of the fact that we haven't had access to the MSDS sheets?---Who is we?

PN605

The MUA?---Who?

PN606

The safety reps?---Well, as I said earlier, that is open access to anyone on the vessel.

PN607

Do you agree that on - - -?---Well, you will get your chance to give evidence Mr Cain, if you can ask Mr Cain to refrain - - -

PN608

Do you agree that on the side of the bags it says "If inhaled particular inhalation may lead to pulmonary fibrosis, chronic bronchitis, emphysema and bronchial asthma," do you agree with that?---I don't know, I haven't seen the bags.

PN609

You don't know, thank you. Do you agree that an MUA safety officer raised that issue about those chemical bags with the occ health and safety officer from Fugro? Do you deny it, do you know?---Don't know.

PN610

You don't know. Do you know if - I put it to you that those bags are split and leaking white powder onto the deck where they're stowed and subsequently are being tracked all over the vessel?---Sorry, on the deck?

PN611

Yes?---I don't know. There's been no issue about chemical bags on the deck been raised with us at this point in time.

PN612

You don't know?---The only issue of chemicals that's been raised with us - - -

PN613

THE COMMISSIONER: You don't know, he doesn't know?---I don't know.

PN614

MR WALTON: Do you accept that the chemical materials in those bags as put to you may have deteriorated and may have leaked?---Don't know.

PN615

Don't know. Do you think it might be prudent if it's been raised with you, which it has been yesterday, that - - -?---No, it hasn't.

**** MICHAEL DANIEL LLEWELLYN XXN MR WALTON
PN616

It hasn't? No further questions.

PN617

THE COMMISSIONER: Thank you very much. Thank you Mr Llewellyn, you're excused?---Sir, if I may, I've got a couple of things I need to add to that.

PN618

Yes, certainly?---In terms of the issue that were raised with us, there's nothing been raised with us about chemicals on the deck. They were in the pod room.

PN619

So where are these chemicals? They're in bags. Your understanding?---Its in the forward upper pod room, it's not on the deck.

PN620

And who has access to them?---Well, I don't know what the chemicals are but I assume everyone on the ship has access to it, that's why everyone on the ship has access to MSDS ships.

PN621

Yes, thank you?---And I clarified that yesterday again.

PN622

Yes, thank you?---In terms of the issues that are raised, and I just go to the issue of the wires which my friend spent some time on. As I said earlier, those issues were raised with us last night. There was unloading done yesterday of the rubbish skips using the ship's crane on those very wires, so that demonstrates the level of concern which we've had for these issues. Other than that I don't think I've got anything I can add.

PN623

Thank you Mr Llewellyn, you're excused.

<THE WITNESS WITHDREW [2.47PM]

PN624

THE COMMISSIONER: Anything further you want to add to your statement Mr Llewellyn?

PN625

MR LLEWELLYN: Not at this stage, sir. If necessary I can arrange to have the master available by phone if that will assist the matter, and then my friend can ask the questions direct if he so desires.

PN626

THE COMMISSIONER: Thank you Mr Llewellyn. Yes, Mr Walton?

PN627

MR WALTON: Well, I think my submission at this point in time is that I would submit that the evidence provided by my friend raises two significant concerns, and they are the chemical bags and the asbestos, and they are - asbestos - - -

PN628

THE COMMISSIONER: You mean the lack of evidence in respect of?

PN629

MR WALTON: Well, the unknown. We don't know.

PN630

THE COMMISSIONER: Yes. I didn't hear any evidence. I heard him say he didn't know.

PN631

MR WALTON: He doesn't know. So unless he's - - -

PN632

THE COMMISSIONER: That doesn't mean to say evidence though, does it? That means he doesn't know.

PN633

MR WALTON: No, he doesn't know. And that's where my concern is, because he can't refute specifically any - - -

PN634

THE COMMISSIONER: We could ask him whether the cow could jump over the moon and he could say he didn't know. It doesn't mean to say the cow can jump over the moon.

PN635

MR WALTON: No. But that's the purpose of evidence.

PN636

THE COMMISSIONER: The purpose of evidence. And where is the evidence that there is a problem with the asbestos and there is a problem with the bags?

PN637

MR WALTON: That's right. But it's been agreed that it's been raised as an issue, and Mr Llewellyn is unable to talk to it, provide evidence about it other than he doesn't know.

PN638

THE COMMISSIONER: Yes.

PN639

MR WALTON: So the claim that it's not a legitimate safety issue is, in my respectful submission, refuted because of the fact that the asbestos issue has been raised with my friend, he is aware of it, that's clear, it's on the record. He can't give any evidence as to the identification, and he said in evidence he's based his opinion on that particular issue on the master's identification of it as rockwall, and the SGS report which is pre-dated pre-August 2005, the date unknown. So in my submission that's, firstly, a very real safety concern raised legitimately with my friend, to not say the least about the chemical bags which I put to him the case that they're splitting, that they contain warnings on the bags. It just requires further investigation, it requires an expert report.

PN640

I can very happily call evidence from the safety officers and documentary evidence, pictures and all that sort of stuff obviously, but subject to the issue of time.

PN641

THE COMMISSIONER: Well, you'll have your chance to do that if this thing proceeds at a further hearing. All I'm doing today is looking at the issue of whether an interim order should be made. I'm not hearing it for an order other than an interim order as I've indicated to you.

PN642

MR WALTON: Well, sir, obviously subject to your time, and I'm not sure what time - - -

PN643

THE COMMISSIONER: Well, I don't wish to prejudice you in any way. I just ask for the parties' cooperation. I'm on a plane this afternoon, but I don't, you know - - -

PN644

MR WALTON: Mr Cain is obviously - - -

PN645

THE COMMISSIONER: Have you got any evidence that you want to lead?

PN646

MR WALTON: The thrust of that, well, it's the same quality as Mr Llewellyn's I think.

PN647

THE COMMISSIONER: Well, I welcome you to present evidence.

PN648

MR WALTON: I call Mr Cain.

<CHRISTOPHER CAIN, AFFIRMED [2.50PM]
<EXAMINATION-IN-CHIEF BY MR WALTON

PN649

MR WALTON: Mr Cain, just state your name and age?---Christopher Cain, aged 40 years of age, secretary of the Maritime Union of Australia WA Branch.

PN650

You're obviously familiar with this matter?---Yes, very familiar with the matter.

PN651

If I can show you firstly L2, the exhibit L2. Can you just read through that document and make observations in relation to the comments attributed to the parties in the manner in which you see fit?---Firstly, all this stuff, what's been recorded here in no way reflects the meeting.

PN652

How do you know that?---Because I was at the meeting in respect to - this first meeting. I was at a meeting - - -

PN653

THE COMMISSIONER: Sorry, which document am I looking at?

PN654

MR WALTON: L2, Commissioner.

PN655

THE COMMISSIONER: L2. And which page am I looking at on L2?

PN656

MR WALTON: It's probably from the top.

PN657

THE COMMISSIONER: Okay, right?---Firstly I want to say, Mr Commissioner, we certainly take this matter very seriously about allegations from Total Marine representatives in respect to - in this way, it's bullshit safety plans. I'm not a secretary of my union about to go down a track and put my members at risk whether it be in this Commission or whether it be anywhere else. I got a phone call from my members on a number of occasions, even when they were sailing down from Singapore when the vessel came in, about a number of issues. I was up in Karratha not specifically to go to the Bavenit, but was informed by our safety reps that I was required to go down there because they had some major, major concerns. And I haven't been on board the vessel since it's been out. I've got a safety issue legitimately. This isn't an issue about a claim for money or a claim in respect to a different specialised issue, even though it was raised in the conversations. This is a legitimate issue and concern of my members, and rightly so, of where they consider themselves being put into a non safe position on a vessel. I'll take you back to a number of years and as late as last year where a derrick parted and one of our members was killed. I'll take you back to the year before where a derrick parted and one of our members had his limb taken off from the top of the leg. Now, when I got on board this particular vessel it was never an issue around money. Let's get that straight. We've got safety concerns. Well, someone can beat off if they want to. I have concerns for my members where the safety reps are telling me around occ health and safety, duty of care of the employer, section 19 of the Act whereby our members are saying quite clearly if it's not WorkSafe, if it's not AMSA and if it's not NOHSAC because they're all overlapping in these regulations who looks after the vessel, who is it?

**** CHRISTOPHER CAIN XN MR WALTON
PN658

I imagine you're the expert?---Well, I don't know. You don't have to tell me because I keep getting confused because the last time I was before you WorkSafe was allowed to go on the vessel when the vessel was tied up because they had concerns. Then it was AMSA, then AMSA were fighting with WorkSafe, then NOHSAC has now come in and there's regulations there, so I don't know. I'm a bit confused who is actually the regulatory body who is going to sort this mess out. But what I am going to say is our members have grave concerns. We have had a number of wharfies and seafarers who have been - and Slater and Gordon has already articulated that, as have a number of other lawyers around the country in respect to asbestos. Now, I am not going to take any chance in this Commission without having a thorough investigation of that vessel, and maybe if you can get the time whenever, I don't know, to come up and have a look at this vessel. But smaller issues where - and you know you're confined with that - how many is on the vessel, I'm not too sure. There's a hell of a lot of people on this vessel. Well, when you're confined into an area you've all got to get in well. If you move on to the safety concerns around toilets and sanitary and stench and stinking, Mr Llewellyn hasn't been up there, but I certainly have. I certainly have, and I am not putting up with that. I wouldn't put it up in my own home, and that's where my members have to live, and I'm certainly not putting it up because there's a Russian crew on there who get stood over and sometimes bashed and beaten into submission.

PN659

MR LLEWELLYN: I object to this. I wonder if - - -?---Well, I'm going to give my evidence. I'm just going to tell you what goes on in the real world. Mr Llewellyn may well, you know, want to go up there and have a look at the ship. Well, let me say this - and I welcome that. My safety reps have got a responsibility and a duty of care to themselves and actually to do the job. We have had no industrial action up there whatsoever at any time, whether the loading of discharging of sludge or whatever, we've had none. The cooks are still cooking for all these people, the stewards right up till we speak here today are working and making bulks. The IRs are actually doing the watches and alongside the gangway watches and the maintenance on board. We are not in dispute about a pay issue here. We are in dispute of a legitimate safety concern of wires parting. I've had 28 years at sea and been a delegate and a safety rep and done all the courses, done them all, and I say I take offence in respect to the evidence of what Mr Llewellyn has just given, in respects to chemicals, because it's very well for me and you and Mr Llewellyn and my lawyer here to say, well, what's a chemical, what's in it? I say to you quite clearly, you only have to breathe one bit of asbestos in, you only have to breathe the chemicals in where it's already been articulated what can happen to you, and I'm not prepared to take a chance because I've been directed by the membership up there, and no matter what comes out of this Commission we are not looking to sail that vessel until this is fixed. We're asking you quite clearly. And I'm sick and tired every time we come up with a legitimate claim about occ health and safety they rope it into money, they rope it up with all them vessels. To be honest with you I don't really care about the $70,000 that vessel alongside is. I care about my members lives, and I'm passionate about that because I've seen them die. And I don't care about Mr Llewellyn claiming it's costing them $70,000 alongside. And I'll tell you something else. I don't believe Woodside or Chevron would say or articulate what he said in evidence down there today. I would say they would have great concerns and want it fixed in a consultative manner. In a consultative manner. So I don't believe that I can go and persuade my members right now, no matter what the orders are, unless I come back with some consultative approach whereby we sit down, whereby we talk and give the evidence, whereby we have submissions about what's in the chemicals, where the asbestos is, has it now been moved? What's happening with the crane wire where it is absolutely rusted out and has parted, and the crane is now where he says it can be used, you know, our members are not worried about using the crane yesterday. Let me tell you, a duty of care of the employer directed my members to use it, directed them to use them cranes and stood over them.

**** CHRISTOPHER CAIN XN MR WALTON
PN660

MR WALTON: Mr Cain, can I just take you to that point - - -

PN661

THE COMMISSIONER: I mean, the point I think is that - let me ask the question I want to ask, is that you say about a consultative approach, and yet Mr Llewellyn said from the bar table that he's been trying to contact you for the last - I forget how long now, but over 24 hours and you haven't been returning his calls?---No, it's not - - -

PN662

We had no trouble?---He's called me once, sir, to be honest.

PN663

And the vessel came in on Friday and here we are on Tuesday?---Well, the vessel came in on Friday. I didn't go up there till Sunday. I never went up to see that particular vessel. I went up to fix a position where there was at risk 200 seafarers jobs over a transmission of business with Mermaid Marine and Total Marine, and it was announced to the stock exchange on Friday and not to the union. I specifically didn't go up to see the Bavenit or to cause any disruption on the Bavenit regardless of what these people would like to say, and some evidence in respect of what had gone on. I certainly did not, and I say again, had any industrial action on the vessel.

PN664

MR WALTON: Mr Cain, were you contacted by any employee on that boat about any imminent risk to his or her health and safety? Were you advised by an employee, by a person on that boat?---Yes.

PN665

Is that correct?---Yes.

PN666

Okay. What was that safety, what did they tell you about that safety?---I've been advised by our members, several members on boat swings in respect to the occ health and safety of a number of areas.

PN667

On the Bavenit?---On the Bavenit.

PN668

Okay. And did you - you've given evidence today that you said that the other members on board were performing other available work, is that right?---It's doing all the work, what they experienced, and they're still working.

PN669

So they're still working, they're performing other available work?---Yes.

PN670

You said also in evidence today that there was a direction, from your understanding there was a direction from the master or a person - - -

**** CHRISTOPHER CAIN XN MR WALTON
PN671

MR LLEWELLYN: Well, we didn't say from the master or anyone on board in actual fact. If my friend wants to lead evidence perhaps he can take the witness box.

PN672

MR WALTON: You gave in evidence that there was use of the crane yesterday, that was raised, which you heard in cross-examination by Mr Llewellyn?---Yes.

PN673

And you said that there was a direction given for them to use the crane?---Yes.

PN674

To the members, is that right?---Yes.

PN675

And do you know who gave that direction?---Yes. My understanding is the mate or the skipper through the skipper, and it came down from the Russian - - -

PN676

MR LLEWELLYN: I object. Is it the mate or the skipper, which one?---Can I finish? Both of them. It came through - - -

PN677

MR WALTON: That's okay. You can only give evidence - - -

PN678

THE COMMISSIONER: You will have your chance to cross-examine, Mr Llewellyn?---Well, my understanding is the reason - you see, the reason for this is even though the master has been informed of, we believe, problems, the crane wires and derrick wires et cetera, he's still instructed our members to carry out a duty, still instructed them to carry out a duty. And the only reason they did carry out that duty is they had to weigh it up in respect of what it was doing. They were taken off stanchions so that they could possibly sail the ship once they had sorted the safety issues out, because otherwise we would have been called and had another safety issue out at sea. And it's all well saying it's coming back in three days. I've seen these vessels stay out there for six weeks and not return.

PN679

MR WALTON: So on your understanding and your belief Mr Cain, is that you believe that the members on board complied with the direction of their employer in working on that?---Not without protest at all.

PN680

But they complied?---They complied.

PN681

And they complied with the direction to perform other available work?---And are still doing that now.

**** CHRISTOPHER CAIN XN MR WALTON
PN682

Okay. Are you aware of the issue regarding the asbestos?---Yes. I've been aware of that issue since it was in Singapore. I've been also aware - and on many occasions we challenged the people, though supposedly independent people, and we've got photographic evidence in respect to asbestos on a number of Total Marine vessels that are in Singapore at this present time.

PN683

Can you recall when the vessel was in Singapore?---About eight weeks ago I'd say.

PN684

So there was an issue then?---There's an issue been on there then, and I'd say that there will be another issue when the Stena Clyde comes down and another issue in respect to the safety concerns we've got on another vessel. Alls I'm articulating is I'm getting pulled before an industrial commission over safety concerns that when we raise them we are put in a 127 order or section 19 and saying that we're refusing and we're taking industrial action. On this occasion and on the previous occasions and more particularly this occasion we are not taking industrial action. We have grave concerns for our members and the members of the Russian crew.

PN685

So in your mind or your belief that the issue about the asbestos was raised with ..... was that communicated through to TMS?---We have still even since then - it's very well MPL and they're the - you know, I know the people who do, you know, have got experience in looking asbestos. It's very well them coming up and saying that's what it is but it's another issue - I mean in all these vessels that are coming into Australia at the moment every one of them have got asbestos in them. Everyone that I've seen or inspected or my officers have expected - inspected and on a number of occasions there are parts where they don't expect and are overlooked, or there are parts that can where maybe encapsulated that then when you get down here with the roll of the ship or bad weather makes it fibrous, makes it and then it goes up through the air conditioning and all those particles there where our people have concerns and they have every right to. They have every right because one breath of asbestos in respect to what goes on, we are not prepared to take the chance and we're certainly not going to do that.

PN686

And it's that particular issue that has been raised with you about this vote as of yesterday?---And time and time again a few times with respect to that and it's the only chance where the - it wasn't Chris Cain going down to the vessel to jack a vessel up, as Mike would like to say. It was my members demanding that I go on board the vessel and have a look at this ship and with all due respect, without going and having a look at it and this man hasn't been obviously in it, I think it's an absolute disgrace, absolute disgrace and I can't see how this Commission could put orders on us about industrial action we haven't taken and yet the people saying it has not even seen the vessel.

**** CHRISTOPHER CAIN XN MR WALTON
PN687

THE COMMISSIONER: Mr Cain, I can't help but sit here and be impressed by your passion for the safety of the members?---Okay.

PN688

And you know, obviously you have a legitimate right to raise safety issues. I'm just trying to cut through here in the interest of time, you know, but when there's a dispute over a safety issue there's safety authority and the safety authority is the people?---I'm fine with that.

PN689

You're not the safety authority. I mean you're representing your members, the best interests of your members?---No, I'm fine.

PN690

You're not the person who polices safety in this?---No, I'm fine with that as well.

PN691

And I can't for the life of me see when there's a safety, the vessel comes in and there's a safety issue, under the Act there's roles for safety representatives, there's responsibilities for safety representatives, these things can just be followed through. Too often, and I’m saying this broadly and not in respect just of the MUA or just putting you aside for a moment, too often sometimes we see disputes going on when, you know, the real way to - whether it was AMSA or WorkCover, in this case I think it would be AMSA and these things can be quickly nipped in the bud?---Do you think so, I - - -

PN692

Well, by getting the safety people. The safety rep does what they're supposed to do under the Act and AMSA or whoever they are come in?---Okay. So Dave Dolman?

PN693

Mm?---Dave Dolman. My safety reps have gone word for word and clause for clause under the Occ Health and Safety Act. Word for word they've informed the people they're imminent risk. They've actually, because they don't know what's in the product, they're not prepared to do it, they're not prepared to go there. Because we've had a rope or wire pad on the vessel where we've had injuries and lamed and been killed we're not taking no chances. So we've done everything right on this occasion, everything, and we can all bullshit a little bit and - - -

PN694

This is a little bit different to the last time I think I was here?---Well, I
certainly - - -

PN695

We were down at Fremantle and this thing, the crane had slipped, you know, the container had come down. This is sort of like, you know, this is a little different to that, isn't it, because of the nature of the concerns?---Well, I'm fine for you,
Mr Commissioner and Mr Llewellyn - - -

**** CHRISTOPHER CAIN XN MR WALTON
PN696

No, I'm only asking you a question?---No, I'm fine. But I'm fine for you to give us orders with a letter to say that if someone gets asbestos in 30 years time through this because it's on board the vessel, what I'm fine for that if someone gets killed now when you go out, and this is on evidence, I hope it's on evidence, yes, I'm fine with it because what I'm saying is - - -

PN697

There's no way that if you - you know, if you asked me to conciliate, which you didn't, you know, that I would have been saying that it's okay for people to take work with asbestos for 30 years. Are you seriously suggesting that the Commission - - -?---What I'm saying, sir - - -

PN698

Anyone in the Commission would say that?---What I'm saying, sir, is whether it be Chris Cain, because I haven't gone on the vessel and that's where it's important where the Act comes in.

PN699

Yes?---My safety reps and my members up there are on the vessel, not Chris Cain or Mike Llewellyn, my reps and my people are working on there and they are all experienced under the Act and they have a duty of care themselves. Now, they've followed that. They talk about data sheets. My wharfies will go on strike for two weeks over data sheets what's on the wharf down there, not being presented when we've had spills and we have a legitimate claim through Unions WA and the professional people that say under the duty of care them data sheets must be on the container. They are supposed to be up in the area away, not in the skipper's cabin, not in the mate's cabin, up identified in that area where under the Act, under the Act. So anyone going in that area can see what's in it. Anyone using that product can see what safety gear he has to put on, whether it be a mask, whether it be glasses, where it be earmuffs, whether it be full suits, protection of asbestos or whatever and that doesn't happen and we are sick of it.

PN700

MR WALTON: In your opinion, taking those exact issues that you've raised, your members, it's your understanding, called Worksafe, is that right?---Yes, correct.

PN701

In your opinion do you think Worksafe have jurisdiction?---In my opinion once the vessel is tied alongside and my understanding from senior Worksafe officers, or the head of Worksafe, they say to me once it's tied up they have jurisdiction to go on and see it and they have on many, many occasions.

PN702

Do you know if a Worksafe officer has gone out to this vessel?---Went out this morning. My understanding after talking to Mike Llewellyn and one of the officers or skippers on board that he's not required to go on there. Mike Llewellyn has told Noel Neilson he's got no jurisdiction to go on there and stay away.

**** CHRISTOPHER CAIN XN MR WALTON
PN703

So from the MUAs perspective and the people on board they did what they thought was to raise a legitimate expectation by calling Worksafe, it's your opinion that they have jurisdiction. You have heard evidence today from
Mr Llewellyn is that it's his opinion that they don't have jurisdiction, but you're of the opinion that they do and that's what in fact - your evidence today is that that's what in fact what happened. They called Worksafe, they went there this morning and the Worksafe officer as far as your understanding is that he was told you're not entitled to come on board?---Correct.

PN704

So at this point in time the vessel, subsequent to the issues raised by the employees about their health and safety haven't been checked, haven’t been inspected other than the master, from what we've heard from Mr Llewellyn, saying that's rock wall amongst other things?---Amongst other things and also, look, no-one wants to hold the vessel. I actually spoke when I heard that Worksafe were refused access to there, to go down, I spoke to our reps and then said, well, who is the umpire here, who do we go to, AMSA or do we go to NOHSAC and both - there's a book there that's been wrote out this year saying NOHSAC have consulted all the occ health and safety issues in the off shore oil and gas industry. So it confuses me, it says it right on the front of the page. Now, what I'm trying to get at is if it's AMSA then get AMSA down there because we have a legitimate concern. If it's NOHSAC, well, get them down, if it's ..... I don't care, but we have concerns about the safety and we want them fixed, or to the best of our ability and we'll work cooperatively with the company but we're not prepared to sail the ship while these safety concerns are not met and I've been directed by the members to do it. And if it means a blue, Mr Commissioner, we'll have to have one. That's the way it is.

PN705

THE COMMISSIONER: That's what's happening?---Well, I know but I can't help that. I'm only being directed but I can only say - - -

PN706

Well, I mean they might direct you but they like you and like me, we all abide by this?---I agree, I agree, and - - -

PN707

And when you come here you come to me and all I dish out is this?---Yes.

PN708

And if you don't think I dish out this you can always appeal, but I dish out that. I don't go beyond that, I don't go less than that, I go with that?---But you've asked me - you would say to me that I have got to try to the best of my ability to actually convince you that this is an industrial blue. That's my job because I've just been up there and am are willing to spend their members money to fly back there in the morning and I’m willing to get the safety that's down there with AMSA. I am willing to get NOHSAC or AMSA in respect to there are problems. We will even pay for the stuff to be analysed. We will go to the chemical people or whatever it is. If it's not legitimate then we'll come back and I'll agree to Mike Llewellyn if there's nothing with them issues or there's no asbestos in any other areas, or the wires are fantastic and they're brand new and there's nothing wrong with them.

**** CHRISTOPHER CAIN XN MR WALTON
PN709

Okay?---Because I've seen them or, and let me tell you another thing, I have a moral obligation. We have women on board the vessel, your Honour. We have women there.

PN710

Yes?---And on the same level and there's 22 men and I think there's about four or five women, Russians and English and Belgium's on this vessel and I've got to say, in our duty of care it's equal rights for women as well. They need a shower and a toilet. They need to be able to go there and as far as I'm concerned if you want to go to anywhere you like with the occ health and safety laws and I’m hoping that AMSA have got the same thing, it doesn't add up when you look at 22 people in one deck with not two showers and two toilets, two showers now and one toilet and he still wants to sail it and it's backfilling. I was on there and it was backfilling. I actually went and done an inspection. Backfilling and you want the vessel to go out there and so ..... Llewellyn. 44 degrees up there and it backfills and the stench goes through when you're eating. I've got grave concerns about all that, sir.

PN711

MR WALTON: From your perspective and from what you've heard from the employees on board, MUA members on board, would you think that would present a health and safety problem, the toilets?---I say, I would say I don't think, because I've seen with my own eyes what has actually gone on there and I've got an awareness of what's gone on, I'm trying to put that across down here how bad it is, I believe that them toilets and showers should not only be fixed but there should be more there in respect to the personnel getting a decent shower and toilet. Let's not forget you want them to work 12 and 14 hours a day in the heat and come in and have a wash and have adequate facilities to cleanliness, let's not forget that. So there's a range of issues and we have major concerns and I don't want to brief with you, I spoke to our federal secretary on all this because, you know, things that transpired. They say on the articles under the Navigation Act with a foreign flight vessel they don't leave they say. So what happens is - - -

PN712

THE COMMISSIONER: I understand. I have been down this one before?
---Okay. So when the Russian - I'm sure you know because the engineers union are fully supporting us in the articles or a certificate for this vessel, might I add, because they're experience of it was when the 8A form was not signed, and I will give you the company's name, Tidewater, it went to court. The man died, an engineer died on board the vessel. It went to court and it ended up in the ACCC and the decision down because it was a foreign flight vessel is there was no pay out for him or his family on the Seacare. There was no pay out in respect to the death. Now, we have an obligation, because it's a foreign flight vessel, they don't have to have an 8A, so my federal secretary has told me - - -

**** CHRISTOPHER CAIN XN MR WALTON
PN713

MR WALTON: That's the law, isn't it?---Yes, that's the law. Well, if we're fair dinkum about this, if one of my members gets killed and he's not - or really injured badly where the Total Marine will pick up the payments - - -

PN714

THE COMMISSIONER: That why I know Worksafe doesn't cover it?---Thank you. And what happens, the little Russian ship goes on its merry way back to Russia and all over the place and we have an obligation to see what happens and what will happen? Am I going to be arguing with the ACCC about whether the family are going to be compensated for the person killed or injured? I certainly think not. We want a letter off in a contract, that's what my federal secretary is saying. And make no misunderstanding about this, a letter from the obligation for Total Marine to pick up WorkCare and all the appropriate conditions under the Act for the workers compensation federally before that vessel goes anywhere at all and if you look, because we were dragged in the Commission over this on the ..... project, our members actually dropped the pick at sea and refused to do any more work whatsoever unless there was an 8A form in front of them, and that is a safety issue as well.

PN715

MR WALTON: I will just direct you - - -

PN716

THE COMMISSIONER: I think, Mr Walton, you have had a pretty fair go.

PN717

MR WALTON: I have?---Okay.

PN718

I have. There's only one quick issue, page 4 of L2, I apologise, sir, there's an issue from it is involving with wires, with the condition of winch and anchor wires and condition of derrick wires, condition of light rope wires. As far as you're aware you believe that that's been raised with TMS by the MUA members, by the employer?---By the safety reps.

PN719

THE COMMISSIONER: That's not contested, is it? That was part of the evidence.

PN720

MR WALTON: No. And that you believe is a safety issue?---Well, we're saying it is because - - -

PN721

THE COMMISSIONER: Sorry. The evidence is that L3 says that it was, wasn't it?

**** CHRISTOPHER CAIN XN MR WALTON
PN722

MR LLEWELLYN: It was raised with the master.

PN723

THE COMMISSIONER: With the master.

PN724

MR LLEWELLYN: Yes.

PN725

MR WALTON: That's right?---The safety reps have - - -

PN726

But there was a safety issue?---Yes.

PN727

THE COMMISSIONER: I see, okay?---And the other issue, just on closing, if your Honour could just listen to this, my belief is about this oil and I’m going to be - you can put this on record, I'm going to be contacting the Environmental Protection Authority in respect to the tanks being filled up, because I've been a seaman and I know what happens.

PN728

This is the sludge, this is the thing that comes out?---It' not sludge. It's oil.

PN729

Oil?---It comes out the bilge. It's an oily water separator but it doesn't work on the vessel at the moment, but it's supposed to separate the water in the tanks.

PN730

Isn't that an issue for the owner though rather than the employer here?---No, no, it's an issue for the Environmental Protection Authority.

PN731

Yes, yes?---Because once it goes into our ..... waters and kills all the - - -

PN732

Yes?---And I don't like the comments that after 12 miles out it's okay to dump all the oil in the water.

PN733

I go on weekends that I pick up rubbish so I'm an - - -?---You know what I'm saying.

PN734

Yes?---And I'm concerned about that and I take offence if you go 12 miles out or 200 miles out. They shouldn't be dumping any stuff over the side of the - - -

PN735

Okay. Mr Llewellyn, can you help me with the time here, Mr Llewellyn?

PN736

MR LLEWELLYN: I'll try to.

**** CHRISTOPHER CAIN XN MR WALTON
PN737

THE COMMISSIONER: Thank you.

PN738

MR LLEWELLYN: How long would I be? Probably only about 20 minutes I would imagine.

PN739

THE COMMISSIONER: That's fine. I'll hold you to that.

PN740

MR LLEWELLYN: Thanks.

<CROSS-EXAMINATION BY MR LLEWELLYN [3.23PM]

PN741

MR LLEWELLYN: Mr Cain, in terms of the 8A certificate how many foreign vessels are currently working in Australian waters that you know of?---Well, at the moment we've looked on the AMSA web site, it is actually about faster - and this is going to be another issue, well, it's going to be take up with the unions. It is about at least half of them that haven't got 8A certificates that's getting taken up now with all the unions federally.

PN742

Perhaps I will put this, are you aware that we operate the ..... Victory?---Yes.

PN743

Is that an 8A certificate?---On the web page, well, if it's left to Total Marine I'd say it wouldn't because you don't care about it, you know, so - - -

PN744

Well, Total Marine can't issue the certificate, can they?---Yes, they can. They
can - - -

PN745

It's issued by the owner?---No, no, no. Let me tell you, let me qualify this. They can issue the certificate and put it in the contract when they go to the client and that's what we'll be seeking from Total Marine.

PN746

So how many vessels, foreign flag vessels current being manned by Total Marine have you put this claim on for now?---Every vessel that was on the project going up to the ..... the engineers and ourselves and the AMOU put the claim on.

PN747

No, listen to the question, Mr Cain, it will be quicker. How many vessels currently operated by Total Marine currently foreign flagged have you asked for 8A certificates to be issued as of today?---Well, it's only come to our attention.

PN748

THE COMMISSIONER: Well, just simply say if you haven't, just say you haven't so far?---I say about it we haven't done it so far, no. But we're certainly doing it now.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN749

MR LLEWELLYN: One, is that right? One, the Bavenit?---No, no, no. We actually put it on about three or four vessels about eight or nine months ago.

PN750

Which ones?---The ones up out of the ..... project.

PN751

And how many of those had 8A certificates issued?---Every vessel on that ship up there - - -

PN752

Well, Mr Cain, I put it to you no vessel that Total Marine manned had 8A certificates issued and you're aware of that?---No, no, no. Let me put it to you if that's the case you got away with it.

PN753

THE COMMISSIONER: Sorry, you just have to deny it and - - -?---That's not correct.

PN754

MR LLEWELLYN: Now, you just made a comment in evidence that it's been 44 degrees up in Karratha and the stench on the boat, what day was it 44 degrees?
---No, no, I said it can be up to 44 degrees.

PN755

Well, when was it 44 degrees?---If you have a look at the tape I said it can be up to 44 degrees.

PN756

Well, when was it I'm just asking?---Well, even if it's over 20 degrees if a man your size and you sweat a lot and you're in a confined space I'm sure it's going to smell.

PN757

All right. Now, your evidence as I understand it your members are currently performing work, normal work on the vessel?---Yes.

PN758

And that includes all areas of the vessel?---Well, areas where they're supposed to work, yes.

PN759

What areas are they?---Well, stewards, if he wasn't there, I'm sure you'd hear the Russian master screaming he's not getting fed, but they're all feeding him. The cooks are working, the stewards are working, the IRs are working, they're doing the maintenance and they're doing all what is required on board that vessel at the moment.

PN760

So they're still working in the engine room?---Well, I would say it would be, yes. I don't know - - -

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN761

Still moving between deck levels?---Not in areas - well, I don't know. I can't answer that because it's not - - -

PN762

Are they still working where there's chemicals being trodden all over the deck?
---No.

PN763

So they're not working in those areas?---Well, not my understanding. If they are they're being directed to by the mate or the master.

PN764

Well, how do you know they've been directed to?---Well, that's - when you
go - - -

PN765

THE COMMISSIONER: He said he didn't know and he said but if they were they wouldn't be doing it voluntarily, so he doesn't know.

PN766

MR LLEWELLYN: So your evidence is they are currently working in all areas of the vessel, correct?---My evidence is not that.

PN767

THE COMMISSIONER: Well, he says he doesn't know?---I said I didn't know.

PN768

MR LLEWELLYN: That they're working in the engine room, you would agree with that?---I mean I've just been talking to them on the phone and they said in all good faith, Chris, this is, you know, real safety, we're going to continue to do our normal duties and work where we can in areas where we feel safe.

PN769

Now, you said in evidence that you received phone calls from the crew, this crew about the safety issues on board the vessel?---This crew, yes.

PN770

When did you receive those?---I've received them and the last crew as well, both crews, both swings, even when the crew changed - - -

PN771

When did you receive them?---Well, I can't recall. I've had about 10 or 15 calls, mate, so which date do you want?

PN772

Well, this week, last week?---This week, yesterday, the day before, the day before that, what do you want me to say?

PN773

Well, I want to know when you received the calls about the safety issues?---Well, I just told you.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN774

When?---I've just told you, over the last few days and over the last few weeks and also from Singapore.

PN775

And when did you contact Total Marine about that?---I contacted Total Marine, I spoke to a number of people. I firstly spoke to - I think, was it Gareth that inspected the vessel?

PN776

I want to know when the safety issues were raised - - -?---Hang on, you asked me a question.

PN777

Well, who did you speak at Total Marine about the safety issues?---I spoke to all of you.

PN778

When?---All of you.

PN779

Did you speak to me on Sunday about it?---I spoke to you about the - hey?

PN780

Did you speak to me on Sunday about it?---No, I spoke to the safety reps and it's all the safety reps who handle it because I was busy trying to save doing the jobs in another area.

PN781

THE COMMISSIONER: We have to keep to the - - -

PN782

MR LLEWELLYN: Well, let's deal with that then, Mr Cain, first we will go to that. When did you issue the notice that you were going to Karratha to inspect the vessels?---I don't know, my secretaries do that.

PN783

That was issued Friday morning?---You've got to give 24 hours notice so I would say if he done it 24 hours before I was going up there I had no intention of going up there until Sunday.

PN784

Well, when did you issue the hours?---24 hours. Can't you work that out?

PN785

Well, if I put to you the notice came to us on Friday morning would you deny that?---What notice?

PN786

The notice that you were going to - - -?---You'll have to speak to my secretary, she does all that.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN787

Well, when did you book your flights, Mr Cain, that would be easy enough to check?---Well, you'd be go and check with Mermaid Marine.

PN788

Well, you're under oath, when did you issue the notice - - -?---I didn't.

PN789

Well, when did you issue the instructions to your secretary to issue the notice?---I don't know. It would have been - I knew I was Karratha over on the Friday and I also was going up a week prior - a few days prior in respect to working out this industrial matter with Mermaid Marine.

PN790

That's the inshore agreement?---Yes, it's - - -

PN791

That's what you were going up there for, isn't it?---Inshore agreement, yes.

PN792

And you were going up there and that was all arranged prior to Friday morning, wasn't it?---I was going up there. I was in Sydney last week so.

PN793

It was arranged prior to Friday morning, wasn't it?---Where are you getting that, mate?

PN794

Well, I'm just asking you, was it arranged Friday morning?---That was I was going up to the vessel?

PN795

Mm?---Or up to Karratha?

PN796

Up to Karratha?---I was going up to Karratha prior to Friday morning, yes.

PN797

Do you know when the announcement was made about the issue with TMS and Mermaid Marine?---Yes, I think it was Friday morning.

PN798

Friday afternoon?---Okay.

PN799

So you weren't going up there to save jobs, you were going up there to do the infield agreement, inshore agreement, weren't you?---You've got to be kidding me, aren't you?

PN800

No, I'm not?---When I say I'm going up there to save jobs, about what I did, I mean when that announcement was made on Friday or whatever it was, 11 or 12, I believe there's a bit of - between the two parties whether Integrated wanted to announce it Friday or whether Mermaid wanted to announce it Monday, I don't know, but I don't think is relevant to the safety concerns.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN801

Well, it's relevant to the standard of your evidence, Mr Cain?---I'm not even going to reply to it.

PN802

All right, I wasn't asking for a response. In terms of the safety issues when did you receive a call from the people on the Bavenit about the safety issues that necessitated you attending the vessel 11 am Sunday morning?---I've had numerous calls about it and the only opportunity I actually got to have in respect to the wires part and toilets not working, stench through the accommodation - - -

PN803

Look, I'm wondering if the witness can be directed to answer the question. All I'm asking you is when he was notified, not what he was notified.

PN804

THE COMMISSIONER: This is a bit like the last witness?---..... I wouldn't bother going down ..... I wouldn't bother going - - -

PN805

Listen, what happens is, just everyone please, you ask the question, you answer that question and if there's an embellishment you say I'm not ..... so I think under re-examination you can fix that up?---Okay.

PN806

MR LLEWELLYN: What time on Sunday or Saturday were you notified by the delegates on the Bavenit that there was safety issues?---I was notified that there was major concerns on there over safety prior to going up there.

PN807

So that was on the Friday?---On the Friday, I think it was Friday.

PN808

Did you contact Total Marine about that?---On the Friday night I think it was.

PN809

Did you contact Total Marine about that?---No, I'll talk to my men before I talk to you people.

PN810

So you had major safety concerns communicated to you but not sufficient concerns to notify the company that they - - -?---Because I was told that this vessel wasn't sailing, sludge tanks and all the rest of it and that matter could be resolved hopefully in a consultative manner when we got up there.

PN811

Well, sludge tanks were resolved. You spoke to me on Sunday morning as well, didn't you, Mr Cain?---Sunday morning, what did I talk to you about?

PN812

Try Mr Russo?---Yes, yes, yes, Russo, that was another one.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN813

Two or three phone calls, wasn't it?---Yes, that was another one you put in - - -

PN814

This was immediately prior to you going onto the Bavenit. You didn't even tell me you were attending the vessel then, did you?---No, because I didn't know I was going there at that time. At that time I was going and sent up there by Mermaid Marine to go to - and you've got appreciate, your Honour, I was up there seeing Mermaid Marine. I was called down there because our people were sick and tired and said just come and have a smell and listen what's going on here and I went on board and I was astounded.

PN815

So that was 10 or 15 minutes before going on board you didn't know you were gong thee, Mr Cain?---No, no, it wasn't 10 or 15 minutes.

PN816

Well, I can check the phone records of the conversations we had if you like?
---You can say whatever you like, I don't care. What I’m saying to you is I report to my members first and then ultimately on the vessel working there and I'll listen to them before I listen to you, whether you like that or not.

PN817

All right. Have you got L2 in front of you still?---Yes.

PN818

You weren’t at the meeting at 2.28 am on Sunday, 23 October, were you?---2.20.

PN819

Am?---No, that's when all our safety reps actually told - - -

PN820

THE COMMISSIONER: The answer is yes, you weren't there.

PN821

MR LLEWELLYN: Were you on the vessel, the minutes that you came to the vessel at 1100 hours, is that right?---Yes, it would probably be around that, yes.

PN822

Do you agree that you asked for a signed copy of the ITF agreements for the Russian crew?---I asked - no, I don't agree with that. I asked where the Russian crew members of the ITF.

PN823

Members of the ITF?---Signed up into the ITF.

PN824

And what's the ITF?---Well, the ITF, it's the International Transport Federation. They have agreements for 8000 vessels around the world whereby our federal secretary actually does the negotiating on behalf of the - on a world's sphere for the workers who are probably deprived like the Russian crew are at the moment in wages and conditions and my own Australian crew by the way.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN825

Did you ask for details of the Russian's crews rates of pay and contract durations?
---No, no. I said what are you paying the Russians, if that means details. I mean I didn't demand anything the way you were saying it before. I asked, which is a fair question. You can go anywhere in this world and ask anything you like.

PN826

And you asked for details of the union membership?---No, no, no.

PN827

Is that a question you normally ask people, Mr Cain?---I didn't ask anyone about details of union membership, only my own members and that was because I'd taken a list up there and took the opportunity to see who was behind in the union dues and there wasn't and overwhelmingly they were all, funny enough, financial.

PN828

Did you ask if there was a Russian bosun on board?---No, I was told there was a Russian bosun on board.

PN829

So who is your delegate on board the vessel?---We've got a number of delegates on board the vessel. It all depends in what capacity.

PN830

Who's the union delegate?---The union delegates at the moment is Max Ward, Peter, I don't know his second name.

PN831

Shanahan?---I don't know what his second name. I only know him by Peter and the fellow, the safety reps is Mark Jakes and another bloke and I can't remember the other fellow's name. But you've already been told that by now.

PN832

Can I just ask you, did you raise any issue with taxi chits being issued to the crew?---Yes, I did but not what you just said in your evidence. What I raised was quite clearly under the enterprise agreement, and agreement with Total and all the other operators, when vessels have been out on ..... there's two in Damper, to go to Dampier and one to Karratha and that's always been the case. Now, because this vessel has more than five of our members on board we thought it was fair that maybe one, not three buses, one bus accommodate them all after work, if they wanted to go shopping, get toothpaste or whatever they wanted to do and so certainly it wasn't in your evidence that I demanded three buses go up and down, that's pathetic.

PN833

So that's contained in the certified agreement, is it?---No, it's an agreement between all the operators and if you want to go there, go and ask the other operators and yourself what you've been paying.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN834

Do you agree that you asked for the Australian crew to be signed onto articles or equivalent indemnity issued?---I asked were they on articles, I didn't say that should signed on articles because I know what the 8A certificate means and I know what a foreign flight vessel means and we've also been under this and that's why I contacted my federal secretary who with all due respect has been at sea as well for 20 odd years where this bloke cross-examining me doesn't know what a ship looks like or has never been to sea.

PN835

Do you agree that you asked for the removal of Russian labour from the vessel and replaced it with Australian crew?---No, I don't. I don't agree to that at all.

PN836

You're under oath, Mr Cain?---I'm saying and I know where I am. I don't agree to that at all. What I said is shouldn't it be and it wasn't even my argument, shouldn't it be Australians on here. I didn't say, demanding that they had to be on and in fact we've been working alongside them. I asked the question.

PN837

All right. Did you ask for a renegotiation of the hard lying claim?---I asked after I'd seen the state of the toilets, not about a hard lying claim, but we should sit down and talk. Sit down and talk of the state of the vessel, the occ health and safety concerns. What gets me about all this - - -

PN838

THE COMMISSIONER: No, no, we haven't got time?---Okay.

PN839

MR LLEWELLYN: Did you ask for a negotiation of the hard lying claim?---No.

PN840

And you wouldn't ask for hard lying money for any safety issue, would you?
---Mr Commissioner, is that relevant?

PN841

THE COMMISSIONER: When you're doing cross-examination you ask sort of questions a bit like that which is a bit unusual but that's - - -?---Well, let me tell you, first and foremost and secretary of the union we don't have hard lying claims because I'd like - - -

PN842

MR LLEWELLYN: No, that's not the question I asked you, Mr Cain?---Well, yes, I'm trying to answer it.

PN843

Have you ever asked for money for hard lying for safety issues?---No, but I've been told by the company on a number of areas that we will pay this because we can't either get the crew or we can't fix the issue or we do that and that's always been negotiated - - -

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN844

So you never asked?---Hang on. That's always been negotiated in a consultative manner.

PN845

Mr Cain, you gave an impassioned speech earlier about safety and your concern for it and it wasn't about money or anything else. I'm asking you have you ever made a claim for money to fix safety issues?---No.

PN846

Never?---No.

PN847

Remember the rule 45?---Yes.

PN848

How much was the money paid for the excessive noise on that?---Well, I can't remember how much but to me it wasn't enough.

PN849

You asked for $100 a day, wasn't it?---Well, and that's still not enough because let me tell you, I'm going to have to say in a week's time when your Total provider comes in where the decibels and the noise factor is well over 100 decibels.

PN850

Mr Cain, it's $100 - - - ?---It's been ..... six years.

PN851

It was $100 a day, wasn't it?---I don't know what they got but you agreed. Is that relevant to this - - -

PN852

Well, you asked for it.

PN853

MR WALTON: Commissioner, I'm not sure that - - -

PN854

THE COMMISSIONER: It is getting - - -?---It's just a he says, she says. I
mean - - -

PN855

MR LLEWELLYN: Well, Mr Cain, that was an agreed - - -

PN856

THE COMMISSIONER: He asked the question and you say yes or no?---I've just said no all along.

PN857

Okay, you have said no, we will move along.

PN858

MR LLEWELLYN: So your evidence under oath is you have never asked or received money for safety issues?

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN859

THE COMMISSIONER: No, he didn't say that. He said - - -?---I never said that. On behalf of my members you've said to me, well, what are we going to do about this situation and it's been suggested to me, I put it back in your park or your high and managing director's part that they wished to pay that to get the issue fixed and it's not to do with me.

PN860

MR LLEWELLYN: Mr Cain, rule 45 matter came before this Commission and you settled it just prior to us coming here on the basis that Total Marine pay $100 per day every time the bow thruster is used for noise on the vessel. That's right, isn't it?---It's either that or take the ship back to Singapore because - - -

PN861

THE COMMISSIONER: Which Total Marine did because it was unsafe, didn't they?---Well, no. You know what I ..... the clients told you and gave you rap across the knuckles about the whole lot of this and the whole pantomime over occ health and safety.

PN862

Well, let's deal with some pantomime - - -?---Because it wasn't Chris Cain.

PN863

- - - about occ health and safety?---It wasn't Chris Cain, your Honour, that said the vessel isn't safe. It was Worksafe, independent people. Do you want to - - -

PN864

And Chris Cain accepted $100 to make it safe?---No, no, we asked you to fix it.

PN865

You accepted $100 to make it safe?---I didn't.

PN866

Yes, you did?---I don't go on the vessel.

PN867

I can show you the faxes and the emails with the agreement recorded in it if you like, Mr Cain?---Yes ..... but the - - -

PN868

Directed to you?---Hang on, let's put it another way. Did the company accept it?

PN869

Well, did you ask for it?---No.

PN870

You never asked for any money at all?---No.

PN871

So where did the $100 materialise from?---My members asked for it.

PN872

And that's your evidence?---No.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN873

You passed that onto the company?---I got it passed onto them and in fact they passed it onto me.

PN874

THE COMMISSIONER: Sorry, you said your members asked for it, did you?
---Yes.

PN875

MR LLEWELLYN: And then who did you ask for the money, Mr Cain?---Who did I ask?

PN876

Yes?---Excuse me, am I in an industrial court here or - - -

PN877

THE COMMISSIONER: You're in an industrial court?---Thank you.

PN878

MR LLEWELLYN: So who did you ask for the money?---You're making ..... someone here.

PN879

THE COMMISSIONER: It's not a crime to ask for money when you're in the industrial proceedings. You're a union official?---..... is this the taskforce?

PN880

MR LLEWELLYN: Was there an agreement between yourself - - - ?---Jesus Christ.

PN881

Was there an agreement reached between yourself and Total Marine by $100 a day every time the bow thruster was used on that vessel?---The agreement was reached between my union and the company on behalf of its members where the company entered into that arrangement and signed off on it.

PN882

THE COMMISSIONER: Yes. Mr Llewellyn, it's been said that his members asked for it.

PN883

MR LLEWELLYN: Okay, I'm sorry. Mr Cain, can you tell me definitively now what makes the Bavenit unsafe to sail?

PN884

MR WALTON: How can he give opinion evidence as to the safety or otherwise of the Bavenit vessel other than through the evidence he's given already today other than to say that he's not an - he doesn't hold himself as an expert but he does so within the same - - -

PN885

MR LLEWELLYN: I will rephrase it.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN886

THE COMMISSIONER: Fair enough.

PN887

MR LLEWELLYN: Mr Cain, you gave evidence earlier that your members are currently performing their normal duties on the vessel?---As well as can be expected.

PN888

Well, did you give evidence earlier that your members were performing their normal duties on the vessel?---Yes, and - - -

PN889

The only thing they had refused to do was sail the vessel, that's correct, isn't it?
---All I said to you is they were working right through. The stewards and the cooks, I don't want to reword what I've already said but I did say that all our members are not on strike, had no industrial action and are working continuously on the vessel, they would be cooks, stewards, ABs, IRs, TIRs, oilers, greasers or whatever.

PN890

And how would that change if the vessel sailed?---Well, my opinion in respect to the vessel sailing or not sailing - - -

PN891

No, I'm not asking your opinion of whether the vessel sailed?---Well, it's not going to be left to me.

PN892

How would the work of those people change if the vessel sailed?---Well, because they believe they've got a safety issue and that it needs to be addressed now, on the numerous occasions I've just explained to the Commission whether you like that or not.

PN893

Well, perhaps I can put it to you this way, Mr Cain, isn't it true their duties on the vessel will not change if the vessel sails?---Well, let me tell you, of course the duties will change because maybe they may on the duty of care not use the claim, maybe they may not go into the pod room, maybe they may until they've got all the safety requirements not go and do them duties.

PN894

If the vessel sails?---If it sails, yes.

PN895

But they will do it now while it's not - - - ?---Until we get a ..... from AMSA or NOHSAC, or - - -

PN896

But they will continue to do it while it's alongside?---No, no, they're not doing them issues, mate. They have actually told you what they are actually doing. In the accommodation stewards are making ..... and cleaning and mopping floors and cooks are cooking the tea to keep the Russian skipper nice and healthy and all the other people on board and they're feeding them. The IRs are doing gangway watch and where required to maintenance where required. They're not ripping bags up and getting themselves into a position unsafe. They're not doing that, mate.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN897

Okay. Mr Cain, you gave evidence that you believe there's asbestos on board the vessel?---I don't believe, I know there is. I know there is. I know there is.

PN898

And it's in between the bulk works, is that right?---Well, my understanding is. How can I say that? All I can say to you is there is stuff there.

PN899

Where is t?---Well, you've got the letter in front of you but there is stuff there that needs examining by an independent person like MPL or Unions WA who do them professional type things.

PN900

And the last answer you had with me about asbestos on a vessel was everyone should get off it immediately, that's right, isn't it?---I'm not too sure about that. I think what we try to do is - - -

PN901

THE COMMISSIONER: Okay. Mr - - -

PN902

MR LLEWELLYN: Well, you agree that people shouldn't be exposed to asbestos and they should leave the area immediately?---Do I agree?

PN903

Yes?---Well, put it his way, my opinion is and I’m not on the ship, if people are being exposed to asbestos they shouldn't be there. If you're telling me they're exposed to asbestos.

PN904

No, I'm not telling you that. I'm asking your view, if people are exposed to asbestos on the vessel should they be removed immediately?---Yes.

PN905

Why haven't your members left the vessel?---Because they don't know if it's asbestos or it's not asbestos in - - -

PN906

And whether the vessel sails or not it's not going to make any difference to that, is it?---Well, there is because if it's found it's asbestos then it's our duty of care to make sure it doesn't sail until the professional people determine that, not Mick Llewellyn or - - -

PN907

Well, on your evidence they've been exposed to it for three days?---Well, if they are then you're going to get a law suit put on you, mate, with Slater & Gordon.

PN908

When did your delegates tell the master of the safety issues?---They've been involved with the safety of the asbestos and you maybe - maybe you should ask them.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN909

No, when did - - -

PN910

THE COMMISSIONER: Listen, I really must have strict questions, crisps questions, crisp answers, okay.

PN911

MR LLEWELLYN: Do you know when your delegates told the master of the safety issues?---Well, I’d not prefer - I don’t know what the specific hours or dates or times or whatever.

PN912

Did you raise the safety issues with anybody on board the vessel on Sunday when you spoke to them?---Did I raise them?

PN913

Yes?---Or did they raise them to me?

PN914

No, did you raise them?---No, they raised them to me.

PN915

All right. What about when you spoke to the party chief, did you raise it with him?---Actually, we have got a number of concerns which - and that’s another bit in the evidence that’s not right - a number of concerns. Them concerns will be relayed to you was the - typed out in a proper manner, a format manner that they can relay to the skipper. And the safety reps will do that. It’s not for Chris Cain to come on and tell you what the concerns are under the Act. It is under - up to the safety reps on board the vessel to put up their concerns, not Chris Cain.

PN916

And these are safety issues which your representative has put before this Commission - - -?---But they don’t - - -

PN917

- - - that are imminent risks to the health and safety of your members, and you knew about Sunday and didn’t raise, is that right?---And furthermore, more - more than that.

PN918

But you knew about it on Sunday and didn’t raise them with the vessel and your members were at imminent risk?---Don’t you - didn’t you get what I just said? It is not me to raise the issues around the safety. It is the safety reps on board the vessel under the Act that has to do that. They can relay it to me - - -

PN919

You have got no duty to make - - -

PN920

THE COMMISSIONER: Just let him finish and then we might just have this out.

**** CHRISTOPHER CAIN XXN MR LLEWELLYN
PN921

Yes?---Yes, sorry.

PN922

So, it’s their issue?---Their issue.

PN923

It’s their responsibility?---It’s their responsibility under the Act.

PN924

MR LLEWELLYN: So you have no - - -?---It’s their - - -

PN925

- - - responsibility to your members to insure those are notified to the company as soon as possible?---Well, I think what I have done is made it my responsibility under the duty of care for me for my employees, or my members of the union is obviously that and that’s what I’m doing here today.

PN926

MR LLEWELLYN: I don’t have anything further.

PN927

MR WALTON: Very, very quickly.

PN928

THE COMMISSIONER: Yes.

<RE-EXAMINATION BY MR WALTON [3.48PM]

PN929

MR WALTON: Mr Cain, did you - you gave evidence that you identified that there were safety issues based on a telephone conversation you had with the members. That’s your evidence today, and you elected to satisfy yourself by getting a first-hand evidence of the ship, then the safety issues were logged. So that’s from your evidence today. You had telephone conversations about the safety issues, you then flew up there. Amongst other things you then made yourself available to go to the Bavenit, then you satisfied yourself first-hand about the situation on that ship. Then subsequent to that the safety issues were logged with the TMS, is that - - -?---By the appropriate people.

PN930

Yes, okay. So you elected to get first-hand rather than rely upon - - -?---I wanted to look from my own eyes at what was going on on the vessel as well. And I’ll tell you, I really didn’t want to go down the ship because I had - not more important issues but equally important issues as well. But they are important enough, I was told, by the membership, I had to get down to that vessel and have a look.

PN931

Are you prevented from any law that you know from having a discussion with the master, just a general discussion?---No.

**** CHRISTOPHER CAIN RXN MR WALTON
PN932

Are you, as far as you’re aware, prevented from having a general discussion by the Workplace Relations Act?---No.

PN933

The master is entitled to talk to you?---Yes, as anyone else is.

PN934

If a ship sails, do you know that if asbestos is more likely to move or change to fibre and then be transported? Can you give any evidence as to that?---Well, if you go on last week’s episode down in Fremantle, 1 tonne logs went over the wall and bad weather coming into Fremantle.

PN935

MR WALTON: No further questions.

PN936

THE COMMISSIONER: Thank you. Anything further, Mr Llewellyn - - -

PN937

MR LLEWELLYN: No - - -

PN938

THE COMMISSIONER: - - - in respect of your - - -

PN939

MR LLEWELLYN: No, I’d rather wait - - -

PN940

THE COMMISSIONER: Sorry, the witness is excused. You’re excused?
---Thanks very much.

<THE WITNESS WITHDREW [3.50PM]

PN941

THE COMMISSIONER: Mr Llewellyn, Mr Cain put it to you I think, somehow or other, through his evidence that all he really wanted was the Safety Authority to come through and have a look at this thing and if - whoever the Safety Authority was, had have come out, had a look at it yesterday morning, or whenever it was, or this morning, if they said it was okay, he - I think he was saying, “Well, the boat could have gone, it could have sailed”. Well, he wouldn’t be dissatisfied but they don’t know, they have got no reassurance, no comfort. What do you say about that?

PN942

MR LLEWELLYN: Well two things, the last time Mr Cain asked us to do that was on .....

PN943

THE COMMISSIONER: Yes.

PN944

MR LLEWELLYN: Where the safety inspector in Karratha went out and took a reading of 117 decibels that was fixed with 100 bucks. When we subsequently asked for that report from the WorkSafe inspector he refused to provide it. We subsequently had that vessel independently tested and brought the results in at under 80 decibels. We have absolutely no faith in that inspector doing anything at all and he has no jurisdiction.

PN945

THE COMMISSIONER: This will be a different inspector. I’m saying - he said if it’s AMSA or it’s NOHSAC.

PN946

MR LLEWELLYN: Well, it’s AMSA in actual fact.

PN947

THE COMMISSIONER: - - - I would have thought it would be AMSA from my knowledge.

PN948

MR LLEWELLYN: Yes. And I would have thought Mr Cain’s 28 years of seaman - - -

PN949

THE COMMISSIONER: So, what Mr Cain is saying, if AMSA went on the vessel and had a look around and said yea or nay, that’s all he wanted and if they can do that now the vessel can sail, I think he said.

PN950

MR LLEWELLYN: Well, if that was what Mr Cain wanted he could have relayed it on Sunday which he didn’t.

PN951

THE COMMISSIONER: Yes.

PN952

MR LLEWELYN: If there was any imminent health and safety risk to his members on Sunday he failed to communicate that to either Total Marine or any representative on the vessel other than, “We’ve got someone, we’ll tell you later”. His own evidence is those members continued to work or continue to work currently normally with the exception of sailing the vessel. On his own evidence, you would have to say that if the vessel sailed and came back in three days time and got inspected it would make no difference.

PN953

The only issue we have here is a refusal to sail the vessel by his members. That’s the only issue we have. There is no denial from Mr Cain or any evidence from Mr Cain at all that at any time between now and 5 o’clock yesterday afternoon he or any of his delegates made any attempt to provide safety information that his representatives say were an imminent risk to their lives and safety. So, that’s the situation we have.

PN954

In the meantime, we have a vessel tied up with claims for money, the renegotiation of a hardline claim, which given Mr Cain’s - - -

PN955

THE COMMISSIONER: I heard your opening submission. You had a fairly - and I think I understand that. I just wanted to clarify that one thing.

PN956

MR LLEWELLYN: So, we’re happy to have the AMSA inspector up there again next time it comes to port. You’ll also understand from my opening that AMSA had done port stayed-on inspections on this vessel twice, the last one 10 days
ago - - -

PN957

THE COMMISSIONER: Yes, I heard that.

PN958

MR LLEWELLYN: - - - which no one raised an issue with them.

PN959

THE COMMISSIONER: Okay. Well, I think I have got the - anything you want to add over and above what you said at the start?

PN960

MR LLEWELLYN: No.

PN961

THE COMMISSIONER: Mr Walton, anything over and above you want to submit in - without repeating what you said at the start?

PN962

MR WALTON: No, very quick points. There’s no AMSA report before the Court for a start.

PN963

THE COMMISSIONER: Yes.

PN964

MR WALTON: It’s not about pay. It’s been - the evidence - we’re talking about the evidence presented today. We’re not talking about speculation. We’re talking about the evidence presented today.

PN965

THE COMMISSIONER: That’s right.

PN966

MR WALTON: And the quality of it. I would obviously have - - -

PN967

THE COMMISSIONER: Well, we got some of it. We got two lots of evidence today, didn’t we? We got Mr Llewellyn telling us what he’d been told by the master and we have got copies of minutes which had been sent.

PN968

MR WALTON: That’s right.

PN969

THE COMMISSIONER: We have got logs and we have got Mr Cain’s evidence.

PN970

MR WALTON: That’s right. And it - my position is that the - - -

PN971

THE COMMISSIONER: As well as some of - yes, as well as some of Mr Llewellyn’s evidence as well.

PN972

MR WALTON: The ship wasn’t going to sail Sunday. The ship was going to sail some time after 1.45 when that truck came to clear out the sludge from the - so, let’s get this straight. That vessel wasn’t going to - - -

PN973

THE COMMISSIONER: It’s not disputed though, is it - - -

PN974

MR WALTON: That’s exactly - - -

PN975

THE COMMISSIONER: - - - that the vessel could be sailing today if there wasn’t this problem?

PN976

MR WALTON: That’s right. And those - - -

PN977

THE COMMISSIONER: Right now.

PN978

MR WALTON: That’s right. Don’t forget, Mr Llewellyn’s made all these comments about, “Well, why didn’t you tell us earlier?” Well, hang on a second, we’re looking at a listing before you yesterday at 2 o’clock and Mr Cain had - and obviously accepted by the Commission that it was adjourned through to today. We - - -

PN979

THE COMMISSIONER: Which it was.

PN980

MR WALTON: Which it was. So there’s opportunity - the opportunity was presented today as entitled to do to fully flesh out the issues about safety - health and safety and they have been done. And the issues about WorkSafe are still - I would defer to your opinion about WorkSafe’s applicability.

PN981

THE COMMISSIONER: Yes.

PN982

MR WALTON: But it had to be emptied of sludge anyway. There has been raised - the safety issues have been raised. There is no industrial action. The evidence today is it’s not about money. Any talk about negotiations some time ago and, put crudely, “You’ll take money for safety concerns” is completely irrelevant and untenable to be raised. The issues have been raised, they are on the evidence today purely safety - health and safety, and there is no issue about industrial action

PN983

THE COMMISSIONER: Yes.

PN984

MR WALTON: The section 127 issue fails, sir.

PN985

THE COMMISSIONER: Thank you very much. I’m going to just reserve and come back in about five minutes.

PN986

MR WALTON: I’m obliged.

PN987

THE COMMISSIONER: Thank you.

<SHORT ADJOURNMENT [3.56PM]
<RESUMED [4.02PM]

PN988

THE COMMISSIONER: Thank you. This has really been a hearing about whether or not, based on the evidence which is before the Commission today, which we all know is somewhat limited, an interim order should be made. I have already indicated that the applications for a more permanent order will be listed for hearing this Friday to a time yet to be set before either myself or Lacy SDP. So this afternoon it has been about - that is what the focus has been and I have reached a decision, having regard to the evidence that has been made available to me this afternoon.

PN989

What I find is that I am satisfied that industrial action is either happening or is impending within the meaning of the Act. The form of the action is a refusal by employees to work their rostered shifts either currently or in the near future. On the evidence before me I am satisfied that the industrial action is caused by both safety and other concerns.

PN990

I am not satisfied that the exemption contained in section 4G of the Act is relevant in the circumstances of this matter. In writing up that decision I have drawn guidance on the meaning of that provision from the decision of Munro J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Rheem Australia Pty Ltd. That’s PR929970 of 9 April 2003 which includes at paragraph 46:

PN991

The last stated principle must be paraphrased. It requires that the relevant industrial action be at least based upon the person taking the action having a genuine reasonable belief about an imminent risk of the health and safety of that person or of others. In addition, the action taken must be proportionate to the risk. Dispute settlement procedures [relating] to safety disputes at the site must have been fully complied with. The questions posed by Nader J may be useful tools in determining the presence or absence of each of those elements.

PN992

Also, I have been guided by the reasoning in the decision of McCarthy DP in another case which is PR934966 of 18 July 2003 in respect of defining what “imminent risk of health and safety” as contained in Part G means. McCarthy DP said in paragraph 37:

PN993

Imminent does not mean something that may happen in the future. If the risk is imminent, then there must also be a probability of injury or harm occurring. In relation to use of "imminent" in the OSH Act, Franklyn J..... in the Industrial Appeal Court stated:

PN994

"... it is my opinion that for the formation of a justifiable opinion under s49(1) that the relevant activity involves or will involve a risk of imminent and serious injury or harm, the evidence must show that there exists something more than the bare possibility that injury or harm of that nature will occur from the activity in question.

PN995

Having regard to the evidence and submissions I am satisfied that the jurisdiction required for the issuance of an order - or an interim order exists. As to the discretion as to whether an interim should be made, I have taken into consideration that the industrial action is not protected action. The dispute resolution provisions of the agreement have not been fully complied with. There has been ample opportunity for the parties to conciliate on any issues of concern since the vessel arrived in port on Friday, 22 October 2005, and if necessary, refer the matter to the Commission under clause 42.5 of the agreement; also, a history of industrial action in respect of this vessel.

PN996

In the circumstances, I have decided to issue an interim order on understanding that the vessel will return to port within 3 days. The interim order will be in terms that will be issued shortly and I would just ask you to stay for five minutes and Kay will make the order available to you.

PN997

I want to say that I have been impressed by Mr Cain’s passionate concern for the safety of his members. I want to say also that the application will be listed for further hearing on Friday and I recommend that the parties consider holding discussions on the matters in dispute prior to that time. The order will take effect from 5 pm today and will remain in force for a period expiring on
31 October 2005. That is the interim order. This matter is adjourned, thank you.

<ADJOURNED UNTIL FRIDAY 28 OCTOBER 2005 [4.08PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL DANIEL LLEWELLYN, SWORN PN224
EXHIBIT #L1 VESSEL LOG PN247
EXHIBIT #L2 MINUTES RECORD MUA DISPUTE 23 TO 23 OCTOBER. PN259
EXHIBIT #L3 PN273
CROSS-EXAMINATION BY MR WALTON PN293
THE WITNESS WITHDREW PN623
CHRISTOPHER CAIN, AFFIRMED PN648
EXAMINATION-IN-CHIEF BY MR WALTON PN648
CROSS-EXAMINATION BY MR LLEWELLYN PN740
RE-EXAMINATION BY MR WALTON PN928
THE WITNESS WITHDREW PN940