C2005/1821, Transcript of Proceedings [2005] AIRCTrans 649 (15 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10755

COMMISSIONER GRAINGER

C2005/1821

s.127(2) - appln to stop or prevent industrial action

Metropolitan Fire and Emergency Services Board
and
United Firefighters' Union of Australia
(C2005/1821)
Victorian Firefighting Industry Employees Interim Award 2000

MELBOURNE

10.35AM THURSDAY, 03 MARCH 2005

Continued from 1/3/2005

PN684

THE COMMISSIONER: Mr Langmead.

PN685

MR LANGMEAD: I believe Ms Salmon has some housekeeping matters to attend to sir, but can I just confirm that the Commission did receive some - - -

PN686

THE COMMISSIONER: I did, yes. Yes, Ms Salmon.

PN687

MS SALMON: Thank you Commissioner. We undertook to complete our response to the UFU submission and to get it to them by close of business yesterday. I contacted the UFU and Mr Langmead to explain that we probably wouldn't get it to them till first thing this morning. I have those submissions here and I have passed on a copy to the UFU and their representatives. So if I could hand them up and tender them I would appreciate that.

PN688

THE COMMISSIONER: Yes.

PN689

MS SALMON: Commissioner in the first instance what I have is the MFESB's response to the UFU's submission.

PN690

THE COMMISSIONER: I think the last submission from the Board is A8.

EXHIBIT #A9 MFESB RESPONSE

PN691

MS SALMON: That has an attachment to it which is called EBIC. It is an attachment to that which simply says EBIC Issues 2004-2005. I now tender a statement by Assistant Chief Fire Officer Terry Hunter.

EXHIBIT #A10 EBIC ISSUES 2004 AND 2005

PN692

THE COMMISSIONER: Is it your intention to - is Mr Hunter here?

PN693

MS SALMON: No sir he is not. I am asking that these be taken in as evidence. If it is the UFU's desire to cross-examine these individuals we will make them available to them, but - - -

PN694

THE COMMISSIONER: I don't want this matter to be any further drawn out Ms Salmon.

PN695

MS SALMON: I understand that Commissioner. Evidence was tendered as affidavits from Mr Carlson and Mr Angwin and they are not here today, so I am seeking the same indulgence.

PN696

THE COMMISSIONER: Mr Langmead will address me in regard to that point.

PN697

MS SALMON: So I have a statement by Acting Assistant Chief Officer Peter Holmes which I would like to tender, and there is one more statement from Commander Paul Swain who is in the room today. So I would like to tender that as well.

EXHIBIT #A11 STATEMENT OF P. HOLMES
EXHIBIT #A12 SECOND STATEMENT P. SWAIN

PN698

THE COMMISSIONER: I think it would be appropriate and you might actually - Mr Langmead were you going to want to cross-examine Commander Swain in any event?

PN699

MR LANGMEAD: Yes Commissioner.

PN700

THE COMMISSIONER: It is probably convenient then to, as soon as we are right on procedural things. You tell me how you would like to play it. Actually can I just make a suggestion? We should deal with the apprehension of bias and section 105 issue first, and then come back to the substantive 127 application, and you can tell me at which point you think it is appropriate for Commander Swain to go into the witness box so he can adopt this statement and be further examined and cross-examined.

PN701

MR LANGMEAD: Yes sir. Commissioner I hope that that wasn't an indication of inevitability about - - -

PN702

THE COMMISSIONER: No it is not an indication of any concluded view on my part of those matters. I make absolutely clear it is my intention to reserve my decision at the end of the - when we have completed all the steps, it is my intention to reserve my decision. So I won't make a decision on those points, I am just wanting to get a process clear.

PN703

MR LANGMEAD: Commissioner perhaps I will come back to you about that course in relation to Mr Swain after we have dealt with - - -

PN704

THE COMMISSIONER: Yes, all right. So there is nothing further from you at this stage Ms Salmon?

PN705

MS SALMON: No sir, thank you. Sorry Commissioner, Mr Langmead has reminded me. I am unsure as to whether we handed up a full copy of the decision by Senior Deputy President Drake and if - - - .

PN706

THE COMMISSIONER: I got a copy. Is this the decision from 2002?

PN707

MS SALMON: Yes it is, and on that basis if you have a copy then I don't need to speak any further sir. I was going to hand one up if there was not one in the evidence already.

PN708

THE COMMISSIONER: Yes Mr Langmead.

PN709

MR LANGMEAD: Commissioner in the light of events it is our submission that the application that is sought, the application for apparent bias has taken two branches as it were. The further one being the matter which ..... our application under section 107. If I may briefly recap on the thrust of that submission, is that the Commission is now in a position of you sir having provided a sworn affidavit as to factual matters upon which the first part - upon which the application that we filed in admitted form is based. The union has filed in response four affidavits which differ in those deponents, of recollection of the events. The resolution - - -

PN710

THE COMMISSIONER: And I found it very helpful.

PN711

MR LANGMEAD: The resolution of those differences between the deponents, including yourself sir, becomes a matter of some difficulty, in dealing with it, a great difficulty in our submission. In that it requires that you form a view about, with respect your own sworn evidence, and the sworn evidence of the other four deponents. That seems to us to put the Commission in a position of such great difficulty that almost inevitably of itself must create an anticipation of apparent - I am sorry, I withdraw that. An appearance of bias, in that the Commissioner is about to pronounce on his own evidence and the other deponents and make a judgment as to - in some way as to which one is correct.

PN712

THE COMMISSIONER: I suppose what I am trying to understand from this point, which you raised the day before yesterday, is, is that not what happens in any apprehension of bias process? The issue is that the material before - the person who must deal with any application in respect of an apprehension of bias claim inevitably has to consider the facts and make a decision as to whether they believe that the reasonable lay person would have apprehended that they would be biased in the handling of the matter. Is that not so?

PN713

MR LANGMEAD: That's quite right sir, with respect. Usually the facts aren't in contest.

PN714

THE COMMISSIONER: How could that be so?

PN715

MR LANGMEAD: Sir, most of the authorities that I am familiar with and I have ..... a great deal in the submissions to the Commission and also in the past, but usually the factual content is not in dispute. The - - -

PN716

THE COMMISSIONER: Can I put it to you Mr Langmead that there are very few facts in dispute in this matter. There are some facts in dispute between the four UFU member witness statements and my own witness statement. I don't hesitate to look at those witness statements and my own statement with complete dispassion, and don't hesitate to draw a conclusion as to whether any of those witness statements is a better reflection at what actually occurred in any particular detail, than what I recollected, and my evidence was given to be the best of my recollection, and I won't hesitate to make clear the extent to which I believe that my own original statement need to be clarified.

PN717

MR LANGMEAD: Commissioner with respect, it seems to us that that process, and bearing in mind that the application is made against apparent bias. So we don't plead actual bias. But to the reasonable observer, who is the person who is required to - - -

PN718

THE COMMISSIONER: The reasonable lay person.

PN719

MR LANGMEAD: A situation where the Commission is required to distinguish between his own factual recollection and that of other witnesses. The very fact that you, sir, are to make a call about that inevitably, in my submission, raises an apprehension of bias in that the reasonable lay person, as you, the Commission, with respect, correctly categorises, would form the opinion that the Commission is possibly going to be affected in that it is, with respect, your own evidence that you are called upon to judge.

PN720

THE COMMISSIONER: But I can only say, no, I have no hesitation in viewing it with complete dispassion and detachment, in order to reach a conclusion. Mr Langmead the matter has to be finished. Inevitably whatever decision I make is going to be open to appeal before the Full Bench. So you by all means make some submissions as you think are appropriate and I will have to take them into account. But what otherwise are you suggesting I should do, other than to make clear the extent to which I either agree or don't agree with matters before ..... to the extent to which I now have a different view or a different recollection of particular facts than is set out in my original witness statement?

PN721

MR LANGMEAD: Sir the concluding part of the circle in relation to that submission is that three of those witnesses are also witnesses as to the substantial merits of the matter. If the Commission has - must make findings of reliability and credibility about those witnesses that will again, to the reasonable observer, raise the apprehension of that whatever view the Commission takes in relation to those witnesses you may well continue that view of them, should you go on and hear the substantive merits of the case.

PN722

THE COMMISSIONER: That is your submission.

PN723

MR LANGMEAD: That is the submission in relation to the conflict that we, with respect, say that you find yourself in, in respect of having - - -

PN724

THE COMMISSIONER: You say it is a conflict, a conflict you believe a reasonable observer might feel but I mean it is not a conflict I feel I am - it is simply not possible that I would relate any conclusion arising from any of those four witness statements from the UFU representatives to anything that they might say in any other aspect of these proceedings. It hadn't even entered into my head, so much so that I am actually astonished that you would suggest it, but you are well and truly entitled to suggest it.

PN725

MR LANGMEAD: With respect Commissioner I don't have to suggest it, and it really is immaterial, with great respect, that you make clear to yourself entirely unaffected by such apparent bias. The test is however that that which the reasonable person would conclude, having regard to the situation. Now - - -

PN726

THE COMMISSIONER: So is that your submission?

PN727

MR LANGMEAD: If I may continue sir? To take an extreme example, you might say for example I agree with Mr Grove's affidavit and it didn't happen that way at all. Mr Grove is a bad example, but Mr Marshall's affidavit. I don't agree that his recollection is at all accurate, it is a load of rubbish, and I reject everything he says, hypothetically sir.

PN728

THE COMMISSIONER: That would be extremely hypothetical because it absolutely is not the case that that is my view of any of the witness statements.
I have a specific disagreement with two statements. One by Mr Marshall, and one by Mr Carlson. Otherwise I apparently made clear my view about each of the witness statement and what conclusions I draw from each of the witness statements. I am happy to make clear the view that I have of the facts, from a particular point, in the conciliation conference on 22 February. But I simply do not have a view - it is simply not my view that any of those witness statements were anything other than a best effort by those people to state to the best of their recollection what had actually occurred. The fact of the matter is that Mr Grove made notes after he attended the meeting. Therefore his statement is, it would appear to me, to be the most reliable and accurate of the four statements. But it is not my view that any of those statements sets out to be anything other than the recollection that those people feel they have on what actually occurred, as was my statement.

PN729

MR LANGMEAD: Yes. Sir, as I said at the outset that that represents a branch as it were of our application, and it is an expanded application. I am sorry sir, I have lost my train of though. I was saying this represents a branch which was brought about by the events on Monday and following. Normally the way in which conflicts of evidence are resolved is, of course, to make the deponents of affidavits available for cross-examination, and if we were unsuccessful in convincing you just on this branch alone, that you should, with respect, disqualify yourself then there needs to be a resolution on the factual background in order to progress to the perhaps earlier form of the application, which notwithstanding what the Commission said, with great respect, in our submission it requires the Commission making yourself available for cross-examination. Then that then brings about that very extremely difficult, almost impossible situation, as to how that could possibly be done.

PN730

THE COMMISSIONER: I am very happy for you to question me from where you are and from where I am Mr Langmead.

PN731

MR LANGMEAD: The difficulty with that sir is that the evidence - I must say sir I have no wish to cross-examine you in the normal course of events and I find this quite - - -

PN732

THE COMMISSIONER: Don't feel uncomfortable Mr Langmead, I don't. I am trying to offer you as much reassurance as possible but - - -

PN733

MR LANGMEAD: I can see you are sir.

PN734

THE COMMISSIONER: - - - I do really believe that your client is worrying unnecessarily about this matter, but you are raising it with me because you must do so, and I will consider every proposition that you put to me. Mr Langmead could I suggest a course of action? I have gone through the four witness statements and reconsidered my own in the light of them, but I don't wish to tender another statement, but I am happy to actually outline to the parties my view of the matter as I now see it. My view of the facts as I now see it, with regard to the events in the conciliation conference of 22 February, and I am happy for you to ask me questions about that when I am finished outlining the position as I now see it.

PN735

MR LANGMEAD: I appreciate the Commission is trying to assist in a resolution of this matter, and I assure the Commissioner that I and my client have also been attempting to, in a number of - the way in which it has put its application it has sought to assist in a resolution of this matter. I think the difficulty is sir that - it is the traverse from the sworn evidence to unsworn evidence. Clearly I cannot see, with respect, how you can give sworn evidence because you can't administer the oath - - -

PN736

THE COMMISSIONER: No, my commitment is to the oath, and the fact is that I am under oath at all times in any event.

PN737

MR LANGMEAD: I am sorry sir?

PN738

THE COMMISSIONER: I am under oath at all times. I am under my oath of office at all times. Why don't you hear what I have to say and take it from there?

PN739

MR LANGMEAD: Would the Commission pardon me a moment, I might just seek some instructions about that?

PN740

THE COMMISSIONER: Yes.

PN741

MR LANGMEAD: Commissioner we do seek a ruling on the application, that part of the application which we have made so far. That is the situation of the conflict between the two forms of - the various forms of sworn evidence of itself creates an apprehension of bias.

PN742

THE COMMISSIONER: I am not prepared to give such a ruling. I will be reserving my decision on all aspects of this matter today, and could I just ask who has come into the room, I'm sorry.

PN743

MR P. MARSHALL: I am apologise Commissioner. Mr Marshall, Peter Marshall.

PN744

THE COMMISSIONER: Sorry Mr Marshall. Really I will get used to the faces in due course, I really am sorry. Please sit down. I am going to ask everybody who comes in to the room so I know who they are. Go ahead Mr Langmead. That is my position. I will be considering all - I am reserving my decision on all aspects of this matter, and I will consider every one of these issues and will deal with them sequentially. You wish to object to that do you?

PN745

MR LANGMEAD: Yes Commissioner, because it is necessarily - it has a bearing on the next step.

PN746

THE COMMISSIONER: Yes what is your objection? And I will be hearing from you next Ms Salmon, as to the objection.

PN747

MR LANGMEAD: Commissioner it is simply that should you rule that that position that we would ask you to adopt in relation to the evidentiary conflict, as we put it - should you rule in favour of that part of our application then that brings an end to it, and we don't need to address, to the situation where we ask you to be administered an oath and make a statement, as the Commission has indicated, ..... to do, and the question about that, if necessary. So it seems it is a cascading effect that we don't get to flow to the next stage if our submission on the first is acceded to. Of course if it is not, then we do go to the next stage. But in our submission the evidentiary quandary of itself should be sufficient to cause you to disqualify yourself.

PN748

THE COMMISSIONER: Thanks. I note that lying behind all of this matter is an application by the Board for orders pursuant to section 127, and that section 127(3) requires the Commission to hear and determine an application for an order under this section as quickly as practicably, and I am mindful that every further delay, or any further delay will allow this matter which was originally lodged on 8 February to be drawn out further. That is why I must say my own feeling is that I should reserve my decision on each point, and allow the parties to conduct such cross-examination as they feel necessary, in respect to any aspect of the matter and informing to consider all of the material before I make a decision in regard to every aspect of the matter. So Mr Langmead I feel at this stage I should hear from Ms Salmon with regard to your objection. Thank you.

PN749

MS SALMON: Commissioner you have stolen my thunder. I was going to say exactly what you did say. What I do wish to propose, and please pardon me if I sound naïve in this, but when we were here last what I said was that the difference between what has taken place in these hearings and what may have occurred in the past is that the form in which you conveyed your understanding of what took place during that conference has become a sworn statement. Now if that is the only difference, if that it has been articulated in a different manner, if that the objective was to make all of the views transparent and we commend you for that. I think it was of great assistance to everyone. The objective has been met. Is it possible, and would you consider, withdrawing the statement?

PN750

THE COMMISSIONER: I had put that the other day and Mr Langmead said he didn't wish me to do so.

PN751

MS SALMON: Is it possible sir to request that that be discussed in some detail? It just seems to me that while it was well intentioned and I think it served its purpose it has actually created an obstacle which we don't just don't believe is serving any of the parties including yourself sir. So is that something that we can canvass a bit further, to see whether that is a possibility? I just think that that is really the only option we can imagine.

PN752

THE COMMISSIONER: Ms Salmon is it you don't agree with Mr Langmead's submission, and you urge that the matter proceed forward, is that correct?

PN753

MS SALMON: That also sir, yes. We don't agree with the - we are putting it stronger than that. We are of the view that in fact a number of the things that have transpired over the last couple of days have been used to prevent the section 127 from being dealt with in the manner outlined in section 127 subclause(3). As you have said this was originally filed on 8 February, we have been waiting since then. We have some time imperatives which we would like to meet and so, yes, we do object to that.

PN754

THE COMMISSIONER: Yes, thanks. You have heard both those propositions from Ms Salmon. What do you submit in regard to that?

PN755

MR LANGMEAD: Can I deal with the concluding comments to start Commissioner. If that is intended to obtain any inference that the union has been attempting to delay the process of this proceeding we strenuously deny that. It has not been our intention. We have sought to facilitate in every way the applications that we have felt the union has been advised to have been felt compelled to make. With any application that we have made to the President was made with a view to, as I say, facilitating the resolution of the difficulty as we see it. We have complied with the Commissioner's directions in a timely manner, in the provision of submissions and further statements of evidence, so we totally object that we in any way we are seeking to delay the proper conclusion of these proceedings. Which, incidentally, we say are completely unfounded anyway, and of themselves could well be viewed as almost an abuse of process. That they are attempting to bypass the resolution of the proceedings.

PN756

THE COMMISSIONER: I want to get to the point where you can make those submissions to Ms Salmon.

PN757

MR LANGMEAD: In relation to the suggestions about withdrawal of the affidavit material, Commissioner, I don't think I proffered any view as to that suggestion.

PN758

THE COMMISSIONER: I had asked you, and I really had - I haven't actually looked at the transcript from the other day, it went straight up to the President in respect of the section 107 referral, but I thought I had a specific recollection that I had actually offered to withdraw it, and I thought you had said that you - you would prefer that could happen after it was put forward.

PN759

MR LANGMEAD: Commissioner I certainly recall the offer to withdraw it. My recollection is that I didn't respond to that. It doesn't really alter the difficulty of - it now having been done, even it were withdrawn the appearance is still - a problem is the appearance which motivates our application.

PN760

THE COMMISSIONER: And I hear your submission and I am not prepared to rule on it until I have considered the totality of the material before me.

PN761

MR LANGMEAD: Sir can I just clarify that, because as I originally understood the Commission to be saying, that the matters will be dealt with as being the application for disqualification on grounds of bias, and the application in relation to section 105, but it had been my understanding that at that point you would make a decision on those two applications.

PN762

THE COMMISSIONER: No, no. What I have always made clear was that I intended to issue a decision and the first matter that would deal with in the decision was the application in respect of apprehended bias. I thought I made this very, very clear the other day, that if I disqualified myself then I wouldn't need to proceed further than that. If I didn't disqualify myself I would then proceed to deal with the section 105 objection. If I didn't uphold the section 105 objection I would then proceed to deal with the section 127 application, and make a decision in respect of that.

PN763

MR LANGMEAD: So just for the sake of clarifying. That envisages a decision being made in relation to the bias application?

PN764

THE COMMISSIONER: Absolutely, before. I wouldn't move, I wouldn't move to the point of making a decision on the section 127 application if I made a decision that I was disqualifying myself, or if I made a decision that I was upholding the objection under section 105. I take it that I have a second apprehended bias application before me now and I will have to consider that as well.

PN765

MR LANGMEAD: As I described it, it is perhaps a offshoot of the - - -

PN766

THE COMMISSIONER: It is a cascading series. Yes it is.

PN767

MR LANGMEAD: But I am still not sure that I am clear as to the Commission's intent. Is it the Commission's intention to make a decision on the bias application before proceeding to - - -

PN768

THE COMMISSIONER: No, it is not. I intend to hear all matters this morning, and I intend to consider all of the evidence before me, and I intend to issue a decision as quickly as I possibly can, and in that decision I will approach on a step by step basis, precisely as I have outlined. But if at any stage I uphold the union's application for this matter not to proceed for some reason, then I won't move to the next step. But I am bound by section 127 to deal with the 127 application as quickly as possible, and I wished to be in a position to have heard all of the evidence by 12.30 today. All of these matters may form grounds of appeal, depending on what decision I make, and the Full Bench can look at those matters if necessary.

PN769

MR LANGMEAD: Commissioner with respect we don't agree with that proposed course of action. These are essentially jurisdictional questions, and should you proceed beyond determining we wouldn't have any difficulty with the Commission dealing with both the 105 and the bias applications together. But we say that the Commission should not move beyond that.

PN770

THE COMMISSIONER: I intend to, I am sorry. But I just have to flag it so we can't have further delay. I intend to hear all of these matters this morning.

PN771

MR LANGMEAD: Yes Commissioner. Would the Commission pardon me a moment?

PN772

THE COMMISSIONER: Yes.

PN773

MR LANGMEAD: Sir, if understand the consequence of that ruling is that you intend to move on to the next aspect of the application for disqualification, of the bias?

PN774

THE COMMISSIONER: Yes.

PN775

MR LANGMEAD: And in the course of conducting matters I understand the Commission has suggested is that the Commission give sworn evidence in the form of a statement for the parties to have a - the parties able to ask - - -

PN776

THE COMMISSIONER: Examine, yes. Mr Langmead the other proposition is that I simply consider all the material before me, in reaching a decision, without my outlining my view of each of the witness statements at this stage.

PN777

MR LANGMEAD: We would ask that you proceed in the manner in which you originally indicated sir, which is to give sworn evidence and be available for cross-examination.

PN778

THE COMMISSIONER: All right, thanks. Yes Mr Langmead. Nothing further?

PN779

MS SALMON: No Commissioner we just - - -

PN780

THE COMMISSIONER: I am happy to swear an oath, but I am under oath, I am under my oath of office and I don't consider it necessary but it is up to you Mr Langmead. If you would like me to swear the oath on the Bible I am happy to do so.

PN781

MR LANGMEAD: I think I am bound to ask you to do that sir. I don't have any familiarity - - -

PN782

THE COMMISSIONER: I am trying to minimise the number of issues, and I am trying to maximise the speed - - -

PN783

MR LANGMEAD: I think that will assist in minimising the number of issues.

PN784

THE COMMISSIONER: Yes, all right, fine thank you.

<GARETH GRAINGER, SWORN [11.14AM]

PN785

THE WITNESS: I realise this is an unusual course of action but it seems to me to be appropriate at some stage, in making a decision in this matter, I am going to have to consider all of the evidence before me, including my own statement, which is GSG1. So I think it is best for me to make clear, in the middle of the proceedings, exactly how I see the matter. Having had the opportunity of reading the witness statements of Mr Carlson, Mr Angwin, Mr Marshall and Mr Grove I do believe I am now in a position to portray reasonably accurately what occurred at the conciliation conference in this matter in hearing room 14, on Tuesday 22 February 2005.

PN786

In respect of those four witness statement I make the following remark. As to the witness statement of Mr Carlson, which is exhibit R6, I don't accept that its contents at paragraph 8 are accurate. In particular its statement that I shouted that if the UFU representatives were all to leave he would make orders against the union is false. It is directly contradicted by the witness statement of Mr Grove. It is also untrue that I lost control of myself. What I do accept as substantially accurate are clauses 1 to 7 of this statement.

**** GARETH GRAINGER
PN787

MR LANGMEAD: Commissioner can I ask you to go slowly, please?---Yes, all right. As to the witness statement of Mr Angwin, I accept that clauses 1 to 7 are a reasonably accurate portrayal of the events which occurred. I note from it that firstly I had allowed Mr Angwin to put concerns he had about certain matters, and that I asked him to move to the bar table to do so. When he finished speaking
Ms Salmon began to ask Mr Angwin some questions. Mr Angwin interrupted
Ms Salmon while she was asking him questions. I then told Mr Angwin politely that he should allow Ms Salmon to finish what she was saying and not to interrupt, and Mr Angwin complied with that request. Ms Salmon continued to address her questions to Mr Angwin and Mr Marshall interrupted her to ask her to clarify an issue, at which point in then said to Mr Marshall in a loud voice, "Who gave you permission to speak". Remember I am commenting on each of the witness statements. At the conclusion I actually give an outline of what I now believe the sequence of events actually was. Mr Marshall continued to speak and I told him to shut up. Mr Marshall then told me that I should not speak to him like that. I do not accept as accurate that I partly rose from my chair, although I may have sat up rather than lying back or moving forward, but I believe it is probably accurate that I did point to the hearing room door and said very loudly, "Get out". It is also true that Mr Marshall then got up to leave and told other UFU representatives to come with him and told Mr Langmead to come as well. As to the witness statement of Mr Marshall, which is exhibit R7, there are two matters which I do not accept as accurate. Firstly I don't believe Mr Marshall did knock on the hearing room door before entering it. And secondly, that I do not believe that my behaviour verged on the hysterical. What I do accept as reasonably accurate is that the conciliation conference was underway when Mr Marshall entered. That Ms Salmon was speaking when Mr Marshall entered and due to concerns Mr Marshall had about what she was saying he interrupted her to ask a question. I then asked Mr Marshall who had given him the floor? And he then said words to the effect that, "I wouldn't be spoken to in such a manner", after which I ordered him to get out of the room. It is accurate that Mr Marshall then told the UFU members that they were all to leave the room. The witness statement of Mr Grove, which is exhibit R8, is the most substantially accurate of all of the four UFU witness statements, in regard to this matter I believe, and reflects the fact that shortly after leaving the hearing room and returning to the UFU office he made a file note of what had occurred, which is exhibit R8DG1, and from this I note the following. Mr Angwin interrupted Ms Salmon, I politely asked Mr Angwin to wait until Ms Salmon had finished speaking. Ms Salmon began asking Mr Angwin a series of questions. While she was doing so Mr Marshall interrupted Ms Salmon and began asking her for information. Ms Salmon began to speak again and Mr Marshall again interrupted her to tell her that she would need to be more precise. When Mr Marshall again interrupted Ms Salmon I leaned forward and pointed to Mr Marshall and asked him, "Who gave you the floor?" After Mr Marshall said that he would not be spoken to in this way I then told Mr Marshall, "If you don't like what I say you can leave the room."
Mr Marshall then said words to the effect that he did not expect to be spoken to in that way, at which point I then told him that he should get out. Most importantly Mr Grove specifically rejects Mr Carlson's allegation that I said I would make orders against the union. Rather, he recollected that I said words to the effect that if the UFU representatives left the hearing room I would proceed to hear and determine the matter in the union's absence. Whilst I do not accept the complete accuracy of that latter recollection, it is far closer to what actually did occur, than Mr Carlson's account. In relation to my own witness statement in this matter, which is GSG1, with the benefit of having read the four UFU witness statements, which are exhibits R5 to R8, and noting that the statement of Mr Grove is the most accurate, being based on his own notes, I now say clause 1 to 6 of exhibit GSG1 are completely accurate. As to clause 7 it is completely accurate to the end of the first sentence and is confirmed by all the other witness statements. The events from that time I now understand to be as follows. Ms Salmon began speaking again, and Mr Marshall again interrupted her, and that is set out in exhibit R8DG1. At that point I then said very loudly, possibly pointing directly at him since I didn't know his name and Mr Marshall I will become familiar with your face. But I understood he was a UFU official. I understood that because he came and sat with the UFU team, and I said at that stage, "Shut up, who gave you the floor?" Mr Marshall stared back at me and I recall very vividly our eyes looking very directly at each other, and he continued with what he previously had been saying to Ms Salmon, as if I had not challenged his right to take the floor while another person was speaking. I then said to him very firmly and loudly, "Shut up or get out". Mr Marshall then turned away from me and appeared to be speaking either to himself or to the other members of the UFU team, not to me, saying, "I will not be spoken to like that. No one speaks to me like that." It is my recollection that Mr Marshall moved his - moved from, really, adjust his seating and turned away from me when he was speaking. As he was continuing, as I believed it, to disrupt the conference by these remarks, I then said, "Get out", and pointed to the door. I also said, "If you behave like that in my hearing room you will be spoken to in that way, I will not have people speaking over other people in this way." Mr Marshall then stood up very quickly and said he was leaving, and he ordered the other members of the UFU team to leave the room. Before they could comply with this direction I said, "I am terminating the conciliation conference and recommencing the hearing of the section 127 application." I also recollect saying, "I intend to hear the section 127 application to completion today." I then stood to withdraw from the hearing room as Mr Marshall told Mr Langmead to leave the room. Events were moving very quickly at this time but that is my recollection of what occurred. I then said, "I don't know how you are accustomed to behave before other members of the Commission but I will not have you behave in this manner in any proceeding before me". Mr Marshall, Mr Carlson, Mr Angwin and Mr Grove then began leaving the room. Mr Langmead then politely stated that he must leave the room as his instructor required him to do so. I believe I excused him, but to the best of my recollection reiterated that the section 127 hearing was about to recommence. To the best of my recollection my demeanour at this stage was calm and polite. I then withdrew from the hearing room prior to recommencing the hearing of the section 127 application. Those are my recollections of the events, in the light of the four UFU witness statements. Yes Mr Langmead.

**** GARETH GRAINGER
PN788

Commissioner, just pardon me a moment?---Yes.

PN789

Commissioner, just as a matter of clarification, I understand that in respect of your previous statement you confirm paragraphs 1 to 6, and the first sentence in paragraph 7?---The first four sentences I think. Sorry I will just have a look at it. Sorry, it is the first four sentences. It is the end of the first four sentences of 7, yes.

PN790

Subsequently you are recanting the remainder and substituting what you have just said?---Yes.

PN791

Commissioner I - - - ?---That's the best deduction I can place on it, considering all of the material before me.

PN792

I think that leaves us with at least confirmation that you indeed told Mr Marshall to shut up?---Yes.

PN793

And told him to get out also, very loudly whilst pointing?---Yes I think. I don't remember the pointing but I am prepared that that occurred, because that is what the witness statement is indicating.

PN794

It is inevitable that people's recollections in short spaces of time aren't necessarily as spot on as they may wish?---No, that's correct. But as I say Mr Grove made notes straight after and I have placed a lot of weight on Mr Grove's notes.

PN795

Yes. Commissioner, the original statement presents the occurrences in a light favourable to yourself - - -?---That was my recollection of the events at the time I wrote that statement and I think I made that clear. I have told you Mr Langmead I have no hesitation in looking with complete dispassion on the matter, and considering all the evidence before me.

PN796

Yes, but as I think your own statement concedes that you may have appeared angry to people, whether you were or not?---Yes.

PN797

Commissioner, I am reminded that I think all the other four witness statements say that you appeared immediately angry. Would you agree with that?---I can only say I accept that that is their evidence. I expected to register real and serious annoyance because I was very concerned that what I was witnessing was, and whether I was right or wrong in having this concern is another thing, but I had a real apprehension that if I didn't do something very firmly that Ms Salmon would go on being interrupted for however long the conference went on. And I do have - I do really like a reasonable level of courtesy to be maintained in hearings that I am involved in.

**** GARETH GRAINGER
PN798

The procedure you adopted earlier in asking to somebody to politely refrain was successful wasn't it?---It was, but I was concerned that the disruptions were continuing and that my politeness appeared not have been valued or respected. Whether I was right or wrong in that conclusion is another thing. Perhaps Mr Marshall have a better of understanding of each other out of this process.

PN799

Thank you, Commissioner?---Nothing further. Yes, Ms Salmon.

PN800

MS SALMON: Thank you Commissioner. Having regard to the time lapse between the 22nd and today we believe that your statement is a fair and reasonable reflection of the recollection of the day, and we have no questions for you sir?---All right. Mr Langmead is that the end of - well that is the end of my evidence and cross-examination.

PN801

MR LANGMEAD: I think you can direct yourself to leave the box, sir?---I will excuse myself and resume my hearing of the matter.

<THE WITNESS WITHDREW [11.33AM]

PN802

MR LANGMEAD: I the customary practice is to invite the witness to leave the court.

PN803

THE COMMISSIONER: Well I shall remain as the presiding Commissioner. Yes Mr Langmead, where to next?

PN804

MR LANGMEAD: Commissioner we have made a written application. It was made in a fairly fulsome style.

PN805

THE COMMISSIONER: What document are you referring to now?

PN806

MR LANGMEAD: This is the application for disqualification. Part 4, Commissioner.

PN807

THE COMMISSIONER: Yes.

PN808

MR LANGMEAD: I don't know how recently the Commissioner has read that.

PN809

THE COMMISSIONER: Well, I read it on the day, and I have read it more recently than that. Can I just say, with regard to clause 5 of your statement, you say the principle is that if in all the circumstances a party or the public might entertain a reasonable apprehension that she or he might not bring an impartial and unprejudiced mind to the resolution of the question or questions in it, you refer to liberty. I am not sure that is actually an accurate statement of the principle, and I refer to a decision of the majority of the High Court, Chief Justice Gleeson, Justices McHugh, Gummow and Hayne, with Cullinan agreeing, in the matter of Edna v The Official Trustee in Bankruptcy at 75ALJR277, which stated the principle that:

PN810

In the absence of any suggestion of actual bias a question arises as to the independence or impartiality of a judge, the governing principle is the apprehension of bias principle that a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

PN811

Do you accept that as being an accurate statement of the principle?

PN812

MR LANGMEAD: As the Commissioner has read that from the decision I must accept that that is an accurate statement. With respect, I don't think it differs in any great substance from, or material substance from that which Lysie v Ellerton have, in the way that it is stated in those cases.

PN813

THE COMMISSIONER: The test is a fair minded lay observer. Mr Langmead. Yes go on, sorry.

PN814

MR LANGMEAD: Commissioner with respect that wouldn't alter our submission - - -

PN815

THE COMMISSIONER: No, no, I am wanting to - yet again, wanting to have before me - wanting the parties, the matter to be clear on what is before me and I am wanting to understand that the statement of the High Court in Edna v The Official Trustee in Bankruptcy is an accurate statement of the law that I need to apply, the test I need to apply in this matter. Do you accept that Mr Langmead?

PN816

MR LANGMEAD: Could the Commission indicate the citation for that again please?

PN817

THE COMMISSIONER: Yes, it is 75ALJR277.

PN818

MR LANGMEAD: The year?

PN819

THE COMMISSIONER: It is 2000 HCA63, and it a decision of 2000.

PN820

MR LANGMEAD: Thank you sir. Yes sir I think that is an accurate characterisation of the test.

PN821

THE COMMISSIONER: Thank you Mr Langmead.

PN822

MR LANGMEAD: I don't think it is a materially different substance to the test as enunciated in Lysie v Ellerton, and indeed I - whilst I haven't, don't have a copy of that decision in front me I would be surprised if it hasn't endorsed both of those decisions. They are usually all reeled out, as it were. Commissioner we have dealt with the - in our application we have set out the circumstances in which we say the apprehension arises and in our submission the evidentiary position doesn't detract in large part from our digested form of expressing it, and certainly the words which we say would cause such a person to be charged to form an apprehension of bias are words which are comparable to those identified, certainly the expression shut up is an impression commented on at some length in the case referred and extracted there.

PN823

THE COMMISSIONER: This is the case of Danjanovic v Sharpe?

PN824

MR LANGMEAD: Do you have a copy of that decision?

PN825

THE COMMISSIONER: No, I don't.

PN826

MR LANGMEAD: I must apologise I did have copies and I gave copies to my learned friend - - -

PN827

MS SALMON: And I am happy to hand that up if you like.

PN828

MR LANGMEAD: She has very kindly offered to - - -

PN829

THE COMMISSIONER: Thank you. Daniel if you just go and collect that, thank you.

PN830

MR LANGMEAD: I seem to have left the spare copies that I had - - -

PN831

THE COMMISSIONER: That's all right, that's absolutely fine.

PN832

MR LANGMEAD: We have extracted a quote in the application, the salient passages, they are the passages on which we rely. Just to say that the collective - this is in paragraph 8 of the application, that the collective manifestations of conduct are those which are - the comments in Danjanovic, and to raise the reasonable apprehension of bias. I don't think I can say much more about the application. As I said, it was set out in a fulsome manner in the first place, and we do rely upon it.

PN833

THE COMMISSIONER: Thank you Mr Langmead. Mr Langmead can I say in respect of the situation in Danjanovic that related to a matter which was actually in court hearing, did it not?

PN834

MR LANGMEAD: Yes it was sir.

PN835

THE COMMISSIONER: It wasn't in a conference.

PN836

MR LANGMEAD: No.

PN837

THE COMMISSIONER: Was it a matter in which there had been a number of interjections preventing the representative of one of the parties from speaking, had actually occurred before the relevant judge acted as she did?

PN838

MR LANGMEAD: I am just trying to recall Commissioner. It was a case where the litigant himself was represented by a friend and the judge in the first instance had appeared to take a view about the nature of that unrepresented - sorry, the nature of his representation not being a legal representation.

PN839

THE COMMISSIONER: In any event, that appears to me to be a relevant matter. The other matter I draw to your attention is one of the things that is pointed out. No, it is in Tona v Attorney General which you have also referred to, where the New South Wales Court of Appeal said:

PN840

There is a co-relative duty in the judicial officers to listen patiently and carefully and to retain self-control at all times.

PN841

Sorry, yes it is in Danjanovic and then it goes on at 160 of Danjanovic to say:

PN842

The duties of the judicial officers ...(reads)... the case being made by the parties and the evidence relevant to those cases.

PN843

I note that there is quite a difference between a conciliation conference and a hearing in respect of section 127, or an arbitration arising under other aspects of the Commission's powers. In a conciliation conference the Commissioner's first and foremost job is to retain order in the conference, the Commissioner is not hearing evidence. Is that not right Mr Langmead?

PN844

MR LANGMEAD: The Commissioner judicial role in a conference is to chair that conference.

PN845

THE COMMISSIONER: Yes, and to maintain order. Is that not right?

PN846

MR LANGMEAD: Yes sir, but nevertheless we say that the same sets of duties in relation to the conduct of such a proceeding albeit it of a different nature, you know, the same expectations are of the reasonable lay person - - -

PN847

THE COMMISSIONER: Absolutely, yes, but in the context of the difference between a conciliation conference and the role that a Commissioner is in there, and an arbitration hearing or a hearing in respect of a section 127 application, where the Commissioner or the member presiding is having to listen to evidence.

PN848

MR LANGMEAD: I am sorry, I didn't catch the last phrase.

PN849

THE COMMISSIONER: Well in a hearing the person presiding does have to listen to hear evidence, is that not right?

PN850

MR LANGMEAD: Yes sir, yes.

PN851

THE COMMISSIONER: Whereas in a conciliation conference the role is rather maintaining an ordered process in a discussion between the parties. Is that not right Mr Langmead? A Commissioner is not hearing evidence in a conciliation conference.

PN852

MR LANGMEAD: Certainly not.

PN853

THE COMMISSIONER: Anything further Mr Langmead?

PN854

MR LANGMEAD: No.

PN855

THE COMMISSIONER: Thank you. Ms Salmon.

PN856

MS SALMON: Thank you Commissioner. We have a response to the submission on this, and I would like to hand it up and speak very, very briefly to it, if that is all right. It is in a slightly more formal manner but I belief that we have canvassed the areas that were on the front page.

EXHIBIT #A13 RESPONSE TO SUBMISSIONS

PN857

We acknowledge that the principle of bias has been well settled. The cases to which we believe the UFU has referred in the submission can be distinguished from the current set of facts, and we have gone into some detail. With respect to Lysie, now I am working on the basis sir that you have got a copy of that decision, because I haven't brought copies of that decision with me.

PN858

THE COMMISSIONER: No, that's all right. I more than - - -

PN859

MS SALMON: What we say is that during the conference held on the 22nd it was an entirely different situation. The Lysie decision talks about the ability to bring an impartial and prejudiced mind to the resolution of the matters at hand. If we say that then there must be a connection between the actions that are subject to this appeal, and the questions of the proceedings, and we say that that hasn't actually been drawn to a conclusion. Therefore it is our contention that the Lysie case does not support the conclusions of the UFU. We take on board the comments made by the UFU submission regarding the words, "shut up", but we believe that in the context of the original decision, and I refer now to the decision that was handed up with respect to Danjanovic v Sharpe, Danjanovic & Ors, that in fact paragraphs 157 and 158 make it very clear that it isn't the same circumstances at all. There was a significant history between her Honour and the party and the representatives.

PN860

In this instance Mr Marshall was not a party, he was a participant but not a party to the hearing or to the conference at that stage, and we believe that the use of the words, "shut up" was an isolated incident. What we do use as a support for our argument is a case that was referred to by the UFU submission but we have extrapolated details of it, and we are prepared to hand that up, and that is the Finance Section Union of Australia Ex Parte Ellerton. I don't believe that my learned friend handed this up, he handed up his - if I can pass a copy on to you and also on to the Commission. We believe our conclusion is best summarised by this particular decision where it says the precise practical requirements of that principle, with respect to apprehended bias, varies from case to case. They are influenced by the nature, the function and composition of the particular Tribunal. But more importantly, in paragraph 4, the panel decided that in these circumstances the need for caution, which this court has consistently identified, and it goes on into detail as to why it is so important to take each case on its merits, and to consider the circumstances surrounding the situations that have arisen.

PN861

It is the view of the Metropolitan Fire and Emergencies Board that the cases as submitted by the UFU do not support the UFU's allegation of bias. It is our contention that there are no grounds upon which the UFU can entertain a reasonable apprehension of - that your decision might be in any case impartial or without prejudice. Therefore we don't see there is any reason for it to be maintained. That is all we have to say about that sir.

PN862

THE COMMISSIONER: Thank you. Yes Mr Langmead. Are you moving on to the section 105 matter now?

PN863

MR LANGMEAD: Can I just briefly indicate to the Commissioner in response that we are advised the, we say that the facts of case had any bearing on this matter, it is just one of the very long standing authorities as to the legal principle involved and in relation to Ellerton I think that that was to defer to the general principle in causes dealing with a quite different circumstance where Senior Deputy President McLean had made findings in respect of a related matter, and it was the actual decision in that case peculiar to that circumstance. As indeed each case must be. In respect of Danjanovic, again of course it isn't on all fours in this case, we don't suggest it is but we do rely upon the observations of the court in that case in relation to the expression, in particular "shut up" and their observations about temperate language generally, and say that the conglomerate of facts in this particular instance amounts to a situation which we meets the test.

PN864

THE COMMISSIONER: I must say Mr Langmead there was one statement in the Danjanovic decision where I think the - whoever wrote the decision said that they doubted that a judicial officer should ever use the words "shut up", and I must say that I felt that a member of the Court of Appeal must be aware - - -

PN865

MR LANGMEAD: I wouldn't make such suggestions about such lofty personnel Commissioner. I have always thought that the view across the lake in Canberra must be very ..... too.

PN866

THE COMMISSIONER: Yes Mr Langmead.

PN867

MR LANGMEAD: Commissioner, in relation to the section 105 application, we don't say anything more than what we have said in the application. I said - - -

PN868

THE COMMISSIONER: What do you say in response to the submission of the Board, which cites the decision of the Full Bench of this Commission in - - -

PN869

MR LANGMEAD: Commissioner I deducted what I had hoped was a thorough search. I hadn't found any authority on the point. I note that Ms Salmon hasn't addressed it yet but I wasn't aware of this case standing for that proposition. If it does then our position is unsustainable.

PN870

THE COMMISSIONER: That is you know that I am bound by the decisions of the Full Bench of this Commission?

PN871

MR LANGMEAD: Yes. Well there is some argument as to whether that is the case but we - - -

PN872

THE COMMISSIONER: I am not a Commissioner who feels adventurous enough not to abide by the decisions of the Full Bench.

PN873

MR LANGMEAD: I take it Ms Salmon has a copy of the decision and - - -

PN874

MS SALMON: I do indeed.

PN875

MR LANGMEAD: Indeed if I can have a brief moment to have a look at - - -

PN876

THE COMMISSIONER: Do you have a copy for me there Ms Salmon?

PN877

MS SALMON: I certainly Commissioner. I hadn't addressed that particular point but it is brief - - -

PN878

THE COMMISSIONER: No, no, I know, but I might as well be reading it
whilst - - -

PN879

MR LANGMEAD: Commissioner we that - that certainly does seem to be the decision of the Full Bench. Despite what I said to you earlier I should for the sake of the exercise bring to the Commissioner's attention the case of Comalco Aluminium Bellbay Limited v O'Connor & Ors which doesn't appear to have been cited before the Full Bench. If I could hand a copy of that to you. Sorry, it is reported in 61 IR 455 (1995).

PN880

THE COMMISSIONER: Take me to where you want me to look at there.

PN881

MR LANGMEAD: It is the section beginning at page 469 Commissioner, and it was dealing with whether a Full Bench was exercising arbitration, not conciliation powers, and in essence the court analysed what it was that was occurring, in part by reference to what it was doing, what the intervention was doing, and in that context placed heavy reliance upon the fact that it was hearing and determining the dispute, and it said that those words carried a very, very heavy connotation of it being an exercise of arbitration powers. Section 127 of course requires, as the Commissioner observed that the Commission hear and determine the matter and to do so quickly. The fact that it is required to hear and determine we would submit, despite the Full Bench decision, nevertheless is the true character of being an exercise of arbitration powers.

PN882

In respect of Justice Munroe's decision that was a decision in relation to the question of whether the Commission could arbitrate or was prohibited in doing so because section 170N - because there was a bargaining period in place, and his Honour decided in part that that was not the case because it wasn't in relation to any - the action wasn't in relation to matters sought in a bargaining period. But he also said he didn't think it was an arbitration power within the meaning of Part IV of the Act, which is the qualifying expression in section 170N. Section 127 is part of Part IV and based on the analysis that the Comalco Aluminium Bellbay and the distinguishing features of Justice Munroe's, together with the observation correctly, with respect that the Full Bench made here, in the case referred to, that the subsequent Full Bench decision dealing with similar matters which included Justice Munroe didn't make the same findings as Justice Munroe had in the earlier part of the proceeding, and then the case in relation to MX is a different part of the Act entirely. On the basis of the Commissioner we do say that the Full Bench has reached an incorrect conclusion but I have indicated despite the Commission having established the obligation to decide each case on its merits we do acknowledge that it is the custom and practice for the Commission to regard the decision of the Full Bench as binding upon them. We nevertheless do make those submissions for argument at some stage.

PN883

THE COMMISSIONER: I will look at them very closely.

PN884

MR LANGMEAD: If the Commission pleases.

PN885

THE COMMISSIONER: Thank you. Yes Mr Langmead.

PN886

MR LANGMEAD: Commissioner I understand that your previous ruling is that you now propose to hear the application for 127 orders - - -

PN887

THE COMMISSIONER: Perhaps I had better hear from Ms Salmon about the section 105 application.

PN888

MR LANGMEAD: I am sorry, I thought I was speaking in reply to her written submissions. I am quite happy to - - -

PN889

THE COMMISSIONER: I was quite happy to then she handed up her decision and I thought you were addressing me on a case you intended to address me on. Ms Salmon.

PN890

MS SALMON: Thank you Commissioner. I have really nothing more to add except to say that the Full Bench decision is quite clear, and to our knowledge it hasn't been appealed. Therefore we believe that, as Mr Langmead has said, that there is substance there to ..... yourself in the event that you make the decision, sir.

PN891

MR LANGMEAD: Can I also say, sir, in relation to that that had I been aware of the decision I would have of course been obliged to bring it to your attention and of course I would have.

PN892

THE COMMISSIONER: I understand that fully Mr Langmead. I understand that you are attempting through all this process to be of assistance to the Commission.

PN893

MR LANGMEAD: It is a duty upon me anyway to make it known to you any case that are directly on point and I simply wasn't aware of it. I am sorry sir, now, as I understand it - - -

PN894

THE COMMISSIONER: We are now at the 127 application, that's right.

PN895

MR LANGMEAD: That is your ruling that we now proceed to that.

PN896

THE COMMISSIONER: Yes.

PN897

MR LANGMEAD: I had my attention drawn on my learned instructing solicitor to the fact that somebody wants to give me some instructions about the further progression of this matter. I wonder if I could ask the Commissioner for a very short adjournment?

PN898

THE COMMISSIONER: A very short adjournment, yes, thank you. I now adjourn. In the adjournment you might just actually discuss with Ms Salmon how you want to progress - - -

PN899

MR LANGMEAD: In that regard Commissioner I note the listing suggested you won't be hearing - - -

PN900

THE COMMISSIONER: My associate is well aware in letting the parties know that I am going to be held up.

PN901

MR LANGMEAD: If the Commission pleases.

<SHORT ADJOURNMENT [12.04PM]
<RESUMED [12.35PM]

PN902

THE COMMISSIONER: Yes Ms Salmon. This is your application so would you like to - just talk to me on how you would like the matter to progress.

PN903

MS SALMON: Thank you Commissioner. Commissioner while we have - we are mindful of the time and we are mindful of the delay in the process and we are aware that to call all of the witnesses that - to testify to the statements that we have handed up may in fact take more time than we are prepared to give it. So on that basis I have had a word with Mr Langmead and we are prepared to, just for the sake of expediency, we are prepared to withdraw the statements of Terry Hunter and Peter Holmes, those two statements on the basis that we believe we would - - -

PN904

THE COMMISSIONER: Give them a number Ms Salmon, sorry.

PN905

MS SALMON: I beg your pardon sir. To what I am referring is A10 and A11 we would like to withdraw those statements.

PN906

THE COMMISSIONER: You are now withdrawing A10?

PN907

MS SALMON: And A11.

PN908

THE COMMISSIONER: The second statement of Commander Swain is staying in, is that right?

PN909

MS SALMON: We propose to keep that and - - -

PN910

THE COMMISSIONER: That second statement of Commander Swain will now become A10.

EXHIBIT #A10 SECOND STATEMENT OF P. SWAIN
EXHIBIT #A11 SUBMISSION ON APPREHENSION OF BIAS AND SECTION 105

PN911

THE COMMISSIONER: Yes Ms Salmon.

PN912

MS SALMON: Commissioner, we propose to ask Commander Swain to enter the witness box on the basis that Mr Langmead may want to question him about his previous evidence that was put before you on February 22, and then we would propose to ask him questions regarding the statement that you have just brought to the number - to A10, and perhaps Mr Langmead would like to cross-examine him on that basis. That being the case we would also say now that we would request to have Mr Marshall placed in the box and asked questions if that wasn't the intention the UFU at this stage.

PN913

THE COMMISSIONER: Mr Langmead what is your view as to all of that?

PN914

MR LANGMEAD: Commissioner subject to the one qualification, that course is agreed and appropriate. There is an aspect of Mr Swain's second affidavit which is now A10. This was only handed to us immediately before the proceedings today. Can I say that, for a starter, it contradicts what he said in evidence the other day in an important part, and I just say this by way of explanation sir, and we will see how it goes later on, but it means, and it also seems to have been produced in response to the affidavit of Mr Marshall, about that very point, and the point is whether or not he was advised - sorry, whether the station officers were given advice by the union, or whether they were given instructions by the union. And that obviously has important connotations for this industrial action.

PN915

We haven't been able to get instructions about what it is that is said by way of hearsay, that these gentlemen have all allegedly said to Mr Swain. We wish to do that, and we - - -

PN916

THE COMMISSIONER: Sorry Mr Langmead. Can I suggest then that we progress as far as we can until five to one. I need to adjourn then in order to do a video hearing at one, and that we reconvene at two and that you do your best between one and two to attend to that matter?

PN917

MR LANGMEAD: Yes, thank you Commissioner.

PN918

THE COMMISSIONER: Yes Mr Langmead. Ms Salmon do you wish me to call Commander Swain.

PN919

MS SALMON: Yes Commissioner I do.

<PAUL LESLIE SWAIN, RECALLED ON FORMER OATH [12.39PM]

PN920

MS SALMON: Thank you Commissioner. My understanding is that Mr Langmead wanted to pose questions to him concerning the previous evidence and we would take it from there.

PN921

THE COMMISSIONER: Your previous witness statement Commander Swain is A4. Have you got that statement there with you? You might just take care of that Ms Salmon. Are you right to commence, Mr Langmead?

<CROSS-EXAMINATION BY MR LANGMEAD [12.40PM]

PN922

MR LANGMEAD: Mr Swain, do you recall the conversation that you had with Brendan Angwin in December?---Yes.

PN923

In that conversation you gave Mr Angwin a folder, do you recall that?---That's correct.

PN924

And said something to the effect that this is what we are considering delivering in relation to issues of management?---The folder is the course outline ..... senior sergeant, that's correct.

PN925

Did you tell Mr Angwin that it was for his information?---Sorry, can you repeat that please?

PN926

You told Mr Angwin that it was being given to him for information?---It was given to him as a part of the direction from Commissioner Foggo that we meet and provide information relative to the incident management workshops.

PN927

That came out of - sorry, you were present at the proceedings in the Commission?---That's correct.

PN928

In December?---Yes.

PN929

There was a discussion about how that - the union's notification of a dispute in relation to the incident management component of it was to be dealt with?---Yes.

PN930

Part of that was that the course was not in fact scheduled until some time in February?---That's correct.

PN931

That left scope therefore for the parties to undertake discussions before that time, before that?---Yes, my recollection was that there was some confusion as to whether adequate discussion had taken place between Mr Carlson and ACFO Martin, relative to information sharing for the incident management workshops.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN932

Indeed Mr Carlson had advised the union that in his view there hadn't been any consultation. Do you recall that?---Mr Carlson wasn't there on the day, that's my recollection, so I don't know what he advised the union about.

PN933

The purpose of the exchange of information was to see if the union's objection to the proposed workshop, or the program, was able to be resolved. Do you agree with that?---The purpose of the day was to share any information that the union requested. My understanding was that after the EBIC meeting of September, I think it was, that there were no objections. So it was to clarify any issues that Mr Angwin had with the incident management workshops.

PN934

You knew by then, this is in the Commission hearing, you knew that the union had filed a notice of dispute in accordance with a grievance procedure didn't you?
---Sure.

PN935

So to that extent there was a dispute about it?---Yes, there was some confusion at the time as to whether the dispute was about the senior station officer briefings, or the incident management workshops, and my understanding at the time was that there was nothing to stop the workshops going ahead in February, as had been stated at EBIC, and any information that Mr Angwin wanted we would pass on to him.

PN936

You knew there was, as you said, you knew there was a notice of dispute about it?
---There was a dispute in the Commission but I will reiterate my understanding was that the senior station officer briefings were held up prior to resolution. But the incident management workshops were to go ahead in February as directed by the Commissioner. My understanding was that there was nothing stopping those going ahead in February.

PN937

When you say as directed by the Commission where was that direction made?---I haven't got the directions in front of me. There was two disputes, or two issues for resolution. One was the senior station officer briefings, and one was the incident management workshops. The senior station officer briefings was not resolved, and my understanding of the incident management workshops was that there was nothing hindering their progressing in February.

PN938

You knew that the union has said that it wanted representation at those meetings, didn't you?---At the incident management workshops. The union wanted representation at the senior station officer briefings.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN939

Yes, it also wanted it at the incident management workshops didn't it?---I am not sure of that.

PN940

In relation to the conversation with Mr Angwin you told him that there was no hurry for a response, that's correct isn't it?---That's not correct.

PN941

So he is wrong when he says that?---If he said that Mr Langmead he is wrong.

PN942

You knew he was going on leave on 22 December didn't you?---The reason that we met on the day that we did was that the next day he was on leave.

PN943

The conversation you had, and I think in your evidence was that it was about a 15 minute conversation, fairly brief?---Yes it was fairly brief. He then stayed
on in the office of the incident management review project for about another 45 minutes or so in - - -

PN944

He discussed another matter?---In general discussion.

PN945

You suggested that he - he was asked to give a response by the end of January?
---Because he was on leave throughout January, coming back I think in the second week of January, he asked if he could be given time to look at that and give a response, and our request of him was that if he could have that response by the end of January then there would be no further hindrance to the workshops going ahead in February.

PN946

He says he wasn't told that, he says he was told there was no hurry for a response?
---I have already replied to your question on that.

PN947

He asked for a copy of the module produced by AFAC? Do you recall him asking for that?---The module produced by AFAC, what do you mean by that?

PN948

Is there an accident incident management module?---The aims, drafting of the aims process from AFAC version three was something that he wanted, and I told him at the time that as it wasn't an MFB document that we couldn't supply him that at the time, and we would see about how we go about getting him that.

PN949

THE COMMISSIONER: So that was your undertaking to him at that time was it not Commander Swain?---Well it wasn't as such. He raised a number of things that he wanted, and everything that we had available we gave it to him - - -

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN950

No, but your evidence is that you told him that you would do what you could to obtain that material for him?---That's correct.

PN951

That is what I understood you to state?---That's correct.

PN952

That material in fact has now been provided to Mr Angwin through Mr Marshall is that not right?---That's correct.

PN953

What was the date that that occurred on?---The date was the day after our hearing here in - - -

PN954

So that was 9 February?---That's correct.

PN955

MR LANGMEAD: It wasn't provided to him before the end of January, which is when you said he was supposed to - - - ?---Well he was on leave and the AFAC was closed throughout the majority of January, so you are correct.

PN956

He says he returned from leave on 6 January, do you agree with that?---I don't know when he returned from leave. He didn't contact me again on the matter.

PN957

And you didn't contact him did you?---No.

PN958

So in terms of you told him these issues as between - his and Mr Carlson's acceptance of what the Board was proposing, nothing was done about - there was no meeting of minds on it?---My understanding of our requirements was to provide any information that Mr Angwin asked for, so we were then responding to the request made here at the Commission. It wasn't an issue that I believed that needed resolution, because my understanding was that the UFU had no objection to the incident management workshops proceeding in February as a direct result of the EBIC hearing earlier on in 2004.

PN959

That EBIC hearing said that the union had no objection in principle, subject to consultation with Mr Angwin or Mr Carlson, that was the words of it wasn't it?
---I haven't got that evidence in front of me. That is the gist of it I think.

PN960

Yes, and the union's position thereafter is that that consultation did not occur. Do you agree that that was their position?---No, there was conjecture as to whether that consultation had occurred.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN961

THE COMMISSIONER: Can I just ask you Commander Swain. You said that the ..... compliance with the undertaking to consult that the belief .....?---I believed it was, yes.

PN962

MR LANGMEAD: What do you understand consult means Mr Swain?
---Consult is a dialogue, an interchange, an exchange of information.

PN963

Just an exchange of information?---It depends on what you - it depends on what you are consulting on. Certainly the meeting in December with Mr Angwin wasn't an exchange of information, it was information sharing from our behalf. Mr Angwin had no issues to raise.

PN964

That is because he hadn't seen the material either?---Well I don't - maybe that is the case.

PN965

He hadn't, he didn't read it on the spot, debated with you?---Sure.

PN966

THE COMMISSIONER: I take it from saying, "sure" Commander Swain that you - - - ?---That's correct, sorry.

PN967

MR LANGMEAD: Mr Swain the incident management - the way in which incident management is undertaken involves a certain methodology, is that right?
---That's correct.

PN968

That methodology has been established for at least five years or something nothing like that?---I believe it is closer to 15 years when the Metropolitan Fire Brigade implemented an incident control system, was the term that was used at the time.

PN969

That same methodology is in use today?---Nothing really has changed. Some of the terminology has changed, and some of the functions at the more senior level have been expanded.

PN970

The way an incident is managed is, apart from those changes, essentially the same?---Fundamentally.

PN971

Whoever is exercising the management or control function they would apply the same methodology at an incident?---Yes, depending - well incidents have changed. We are now in a situation where incidents that we would have expected to manage 15 years ago we may expect to manage more complex or slightly different incidents in 2005 than what we did in 1989.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN972

But you apply the same methodology in doing it?---The system is the same, yes.

PN973

Have you seen the affidavit of Mr Carlson?---No I have not.

PN974

He says, in relation to the documentation provided to the UFU relating to incident management workshops that he doesn't think it demonstrates any change in methodology in controlling incidents. Would you agree with that conclusion?---I have already stated that the methodology for managing incidents remains the same. It is not a matter of the methodology, it is a matter of how different components of incident management interact with each other.

PN975

How do those - can you explain perhaps what you mean by that expression?---It depends on what level of incident management you want me to refer to. Here we are talking about senior station officers and senior station officers have always been the incident controllers at first alarm levels, and at second alarm levels when a more senior rank has come on they have performed a different role. So that hasn't changed.

PN976

THE COMMISSIONER: Excuse me Mr Langmead, you may be some little time longer with Commander Swain? Sorry, you may be some little time with Commander Swain?

PN977

MR LANGMEAD: Yes Commissioner.

PN978

THE COMMISSIONER: I think I had better adjourn now. Mr Langmead?

PN979

MR LANGMEAD: Two o'clock will be all right.

PN980

THE COMMISSIONER: Thank you very much Commander Swain. I now adjourn.

<THE WITNESS WITHDREW
<LUNCHEON ADJOURNMENT [12.56PM]
<RESUMED [2.10PM]

PN981

THE COMMISSIONER: Sorry, Mr Langmead you were continuing your cross-examination of Commander Swain weren't you?

PN982

MR LANGMEAD: Yes Commissioner.

<PAUL LESLIE SWAIN, RECALLED ON FORMER OATH [2.10PM]
<CROSS-EXAMINATION BY MR LANGMEAD, CONTINUING

PN983

MR LANGMEAD: Mr Swain we were discussing changes in incident control just before lunch, and I think you were about to commence to explain a particular change, could you - are you able to recall that what it was you were explaining?
---No, if you could ask me the question against, thanks.

PN984

I would like to - I can't remember either Mr Swain. Mr Carlson who has got vast experience in relation to training issues, hasn't he?---Yes I would say that Mr Carlson is an experienced person with training.

PN985

And Mr Carlson is also a commander, is that right, a commander of operations?
---That's correct.

PN986

Is that the same rank as yours?---It is a different structure. There is industrial issues on whether it is the same rank or not.

PN987

I think I know what you mean, it is a parallel system. Is that - - - ?---The commander operations were introduced at the last enterprise - the last certified agreement with the operational staff award.

PN988

There is also another commander rank in a separate - - - ?---There was an existing commander rank that are encompassed in a separate certified agreement.

PN989

THE COMMISSIONER: Is the point you are trying to draw out that Mr Carlson is of comparable seniority to Commander Swain?

PN990

MR LANGMEAD: It is Commissioner, yes.

PN991

THE COMMISSIONER: I think I accept that?---I accept that too.

PN992

MR LANGMEAD: Mr Carlson has examined the material that you supplied to Mr Angwin, did you know that?---I read his statement at lunch time.

PN993

He says that the material supplied that he can't identify any changes in terminology in incident management, do you disagree with that?---I think there has been a number of changes to what the MFB have done traditionally with their ICS system, and with the adoption of the new aims system.

PN994

Can you identify any changes in terminology?---Sure. Yes. Traditionally the MFB haven't appointed people designated as operations officers. We had people that would perform in that role without any specific title, or any use of tabards. The new aims structure changes a lot of the existing designations. For example, media which the MFB has traditionally had as a separate unit reporting to the incident controller is now part of the planning section reporting to the planning officer, who then reports up to the incident controller. The ground support unit under logistics, traditionally we haven't appointed a person in charge of ground support, and the MFB staging has gone from logistics to operations, as far as the different sections. We have never appointed somebody to perform the role of divisional commander in the MFB. We appointed somebody at a recent - a job last week in West Heidelberg, we appointed two people to that role. The ICS, the information communications system, have traditionally been an area of support outside of our incident management system, they are now encompassed in our system. So there is a number - that is just off the top of my head. There is a number of changes that have been made to the incident management structure.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN995

They haven't altered the methodology in incident control?---No, the methodology is the same, and for senior station officers it would be exactly the same. Whereas previously at a second alarm fire generally the commander would arrive and take charge of that fire which was a term that was often used, perform the role of incident commander and operations officer, and use the most senior station officer on scene for advice. Well, it is more a formalised system that we have moved to where that station officer or that senior station officer would perform the role of operations officer, leaving the commander to the incident controller function which isn't about resolving the incident, or putting the fire out as such. So it may appear that these changes are subtle, and I believe that they are, and certainly for senior station officers the roles that they have always performed have been of incident controller at first alarm fires, sector commanders at higher level fires, operations officer at second alarm fires and safety officers at all sorts of fires, and that won't change.

PN996

In relation to the type of incident, that may have changed, you agree with that?
---Well obviously terrorism and the potential for a multi-agency response to a building collapse or a terrorist incident is more prevalent now than what it has been in the past.

PN997

But certainly those incidents did occur in the past, albeit rarely?---I am only talking from my 21 years experience in the Metropolitan Fire Brigade. I know that we stood by at the D24 bombing without playing an active part. I think we have been blessed in Melbourne without having to deal with those types of incidents, certainly in my experience.

PN998

Indeed you mentioned in your evidence the other day the incident at the airport. That was managed in accordance with established incident control structures and methods?---The MFB component was, and that is purely just - I didn't attend that incident, that is my conversation with the person who acted as the incident controller. I think the airport incident is slightly unique, in the fact that the MFB wasn't called for up to four hours, or just over four hours from the commencement of the incident. So what was established prior to our involvement I don't know.

PN999

Mr Carlson says that the incident management workshops material demonstrates that it is proposed to affect the level of which controllers exercise, do you agree with that?---No, I don't agree with that.

PN1000

That it seeks to require the senior station officers to undertake work previously done by commanders?---I disagree with that statement as well. And if I can just reiterate my comment before, that the roles of incident - - -

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1001

Ms Salmon can ask you some additional questions if she wants to expand on it?
---Sure, okay.

PN1002

Mr Carlson also says that he doesn't consider there is any compensation considerations raised by any question of whether or in what form the proposed workshops are to occur, do you agree with that?---I disagree with that.

PN1003

What are the public safety considerations?---Well, as mentioned already, that we're much more likely now to go to a multi agency response. Effectively any of our more significant incidents involve responses from Victoria Police, form the Metropolitan Ambulance Service, may involve responses from other fire services in Victoria and our use of the municipal methods that are available to us have changed significantly. In 1986 the Emergency Management Act came into place in Victoria which changed the structure of how we went about business. Well - - -

PN1004

Indeed, each municipality is required to produce an emergency response
plan?---That's correct.

PN1005

That's what you referred to, is it?---Well, I think it goes further than that. I think it goes further to our interaction with that municipal response plan and the use of Victoria Police in a coordinating role. It has been reinforced as a result of the inquiries into the north east bush fires in particular but the Lytton inquiry as well, both reinforced the need to have good working relationships with other agencies.

PN1006

Sorry, I didn't catch that?---To have good working relationships with other agencies.

PN1007

Indeed, multi agency incidents have been, as you said, occurring for
years?---They have.

PN1008

Yes, and the municipal emergency response plans have been in place for some years?---That's correct.

PN1009

When the incident management workshops take place, I suggest to you, it's not going to make any difference to the efficacy of FSBs ability to participate in those multi agency responses?---Mr Langmead, we don't intend to tell or to share any information with the Senior SOs that's not the information that's been available for a number of years and is readily available now. We want to reinforce the information that's available now and ensure that Senior SOs have a similar level of knowledge and expectation of more senior management as far as incident management.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1010

THE COMMISSIONER: I think, Mr Langmead, your question went to the issue of the urgency of the provision that took place, did it not?

PN1011

MR LANGMEAD: Well, not only urgency, Commissioner. What I suggest, Mr Swain, is that it is not going to affect the ability of the MFESB to provide whatever resources it can to ensure public safety. That is not going to be diminished by whether this workshop takes place in its present form or takes place in its present form in six months time, or takes place in a different form or it doesn't take place at all?---As a result of the workshops that we ran with the Commander Operations in 2004 and the two separate sets of workshops that we ran with all of our senior operational staff from the Chie Fire Officer to the Commander, Commander Operations Level late in 2004, I believe that we've made a significant impact in the way that we handle incidents over the last three or four months. That diffusion of that information hasn't been allowed to get down to the Senior Station Officer level which is what our intention was.

PN1012

I thought you said they already knew all about this?---I said that we're not intending to tell them anything different, that's correct. As far as their duties are concerned, obviously with more senior ranks, and their duties, I've already explained the differences between the MFB ICS system that was established 15 years ago and our adoption of aims late last year.

PN1013

You'd know - and I don't want to canvass with you anything that occurred in conciliation conferences by way of what I think we've said in particular, that you know it is an overall position that both Mr Carlson and Mr Angwin do have concerns about what these workshops are proposed to accomplish, don't you?---I read their statements at lunch time and that was evident from their statements.

PN1014

Indeed, discussions that started to take place in conference, you would be conscious that there was a - your understanding of what was proposed was different from theirs?---Well, the conversations that began to take place didn't proceed far enough for me to form a view really one way or the other. I have an expectation, but my view wasn't formed on that issue.

PN1015

Indeed, there hasn't been a discussion about the material between you and Mr Carlson since this has been provided?---I haven't spoken to Mr Carlson on this issue at all. My conversations have been with Mr Angwin.

PN1016

And in relation to Mr Angwin, you've had very limited discussion, if any, since the material has been provided, is that correct?---He hasn't contacted me to discuss any of the material that was provided to him.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1017

Nor you contacted him?---No, but - no, that's correct. I didn't feel that it was my task to contact him. My task was to provide him with whatever information he required.

PN1018

So your idea of - - -

PN1019

THE COMMISSIONER: Sorry, Mr Langmead, can I just ask a question about it. Commander Swain, do you think it would be beneficial for such a conference or discussion to occur? I'm not saying with regard to whether or not the program should be delivered. Do you feel such a discussion would be beneficial?---Well, I've made every overture possible to - - -

PN1020

No, that's not my question. Do you feel it would be beneficial for such a discussion to occur?---It depends if that discussion is whether this is a training initiative or a skills maintenance issue. My view and the view of the organisation, that this is purely maintenance skills that are currently - that currently Senior Station Officers have. I would talk to anybody on that issue. This is not a new training initiative.

PN1021

MR LANGMEAD: Yet you're conscious that both Mr Angwin and Mr Carlson believe that it is, aren't you?---That's what their statement said, yes.

PN1022

If that point could be resolved by discussion, it may remove the difficulties that have been faced by the parties in this, would that be right?---I don't know whether that would remove difficulties or not.

PN1023

You know that the, as you've already said, that the EBIC, the minutes record that the UFU said that they didn't object in principle provided there was consultation with Mr Carlson and Mr Angwin?---That's correct.

PN1024

Now, I would suggest to you that consultation means more than just giving somebody some documentation. It involves dialogue, do you agree with
that?---The view that was expressed to me following that meeting was that the UFU had no issues with the incident management workshops proceeding and it was quite a surprise to find that this was objected to in late December.

PN1025

So you were at that meeting, were you?---No, I wasn't.

PN1026

So all you know about it is what was recorded in the minutes?---No. I - the other person that was part of the Incident Management Review Project presented at EBIC and I'm expressing the view that was expressed to me.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1027

And you've seen the EBIC minutes?---I have.

PN1028

And you don't take issue with the accuracy of those, do you?---Well, no, not with the minutes that I saw, no.

PN1029

And those minutes record that there wasn't any consultation with Mr Angwin and - - - ?---That's correct.

PN1030

Now there's a definition of consultation in the agreement, isn't there?---I don't know.

PN1031

You don't know?---In which agreement are you talking about?

PN1032

In the Operational Staff Agreement 2002?---There's a clause on consultation, that's correct.

PN1033

Why did you say you didn't know?---I thought yo may have been talking about the Inspectors Certified Agreement. There's more than one agreement in operation in the Metropolitan Fire Brigade.

PN1034

And consultation means the full, meaningful and frank discussion of issues, proposals and the consideration of each party's views prior to any decision, do you agree with that?---I haven't got it in front of me.

PN1035

Could I ask that this be shown to Mr Swain? It's clause 9.1, Mr Swain?---Thank you. Yes, I accept that.

PN1036

Now that's more than what you've described, isn't it?---Well, that certainly is more than the conversations that I've had with Mr Angwin.

PN1037

Yes. Now, tell me if you don't know, if I'm going to ask you about something of which you don't know, Mr Swain, but the Union raised concerns about the agenda, when it saw the agenda in relation to the proposed incident management workshop that had been proposed for December, do you know that?---No, I don't.

PN1038

In relation to the VECTOR, V-E-C-T-O-R, I believe all capitals, is that the correct way to refer to it?---I only ever write it in lower case. The correct term is Vector Command, is the correct term and I believe it is a capital V and the rest is in lower case.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1039

And that's a computer simulation model, is it?---That's correct.

PN1040

Now that - do you know that to have been the subject of disputation with the United Firefighters' Union some years ago?---I - well, I believe that there was consultation on the use of Vector. Whether that was purely in the MFB or on a national front, I'm not sure.

PN1041

Mr Swain, what's the document you're looking through?---I was looking for the agenda for the incident management worship in December, is what I was looking for.

PN1042

Is that a file of yours, is it?---Yes. This is the file on the Senior SO briefings and incident management.

PN1043

Perhaps you might close that file and - - - ?---Okay, sure.

PN1044

I'm sorry, you were saying that you weren't sure whether it was raised on a national level?---That's correct.

PN1045

You knew that the UFU didn't agree with its use, didn't you?---My understanding of the UFUs issues with Vector was that it was not to be used as an assessment tool and it's currently in operation in every urban fire service in Australia and New Zealand as far as skills maintenance tool or in some cases a training tool.

PN1046

It's not used for assessment because it's unreliable, isn't it?---New South Wales Fire Brigade's Board do use it as an assessment for their Inspector Development Program. Their Inspectors are at an equivalent rank to the Commanders, maybe slightly under the Commander rank, and they use it to assess new candidates for promotion to the rank of Inspector.

PN1047

You know that the UFUs concerned that this computer simulation is so far removed from the real world situation that it constitutes a danger if it's used as an assessment tool?---The first time that I knew of that was reading Commander Carlson's statement at lunch time today.

PN1048

Now you also would have read Mr Carlson's statement that it's considered by many Commander Operations to be a failure because it's so far removed from the real world?---I did read that.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1049

Are you in a position to dispute that?---I'm in a position to give you an idea of what Vector does, Mr Langmead, if you wish.

PN1050

No, Mr Carlson said that people - a number of his contemporaries and his colleagues, many of them believe it to be a failure?---I can't - all I can pass comment on is those that I've spoken to and the feedback that I've received, the verbal feedback from the Commander Operations after their two lots of training last year and I would certainly dispute that on the feedback that I've received.

PN1051

What is the feedback you've had?---Well, most people are very positive of the use of Vector to paint a picture. It does no more than paint a picture, in exactly the same way that a tabletop exercise or any of the initiatives that have been used in the past, overheads, those sort of things, it paints a picture. It's not a tool that's used for assessment or for anything more than putting people in the right frame of mind and allowing them to detail their actions.

PN1052

You say most people, is that most people that you spoke to said that?---Nobody that spoke to me raised any concerns about the use of Vector in the Commander Ops Training.

PN1053

Are you able to identify who you spoke to?---Well, I could certainly identify individuals that spoke to me, but you may be better off getting the formal evaluation sheets that were conducted by Training in relation to that. I wasn't part of the training component. I was brought in for particular expertise in relation to Vector and incident management, so they - that - all those sessions were formally evaluated.

PN1054

So how many Commander Operations did you speak to?---Off the top of my head, probably half a dozen.

PN1055

Who were they?---People that have spoken to me about the use of Vector have been Commander Bruce, Commander McCurdy, Commander Youssef. Who else have I spoken to? At the time there was discussion after the sessions with a number of people that were around.

PN1056

The gentleman you've named, well, what did - did they all have a common view or did they express something differently about it?---They were interested in the fact that we had an operational tool that could be used to paint a picture and to set a scene, for example, Commander Waters invited me out to Western Zone to present the Vector Command Simulator to people from Mobil Refineries, so that they could get an idea of the type of training that we had done. Commander Bruce asked me and Commander Pierson to come out to Western Zone to present the Vector Command Simulator to a meeting of Station Officers and Senior Station Officers on B Platoon, I think, out at Sunshine Fire Station so that they could experience Vector. Certainly both of those actions were quite conclusive from my view, that both of those two individuals thought that the Vector Command Simulator was of value.

**** PAUL LESLIE SWAIN XXN MR LANGMEAD
PN1057

Of value in what way?---Of value as an instrument to either maintain skills or use that for the dissemination of information for incident management.

PN1058

In what way can it disseminate information about incident management?---The best example that I can give for that was training that we conducted at Emergency Management Australia at Mt Macedon in the last quarter of 2004 where there were six workshops conducted with all of our top 80 operational staff, from our Chief Fire Officer down to our newly promoted Commander Operations, where a Level 3 Vector scenario of a refinery fire was used to paint a picture of what had occurred up to a certain stage of that incident management and the Senior Officers were responded to that and were required to set up an incident management team to successfully bring that incident to conclusion. That workshop went over a period of about four hours, that that IMT structure was put in place.

PN1059

Commissioner, would you just pardon me while I clarify something. Thank you. That is my cross-examination in relation to A4 and the evidence in transcript except the aspect to which I referred to this morning, in relation to the second statement.

PN1060

THE COMMISSIONER: Yes, indeed. Yes, Ms Salmon?

PN1061

MS SALMON: Commissioner, if I may, I'd just like to ask Commander Swain a few more questions with respect to the evidence he's just given.

PN1062

THE COMMISSIONER: Yes.

<RE-EXAMINATION BY MS SALMON [2.42PM]

PN1063

MS SALMON: Commander Swain, I believe that Station Officer Angwin requested a significant amount of material and I'd just like to ask you what material was actually sent to him. My understanding is that he'd asked for facilitator guides, lesson plans and assessments for the modules 404, 502, 503 and 504. Can you tell me whether they were actually given to him or sent to him in some fashion?---Yes, they were. The AFAC modules were sent to him and any of the lesson plans that we used for the Commander Ops training was made available to him by Commander Milasovitch.

PN1064

A clear and legible copy of the Power Point presentation was requested, was that forwarded to him?---Yes, we gave him a copy of it, a paper based copy and then forwarded the electronic version that we used for the training of the senior staff.

**** PAUL LESLIE SWAIN RXN MS SALMON
PN1065

The AFAC Review 2004 Aims document, was that forwarded to him?---Yes, that was handed to Mr Marshall on the morning after the Commission hearing.

PN1066

THE COMMISSIONER: 9 February?---That's correct.

PN1067

MS SALMON: Documentation on Fire Ground Risk Management, was that given to him?---No, because that wasn't part of the incident management workshop.

PN1068

Senior Station Officer Role?---Well, the Senior Station Officer Role hadn't changed so there was nothing that we could give to him in relation to that.

PN1069

Vector and Vector scenarios?---Yes. That was a difficult one because I wasn't really sure what he wanted, so what I did was provide him with the seven modules that make up the Vector training and sent him a note to say that if he wanted any clarification or further information on that I'd be happy to provide what I could.

PN1070

You said that a group of staff had already experienced this incident management workshop. Who were they?---All of our top 80 operational staff have been through the incident management workshop up at Emergency Management Australia, up at Mt Macedon, and all of the Commander Ops went through the incident management worship at Acheron as part of their Commander Development Program. Both of those were targeted to senior levels, which is the Level 3 Vector incidents. We would be using the Vector to paint a picture at a much more mundane incident, for example, a house fire or the very early stages of a factory fire. The type of incident that a Senior Station Officer would be expect to be on scene at.

PN1071

Commander Carlson, to your knowledge, did he attend that program?---He attended both programs and he also attended the Urban Rural Workshop conducted at Fiskville which supplemented the incident management training that we'd delivered..

PN1072

You've said earlier that what y you were attempting to do was to reiterate or - and perhaps I've lost the word - but in your mind is there a distinction to be made between what was going to be presented and training?---Yes, definitely. One of the things that came out of Operation Labyrinth which was a 14 day exercise in late 2003 was that there was a wide variety in the levels of skills and experience amongst the senior management group. That was why our target initially was the top 80 operational staff, not so much to develop their skills, but to make sure their skill levels were consistent across the organisation. We believe that with the Senior Station Officers, because of the differences in when they were promoted and the type of commander control that they did as part of their Senior Station Officer development courses, that there would be a wide variety amongst that rank as well, consistent with what we've found with the more senior ranks. So the idea is to inform them of changed terminology and changes to aims, incident management, to reinforce what's been readily available from the 1986 Emergency Management Act and to make sure that there's consistency amongst the group on their level of experience and expectations of incident management.

**** PAUL LESLIE SWAIN RXN MS SALMON
PN1073

In your mind is there a distinction to be made with what is proposed to be delivered to the Senior Station Officers and to that which was delivered to the Commander Operations?---Yes, there's certainly a distinction. There's a difference in the level that will be delivered. The skills maintenance workshops for the Senior Station Officers concentrates on the roles that a Senior Station Officer would perform at an incident, those being initially the Incident Controller and then the Operations Officer at a second alarm, an Incident Controller at a first alarm, a Sector Commander at a second alarm or above, or a Safety Officer at basically a second alarm and above.

PN1074

What would be your understanding of the impact of these workshops if they were delivered on future incidents regarding incident management?---Well, I can only go by what I've seen as a result of the workshops delivered to the Senior Operational staff and I believe that our incident management system is substantially better in March 2005 than what it was in August 2004 and when I say substantially better, I mean that we're more aware of issues relative to other agencies. We set up a structure that makes sure that span of control isn't breached, so that somebody hasn't got more than five units or people reporting to them and I think that we've provided a much safer workplace for our staff on scene in that we're more aware of rehydration, looking after their interests in setting up appropriate relief crews and those sort of things.

PN1075

What's the value of Vector?---All Vector does is paint a picture. It can be done, if we were to get out, hire an artist to paint a picture on a wall, but what it does, it actually allows the participant to get into the right frame of mind. It's very difficult to talk to operational staff about incident management when you can't focus them by providing a visual picture, and that's what it does. It provides a visual picture so that they can see an incident and their actions determine where that incident goes. For example, if they quickly extinguish the fire, the fire goes out in the video simulation. If they don't quickly extinguish the fire, the fire grows in intensity and in area.

PN1076

You said earlier that in New South Wales the Vector program is used as an assessment tool. Do you know what the union is that covers the firefighters in New South Wales?---It's the United Firefighters' Union.

PN1077

Thank you, that's all the questions I have.

PN1078

THE COMMISSIONER: Yes, thank you. Mr Langmead? Sorry, this was your cross-examination?

**** PAUL LESLIE SWAIN RXN MS SALMON
PN1079

MS SALMON: It was, yes.

PN1080

THE COMMISSIONER: Further examination.

PN1081

MS SALMON: Yes.

PN1082

THE COMMISSIONER: Are you now moving to A10?

PN1083

MS SALMON: Yes, sir, I would like to do that. Now, Mr Swain, if I could ask you to refer to the exhibit A10 which is your statement signed by yourself. Have you got a copy of that there?---I have. It's at the front of that file, if I can open that. Or I can remove it from the file.

PN1084

THE COMMISSIONER: No, Mr Langmead is not objecting. Can he have a file open, if he needs to refer to his statement?

PN1085

MR LANGMEAD: No, the - - -

PN1086

THE WITNESS: It's the first page of the file.

PN1087

MR LANGMEAD: Yes, I think with respect, sir, it might be more appropriate if the witness could be shown a copy of the statement.

PN1088

THE COMMISSIONER: A standard copy, yes.

PN1089

MR LANGMEAD: It's on the file, the Commission's file and he can confirm it's the same as the one he's got there, and then I'll have no objection to him referring to that, but - - -

PN1090

THE COMMISSIONER: It's all right, I'll let him have mine, thanks.

PN1091

MR LANGMEAD: Commissioner, in terms of - if the Commissioner's copy is the same, I have no objection to him referring to the copy.

PN1092

THE COMMISSIONER: Yes?---It is the same.

PN1093

MS SALMON: Commander Swain, if you could examine that in detail and just tell me whether in fact that's your understanding or - - -

**** PAUL LESLIE SWAIN RXN MS SALMON
PN1094

MR LANGMEAD: Commissioner, this has notionally been tendered and marked, of course.

PN1095

THE COMMISSIONER: Yes.

PN1096

MR LANGMEAD: I'm not sure whether Ms Salmon is going to ask - I'm not sure if she is going to ask Mr Swain to adopt it. I just foreshadow I have an objection about the admissibility of some of it which I'm happy to make now or wait until - - -

PN1097

THE COMMISSIONER: No, let it be adopted first and then we'll hear from you, because it will go to the weight that I attach to it. Yes, Ms Salmon?

PN1098

MS SALMON: Yes, Commissioner, I am asking Commander Swain to adopt that as true and correct?---That's correct, I do.

PN1099

MR LANGMEAD: Well, in that case, sir, I object to the hearsay evidence in paragraph 3.

PN1100

THE COMMISSIONER: Yes.

PN1101

MR LANGMEAD: Commissioner, I alluded to a problem with this before lunch in that we have not been able to obtain instructions on it. But it is evidence on the face to it that it is hearsay evidence. It is evidence which contradicts Mr Swain's earlier evidence.

PN1102

THE COMMISSIONER: What's the earlier evidence it contradicts?

PN1103

MR LANGMEAD: It's the evidence in transcript, sir, at paragraph number 427, the way it's printed out on my copy, it's about two-thirds of the way through that paragraph.

PN1104

THE COMMISSIONER: Sorry, PN427. Yes?

PN1105

MR LANGMEAD: Where he says that all of those individuals declined that order on advice by the Secretary. Commissioner, if the - well, I can't really see that the evidence is used for any other purpose than to purport to attest to the validity and truth of that which it reports. As such it would, more than not, be inadmissible because of its hearsay nature. The Commission of course has a discretion as to what evidence it receives and it not bound by the Rule of Evidence. Nevertheless, in the circumstances of this case we submit that that hearsay evidence should not be admitted for the purpose of proving the truth of its contents.

**** PAUL LESLIE SWAIN RXN MS SALMON
PN1106

THE COMMISSIONER: Yes, all right. Yes, Ms Salmon?

PN1107

MS SALMON: Commissioner, on the first hand, we don't believe it is hearsay. Commander Swain is here to attest to what he believes was told to him and therefore it's first hand. In the room is Mr Marshall who can also attest to what he believes he told his members, so we believe that there's an opportunity with both of those people acting in the manner that they saw fit, that we would be able to see what did transpire. On the basis of that, what we have put together in the form of a statement is an expansion of what was said and probably closer to the actual occurrence that took place on the morning of 8 February and it was taken from notes which Commander Swain took at the time when he spoke to those individuals and in our view we believe that it's a true and a correct account of what did take place, the conversations between himself and the Senior Station Officers. Now, Mr Langmead alluded to the fact that he may have some difficulty with this prior to lunch and he has had an opportunity in terms of time to contact some of those individuals and find out whether in fact what we say is true. I'm not sure whether he's been successful in that, but I'd have to say there's no one in the room, so perhaps he hasn't been able to get them to come in to say that it's true otherwise for that matter. So our view is that we should be able to proceed on this statement and question Mr Swain and allow you to question Mr Swain on these things and in the event that there's some confusion or misunderstanding, then we have Mr Marshall here to also put his testimony forward to explain it further.

PN1108

THE COMMISSIONER: Yes, thanks. Anything more, Mr Langmead?

PN1109

MR LANGMEAD: I thought I'd made it clear, Commissioner, that I - I withdraw that. I thought I'd said that I had not been able to obtain instructions.

PN1110

THE COMMISSIONER: You had said.

PN1111

MR LANGMEAD: I can explain that all of the people concerned are on a particular shift which means they're off duty today, except for one, apparently and I understand we haven't been able to contact him. But that's beside the point, as to the nature of the objection. It simply means that I'm not in a position to, you know, I'm restricted in my ability to cross-examine but that's not to do with the hearsay nature of the evidence. The evidence is necessarily hearsay. Now, unless it was put in for one purpose only and if it was put in for the purpose that Mr Swain says that he was told this and that was relevant and pertinent to the application, then there would be no harm - then it would admissible and it wouldn't be hearsay, but it can - unless we can have it demonstrated or pointed out to us that it's somehow relevant to rely on it in that limited way, we apprehend that the real purpose of it is to answer our submission that the Union, giving advice to its members about what it has in turn had legal advice on, cannot constitute industrial action and that therefore the purpose of seeking to admit this evidence is to demonstrate that that is not what the Union did. That in fact it instructed its members to do something.

**** PAUL LESLIE SWAIN RXN MS SALMON
PN1112

THE COMMISSIONER: Mr Marshall is here to give evidence to that effect.

PN1113

MR LANGMEAD: He is, Commissioner, he is, but the point I'm making though is, with respect, that its purpose necessarily brings it into the realm of hearsay. Now, I've said that the Commission isn't bound by the Rules of Evidence and if the Commission was minded to receive it, all I can say is that it should be given the weight that hearsay evidence usually is when compared with direct evidence.

PN1114

THE COMMISSIONER: Yes, thanks, Mr Langmead. What do you say, Ms Salmon, to the point that Mr Langmead made about the purpose of this evidence?

PN1115

MS SALMON: What I say to that, Commissioner, is that it was apparent from the last hearing that it was important to have a clear understanding of what took place that morning. If you remember we were here after some considerable period of time and we asked Commander Swain to be in the witness box and he did give his version, but it wasn't a very full version. There was a concern raised about whether it was as complete as it ought to have been and, with the greatest respect, yes, we did have the UFU submission in front of us and we felt that perhaps we hadn't elaborated as clearly as we might have done. So that being the case we did formulate the statement.

PN1116

THE COMMISSIONER: Yes, all right. Well, look, understanding all of that, I'll receive it, I will receive this information to the Commission and I'll take into account Mr Langmead's submissions with regard to it, and consider what weight will be attached to it when all the evidence is before me.

PN1117

MS SALMON: Thank you, Commissioner. I was just going to say no, I don't have any more questions.

PN1118

THE COMMISSIONER: Thanks, Ms Salmon.

<FURTHER CROSS-EXAMINATION BY MR LANGMEAD [3.00PM]

PN1119

MR LANGMEAD: Mr Swain, you do understand the importance of giving accurate evidence to the Commission, don't you?---Yes, I do.

PN1120

And you do appreciate that you have been doing that in giving your evidence?---I do.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1121

Now, you told the Commission that individuals declined to attend this meeting, and I quote, "On advice by the Union Secretary," that's what you told the Commission?---Yes, yes.

PN1122

And that is in fact what happened, wasn't it?---I believe so.

PN1123

You see, Mr Swain, you've since seen the submission of the Union, have
you?---No.

PN1124

Who drafted this statement for you, Mr Swain?---I drafted the statement on notes that I had made on the morning of the 8th and this statement comes directly from those notes and I've got the raw copy of the notes in my file, so I drafted the statement.

PN1125

And why did you - who asked you to draft that?---Ms Salmon asked me to draft it.

PN1126

Did she tell you why she wanted you to draft it?---For the upcoming Commission hearing.

PN1127

Did she say anything to you about the fact that you've given evidence previously that the individuals had declined the order on advice from the Union Secretary?
---She did not.

PN1128

There's a material difference, isn't there, between declining orders on advice of the Secretary and on instructions or directions of the Secretary, isn't there?---Well, I can only put it into the context of the Metropolitan Fire Brigade and if you're given a direct order, a directive, then there's an expectation that you obey that directive.

PN1129

Yes, you misunderstand me, Mr Swain. You have told the Commission that the individuals declined the order and bringing into the evidence what I think is a necessary inference, that they told you that the reason they declined that order was on advice by the Union Secretary. You agree that you said that?---Yes, I do.

PN1130

Now, what I suggest to you is that that is materially different from them declining an order because they were directed by the Union Secretary?---The witness statement made on the 9th was as a result of being questioned. This statement has been made on referral to my notes and the terms used as far as the term directed, which I assume is the thrust of your argument, is directly out of my notes.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1131

THE COMMISSIONER: Excuse me, Mr Langmead, sorry. This is a very, very important point and I understand why you're pressing it so hard. Do you mind if I ask him a question? You, at the original hearing and the transcript records you used the word "order on advice by the Union Secretary", that's so, is it not?
---Well, I believe so.

PN1132

Yes, well, that's what the transcript says?---I haven't read the transcript but I accept that.

PN1133

On reading the transcript, that's what it says. You now say that, you looked at your notes, when did you make those notes?---I made them at the time, just after 8 o'clock on the 8th when I rang each of the Senior Station Officers and my question to them was why they hadn't attended as they'd been directed to attend.

PN1134

Do you have those notes?---Yes, I do.

PN1135

Where are those notes?---Here.

PN1136

Mr Langmead, do you want those notes tendered?

PN1137

MR LANGMEAD: Commissioner, recourse to notes is something which witnesses usually do when they say they can't remember exactly. It is then that the tribunal usually permits them to refer to their notes. Now, the witness has said that he's based it on notes. I didn't wish to take that part of it any further in relation to the notes. I may wish to persevere with some questions about the circumstances, but I don't call for them now, sir.

PN1138

THE COMMISSIONER: Yes, go on. Sorry, Commander Swain, are you saying that Mr McWade, Mr Morris, Mr Brown, Mr Ferletti, Mr Talbot, Mr Lyon, Mr Garvin each used the phrase that they were refusing to attend on the direction of Mr Marshall, is that correct?---Some of them said on UFU direction and a couple of them said on the direction of Mr Marshall.

PN1139

Mr Brown was unable to be contacted?---That's correct.

PN1140

All right, so Mr McWade said he was acting on UFU direction?---Yes.

PN1141

Mr Ferletti said he was acting on UFU direction?---Yes.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1142

Mr Garvin said he was acting on UFU direction, is that correct?---Yes.

PN1143

Mr Morris says he was acting on the direction of Mr Marshall, is that
correct?---Yes.

PN1144

Mr Talbot says he was acting on the direction of Mr Weaver, is that
correct?---That's correct.

PN1145

Now, who is Mr Weaver? I don't know who Mr Weaver is?---He's a firefighter. I don't know what standing he has with the UFU.

PN1146

Yes, thanks, Mr Langmead.

PN1147

MR LANGMEAD: Mr Swain, are you sure that that's - they used the word direction, UFU, acting on UFU direction, or similar?---Yes, I am.

PN1148

Because how is it that you told the Commission that it was on advice by the Union Secretary?---Well, that was my reply on the day. This was my statement after referring to my notes. I didn't make a - I was unaware of the connotations associated with advice and direction until just now. You know, my - the use of the - the way it's written in my statement is as I wrote it on my notes.

PN1149

THE COMMISSIONER: That's your evidence, is it, the way you've written it in your statement is actually - actually accords with your notes?---I think - - -

PN1150

But they're contemporaneous notes, is that correct?---Yes, I think my notes say acting on direction of UFU or acting on direction, directed by Peter Marshall.

PN1151

MR LANGMEAD: Mr Swain, you've previously been on the branch committee of management reviews?---That's correct.

PN1152

Was Mr Marshall Secretary then?---No.

PN1153

Mr Marshall - you've never heard Mr Marshall issue directions to union members, have you?---Well, no, he's never issued a direction to me.

PN1154

Right, and - - -

PN1155

THE COMMISSIONER: But that's not the question you were asked. To the best of your recollection can you recall whether Mr Marshall has issued a direction to union members in your presence?---No, no.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1156

Are you sure you weren't just using a form of a verbal shorthand, Mr Swain, refused to act on orders because of what the Union advised, you put down as Union direction?---No, I'm confident that that was the term used and the reason that I'm confident is that I wanted to make sure that there was no conjecture as to why they hadn't come because I wasn't privy to what the ramifications of them disobeying an order from a senior officer may be. So when I rang them I asked them why hadn't mustered and dismissed as ordered and their reply was then that they weren't attending under the direction of the UFU or Peter Marshall.

PN1157

Or on advice from the Secretary?---I can't recall on advice from the Secretary being used.

PN1158

And yet it's the word you used?

PN1159

THE COMMISSIONER: At the hearing.

PN1160

MR LANGMEAD: At the hearing?---Okay, well, I can't recall that that - Peter Marshall has been the secretary for the UFU for a considerable amount of time. Both words are almost - if someone says the Secretary of the UFU, I immediately know that that's Peter Marshall and if someone says Peter Marshall, I immediately know that that's the Secretary of the UFU.

PN1161

And when you hear that he's advised them not to go, you see that as synonymous with a direction not to go, don't you?---No, I don't. However I may say that it didn't - that the advice of Peter Marshall to his Union members would be taken very, very seriously and I wouldn't - - -

PN1162

THE COMMISSIONER: No, that's not at issue, I don't think - - - ?---Well, I don't associate one with the other.

PN1163

MR LANGMEAD: Do we regard the rest of your evidence in the transcript as being subject to revision too, Mr Swain?---I've been completely honest with any of the evidence that I've given, either verbally or the statement in writing.

PN1164

Well, but not accurate?---Well, I believe that it's accurate.

PN1165

Well, it isn't accurate, is it, Mr Swain, because you're now saying that they didn't say they were refusing the order on the advice of the Secretary. You're saying they said they did it at the direction of the Union Secretary or at the direction of the UFU?---My - when in the dock in the - or in here on 9 February that was my recollection. If that was not completely accurate, a referral to my notes, as I've done with the statement, in my view ensures its accuracy.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1166

You haven't checked all your other evidence against your notes, have you?---I haven't read a transcript of the evidence. I haven't seen a transcript of the evidence.

PN1167

How was it again that you came to revise this form of your evidence?---I was asked to issue a statement by Ms Salmon.

PN1168

On this issue?---Yes, that's correct.

PN1169

Now, Mr Swain, you of course don't know what Mr Marshall said to those individuals, do you?---No, I don't.

PN1170

All you can give evidence about is what they told you?---That's correct.

PN1171

And you don't know whether that their account of it is accurate or not?---That's correct.

PN1172

Now, you knew what the Union position was in relation to this workshop, didn't you?---Can you elaborate on that question?

PN1173

Well, did you know?---On what their view on the workshop was?

PN1174

Yes?---I knew that we'd been in here under discussion relative to the workshop in front of Commissioner Foggo and that the Union's view was contrary to the MFB management.

PN1175

You knew that they had a grievance or a dispute notified?---That's correct.

PN1176

The dispute resolution clause requires work to continue as it was before the grievance was lodged. Do you agree with that, the status quo provision?---That's correct.

PN1177

Yes, so the status quo was that these workshops were not taking place?---My - well, there's a different view from - by the Board, and the Board's view as put to Commissioner Foggo, my recollection of it was that the status quo was her directive, that they go ahead.

PN1178

Commissioner Foggo hadn't made any directions about these briefings, had she?
---There was some resolution to the question on the incident management workshops, I believed.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1179

Did she say that that was in a written document?---I - well - - -

PN1180

THE COMMISSIONER: If you don't know, just say you don't know?---I don't know. I acted under the direction of my superior officer to organise these workshops and my assumption, for what it's worth, was that the issue was resolved.

PN1181

MR LANGMEAD: But nobody had told you that it hadn't been?---That it hadn't been resolved?

PN1182

Yes?---No.

PN1183

Now when you were told by the Senior Station Officers that they were not going to attend, it must have been a great shock to you then?---No, it wasn't a shock to me.

PN1184

The only reason it would not have been a shock was because you knew that the conducting of these workshop was still in issue?---I've been an observer and a bit player in the industrial disharmony in the MFB that has escalated over the last 12 months, so my assumptions, for what it's worth, was that there would be a spanner in the works.

PN1185

You say your role was a bit player. What role is that?---Well, the only time that I've been involved in any industrial issues in the last six months has just been on this issue of the incident management workshop. I'm aware that there's a whole range of issues that are unresolved in front of the Full Bench and that the organisation's coming up to a period of renegotiation for a certified agreement for the firefighters.

PN1186

So somebody has told you about whatever it is else that caused you to express the view that the history over the 12 months caused you to expect a spanner to be put in the works?---I read emails, I talk to people, I'm part of the middle to senior management group. Everybody in the Metropolitan Fire Brigade would be aware that there's continuing disharmony amongst the Union and the Board.

PN1187

When you say disharmony, what you're referring to is one party or the other exercising its rights under the grievance procedure, aren't you?---Possibly.

PN1188

Well, what else are you referring to?---Well, the fact that issues haven't been resolved amicably with the processes that are in place.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1189

THE COMMISSIONER: Excuse me, Mr Langmead, if you want to press on with this, you can. I'm just wondering how long might it be before we have a decision in this matter.

PN1190

MR LANGMEAD: Well, Commissioner, it's, as I understand it, part of the applicant's case that there is considerable industrial disputation between the applicant and the Union and that that should be a reason why you should exercise discretion to grant an order should you find you have got jurisdiction to do so. Now, we dispute - for want of a better word - that that is the case and say that what is occurring is no more than the parties, one or other of them, exercising their rights to have disputes or grievances resolved in accordance with the agreement which has a specific resolution procedure in it which includes matters leading to a number of matters which did go to - part heard - or, sorry, by making a decision by a Full Bench, but - - -

PN1191

THE COMMISSIONER: But it went for a hearing - - -

PN1192

MR LANGMEAD: I believe it's been heard.

PN1193

THE COMMISSIONER: It's been subsequently heard, yes.

PN1194

MR LANGMEAD: Yes. It's not a matter in which I am involved but - - -

PN1195

THE COMMISSIONER: No, look, I'm just wondering about Commander Swain's expertise in this area. It appears almost as though he's stumbled to this with Commander Swain. But if you want to press ahead, you may.

PN1196

MR LANGMEAD: Yes. I'm grateful for the Commission's indication in regards to that. Mr Swain, the individuals, the Senior Station Officers who declined the order, they told you what the advice of the Union was, didn't they?---The advice from the Union, well, the comment given to me was the comment that I had made on the statement. That was what they told me, that they'd been told to do.

PN1197

Well, they told you - the Union told them not to go, is that it?---No, in - and I'll take the first person, Darren McWade's case, his comment to me was that he is refusing to attend as he's been acting on UFU direction.

PN1198

He didn't explain what the direction was?---No, just acting on the direction of the UFU.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1199

And you didn't query him on why the UFU was opposed to it?---No.

PN1200

I suggest to you that's because you knew, you knew that the UFU took the decision that the status quo meant that these workshops didn't take place?---I was aware that there would be potential issues to arise, that's why I took the notes on this in the first place.

PN1201

Do you say you didn't know that that was the Union's position?---That the status quo would remain?

PN1202

Yes?---I was aware that the Union had a different view to the Board on what the position of status quo meant.

PN1203

Yes, and you knew that in regards to these workshops, that the position of the UFU was that there was a dispute or grievance being processed and the status quo was that therefore the workshops would not occur, you knew that, didn't you?---I read a UFU bulletin, I don't know whether they were the words, but that was the meaning.

PN1204

And that's why it was no surprise to you when the members told you that they were not going to come?---Mr Langmead, it's no surprise at the moment that whenever there's an issue that - - -

PN1205

No, that wasn't the question, Mr Swain?---No, it wasn't a surprise to me, no.

PN1206

That was the reason why it was no surprise, because you knew what was in issue?---No, I'd also spoken to all of the eight people that were designated to attend. I'd actually come in from home on the Thursday evening prior to these workshops and rung each of those individuals, either at work or at home, to tell them about the workshop coming up on the following - Monday or Tuesday, whenever it was, the next week - and had discussed that with them. They raised concerns to me. Many of these people are friends of mine, raised concerns to me that there would be potential UFU involvement.

PN1207

Did you tell any SSOs that the Union was not telling them the truth, was misleading them?---That wasn't the term that I used. I spoke to Senior Station Officer Morris and said that the story that he was giving me - that he was saying Peter Marshall had told to him differed from the view of the Board.

**** PAUL LESLIE SWAIN FXXN MR LANGMEAD
PN1208

And what he told you was that the Union's position was that the status quo should prevail and that there was no meetings?---What he told me was that Peter Marshall had told him that.

PN1209

So you had direct knowledge from at least Mr Morris that that was the case?---My conversation with Mr Morris was after about quarter to 9, was when he got back to his fire station, to Fire Station 2, it was after the occurrences as documented in my statement.

PN1210

Did Mr Marshall telephone you about that discussion, didn't he?---He did.

PN1211

And he took issue with members being told that Mr Marshall was leaving?---Him and I had a conversation about that.

PN1212

Yes, it was to that effect?---Yes.

PN1213

Yes. Mr Swain, are you aware of a subsequent grievance that has been notified in relation to the workshops?---No. Subsequent to - different to this process?

PN1214

Different to the one that was raised in December, are you aware of a subsequent one about raising a dispute about the content of the workshops?---No.

PN1215

Just to clarify, I believe that you said you had further discussions with Mr Angwin about the contents of the workshops?---No, I haven't.

PN1216

You haven't had a conversation with Mr Carlson about the contents of the workshop?---That's correct.

PN1217

Yes, all right. Thank you, Commissioner.

PN1218

THE COMMISSIONER: Yes, anything else?

PN1219

MS SALMON: No, Commissioner.

PN1220

THE COMMISSIONER: Yes, you may step down, Commander.

<THE WITNESS WITHDREW [3.25PM]

PN1221

THE COMMISSIONER: Yes, Ms Salmon?

PN1222

MS SALMON: Thank you, Commissioner. We have no other witnesses to call - sorry, I beg your pardon. We would like to call Mr Marshall to the stand, if that's open to us. I know he's a witness for the UFU and we're happy to wait for a cross-examination opportunity but that's the one person we'd like to speak with.

PN1223

THE COMMISSIONER: Yes. Mr Langmead, are you planning to call Mr Marshall?

PN1224

MR LANGMEAD: He's provided an affidavit to the Commission which we intend to rely on. If Ms Salmon wishes to cross-examine him on that affidavit, then of course she must be able to.

PN1225

THE COMMISSIONER: Yes, and I'd like him to - but the issue is, you've finished with your witnesses?

PN1226

MS SALMON: Yes, Commissioner, I have.

PN1227

THE COMMISSIONER: You have nothing further at this stage?

PN1228

MS SALMON: No, sir.

PN1229

MR LANGMEAD: Just prior to Mr Marshall giving evidence I wonder if we might have a short break.

PN1230

THE COMMISSIONER: You'd like a break. Five minutes?

PN1231

MR LANGMEAD: Yes, Commissioner.

<SHORT ADJOURNMENT [3.26PM]
<RESUMED [3.36PM]

PN1232

THE COMMISSIONER: Yes, Mr Langmead?

PN1233

MR LANGMEAD: I believe I was going to call Mr Marshall and we've had to send the Sheriff out.

PN1234

THE COMMISSIONER: To holler. Yes, call Mr Peter Marshall. Mr Marshall, if you would step up into the witness stand, thanks very much.

<PETER JAMES MARSHALL, SWORN [3.37PM]
<EXAMINATION-IN-CHIEF BY MR LANGMEAD

PN1235

MR LANGMEAD: Mr Marshall, have you sworn an affidavit in relation to these proceedings?---Yes, I have.

PN1236

Do you have a copy of that signed affidavit in the box with you?---Yes, I do, I have - yes, I do.

PN1237

I'm sorry, Commissioner, I forgot, for the sake of the transcript to ask Mr Marshall his name and address and I do so?---It's Peter James Marshall and my address is 14 Brunswick Street, Fitzroy.

PN1238

You're the National Secretary and Branch Secretary of the Victorian Branch of the United Firefighters' Union?---That's correct.

PN1239

THE COMMISSIONER: Are you the National Secretary as well, are you, Mr Marshall?---Yes, sir.

PN1240

MR LANGMEAD: That affidavit, Commissioner, is exhibit R11.

PN1241

THE COMMISSIONER: Yes.

PN1242

MR LANGMEAD: Did you also swear another affidavit in support of the UFUs application for disqualification?---Yes, I did.

PN1243

Are both of those affidavits true and correct?---Yes, they are.

PN1244

THE COMMISSIONER: Sorry, that was - - -

PN1245

MR LANGMEAD: R7, at a guess.

PN1246

THE COMMISSIONER: Yes, sorry, I've got that here, that was R7, yes, thanks.

PN1247

MR LANGMEAD: Mr Marshall, can I direct your attention to paragraph 4 of your affidavit which is R11?---Yes.

PN1248

Yes, and you've referred to a conference, sorry, a hearing and a conference before Commissioner Foggo, do you see that?---Yes, I do.

PN1249

Had you attended any previous hearings or conferences before Commissioner Foggo in relation to Senior Station Officer briefings or ICS workshops?---No, I had not, I was on - I was actually on annual leave.

**** PETER JAMES MARSHALL XN MR LANGMEAD
PN1250

Do you recall any discussion about the scheduling of the incident management workshops?---Yes, I do. There was a discussion in relation to the incident management workshops. It had been some time since I'd had annual leave and I actually had some assurances that disputation would be put on hold until I come back. Unfortunately this disputation blew up and I had a view before the Commission that it actually was a direct result of me being on annual leave and interrupted my annual leave, which I made those concerns present. Commissioner Foggo actually asked me why I formed the view and the original scheduling for ICS workshops, recording the minutes, was in February some time and I just wondered why it was bought up in - bought on in December while I was on leave.

PN1251

THE COMMISSIONER: When were you on leave, Mr Marshall?---Round December, was actually still on leave on December 8, but I actually attended the Commission previous to that - - -

PN1252

Sorry?---Yes.

PN1253

So when did you come back from leave?---Round December 8.

PN1254

Okay, good?---Come back for this hearing - the hearing on December 2 I was on leave.

PN1255

MR LANGMEAD: Mr Marshall, are you aware of any hearings or conferences regarding ICS workshop before that hearing in conference on 8 December?---No, no, I'm not.

PN1256

Mr Marshall, can I ask you to look at a document which - it's headed, Commissioner, IBIC issues 2004-2005, and it's attached to exhibit A9 which is the MFBs response to the UFUs commission?---I've got a copy of that.

PN1257

THE COMMISSIONER: Yes.

PN1258

MR LANGMEAD: Mr Marshall, you say you have a copy of that?---Yes, I do.

PN1259

Have you been able to look through it?---Yes, I have.

PN1260

Do you have any comments about the accuracy of it?---The accuracy of the document I would say is inaccurate.

**** PETER JAMES MARSHALL XN MR LANGMEAD
PN1261

Why would you say that?---A number of points, in particular - particular, from page - I don't know if it's numbered, but under C, where it says the decision of Drake SDP - - -

PN1262

No, sorry, Mr Marshall, it's the attachment headed EBIC issues?---Yes, okay, yes, EBIC issues 2004 to 2005, yes.

PN1263

Have you had an opportunity to look at that document?---I have.

PN1264

Do you have any comments about its accuracy?---Yes, I do.

PN1265

Can you tell the Commission what you say about the accuracy of that list?---I'd say it's totally inaccurate and misleading to say the least.

PN1266

Why do you say that?---If I could deal with some of the issues, Fire Ed, I'm not quite sure what that refers to but if it is the issue regarding Fire Education, that matter was resolved. It had been previously notified by the MFB as still being in dispute before a application to the Full Bench, yet the matter had been resolved, so as far as I'm aware that was resolved. Security Management System, that doesn't reflect, where it says "Grievance filed by the UFU", there is a grievance filed, but the grievance is in relation to the MFB going outside the parameters of a trial that was agreed at EBIC. At EBIC we agreed that there would be a trial at two stations, being number 10 station, number 39 station, and that trial is still in process. I believe it's coming to conclusion. The MFB then sought to implement parts of the new security system outside those two stations, which were not part of the agreement reached at EBIC, so hence we put a grievance in place, but the trial is continuing. The Hose Rationalisation, there's a grievance in that but the grievances in relation to contracting out the traditional work of firefighters in the current certified agreement, there is no contracting out clause and the MFB sought to contract that out to a private industry, so we have a grievance saying there's breach of agreement on that. My understanding is the MFB have now decided not to contract out but look at an alternative method of doing it inside. Burley Complex, that's a new training complex, Burnley being the training college for the MFB. There's been no opposition from the MFB other than there be proper consultative - sorry, be no opposition from the UFU other than there be proper consultative processes with the staff et cetera to make sure the facilities - and my understanding is that's going alone fine. EMR issues, I'm not quite sure what that refers to. EMR stands for Emergency Medical Response. If it's in relation to the MFB wanting to change the code which designate the type of calls that the firefighters respond to. If I could just explain that better. In the current certified agreement there's a number of - there's a schedule that has designated codes which signify the type of medical emergency firefighters want to go to - will go to or can go to. MFB had a proposal to change those codes. We say that that matter is outside the scope of the enterprise agreement and should be dealt with in the next round of enterprise agreements and negotiations, given that from our view it means that we'll be going to a larger type of calls, so if that's what that refers to. Pumper 2B, that's a matter that's in the Federal Court. We say that was an extra claim that wasn't negotiated as part of the certified agreement and that's in the Federal Court before Justice Marshall, I think, at the moment to be determined. Financial Code of Conduct, my understanding is the MFB actually withdrew the Financial Code of Conduct because it was unworkable once concerns were raised by some of their senior management, but it may be there is a grievance in place over that.

**** PETER JAMES MARSHALL XN MR LANGMEAD
PN1267

Do you know who filed that grievance?---I think it was the President of the Union. I could have been - - -

PN1268

It was the UFU?---Yes, it was a UFU member, but the President of the Union is also a very senior position, being a Commander position, and he had discussions, I recall - - -

PN1269

Yes, thank you, Mr Marshall. Perhaps if you move to the next line?---SES Road Rescue, that's - UFU opposed to that because we oppose it on grounds that it's dangerous and unnecessary because it's actually a competition between various agencies to see who can extract a person from a wreckage the quickest. We don't say that that's in the spirit - we say that's against all the training and safety mechanisms that are taught to firefighters during their career. In particular we're taught to - we're actually taught to work quickly but certainly not to rush to the point where you could make a mistake and we say that competition in that environment is dangerous, so we are opposed to that and I may say, that's outside working hours, too, that particular issue.

PN1270

Is that the subject of a grievance?---Yes, it is, as I understand it, yes. SOP Review, that's actually implemented. My understanding is that two EBICs ago, that - or maybe three, it was actually implemented. That's my understanding. What that - SOP stands for - - -

PN1271

Perhaps if it's implemented we don't need to go any further into it, yes?---Yes. Well, that's my understanding. FSIC grievance filed, it's a matter before the Full Bench before this Commission. What that is is Fire Safety Inspection Course, and certainly there is a grievance over that. It's a matter before the Commission, a Full Bench of the Commission. My understanding is I even think it's before the Federal Court, I'm not sure on that. Petty Cash, there is a grievance filed and unresolved, but what that doesn't say is it's before Deputy President Kaufman and there's been some positive dialogue under Deputy President Kaufman because the potential to change the petty cash methodology is tied in with the MFBs requirements to tax these allowances at source. Deputy President Kaufman has actually encouraged the parties, (1) for the MFB to get a ruling from the Tax Office, which my understanding is in the process of doing, and (2) for the parties to talk to try and resolve. I've written to the MFB on two occasions, the last letter being yesterday seeking to have those discussions in the event that the Tax Office doesn't give us the extension, how we could resolve it, but there's been no response from the MFB. Zone Diary, I'm not aware of that. But it says it's implemented. MMR, the grievance filed, it's unresolved, but that's not reflected. In fact this is a very big issue. That's Mobile Metropolitan Radio Network. It's replacing all the radios within the Police Force, the fire service and the ambulance service. It's over 170 million dollar contract from the state government. The Union had concerns regarding the intrinsically safety of the new equipment, and what that means is that operating the new equipment on the fire ground, if it's not intrinsically safe, it could cause an explosion. We're also worried about the standard equipment at being at least at the level of what we currently have and there is some concern over that. The MFB, and we understand the dilemma here, are caught between a conflict, whereas they have a contract with Motorola and the state government to implement sections of this project within time frames and mile posts. Despite our concerns, and they're very real concerns, and we've had discussions at high level of government over them, we've allowed the MFB to progress the matter to the point - through EBIC. When I say we, enterprise Bargaining Implementation Committee, has agreed to progress the matter to the point where, (1) there's been a bulletin putting out saying that the - calling for an expression of interests or trainings for the new equipment, irrespective of the grievance being in place, (2) just yesterday or the day before, we had a meeting whereas it's been agreed that they could actually have a number of focus groups. So that's not reflected. There's been progress on that matter under very difficult circumstances. Petty - sorry - - -

**** PETER JAMES MARSHALL XN MR LANGMEAD
PN1272

Can you just go MMR, the grievance, is that before the Commission or is it resolving internally?---No, it's internally, it's still proceeding internally.

PN1273

Yes, thank you?---CommNet, I'm not quite sure what that is, but it says it's implemented. Gears, my understanding is Commissioner Foggo has handed down a decision regarding that. We say that it was an extra claim - sorry, am I - - -

PN1274

GEIS, Commissioner - can I ask you to think carefully about where GEIS is, Mr Marshall?---Yes. My understanding is that GEIS is under appeal and it's before the Commission. I might be wrong.

PN1275

Organisational Procedures hasn't been implemented?---I don't know what that is, I legitimately don't know what that is.

PN1276

Perhaps if, rather than spending the time explaining the position of the Union in relation to it. If you could just indicate where you disagree with the analysis of it or wish to qualify it against each item?---Review of GARS is a matter that's been discussed between a working party, yes, there is a grievance because they're seeking to change the matrix. GARS is Greater Alarm Response. It does alter the role of some ranks, and we've actually got a working party up to resolve that. But there is a grievance, but it's internally, it's not before the Commission. SO and SSO, Practical Assessment, I agree with that. Building Security Policy, that's the same as the Security Management System as I understand it. 2004, 2000 Action Plan, there's a grievance about that. It's not before the Commission. Multi-Cultural Liaison Officer, there is a grievance, it is before the Commission. Assignment Rules, that's a matter that we've required extensive consultation under EBIC to review all the assignment rules from the growth corridors, beware the boundary between the MFB and CFA meets and they actually respond into each other's territory. There was a proposal in light of a coronial inquest to change all those assignment rules. We worked in a positive and productive manner and was able to resolve that. Intranet Hazardous Substance Information, it says it's implemented. BG174, grievance file number, I disagree with that. BG174 is a long duration breathing apparatus. It can give yo up to, I think it is, nine hours in the entrapped procedure. It is obsolete equipment. Our concern is that if you take it off the - or out of service from the MFB in its entirety, there's nothing to replace it. It was the subject of a 127 order application to the Commission, along with the twinning of ..... Cylinders, that's the second last one, and the Commission actually directed - not directed, sent it back to go through EBIC because the procedures hadn't been followed. My understanding is BG174 is resolved. The MFB have informed us they are now going to keep a number of sets and they will set up a working party to look at an alternative to that long duration. That's my understanding.

**** PETER JAMES MARSHALL XN MR LANGMEAD
PN1277

THE COMMISSIONER: Excuse me, Mr Marshall. Mr Langmead, what's the purpose of running through each of these?

PN1278

MR LANGMEAD: Commissioner, it's similar to the purpose of me asking Mr Swain about histories of industrial disputes. This list was appended to the MFBs submission. That submission says that there's been a range of industrial disputation and indeed, says that any significant change initiated by the MFB, ESB has been subject to UFU grievances which have resulted in a number of things and presumably this list is said to be an accurate list of those matters.

PN1279

THE COMMISSIONER: Yes. Mr Langmead, you have that before - we don't necessarily have the happiest transit of first experience with dealing with each other in this matter, but really my approach is absolutely to rely on the black letter of the law in regard to these matters and the fact that Mr Marshall might be saying long history of disputes between the Board and the Union isn't something that I'd be proposing to get involved in, to interpret - - -

PN1280

MR LANGMEAD: It can only go to a discretion, Commissioner, and I'm grateful for that indication.

PN1281

THE COMMISSIONER: Yes.

PN1282

THE WITNESS: Commissioner, am I allowed to say something?

PN1283

THE COMMISSIONER: Yes?---I made a mistake in relation to GEIS, I got that mixed up with Multi-Cultural Liaison Officer. GEIS is still not resolved. It's a matter that's still before the Commission.

PN1284

Yes, thank you, Mr Marshall. My approach, Mr Langmead, is very much look at the grievance and look at the award if it's relevant and to look at the facts of the particular case which is before me.

PN1285

MR LANGMEAD: Yes. Well, as I say, Commissioner, it seems to us that it can only go the exercise of the discretion, should the Commission find that there is development of industrial action taking place and is satisfied - if it satisfies you in respect of other jurisdictional issues, if the Commission is indicating that alleged industrial conduct in the past ought not affect the Commission's discretion - - -

PN1286

THE COMMISSIONER: It will not, yes, Mr Langmead.

**** PETER JAMES MARSHALL XN MR LANGMEAD
PN1287

MR LANGMEAD: In that case I don't need to take Mr Marshall through the rest of the list.

PN1288

THE COMMISSIONER: Very well.

PN1289

MR LANGMEAD: However, well, I will ask perhaps one or two further questions, sir. Mr Marshall, has the UFU placed any bans in relation to matters which are the subject of grievances being dealt with in accordance with clause 12 of the agreement?---The UFU has not placed any bans in place in the MFB at all. And there's been seven applications which - for orders against us and there has been not one finding that there was industrial action. Approximately seven.

PN1290

Thank you, Commissioner.

PN1291

THE COMMISSIONER: Ms Salmon?

PN1292

MS SALMON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS SALMON [4.00PM]

PN1293

MS SALMON: Mr Marshall, were you in attendance at the conference before the Commission and Commissioner Foggo on December 2?---No, I was not.

PN1294

Who acted on your behalf on that particular day, do you remember?---The person acting - I wasn't even aware of the hearing until after the vent - the person who was acting in my position was David Hamilton. My understanding now is that it was Mr Bandt and Mr Hamilton that attended on 2 December.

PN1295

THE COMMISSIONER: What was the first name?---Mr David Hamilton.

PN1296

What was the other name?---Mr Adam Bandt who's a solicitor.

PN1297

Mr Adam?---Bandt, B-a-n-d-t, he's a solicitor from Slater and Gordon.

PN1298

MS SALMON: Did Mr Hamilton brief you on what occurred on
December 2?---No.

PN1299

So he didn't mention to you what occurred with respect to the discussion concerning Incident Management workshops?---No, he did not.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1300

Did he tell you that the Union had objected to those workshops being held in December?---No. Mr Bandt had told me. I didn't speak to Mr Hamilton at length about it. I spoke to Mr Bandt.

PN1301

So did Mr Bandt give you a briefing on what occurred on December 2?---Yes, he did.

PN1302

Did he mention that the Incident Management workshops were discussed on December 2?---No, he - what he said to me was that that was a matter that the Commission didn't really go to.

PN1303

Did he mention that the MFB put forward evidence that suggested we were having the Incident Management workshops on one day and the Senior Station Officer briefings on the other day?---No, he didn't. All's he said is can you come back from leave, which I wasn't too happy about.

PN1304

So did Mr Bandt tell you that the Union objected to those incident management workshops being held in December?---Not that I can recall.

PN1305

Did he tell you why the workshops were being deferred until February?---No. My understanding of the deferral to February was when I raised it with Commissioner Foggo on December 8 in conciliation - I don't even know if it was conciliation, because the EBIC minutes of September/August which said - - -

PN1306

THE COMMISSIONER: 11 August, yes?---11 August, said that they wouldn't proceed until February and I had a suspicion that my leave was being interrupted unnecessarily.

PN1307

MS SALMON: So your view was that when the proposal was put to EBIC on 11 August, the time frame was that those workshops would be held in February, have I summarised that correctly?---On reviewing the documentation that's correct.

PN1308

Did you have an objection to them being held in December, did the UFU, to your knowledge, have an objection to them being held in December?---As stated in the minutes, which was my position, I think if you have a look at the minutes of the EBIC, I said that, not being an expert on training, I referred it to Mr Carlson and Mr Angwin who are our experts on training.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1309

THE COMMISSIONER: I think perhaps your very precise wording, Mr Marshall, in the EBIC meeting, I think, on recollection, you said you had no problem with it so long as there was consultation with Mr Carlson and Mr Angwin. Sorry, I should be using the exact words, but it might be helpful if someone can accurately recall.

PN1310

MS SALMON: On August 11, when it was put to the UFU, was there an objection with respect to having Union representation at those Incident Management workshops?---I have had discussions with Mr Carlisle about that.

PN1311

I'm sorry, I don't believe that answered the question. On August 11, did the UFU have an objection to the Incident Management workshops, or did they have a view about Union representation at the Incident Management workshops on 11 August?---What was August 11, the EBIC?

PN1312

That was the EBIC meeting, yes?---I have a discussion with Mr Carlisle about Union representation being present at those workshops and I'm not quite sure of the exact time, but it would have been around about then.

PN1313

Was it raised at that EBIC meeting?---No, I think it might have been after.

PN1314

Why wasn't it raised at the EBIC meeting?---As far as I was concerned I didn't have a problem with them, as long as Mr Carlson and Mr Angwin were happy with their content. As far as I was concerned we had a right to be there under clause 10 of, I think, the agreement. Anyway, we have a right of entry clause, so I didn't have a problem with it.

PN1315

I'm not sure I truly understand. Are you saying that you had the anticipation that you would have Union representation and didn't feel you needed to mention
it?---No, I did mention it with Mr Carlisle. I actually suggested who would be there.

PN1316

But at the EBIC meeting when the proposal was put before the Union, you're saying that it was or it was not mentioned?---It could have been mentioned at the meeting or after the meeting, but it was mentioned to Mr Carlisle.

PN1317

THE COMMISSIONER: Excuse me, Ms Salmon. Sorry, Mr Marshall, I just want to make sure we're talking about the same thing. Mr Marshall, exhibit A3, the minutes of the EBIC meeting of 11 August 2004, item 7 of that says, "MFB Incident Leadership Program", is that what we're talking about?

**** PETER JAMES MARSHALL XXN MS SALMON
PN1318

MS SALMON: Yes, Commissioner, it is.

PN1319

THE COMMISSIONER: It says:

PN1320

Wayne Bradbourne briefed EBIC on this proposal.

PN1321

It says:

PN1322

Peter Marshall stated the UFU endorsed this proposal on principle provided Brendan Angwin or Wayne Carlson were consulted.

PN1323

Is that correct?---That is correct.

PN1324

Yes, yes?---What I meant by that, they were our training experts.

PN1325

Yes, sure, and it then goes on to say:

PN1326

Gary Martin to arrange meeting with Wayne Bradbourne and Wayne Carlson.

PN1327

That's it.

PN1328

MS SALMON: Thank you, Commissioner. So is it true to say the only objection was with respect to training on August 11, that was raised at the EBIC
meeting?---That wasn't the only objection but I'm not sure of the time but it's actually Mr Carlisle's affidavit. I did actually have a meeting with Mr Carlisle about - it's in his affidavit in this matter. I had a meeting with Mr Carlisle, I'm not quite sure of the date, whereas I suggested who the Union could be and Mr Carlisle said, well there won't be one.

PN1329

Mr Carlisle hasn't put an affidavit for this matter. Are you perhaps referring to the Senior Station Officer briefings?---Yes, the matter before Commissioner Foggo which both these matters were referred to in my affidavit.

PN1330

I see.

PN1331

THE COMMISSIONER: Sorry, Mr Marshall, I haven't got Mr Carlisle's statement before me. Just understand, that's not information I have?---There's a file note.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1332

MS SALMON: But the file note from Mr Carlisle was actually originally tendered with respect to the Senior Station Officer briefings?---Well, it was and my affidavit on that matter before Commissioner Foggo deals with the Senior Station Officer briefings and the Incident Command system. I referred to both matters in my affidavit. I'm sorry, I thought they were before this Commission as well.

PN1333

This Commission is specifically to do with the Incident Management workshop, not the Senior Station Officer briefing, so we don't have the same evidence before us that might have been before Commissioner Foggo?---Okay, sorry.

PN1334

If I could take you to Commander Swain's statement. Have you got a copy of Commander Swain's statement there?---No, I haven't.

PN1335

Would I be able to have someone give a copy to Mr Marshall?

PN1336

THE COMMISSIONER: Yes. Have you got a spare there?

PN1337

MS SALMON: I don't, Commissioner

PN1338

THE COMMISSIONER: You want A4 or - - -

PN1339

MS SALMON: A12.

PN1340

THE COMMISSIONER: A12, all right. It's now A10.

PN1341

MS SALMON: A10, thank you, Commissioner?---Thank you.

PN1342

If I could ask you to have a read of that for the moment.

PN1343

THE COMMISSIONER: Are you right for water there, Mr Marshall?---Thank you very much, Commissioner. Thank you. Yes.

PN1344

MS SALMON: Of the seven gentlemen that are nominated in paragraph 3, could you tell me whom of those you spoke with?---From memory I spoke to Craig Morris but it was actually later in the day and that's where I took issue with Mr Swain.

PN1345

Do you remember speaking to Mr Keith Lyon?---No, I haven't spoken to Mr Lyon for approximately four years. We had a disagreement four years ago.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1346

Do you remember speaking to any of the other gentlemen?---No, I didn't speak to Ross Brown. John Garvin, I'm pretty sure I spoke to him again and it was after the event, and Darren McWade, I think I did speak to.

PN1347

So you spoke with Darren McWade, Craig Morris and the last, John Garvin, to your memory?---I'll just clarify what I said if that's okay.

PN1348

Yes?---Craig Morris I spoke to after the event. Would have been some time in the mid morning, and John Garvin, I think it was either lunch time or in the afternoon and Darren McWade, I'm not quite sure if that was the morning or not.

PN1349

Can you tell me whether you spoke with any of those men nominated from (a) through (g) before February 8?---I couldn't - over this issue?

PN1350

Yes?---I know we had a Senior Station Officer meeting - members' meeting and actually Station Officer, but I don't think it was over this issue. I can't recall, I'm sorry.

PN1351

THE COMMISSIONER: When did you have that, Mr Marshall, can you
recall?---I just actually was thinking about it then. I think it was more recently.

PN1352

MS SALMON: You can't recall?---No.

PN1353

That's fine. But you believe that you spoke to Craig Morris, John Garvin and Keith Lyon - sorry, I beg your pardon. Craig Morris, John Garvin and Darren McWade some time during the period of February 8?---I can tell you I definitely spoke to Craig Morris because that was the reason that I rang Mr Swain because Mr Morris informed me that Mr Swain had suggested that he - the Union, myself had misled, had misled or was misleading the Senior Station Officers. I explained to Mr Morris about our legal advice and being subject to that legal advice, and I rang Mr Swain about that.

PN1354

You believe you spoke to John Garvin?---Yes, but - from memory, and I'm recalling - a lot's happened since then, but Mr Garvin, I spoke to, I think it was about lunch time. The reason I say that, Mr Garvin was about - he was suggesting that Senior Station Officers didn't need to be baby-sat about - and I didn't quite understand what he meant about that, so I had a discussion, but not about either going or not going. It was in the context of that dispute.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1355

Can you tell who Greg Wellan is, what his status - - - ?---Who?

PN1356

Greg Wellan - - - ?---Greg Wellan is the shop steward.

PN1357

He's a shop steward for the UFU?---Yes, that's right. He's a leading firefighter.

PN1358

Did you have a conversation with Greg Wellan about this matter?---Not that I can recall. I got a feeling that in the morning, yes, I think that's right. I was actually at a chiropractor's and I think - but anyway, not that I can recall. I would have spoken to a number of people that day.

PN1359

So your evidence, just to summarise, is that you may have spoken to these individuals prior to February 8, but you're not sure?---Not about this issue, no.

PN1360

And that you believe you spoke to Craig Morris, Darren McWade and John Garvin around about that time?---No, I spoke to them on that day.

PN1361

On that day?---Yes.

PN1362

And that you may have spoken to Greg Wellan about this matter, but you can't remember, is that your evidence?---Yes, I'm - yes, I probably did. It was probably - if I'm right about my memory, I was at the chiropractor, I rang the office and said ring the shop stewards, so.

PN1363

Right, just bear with me just for a moment?---I can check whether I was at the chiropractor.

PN1364

Commissioner, we have no further questions for this witness.

PN1365

THE COMMISSIONER: Yes. Mr Marshall, I've got some questions for you. Can I ask you, did you, on or before 8 February issue a direction to your members not to attend this session on 8 February?---No, I did not.

PN1366

Did you instruct any of your officials to issue such direction?---No, I did not, it's not a word I use.

PN1367

Did you use either directly or through your officers an advice to your members not to attend such training?---On legal advice I informed that they didn't have to attend.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1368

Can you recall how you communicated that advice and the nature of the
advice?---It would have been with telephone through - with Mr Morris, but as I said, it was after the event. It would have been through the office because I was in disposed in the morning, but I think I might have even spoken to Mr Langmead on the morning to ask him clarification as to what the status was regarding us having to attend and - so it would have been through the office.

PN1369

Rather yourself?---Yes, I only spoke to - as I can recall it, I only spoke to three individuals and that was after the event.

PN1370

Yes, thanks very much, yes. Mr Langmead? I am going to ask some more questions, sorry, Mr Langmead. Mr Marshall, if - your understanding is now that Commander Swain on 9 February conveyed some - a module, and is it an AFEC module, okay?---Yes.

PN1371

To you to give to Mr Angwin, is that correct?---Mr Swain, and I can't recall the date but I'm not disputing it, did deliver something and said, look, this is for Brendan to have a look at over this issue. So that did happen.

PN1372

So is it your understanding that Mr Angwin has now been given the remaining documentation which have been committed to be given on 17 December by Commander Swain to Mr Angwin?---It's my understanding they now have all the documentation but there was some delay in getting the documentation.

PN1373

Yes. So what obstacles in your view now remain to the following of this program?---I'm not a training person. I can go on the advice of Mr Carlson who actually is the Chairperson of the Public Safety ITAB Board and sets up this whole framework and Mr Angwin also is involved in that. They have informed me that they're actually training people to a higher level than what the classification had been done in the past, which has some significant ramifications if that's correct. I have no reason to think it's not correct, that's why I referred it to them. We don't have a problem with the programs going ahead, but as long as it's not new work, that's the first thing, and it doesn't actually result in de-skilling and it would de-skill the rank above if they are training people up higher, as well as the fact that, I don't want to be at these meetings, but we have had requests for - from our members to attend and certainly I've even suggested that the President of the UFU attend, who is a Commander, but for some reason that's not acceptable. So the obstacles are in relation - - -

**** PETER JAMES MARSHALL XXN MS SALMON
PN1374

Mr Marshall, who is that not acceptable to?---The MFB have told us that because the President of the Union, being Ian Leaves, who is a Commander, which is the rank, the next rank above Senior Station Officer as well as the Vice-President who is a Commander, Mr Wayne Carlson, because they're not Senior Station Officers that they're not - it's not acceptable. Mr Carlisle told me this, that it's not acceptable for them to attend.

PN1375

Yes, so Mr Marshall, is there a Senior Station Officer who is aware of you - officer or member, who you would be happy to attend, perhaps - - - ?---Can I explain please?

PN1376

Yes?---We have 99.9 per cent coverage which is highly unusual and within the Branch Committee a management constitution, the officers, being Senior Station Officers and Station Officers with the MFB elect two representative to - and they're called the MFB Officer Representatives. Mr Cavanagh is the Officer Representative as is Mr Angwin the Officer Representative. Only Officers can vote on those people being - those Senior Station Officers can vote on those people being their representatives. They're the duly elected people but they're Station Officers, one below Senior Station Officer, even though the Senior Station Officers have elected those people to be there. To try and accommodate the MFBs needs so there's not a subordinate rank there, that's why I suggested that the President or the Senior Vice-President is actually a superior rank, be in attendance.

PN1377

Yes, so there's not someone of Senior Station Officer rank who's appropriate. The problem is there's someone of the rank above and someone of the rank
below?---Yes, who are elected officials, yes.

PN1378

Yes. I mean, it should not be beyond the realms of human achievement to reach some agreement on that, should it, Mr Marshall?---I can't understand why it's a problem, given the fact that Commanders are actually delivering some of the information to the session. I can understand why Station Officers, that may be the case, but I just can't understand why it's not appropriate for Commanders.

PN1379

So, Mr Marshall, who is the Union putting forward, or who would the Union put forward, either at the rank below Senior Station Officer or at the rank above?---It would be the office elect representatives, below would be Station Officer Angwin or Station Officer Cavanagh.

**** PETER JAMES MARSHALL XXN MS SALMON
PN1380

Yes?---The rank that's above the Senior Station Officer, would be the Commander rank, the same rank as Mr Swain would be Commander Ian Leaves.

PN1381

Is that L-e-a-v-e-s?---Yes, it is but he's President. He's the President of the Union or Commander Wayne Carlson who is the Senior Vice-President. Apart from my role as Union Secretary I'm a rank of Leading Firefighter. It wouldn't be appropriate for me to other than in the capacity of Secretary of the Union.

PN1382

Right, okay. Thanks for that. Yes, thanks, Mr Langmead?

<RE-EXAMINATION BY MR LANGMEAD [4.20PM]

PN1383

MR LANGMEAD: Mr Marshall, can I ask you to look at exhibit PN1, it's your affidavit?---It's R11, is it? Yes.

PN1384

Yes?---Yes.

PN1385

That's a letter from Mr Hamilton to Mr Carlisle dated 2 December and relates to a grievance in relation to SSO ICS skills maintenance, do you see that?---That's correct.

PN1386

Did Mr Bandt tell you anything about this?---He told me that a grievance had submitted, but as I said, I wasn't around at the time.

PN1387

If I can ask you to look at PN2?---Yes.

PN1388

What caused - I withdraw that. What information, if any, did the Union have which caused you to submit this grievance?---That was after Mr Carlson and
Mr Angwin had reviewed the material. They informed me that the material was new and was at a different level of change, and it hadn't been through EBIC which was a requirement as well.

PN1389

Just a matter of clarification, can I ask you to look at paragraph 9?---Of?

PN1390

Of your affidavit, R11?---Yes. Yes.

PN1391

And it refers to telephone conversations you had with a number of SSOs prior to the scheduled SSO incident, management workshop on 8 February?---Yes.

PN1392

Can you tell the Commission whether those conversations are different ones form the ones referred to in Mr Swain's - sorry, are the ones you have spoken about in relation to the gentlemen mentioned in Mr Swain's affidavit?---Yes. No, they're the same, they're the same people that I spoke to. As I said, I explained to
Mr Morris and - sorry.

**** PETER JAMES MARSHALL RXN MR LANGMEAD
PN1393

You said those conversations after the meeting?---Yes.

PN1394

Paragraph 9 talks about conversations you had before the meeting, so I was seeking to ask you which conversations were which?---Sorry, there was one - sorry, I forgot, there was one conversation from a Mr Ferletti, a Senior Station Officer Ferletti. I think Mr Swain or someone had rung him at home and he rung me. Are we talking about the SO briefings, I'm not quite sure?

PN1395

This is in relation - - -

PN1396

THE COMMISSIONER: Well, in this case I'd like you to be talking about the IFP.

PN1397

MR LANGMEAD: Yes, we're talking about the incident management workshop. There was one scheduled for 8 February and Mr Swain said that he spoke to a number of Station Officers and he named them and they said to him that they had been instructed by the Union or advised, depending on - - -

PN1398

THE COMMISSIONER: Directed or advised.

PN1399

MR LANGMEAD: Directed, I'm sorry, by the Union. In your affidavit you speak of prior to that meeting on 8 February, you spoke to a number of SSOs, so I'm asking you the conversations which you said were after the meeting, you're not including those in conversations you had prior to the meeting?---No, no, no, but I - the reason I say that is because of the legal advice. Mr Morris, I had a fairly lengthy discussion with because Mr - and I take no offence at this - but Mr Swain was under the belief that I had misled him.

PN1400

Yes. So prior to the meeting, and I'm not sure whether you're saying that it was prior to 8 February or prior to the meeting on 8 February, when did you have the telephone conversations - - - ?---Mr Ferletti would have been a couple of days beforehand because he was off duty.

PN1401

Were there any others that you recall?---There probably was, but I can't - that's going back a while now.

PN1402

Thank you, sir.

PN1403

THE COMMISSIONER: Nothing further? Sorry, Mr Marshall, what is
Mr Cavanagh's first name?---Glen Cavanagh.

**** PETER JAMES MARSHALL RXN MR LANGMEAD
PN1404

G-l-e-n?---Yes, and he's a Station Officer at Nunawading Fire Station.

PN1405

Yes, that's fine, thanks. Nothing further?

PN1406

MS SALMON: Commissioner, we have nothing.

PN1407

THE COMMISSIONER: Thanks very much, Mr Marshall, you're excused. If I could retrieve that witness statement, the second statement of - thank you, yes, you're excused, Mr Marshall?---Thank you.

<THE WITNESS WITHDREW [4.25PM]

PN1408

THE COMMISSIONER: Yes, Mr Langmead?

PN1409

MR LANGMEAD: The remaining affidavits of Mr Carlson and Mr Angwin, as I understand it from discussions with Ms Salmon to be received into evidence without the need for them to be cross-examined.

PN1410

MS SALMON: Commissioner, that's correct, to expedite matters.

PN1411

THE COMMISSIONER: Yes.

PN1412

MR LANGMEAD: That concludes the evidence of the UFU.

PN1413

THE COMMISSIONER: Yes, good, thank you. Ms Salmon, are you ready to begin your closing submissions?

PN1414

MS SALMON: Commissioner, I'll be very brief with my closing submissions, yes, I am ready to commence. Commissioner, we've - - -

PN1415

THE COMMISSIONER: I was offering you a moment to collect your thoughts, but if you're ready to roll we'll roll straight away.

PN1416

MS SALMON: I would like one more minute.

PN1417

THE COMMISSIONER: Whichever you would prefer.

PN1418

MS SALMON: If I could have a moment.

PN1419

THE COMMISSIONER: Yes, thank you very much. We'll adjourn for five minutes, thanks very much and so, well, it certainly looks like we'll be finished by 6 o'clock, Mr Langmead, does it, from your point of view?

PN1420

MR LANGMEAD: I very much hope so, Commissioner. My estimates are notoriously inaccurate, but I'd certainly not envisage submissions taking any great length at all.

PN1421

THE COMMISSIONER: Yes, thanks, I now adjourn.

<SHORT ADJOURNMENT [4.27PM]
<RESUMED [4.37PM]

PN1422

THE COMMISSIONER: You can start.

PN1423

MS SALMON: Thank you, Commissioner. We rely on the submissions that we have previously made to the Commission in terms of facts and details relating to this matter. We believe that we have complied with all of the directions that have been issued by both yourself and Commissioner Foggo in ensuring that all of the material that was requested by the UFU representatives was ultimately delivered to them.

PN1424

We believe that we have complied with the spirit and the letter of the operational staff agreement between the parties insofar as consultation has taken place. We say that this matter before you is about skilled maintenance, that it does not change the work practices with respect to incident management of senior station officers.

PN1425

We rely on Senior Deputy President Drake's decision which we believe allows us to deliver these programs - are you looking for the reference, sir?

PN1426

THE COMMISSIONER: Yes, well, I have got the decision here.

PN1427

MS SALMON: I have got it. We rely on Senior Deputy President Drake's decision which we believe allows us to deliver these programs without union agreement to the content, because we believe that these programs do not form part of the training matrix. We believe that the definition of a legitimate purpose as enunciated by Commissioner Foggo in her recent decision also has an impact on your matter before you, and in our view, we rely on that decision which allows us to deliver these programs without formal union representation.

PN1428

We believe that industrial action has taken place as defined by clause 4.1 of the Workplace Relations Act 1996 and we rely on the Full Bench decision of, and I will give you the reference to that, the print number is T1963, which was between NMHJ Distribution Pty Ltd trading as Yale Asia Pacific, in a section 127 matter with the Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union where in clause 5 the Full Bench says that it is common ground that the definition of industrial action in section 41 of the Workplace Relations Act is the relevant one for the purposes of section 127(1) and (2). On that basis, Commissioner, we press for the order that we have put to you.

PN1429

THE COMMISSIONER: Yes, thank you. Yes Mr Langmead.

PN1430

MR LANGMEAD: Commissioner, if I could just say at the outset, in case there was any doubt, we did object to the procedural course you, the Commission, adopted in relation to this and our submission was that you should determine the applications for disqualification rather than in advance of the proceeding here. But we do not seek to canvass that decision but we just want to make it clear that we proceed further under objection, as it was.

PN1431

THE COMMISSIONER: Yes. I hope it has not been too traumatic for you.

PN1432

MR LANGMEAD: Proceedings under objection, Commissioner?

PN1433

THE COMMISSIONER: Yes.

PN1434

MR LANGMEAD: I am accustomed to proceeding under all sorts of situations.

PN1435

Commissioner, what this case is a case about an application under section 127 and that is an application for an order or orders that industrial action stop and not occur. Assuming that there is industrial action of the requisite nature. What it is not, is an application which in any way can determine disputes between the parties as to questions such as whether union representation should be permitted at ICS workshop, incident management workshop, it is not about that. It is not about whether the content of any proposed incident management workshop amounts to a new claim, a change which should be progressed through EBIC, a change which takes work from commanders and gives it to station officers, senior station officers, or any other dispute the parties have about its content. It is an application to stop industrial action which is said to have occurred and which, presumably, the MFB would have you believe may well occur in the future.

PN1436

Commissioner, in relation to - - -

PN1437

THE COMMISSIONER: Which is threatened and pending or probable.

PN1438

MR LANGMEAD: Yes, yes.

PN1439

THE COMMISSIONER: I am sorry, Mr Langmead, but where - some of those matters might be relevant but it might not be. Is it addressing the issue of illegitimacy if there has not been compliance with the agreement or courses of action which had previously been agreed to, or the like?

PN1440

MR LANGMEAD: Well, Commissioner, you have to find, with respect, that it is industrial action.

PN1441

THE COMMISSIONER: Yes certainly.

PN1442

MR LANGMEAD: And in order for it to be industrial action it must be within the definitions of industrial action in section 4, being the performance of work in a manner different from that which is customarily performed. Or the adoption of a practice in relation to work a result of which is the restriction or limitation on or a delay in the performance of work, or a ban, limitation or restriction on the performance of work or an acceptance of or offering of work in the terms and conditions described by an award or certified agreement. A ban, limitation or restriction on the performance work or the acceptance or offering of work that is adopted in accordance - in connection with an industrial dispute. Or a failure or refusal by persons to attend to work, or a failure or refusal to perform any work at all by persons who attend for work, which I do not think is a particularly relevant one.

PN1443

But Commissioner, as I said, it is not about determining a dispute between the parties as to, for example, representation by the UFU at an SSO workshop. That matter is the subject of a dispute which is being processed under clause 12 of the agreement. It is a matter which is - the notification is R1 in these proceedings, it is a dated letter of notification to the Commission, and it is also the letter attached to the application which is PM1.

PN1444

THE COMMISSIONER: R1 and PM1?

PN1445

MR LANGMEAD: Yes.

PN1446

THE COMMISSIONER: Yes.

PN1447

MR LANGMEAD: And that clearly identifies that what the union's problem is is that it says it is entitled under clause 10 of the agreement, I am not sure whether clause 10 is sufficiently identified in R1 or PM1, but that is the - I can tell the Commissioner what the clause which the union says gives it rights of representation -

PN1448

THE COMMISSIONER: Clause 10 of the agreement, is that what you are talking about?

PN1449

MR LANGMEAD: Clause 10 of the agreement, Mr Commissioner, yes.

PN1450

THE COMMISSIONER: Is this higher duties? I want to make sure I am looking at the right clause.

PN1451

MR LANGMEAD: It is page 6 of my copy of the agreement, Commissioner, but I do not think the page numbers are necessarily reliable because I think they change every time one prints it out.

PN1452

MS SALMON: Commissioner - I think the Commissioner is looking at the award rather than the agreement.

PN1453

MR LANGMEAD: Ms Salmon suggested that you might be looking at the award, Commissioner.

PN1454

THE COMMISSIONER: I am sorry. Yes, I am.

PN1455

MR LANGMEAD: I think the agreement may have been given an exhibit number.

PN1456

THE COMMISSIONER: No, it was but I am just not quite sure where I have put it. I mean, I know I have been right through it. Here we go, yes. Yes, so it is clause 10.

PN1457

MR LANGMEAD: The Commission has obviously devoted a lot of time if the Commission has read the whole document.

PN1458

THE COMMISSIONER: Yes. Is it employee representation? Yes.

PN1459

MR LANGMEAD: Yes. And in particular, 10.5. Now that is the dispute which Mr Hamilton had formally drew to attention of the board and the Commission on 2 December. Mr Hamilton then in his covering letter to the MFB refers to the conversation he had earlier that day with Ms Salmon about the MFB's position in relation to continuing to the UFU having representation.

PN1460

THE COMMISSIONER: So what is it that you are saying in respect of 10.5?

PN1461

MR LANGMEAD: 10.5, Commissioner, is that subject to reasonable notice, an officer or employee of the UFU:

PN1462

may, for the purposes of representing employees covered by the agreement for any legitimate purpose -

PN1463

and it is (b) in particular -

PN1464

at any time during working hours, view any work -

PN1465

And in the matter after on the following, it is on the following page of my copy, but after (c):

PN1466

Access to workshop and workplaces under the clause shall be authorised for the purpose of consulting with UFU shop stewards -

PN1467

is not relevant. But then:

PN1468

investigation of grievances or complaints and observing working conditions.

PN1469

Now, that dispute is a dispute which was before Commissioner Foggo and it was a combined notification, Commissioner, there was a notification in respect of the SSO briefings which there is no material before you, as the Commission is presently constituted, in this matter. And indeed, the subject of the SSO briefings as opposed to the SSO incident management workshops, is or was the subject of formal hearing and arbitration by Commissioner Foggo and the subject of a decision by her.

PN1470

THE COMMISSIONER: Yes.

PN1471

MR LANGMEAD: Which decision is under appeal. But Commissioner, in the process of dealing with the two matters which have been notified in R1 and PM1, which are both for the SSO briefings and the incident management workshops, I think they were called ICS management or something like that at the time. The terminology seems to have shifted a little, but that is what they are, I think that is common ground. That part of the dispute, on the evidence of Mr Marshall as to what had occurred in conference and is referred to in our submission, that part of the dispute was adjourned to decide because it was agreed that the next general meeting was not until February, there was time for the parties to attempt to address the issues. At no stage was the dispute abandoned, at no stage was it resolved. It continued as a dispute between addressed and processed in accordance with the clause 12 of the agreement.

PN1472

Commissioner, I do not know whether you have had the opportunity of reading our written submissions, I have quoted and attached extracts of the transcript before Commissioner Foggo in which this question of what was to become of the ICS part of it, what was to happen to that. And we said that no it is not part of this arbitration because we are only dealing with the SSO. It has been put aside so that the parties can try and address it and it is something which is going to come on next year and I actually use the words, which I quoted, it could be either considered as extant, or we can put in another notification, whatever the proceeding of machinery matter might need to be done, we would have done it. So if the Commission said, look, I really want another file for this, we would have accommodated that need. But the dispute had been formally put before the board and formally put before the Commission, it had not been resolved, and was indeed, as the conduct of the parties subsequently demonstrated, was in the process of being addressed. Mr Swain did give documents to Mr Angwin. There is some debate about the circumstances and the sufficiency of that, but nevertheless, that the parties were addressing it. Perhaps if they had addressed it more vigorously by way of proper consultation then we might not be here in the situation we are in today. But sir, that is the situation with that dispute.

PN1473

Now, that is not something which, with respect, can be dealt with in the context of this agreement, this application for 127 orders. What can be said about it is what we can say about it in response to the allegation that we have not attended an SSO workshop in February because of - or sorry, that our non attendance is in fact industrial action and we can say in response to that, and we do so, well not it is not because there should not have been any workshops. There should not have been any workshops because the status quo provision meant that until the dispute resolution process had been completed, the status quo prevails. And the status quo in this situation was that there were workshops, it is a new initiative, Ms Salmon admitted that on the first occasion. When this matter came before you, she told you it was a new initiative.

PN1474

Commissioner, before I forget, I should also go back to the letter of Mr Hamilton on 2 December. I think Ms Salmon in her submissions suggests that the UFU had not in some way complied with it because - with the dispute resolution procedure - because of some way in which the conversation with her had taken place and subsequent events. All I can say about that, Commissioner, is that nobody has ever said in relation to that letter, "You have not raised a valid dispute". It was proceeded to be listed before Commissioner Foggo and dealt with conference as I have indicated and then dealt with on transcript. And no exception was taken to the way I responded to the Commissioner in the way in which it should be dealt with.

PN1475

THE COMMISSIONER: So where do you say that is now at?

PN1476

MR LANGMEAD: It is now, well Commissioner, I think really where it ought to be at and this - if the conduct of the MFB had not been to attempt to ram through the workshops regardless, and if it had not brought these applications, maybe we would have been able to have the discussions which the Commission and ourselves, and we thought the MFB, had proposed having. Instead, they chose to ignore the status quo provision. And Commissioner, do I need to take the Commission to that provision?

PN1477

THE COMMISSIONER: No.

PN1478

MR LANGMEAD: No. It is clause 12.9 I think. They chose to ignore that and schedule the workshop regardless. Now, we say that is a clear breach of the agreement. The, I think the evidence of Mr Swain made it clear, that they knew that that was our position and they took a different view. Now, to this day we do not know why they say they are entitled to ignore the status quo and ram these meeting through, but - - -

PN1479

THE COMMISSIONER: Well I think, is it not so, that Ms Salmon's submission is that SDP Drake has made it clear that they do not need to - the status quo provisions do not apply.

PN1480

MR LANGMEAD: Well, no, no. Well, Senior Deputy President Drake's decision does not do anything of the sort of course. What it said was that a particular course - sorry, first of all it must be remembered that what Senior Deputy President Drake was dealing with was a 170LW dispute resolution process. There was a 127 application but it was not proceeded with. All she had before her and all she is determining in her decision is that dispute resolution process. And the dispute in that case was whether or not the MFB was entitled to make the changes to the course that they were doing. And the union had a number of reasons why it said that it was not. That was the dispute.

PN1481

Now, once the dispute process is invoked, the status quo comes into play, so nothing changes until you resolve that. Now the union in that case was shown to be wrong, according to Senior Deputy President Drake. And the decision was not appealed, the union has accepted the result. Albeit it might not agree with it, but nevertheless, that is how the process works. And presumably the course went ahead after that time.

PN1482

The decision of Senior Deputy President Drake was that no you did not have to put that particular course change through an agreement process with the union, the union did not have to agree to it. The board was entitled to implement it provided we had discussed it. But it was not entitled to do that until such time as the dispute about whether or not it was entitled to do it, could be resolved. Up until that time it was not to be done, because the status quo froze things as they were, that the workshop continue, and it did.

PN1483

I am reminded too, Commissioner, that that decision was made under a previous agreement. There were different clauses in the agreement, I think in relation to both change and I am told, in relation to dispute. But in any event, Commissioner, all it could ever stand for was the resolution of a dispute on its facts in relation to that particular proposed change about which there was a dispute. It does not say carte blanche, that the MFB can do whatever it likes without the union's agreement. And it certainly does not meant that in this case where there is a legitimate dispute raised that it can therefore say, well we do not care because the union has not agreed, we are just going to do it anyway.

PN1484

Commissioner, the union may ultimately be shown to be wrong in saying that it is entitled to have a union representative present at this course, at this workshop; that requires an examination of the purpose for which it says it is entitled to be there and these are matters which Mr Marshall confusedly referred to in a formal statement of his. There was a statement before Commissioner Foggo which the relevant parts of it are not relied upon in relation to the SSO briefings, but that is an issue which she will have to examine as to whether or not the union's stated purpose for wanting representation at these workshops is legitimate. Until you get to the point of having determined whether or not the union is entitled to have representation there, until the dispute resolution process concludes that dispute, one cannot say that the union is not entitled to. And it cannot be that the board can just continue on and take matters into its own hands and run the workshops in any event. The status quo is that there are no workshops until that dispute about representation is resolved.

PN1485

Now, if the, as I say, if it had not been for the intervention of the MFB's attempting to conduct the workshop anyway and bringing these proceedings, perhaps there would have been some discussions further, perhaps it would have gone back to Commissioner Foggo and she might be sitting here today listening to us as to the merits or otherwise of the union's position and the board's position on that question. That however, sir, is not an issue which is before you. And of course it cannot be, because what is said against us is that by not attending this meeting, we were going to engage in illegitimate and unlawful industrial action.

PN1486

Now, leaving aside the circumstance of whether or not it was by direction or otherwise, it is our submission that that meeting of itself with the purported conduct of that workshop was illegitimate, contrary to the agreement, in breach of the status quo provisions and it should not have occurred. And, in those circumstances, it is not a lawful order or a direction of the employer, to direct an employee to do something which is in breach of the agreement. And we have a very firm view of that and it is a view we are, not unsurprisingly, prepared to communicate to our members, that when they ask, do we have to go to this meeting, we have had legal advice and he has that legal advice to the effect that no they do not have to go and it is not a lawful direction. Were it not for some recent comments of the Full Bench's about what constitutes industrial action, you may well, sir, form the view that what the board has done is industrial action itself, by trying to conduct these meetings in breach of the agreement. We do not ask you to do that and we do not need to ask you, because we merely say that it is not industrial action and it cannot be characterised as that and it cannot give rise to orders. And we say that all arises from the dispute notified on 2 December. So we say - - -

PN1487

THE COMMISSIONER: That was the dispute which was, that this - - -

PN1488

MR LANGMEAD: It is - - -

PN1489

THE COMMISSIONER: That is this dispute, at R1?

PN1490

MR LANGMEAD: R1 and PM1, yes. I think both of those letters contained copies of the application to the Commission, or notification to the Commission.

PN1491

Now Commissioner, I do not want to go through in detail through the written submissions, unless the Commission wants me to. But we have set out most of what we say about that.

PN1492

THE COMMISSIONER: Yes.

PN1493

MR LANGMEAD: Can I touch on the issues of the processes before Commissioner Foggo in conference about which Mr Marshall gave evidence. The only evidence that the Commission has about what happened is that of Mr Marshall's. The board's allegation in its submission that something else took place on 2 December is not in accordance with his evidence. And it is not evidence and we reject it. So you should not accept that if it is purported to be evidence at the bar table, you should not accept it. It is contrary to our instructions.

PN1494

In relation to the advice given by the UFU to members, Mr Marshall has given evidence about that. Mr Swain has given evidence about that. I have already submitted to you and the Commission has ruled in respect of what Mr Swain says that people told him, would be given - or ought to be a matter going to weight. We do not know, well, we were not able to get instructions to cross-examination as to whether or not they really did say it.

PN1495

THE COMMISSIONER: Can I just simply make clear to you and Ms Salmon that it appears to me that there is a complete conflict of evidence as to that and there doesn't appear to any material before me to assist me in the resolution of that.

PN1496

MR LANGMEAD: No, Commissioner, other than that Mr Marshall says that he certainly has not given any such directions.

PN1497

THE COMMISSIONER: Yes.

PN1498

MR LANGMEAD: He has advised members about what the union's position is.

PN1499

THE COMMISSIONER: Yes, yes.

PN1500

MR LANGMEAD: And any evidence to the contrary is hearsay and obviously the direct evidence of Mr Marshall should be preferred.

PN1501

THE COMMISSIONER: Yes.

PN1502

MR LANGMEAD: Commissioner, I am reminded that Mr Swain also conceded that he never heard of Mr Marshall giving directions to - - -

PN1503

THE COMMISSIONER: Yes.

PN1504

MR LANGMEAD: Now, Mr Marshall's evidence I think was otherwise essentially uncontested. And in those circumstances, must be accepted as being reliable and credible and represents the position as he attested it.

PN1505

Commissioner, there is a second aspect of the dispute situation, and that is the dispute referred to in PM2. Now that is a letter to the board which I think is comparable to 12.6 of the dispute resolution process in that it is a letter to the relevant officer of the MFB raising the issues. As Mr Marshall said, it arose from the conclusions of Mr Angwin and Mr Carlson as to the content of the proposed workshop and that on Mr Marshall's evidence in his statement he has not had a response to that letter. Nevertheless, that again has invoked the dispute resolution process. Now, it has been clear to the Commission that - sorry, it must be clear to the Commission that there was no real issue taken I do not think by Mr Swain with the fact that both Mr Angwin and Mr Carlson do have issues with this proposed workshop, that the union consequently has an issue with that workshop.

PN1506

Mr Marshall said that he had lodged that grievance or dispute following advice by Mr Angwin and Mr Carlson. And it raises those questions, as I say, questions as to content, applies to the agreement in terms of seeking the process of properly referring in the EBIC. And it is entirely consistent, Commissioner, with the earlier resolution of the EBIC that the union had no objection in principle, subject to consultation with Mr Angwin and Mr Carlson. The consultation needs to be more than the board saying "We are going to do it, this is what we are going to do, have a read about it and let me know if you have got a problem". We did not even get to an exchange of views about the final conclusions that Mr Angwin and Mr Carlson came to. As I said, I do not want to canvass discussions that took place in conference but the Commission knows that there were discussions and you have heard the evidence of Mr Swain and the uncontested statements of
Mr Angwin and Mr Carlson, and the evidence of Mr Marshall.

PN1507

Commissioner, this process of consultation has not been completed. Mr Angwin and Mr Carlson, on the materials they have been, have formed a view. Now, they might be wrong. Maybe the parties can convince each other that no - this is not what is happening, it is not distilling the commander rank, it is not requiring more DSSOs, it is just a skill maintenance session. But that is not what they think at the moment, sir. They have looked at the paperwork which has been provided to them and in accordance with the process that has been sanctioned by the Commission and is part of the ongoing dispute resolution process.

PN1508

And it has given rise to a further concern, whilst we had no objection in principle, now that we have been quasi consulted and we have at least seen some of the material, it is causing us problems. You know, we think there is something wrong here and we have raised a dispute about it. Now we want to talk about that with the MFB and we have offered to do so and they have not responded. We had said in our letter we are available for urgent discussions about this. Now if those urgent discussions do not resolve anything, and one would hope that they will take place, but if they either do not take place or they do not resolve the issue, the matter comes back to the Commission for conciliation, and if necessary, arbitration.

PN1509

But the important thing is, sir, is that until that process is finalised the status quo applies. And that is, that those workshops do not take place. So we have two disputes, both of which give rise to no workshops until they have been resolved in accordance with the process. Whilst that status quo is in place, to attempt to conduct these workshops is in breach of the agreement. And as I have said, we cannot see that we have ever been given an explanation as to why the board believes it can just go ahead with them. If they are relying on Senior Deputy President Drake's decision, we have indicated to you that that is a misconception of both her decision and the process of dispute resolution. Because there is a dispute, there are two disputes, and until both of them are resolved in accordance with that process in the agreement, in clause 12, the status quo is that there are no incident management workshops for SSOs.

PN1510

And if there are no SSO incident management workshops that can legitimately take place, then it cannot be said that the UFU or its members are behaving in any way improperly if they do not attend illegitimately convened workshops. They are not lawful instructions, they are not placing on any bans, they are not placing any restrictions on work according to the agreement. They are working in accordance with the agreement. The union is absolutely operating in accordance with the agreement, as are its members.

PN1511

Yes, Commissioner, I am just reminded that as an example of the consultation provisions - you recall that I took Mr Swain to them during the course of cross-examination, the change of process involves as part of the consultative process the ability of parties to put alternatives to what is proposed. Now, that is just an aspect which we have not even got to. Now, the grievance or dispute in relation to the notice filed on 22 February, which is PM2, raises non compliance with clause 9 as one of the grievances. As well as part of the grievance in relation to this.

PN1512

So there is a whole host of difficulties which we have raised, properly, for resolution in accordance with the dispute resolution procedure. And whilst those are on foot, there are no workshops and the union and its members are behaving quite legitimately in not participating in bogus workshops.

PN1513

THE COMMISSIONER: I am wanting you at some stage, Mr Langmead, to address me further with regard to the scope of the draft orders sought and with regard to the natural justice issues associated with the fact that the orders were not served on the union, the draft orders not being on the union.

PN1514

MR LANGMEAD: Yes.

PN1515

THE COMMISSIONER: But not on any of the employees, so the notice of these proceedings.

PN1516

MR LANGMEAD: Yes. Can I, perhaps before - - -

PN1517

THE COMMISSIONER: I am not saying I want you to go to those now.

PN1518

MR LANGMEAD: No.

PN1519

THE COMMISSIONER: I only want you to address me on them - - -

PN1520

MR LANGMEAD: Yes thank you sir. I do want to draw particular attention to the allegation in transcript that Ms Salmon appeared to be making about alleged conduct of the UFU employees.

PN1521

THE COMMISSIONER: I do not intend to draw any conclusion with regard to that.

PN1522

MR LANGMEAD: No well - - -

PN1523

THE COMMISSIONER: ..... to influence judgment in any way whatsoever,
Mr Langmead. But please feel free to address me if you wish to.

PN1524

MR LANGMEAD: Well, the orders are expressed to apply to employees and that was the reason proffered for why it should be so. The union just is appalled that such allegations should be made, that such conduct should be inferred. There is absolutely no evidence to Mr Marshall's evidence is quite to the contrary and he has indicated that his views on it and he says that it is defamatory and unjustified and the like. And he devotes a paragraph in his affidavit to it and clearly that must be accepted and the inference from the bar table should be absolutely rejected. And we do take great exception to that sort of inference being asked to be drawn. Commissioner, - - -

PN1525

THE COMMISSIONER: Well, I do not intend to draw the inference so maybe we should walk away from that and ..... as to that.

PN1526

MR LANGMEAD: Thank you sir. There is - I will move then to the alternative proposition, which is that if you were to come to a conclusion that there was industrial action and as we say, that with respect is not a conclusion that is open to you, and we cannot see how it can be said in any way that the conduct of the union and its members, whatever that conduct might be, in relation to non attendance at workshops can be industrial action.

PN1527

And before I perhaps leave that, Commissioner, can I just say that Ms Salmon really seems to be asking you on behalf of the board, to make a determination about the justice or the merit or otherwise of the UFU's position in relation to the underlying disputes and to, as it were, jumped the process without hearing evidence about the justification other than the fact that they have gone to an EBIC meeting in August. But to jump, bypass the process and by bringing on a 127 application, purport to do the union over on its position in relation to the disputes it raises in relation to these workshops. Now that, as I said earlier, much earlier today, is something almost akin to an abuse of process because you are bringing these applications in order to accomplish a purpose other than that for which they are brought. Namely, to resolve a dispute between parties through a process other than the proper process which has been established - voluntarily by the parties, I hasten to add, Commissioner. They agreed to this process. There is a long history as to why they should agree to this process and why they did agree to this process, but it is an agreed process and the parties, with respect, should be held to that and not be able to attempt to bypass it by bringing what we say is spurious section 127 applications.

PN1528

And they have done a lot of this, with respect, Commissioner. They have brought quite a few of these things and my instructions are they have not won one. Because it is an inappropriate use of the Commission's process.

PN1529

THE COMMISSIONER: You understood what I said to you earlier that my focus is very much on this particular matter?

PN1530

MR LANGMEAD: Yes.

PN1531

THE COMMISSIONER: And not on the black letter aspects.

PN1532

MR LANGMEAD: Yes. Yes, and any way, Commissioner, we do say that it is an attempt to secure by the backdoor or the side door or whatever other - another door, the resolution of dispute without having a proper hearing and a proper process according to the resolution of those disputes by seeking to whack the union over the head with a 128 order. It is not a course which, with respect, is open to the MFB, it is not industrial action and they ought to be held to the agreement.

PN1533

Now Commissioner, if you were persuaded for some reason that it was industrial action, and we very much urge the alternative and really say - and that, with respect, is not a conclusion that is open to you on the law and the facts, but if it was, as a matter of discretion you should not issue 127 orders. Now Commissioner, the fact that it is a discretionary remedy has been identified by a number of Full Benches, in particular, I think it was the Coal and Allied Full Bench which set out a number of matters which might be taken into account in whether the Commission should exercise its discretion. One particular matter which they identified was the degree of illegitimacy of the action and they canvassed the situation where there is a statutory provision for enabling legitimate and lawful industrial action which is protected action. There is a common law position where all other industrial action is unlawful and within those two parameters there might be degrees of what have been said, if I could be put it this way, degrees of wickedness in taking the action.

PN1534

In this matter, the union has an honest belief, a belief based on legal advice that it is acting entirely properly and in accordance with the agreement. Namely, that the status quo applies and there can be no workshops until such time as those disputes are resolved. Now, if the Commission was to decide that they were wrong about that, it would not be, in our submission, a matter for the issue of 127 orders because the union is not here deliberately taking industrial action which it knows to be unlawful. It does not believe it has taken any industrial action. It believes it is acting entirely in accordance with the agreement and if it were to be told otherwise, then it would obviously need to seriously canvass its options in relation to that. But you heard the evidence of Mr Marshall, that the union has never placed bans in relation to matters that have been progressing through the grievance procedure. And it is the union's submission that it has not intended to take unlawful industrial action in this case and does not propose to take unlawful industrial action in the future.

PN1535

Now, if the reason it intends to conduct itself was said to be erroneous, then one would expect the union would maintain its intention not to take unlawful industrial action and that therefore, as a matter of discretion, there would be no need for orders but merely an indicative decision of the Commission about whether or not it thought the action was in fact industrial action. Commissioner, I need to say repetitively, this is very much something we put in the alternative, because we say we really cannot see how it can be said to be industrial action.

PN1536

THE COMMISSIONER: Yes, I understand that fully.

PN1537

MR LANGMEAD: In relation to the supposed public safety reasons, now, Mr Swain leapt upon Ms Salmon's leading question when he was giving evidence in the first instance, and volunteered that there were - he agreed with her statement that there were public safety issues. And I think the best he could identify was that the media perceives incidents differently. That is perhaps belittling the statement a little but it was certainly an element in his response. In my submission, his response today did not take it any further forward with any precision in which would cause the Commission to be motivated to exercise its discretion to issues orders if it found that industrial action had taken place.

PN1538

THE COMMISSIONER: Are you saying that the union's position that there is no real public safety issue raised by - - -

PN1539

MR LANGMEAD: We do say that, Commissioner, and we say that that is Mr Carlson's clear evidence and it was not contested, his evidence has not been contested other than by Mr Swain when it was put to him. And so you have therefore, the conflicting evidence of Mr Carlson and Mr Swain and as I say to you, in my submission, Mr Swain's response was not sufficient in precision to identify that which it was - the Commission could be clearly able to conclude that there was a public safety issue which would warrant the Commission making orders were it not otherwise motivated to do so. As I say, it is another discretionary factor, it could probably be in a sort of cascading effect that if you decided against us that there is industrial action, then we get to the discretionary factors, that the most important discretionary factor in our submission would be the fact that the union does not believe it is taking industrial action. If it is told otherwise then one presumably might come to an expectation about its future conduct, which would be different from that which is alleged it is going to be.

PN1540

But, then you would look at whether there was any public interest considerations. And we say, with respect, that there are none sufficiently identified that would motivated the Commission to nevertheless exercise its discretion and say, well, yes we will give those orders.

PN1541

The Commission has already said the Commission will not be influenced in its discretion as to any alleged history of industrial disputation and I think the Commission was including in that, action. Can I just say very briefly, and it is in our written submission, that disputation is not industrial, does not equate with industrial action. The Commission is well familiar with the principles involved in that because it is what paper disputes are all about. The industrial action which takes place afterwards is usually but a manifestation of the underlying industrial dispute. And we have addressed that in the written submissions.

PN1542

I have dealt with the decision of Senior Deputy President Drake previously, and have done so also in our written submissions.

PN1543

In relation to the proposed orders, again, we have made submissions about those in the written submissions and we rely on those. The orders do not identify and I do not go to - no sorry, I withdraw that. It goes go to all employees of the MFB who are eligible to be members of the UFU. Now that is very vague and imprecise.

PN1544

THE COMMISSIONER: Well apart from anything else the evidence before me is that I think 98.5 per cent of the employees are members of the union?

PN1545

MR LANGMEAD: Yes. Which is not 100 per cent though.

PN1546

THE COMMISSIONER: No. But it is close to 100 per cent.

PN1547

MR LANGMEAD: But nevertheless, sir, that order would go, as currently expressed, would go to persons who were not members of the union.

PN1548

THE COMMISSIONER: Yes.

PN1549

MR LANGMEAD: And it is only - the only evidence you have about anybody doing anything, which could - engage in any conduct which could possibly be described or characterised as industrial action, are senior station officers - - -

PN1550

THE COMMISSIONER: Yes. No, Mr Langmead, I make clear to you as I make clear to Ms Salmon, I have a great concern when people are, if you like, not union officials but simply employees, that they be properly aware of proceedings in the Commission and if they are to be made directly and personally the subject of an order, then I do have a view that they ought to be personally served with notice of proceedings. And to be aware of the order which is sought against them.

PN1551

MR LANGMEAD: Yes.

PN1552

THE COMMISSIONER: So I am asking you to respond and Ms Salmon to respond.

PN1553

MR LANGMEAD: We, with respect, would have to endorse that approach, Commissioner. That if the MFB wants people to be placed in the situation where they are going to be potentially exposed to court actions for injunctions, possibly other remedies, they ought to be made aware that those orders are being sought. And they ought to be made aware that it applies to them.

PN1554

THE COMMISSIONER: Yes.

PN1555

MR LANGMEAD: And Commissioner, I have made the general observations in the written submissions about the other shortcomings of the order. Now, I do have difficulty in telling the MFB how it should orders which are going to be valid and have binding effect and I do not proposed to, and nor would my client permit me, to provide that advice to the MFB. So I do not want to take those submissions' view on that which I have recorded.

PN1556

Commissioner, I do not wish to make any further submission in relation to the merits of the matter. I wanted to remind the Commission, with respect, that our position in relation to the bias applications are that there is a tension between the evidentiary positions which you will need to resolve and that has the difficulties and remains the difficulties that we have urged upon the Commission.

PN1557

THE COMMISSIONER: Those are your submissions?

PN1558

MR LANGMEAD: And that goes to the merits as well, Commissioner, that in assessing the evidence of those proponents who have also given evidence on the merits, that will necessarily be our submission tainted by, to use that word, by the fact that the Commission will have to resolve issues of tension between the evidence. So I just do remind the Commission that that is our position.

PN1559

THE COMMISSIONER: Yes.

PN1560

MR LANGMEAD: If the Commission pleases, those are our submissions.

PN1561

THE COMMISSIONER: Yes, thank you Mr Langmead. Yes Ms Salmon.

PN1562

MS SALMON: Thank you, Commissioner. I only have very few things to say. I wish to point out that, as Mr Langmead said, that there ought to be a preference for Mr Marshall's evidence as he presented it today. I mention that in fact that Mr Marshall's evidence as he gave today in the witness box in fact conflicts with paragraph 9 of his statement and therefore preference ought not be afforded to that evidence, because there is in fact evidentiary conflict.

PN1563

The point I would like to stress in finality of all of this is the public safety matter. In the last two weeks in Melbourne we have had four major incidents which the MFB has been involved in. We had a chemical scare at - - -

PN1564

MR LANGMEAD: Commissioner, I object to this. This is a - - -

PN1565

THE COMMISSIONER: Yes.

PN1566

MS SALMON: Thank you.

PN1567

THE COMMISSIONER: Do not go into anything which has not already been the subject of evidence. If you talked about the airport incident - - -

PN1568

MS SALMON: Commissioner, I will just - - -

PN1569

THE COMMISSIONER: Mr Langmead, if it is confined to the airport evidence, are you comfortable about that?

PN1570

MR LANGMEAD: As long as the submissions are based on the evidence.

PN1571

THE COMMISSIONER: Yes sure.

PN1572

MR LANGMEAD: That has been put in relation to that.

PN1573

MS SALMON: The submission is based on the evidence. The point that I wish to make is that Commander Swain made it very clear that the impact of this incident management workshop would only improve and enhance the performance of those individuals who took part in that particular incident, and future incidents would also be improved upon. And that is the point I wish to make. May it please the Commission.

PN1574

THE COMMISSIONER: Yes, thank you very much. I reserve my decision in this matter and I now adjourn.

<ADJOURNED INDEFINITELY [5.38PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A9 MFESB RESPONSE PN690
EXHIBIT #A10 EBIC ISSUES 2004 AND 2005 PN691
EXHIBIT #A11 STATEMENT OF P. HOLMES PN697
EXHIBIT #A12 SECOND STATEMENT P. SWAIN PN697
GARETH GRAINGER, SWORN PN784
THE WITNESS WITHDREW PN801
EXHIBIT #A13 RESPONSE TO SUBMISSIONS PN856
EXHIBIT #A10 SECOND STATEMENT OF P. SWAIN PN910
EXHIBIT #A11 SUBMISSION ON APPREHENSION OF BIAS AND SECTION 105 PN910
PAUL LESLIE SWAIN, RECALLED ON FORMER OATH PN919
CROSS-EXAMINATION BY MR LANGMEAD PN921
THE WITNESS WITHDREW PN980
PAUL LESLIE SWAIN, RECALLED ON FORMER OATH PN982
CROSS-EXAMINATION BY MR LANGMEAD, CONTINUING PN982
RE-EXAMINATION BY MS SALMON PN1062
FURTHER CROSS-EXAMINATION BY MR LANGMEAD PN1118
THE WITNESS WITHDREW PN1220
PETER JAMES MARSHALL, SWORN PN1234
EXAMINATION-IN-CHIEF BY MR LANGMEAD PN1234
CROSS-EXAMINATION BY MS SALMON PN1292
RE-EXAMINATION BY MR LANGMEAD PN1382
THE WITNESS WITHDREW PN1407