RE2004/1223, Transcript of Proceedings [2005] AIRCTrans 698 (21 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10837

DEPUTY INDUSTRIAL REGISTRAR JENKINS

RE2004/1223

s.285A(3) appln for revocation of permit

P&O Ports Limited
and
Maritime Union of Australia, The
(RE2004/1223)

SYDNEY

WEDNESDAY, 09 MARCH 2005

Continued from 25/11/2004

PN1

MR C BARTON: I appear on behalf of the company, the applicant with
MS SHARP, solicitor.

PN2

MR B DOCKING: I appear on behalf of MR WOOD, the respondent with
MR GIDDINS from the MUA.

PN3

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Barton?

PN4

MR BARTON: Registrar, the matter is listed today for submissions. I think on the last occasion there were directions for the parties to file submissions, which has been done. For the applicant there were submissions - sorry I do not have a sealed copy, Registrar.

PN5

THE DEPUTY INDUSTRIAL REGISTRAR: 14 December.

PN6

MR BARTON: Yes, if you have those, 40 odd pages, I think, 45 pages and there were also submissions in reply to the submissions filed on behalf of the respondent which were filed in the Commission on 12 March and that is a document of 14 pages.

PN7

MR DOCKING: That's correct.

PN8

MR BARTON: Sorry, I should have had copies of those documents, Registrar. In terms of today, I am assuming that either you have or you will have the opportunity to read through those submissions and I don't intend to read them or take you to them in detail, but simply to emphasise some points in those submissions and just explain the structure of those submissions if that is an appropriate course.

PN9

THE DEPUTY INDUSTRIAL REGISTRAR: I am happy for you to proceed on that basis, Mr Barton.

PN10

MR BARTON: Thank you, Registrar. If I can take you to the document filed on 14 December, the main submissions filed on behalf of the applicant. In the first section, which is headed Introduction, in paragraphs 1 through to 5, Registrar, we deal with the nature of these proceedings and, as you would be aware, it is an application under 285A(3) and essentially it empowers the Registrar, to revoke the permit to satisfy that a person to whom a permit was issued in exercising powers under those provisions, has either intentionally hindered or obstructed the employer or employee or otherwise acted in an improper manner. It's the applicant's case, of course, Registrar, that on numerous occasions the respondent, Mr Wood, did exactly that.

PN11

If I could perhaps just emphasise in paragraphs 4 and 5, there's a submission that has or - will be put to you on behalf of the respondent, Registrar, that there should be a presumption in favour of a permit holder. In response to that what we say is that although the debate is around a right of entry, Mr Wood of course, as a union official does not have via the statutory provision, a right to enter the premises of P&O Ports. The right of entry, properly construed, involves a substantial interference with the rights of employers. What a permit holder in fact has or is entrusted with, is a public duty. It is a right to enter premises in which there is a significant public interest in that right of entry being exercised in a proper manner and for a proper purpose. It is not a protection of a right perhaps in the same sense, for instance, as an unfair dismissal right conferred on employees. In that circumstance it could arguably be asserted that all employees have the right to protection from arbitrary or capricious dismissal from employment, but these proceedings are not about protecting a right that Mr Wood has as a given right as an official. It is given under the legislation and with that privilege comes duties and responsibilities in the public interest and we say that Mr Wood has failed to have proper regard to the duties and responsibilities entailed with that right of entry and we think that is an important point when construing the evidence that, bear in mind, the nature of the right that the legislation confers on union officials.

PN12

In section 2 paragraph 6 and 7, Registrar, we refer to correspondence that was exchanged between P&O Ports and the MUA and in fact Mr Wood and it related to a written undertaking and, Registrar, you may recall the evidence regarding that letter or the reason that letter was sent were concerns that P&O Ports had, about the constructive relationship that it had established with the MUA being jeopardised by conduct to Mr Wood in breach of his obligations and that was the context in which that undertaking was sought and the undertaking was given.

In part 3 of the submissions, Registrar, paragraphs 8, 9 and 10 we refer to some of the authorities that deal with what is involved in exercising power under this division of the legislation and again, Registrar, you will be aware that a submission either has been put or will be put to you that in a number of the instances of Mr Wood's conduct, it will be asserted that Mr Wood was not in fact exercising powers under the relevant provisions of the legislation.

Registrar, we provided with, I think, a copy of a bundle of authorities and if I could just take you to tab 5 of that bundle, a decision of Victorian Association of Forest Industries. Do you have that decision, Registrar, paragraph 29. I just briefly wanted to take you to a reference in that decision and probably, more appropriately, Registrar, paragraph 26. This was in the context of the 285B power of investigating suspected breaches of the Act and in paragraph 27 there is a reference there to an official discharging of function akin to that of a court officer, that is a public official, and in paragraph 28 that:

A statutory power can only be exercised for the purposes for which it is conferred, that the exercise of a statutory power for some other purpose renders the exercise of power invalid

PN13

And is in reference to a High Court decision where it talks about abuse of power in the administrative law context.

In paragraph 29 there is a reference to a leading decision of the High Court in that area involving a local council decision and, if I could just take you over the page in that decision to this reference. It is at the top of that page, Registrar, in Westminster Corporation and London and North Western Railway, Lord McNaghten said:

It is well settled that a public body invested with statutory powers such as those conferred upon a corporation ...(reads)... it must act reasonably.

The relevance here, Registrar, is that Mr Wood had a duty of care. Whenever he exercised or purported to exercise the powers conferred on him he had a duty, a public duty of care to ensure that power and that right was exercised properly and we say that the evidence shows that Mr Wood had little or any regard to that duty of care.

In paragraph 10 we refer to a decision in Daniels, Patty and Maher and, Registrar, I will not take you to the decision itself which can be found in tab 3, but perhaps just to correct a reference. In paragraph 10, Registrar, we refer to print S4571. Paragraphs 41 and 42 are actually a reference to print 900753 and I think that is the copy that is actually in your bundle or at least hopefully it is, Registrar.

THE DEPUTY INDUSTRIAL REGISTRAR: It is actually the other print that is in this bundle, but I am familiar with both those cases and it will not be a difficulty.

MR BARTON: Thanks, Registrar. The relevant part we wanted to take you to anyway is set out in italics in our submissions and again the emphasis throughout, Registrar, talks about the significant public interest in the subject matter of these proceedings. It talks a public right and a duty. It talks about an official exercising of due diligence, reasonable stability, avoiding unnecessary obstruction.

In our submissions, Registrar, we refer to the fact that Mr Wood conceded that those in fact were appropriate restrictions on his activities. Also, I note this is over the page on our submissions, Registrar, part of paragraph 10, Munro J made reference to what he said, he said:

It's yet to be seen what may be said to justify a union representative indulging in alleged conduct that may leave him open to the accusation he's acting like a union goon, or set up a fracas or commotion by barking like a dog.

Or whatever, but whatever may be said very little justification for such conduct could be expected to apply to an agent exercising a public power and duty under the act. Munro J then went on to compare that, for instance, if a tax official behaved in the same way as the union official in that case.

Registrar, that has some significance to a proposition that was put to you and I think some of the witnesses were questioned along the lines that the waterfront is a robust workplace, that swearing and similar type of language is not unusual. I'll come back to this later on but there is a point to be made that it's not enough to hide behind a lame excuse that the waterfront is a robust workplace because regardless of how Mr Wood may behave when he's talking to his members or when he's talking in the union rooms, when he's acting as a union official a higher standard of conduct applies. The standard that might ordinarily apply on a waterfront doesn't apply to him when he's conducting himself as a union official.

Registrar, then in part 4 of our submissions at paragraph 11 through to 13 we deal with this issue about the purported exercise of power. I won't take you to those decisions, we've referenced them in these submissions, Morris Adderton, which was referred to in the Australian Postal Corporation v Doyle case, and various other authorities. The point that is made there is that if a union official were to avoid liability for his conduct by the simple assertion that the technical requirements of the legislation had not been complied with and that a right of entry had not been exercised strictly in conformity with the statutory pre-requisite then the union official could not be brought to account for improper conduct or for conduct that constituted hindering and obstructing an employer.

What the authorities say is that its purported exercise of power gives the registrar power to revoke a permit. These authorities also make the point that a permit holder could be on premises for a multiplicity of reasons and that has particular relevance in this case, Registrar, by virtue of a number of these incidents occurring on the wharf at which TT line operated at Darling Harbour. It has been put to you and will be put to you that Mr Wood was exercising a right of entry in relation to TT line operations. What we say is, whether or not that's the case, the moment that Mr Wood took it upon himself to discuss P&O matters with employees of P&O then he was exercising or purporting to exercise a right of entry in relation to P&O.

There is no exclusivity about one right of entry in relation to TT line operations and that principle or that proposition is supported by authorities including CSR Limited which we've referred to in paragraph 12. In section 5 of the submissions, which is paragraphs 14 to 16, we deal numerically with the question of what is meant by intentionally hindering or obstructing and what we say about that is that the words aren't ambiguous, they're given their ordinary meaning. In paragraph 16 what we say is:

An action that has that effect must be done on purpose, usually with some degree of premeditation or...(reads)... would be likely to hinder or obstruct.

When you have regard to the various incidents that have been addressed in the evidence, the meeting that was held on 29 August, we say the conduct of Mr Wood could clearly reasonably have been foreseen that his conduct would obstruct that meeting and similar observations can be made about the meeting on 2 February. In relation to the incidents at the TT line operations on 13 January, 30 January and 23 March, the same conclusion can be drawn. In each case there was conduct which could reasonably be foreseen would obstruct the various activities taking place.

The most obvious example, Registrar, of course is the incident on 30 January in relation to the calling of the marks where Mr Wood's conduct in confronting Mr Gunther, whilst Mr Gunther was in the process of calling the marks, couldn't reasonably be construed in any other way as intentionally hindering or obstructing. In section 6 of the submissions, Registrar, there is similar - this is paragraph 17 and 18 - similar argument put in relation to the meaning of the words acting in an improper manner. In relation to both of those provisions we say there's no basis for reading down the plain words of the section.

In section 7, Registrar, we deal with the point about acting beyond the scope of the power. In paragraph 21 we set out a reference from the Victorian Association of Forest Industries case which you will find at tab 5 of the bundle. Again, that discussion, Registrar, was in the context of 285B but it's worthwhile just emphasising the points that were made in that decision talking about the power. This is the italicised part I'm taking you to on page 5 of our submissions, Registrar, that:

The right of entry is a substantial interference with the right that an employer would otherwise have to exclude a union official.

In B:

But whether a suspicion is in fact held and whether the power is in truth being exercised for only the purposes specified in the Act is typically a matter peculiarly within the knowledge of the permit holder.

PN14

Then in D:

PN15

A substantial public trust is reposed in union officials.

PN16

It then goes on to conclude:

It follows from those matters and the serious consequences that can flow for an employer who refuses entry that an abuse of power is a serious matter and the Commission should be astute to pursue any suggestion of an abuse of power.

PN17

In section 8(1) which is at paragraphs 22 through to 29 we summarised the applicant's evidence or the witnesses called for the applicant. The general submission we would make about the applicant's witnesses is that they were all credible witnesses, that their evidence was invariably supported by contemporaneous filenotes and communications and that the substance of their evidence was not undermined during cross-examination.

PN18

In contrast, in section 8(2) we refer to the evidence of the respondent's witnesses. That's dealt with at paragraphs 30 through to paragraph 36. Again I won't take you in detail to those submissions, Registrar. In due course I'm sure you'll read them, but if I could just take you to paragraph 32B. What we're referring to there is an attempt by Mr Wood in his evidence to suggest that when he made comments about the employee that had committed suicide, that he was directing his comments at the company rather than Mr Riley personally. Again, I will come back to this in a moment, but throughout the evidence there is a denial by Mr Wood of any wrongdoing. It is relevant to a discretionary consideration.

PN19

Mr Wood was not prepared, at any time, to concede any wrongdoing on his part. He only reluctantly conceded that he might have sworn at Mr Davis. He blames everybody but himself, for the events that occurred. He doesn't accept responsibility for any of the events that occurred and he shows no contrition and that was a consistent theme throughout his evidence, an unwillingness to accept that he may even have been at fault. Not that he even was at fault. A good example of that, Registrar, is the suggestion in relation to the incident on 23 March that the bus contained old people and young children. Evidence that was contradicted by three witnesses to P&O, is simply an attempt to justify his unacceptable behaviour.

PN20

In relation to other witnesses that were called in support of Mr Woods, a number of observations can be made. We deal with this at paragraphs 33 through to 36 of this submission, Registrar. Mr Lee had never worked for P&O Ports and had no direct knowledge of the operations of that company. Mr King gave evidence that was evasive and selective and you may recall that he claimed to have made notes of a meeting and when pressed to produce them, claimed to have thrown them away. Mr Daly had not worked at Darling Harbour and although he gave some evidence of the practice at Port Botany regarding the driving of a company bus, he didn't know what the practice was at Darling Harbour.

PN21

The Commission can hardly be overwhelmed by what little support there was given for the views expressed by Mr King and Mr Daly. For example, Registrar, there were no MUA officials giving evidence to support Mr Woods's view of either conduct on the waterfront. Mr Crumlin wasn't here supporting him, nor were any of his other MUA officials. There was also no corroboration of Mr Woods's account of a lot of these events, and for example, in relation to the incident that occurred with Mr King in August, there was another delegate who attended that meeting. He wasn't called to give evidence.

PN22

At the EA meeting that took place in December, Mr Smith, who is another union MUA official, was present at that meeting, but he wasn't called to give evidence. The incident on 13 January involving the security guard - this was the safety .vest. incident, he wasn't called to give evidence. In relation to the calling of the marks it was suggested that Adsteam employees had expressed concerns about safety. None of them were called to give evidence. In relation to the incident on 2 February, Mr Harland, who was the employee involved in that first meeting, wasn't called to give evidence.

PN23

In the incident on 23 March, this was the bus incident, no T T Line employee was called, nor was Mr Falconer, who is the stevedoring employee of P&O Ports who was - there is evidence that he was abused by Mr Wood. In relation to the course of conduct after 1 April, the MUA legal officer wasn't called, nor were any Queensland delegates called to express their views about the Queensland practice. All of these people are conspicuous by their absence in these proceedings.

PN24

At section 8.3, Registrar, paragraphs 37 through to 49, we deal with again some background and the undertakings provided by Mr Wood. There's two aspects of the significance of the correspondence on 1 July, when Mr Wood first became a union official. The first is, that he was on notice of what was expected of him and that notice wasn't just given by the company, but it was also given by Mr Giddins on behalf of the MUA, and Registrar, there was evidence and in fact the respondent conceded that he hadn't bothered to read the correspondence he received from MUA where Mr Giddins had gone out of his way to make sure that all union officials were aware of their responsibilities.

PN25

There is also this aspect that on 3 July, Mr Wood wrote to Mr Blood, who is the managing director of P&O, and he confirmed that he had been informed of the right of entry and that he'd made himself aware of right of entry provisions. But as became apparent in the cross-examination, that simply wasn't true because other than having a very vague and general understanding of his obligations, Mr Wood had not gone out of his way to find out in detail what those rights and obligations were. Again it will be put to you, Registrar, that "well Mr Wood is not a lawyer, he's not supposed to understand the minutiae of this". If that was an answer, then there would be very little point for 285A(3) because every union official would be able to say "I'm not a lawyer". When somebody is entrusted with a public duty, they have an obligation to inform themselves. If they don't understand, they have an obligation to find out and to better understand things that they are having difficulty with. But there was no evidence that Mr Wood made any diligent attempt to understand what his rights, obligations and duties were.

PN26

Again, if I can just take you to paragraphs 45 to 49 of our submissions, Registrar, because they also have some significance in a general sense to the evidence. In cross-examination Mr Wood acknowledged that he had to apply himself diligently, to conduct himself appropriately. He agreed with those propositions. And at paragraph 49, he was also under cross-examination, and conceded that:

PN27

Abusive or insulting language or conduct, swearing and the belittling of employees constituted improper conduct.

PN28

What we say is that the evidence shows that this is precisely what Mr Wood did on numerous occasions. He abused, swore at and belittled Mr Gunther on several occasions. He did the same thing to Mr Davis, he did the same thing to Mr Riley and he did the same thing to Emma Fensom.

This evidence is, Registrar, that that is how his conduct was perceived by those people. It doesn't really matter what Mr Wood meant or intended or how he thought his conduct should be received by those people. That's how they received it. That's how they perceived his conduct and they told him at the time. This wasn't a surprise at the hearing that these people were complaining about his conduct and it changed nothing. Mr Wood simply didn't care what affect his conduct had on those people. Further, in relation to paragraph 49, Registrar, you'll see there that the respondent conceded that the belittling of employees would be improper conduct. I'm pre-empting - I don't know if I'm pre-empting in the sense that it's been filed, but at paragraph 67 of the respondent's written submissions, at page 32, Registrar, and it's paragraph 67C(ii) - this is in the context of the meeting with Mr King and you said at the bottom of the page, Registrar, it says:

PN29

The second alternative is that even if the AIRC preferred the employer's factual version, it's not persuasive just because the employer's managers were embarrassed or belittled in front of staff.

PN30

That's inconsistent with the acknowledgement that Mr Wood made in evidence that belittling the staff constituted improper conduct. Registrar, again I won't go into detail in this because it's dealt with at various points in our submissions but just for confirmation, the idea that somehow the enterprise agreement conferred a separate and distinct right on Mr Wood, we have submitted again at various points in the submission that that's not the case, and that what the enterprise agreement did when you read clause 9 is that it's supplemented or perhaps more accurately, relaxed the restrictions in the legislation, that meant that Mr Wood did not have to give 24 hours notice and he did not have to confine his attendance at work places to meal breaks.

PN31

But it did not displace other obligations that arise under the legislation, such as the obligation not to obstruct or hinder an employer and the obligation to act improperly and in fact you can test the proposition in this way, that if an enterprise agreement term, expressed in that way, Registrar, could entitle a union official to act improperly or to hinder or obstruct that would a pretty remarkable outcome, and certainly one that it would pretty hard to draw the conclusion that an employer ever intended to give a union official the right to hinder or obstruct or to act improperly.

PN32

Registrar, section 8.4 of the submissions which are paragraphs 51 through to 66, we deal with this incident on the 29 August. Again I won't take you to the detail of it, because we've set it out in the submission, Registrar, but just to make this point that at that time of course Mr Wood, it was recognised under the enterprise agreement that Mr Wood did not need to give 24 hours notice and he did not need to limit his attendance to meal breaks. We've referred to in our submissions to the evidence that Mr Wood was there at the request of Mr King. Nevertheless we say that part of the rights that Mr Wood had to be there were his statutory right of entry. If I could just take you to paragraph 53(c) and you'll see there, there's reference to the evidence that Mr Riley gave, as respondent:

PN33

Pointing his finger in Mr Riley's face and shouting `the way you're conducting these meetings, you're forcing employees that a noose around their neck can do what one employee did recently'

PN34

And despite Mr Wood and I think Mr King denying that they thought that was offensive, I'd simply put it this way. What reasonable person would not find that gratuitous comment offensive, shocking and distressful and even more so, when it comes from a person exercising public duty. If I could just refer you, on page 16 of our submissions, Registrar, in subparagraph (k) of paragraph 53, there's reference there to the evidence that Mr Wood threatened to sue Mr Stone,
Mr Riley and Ms Fensom in a personal capacity. Now whether Mr Wood was serious about that or not, the fact is that on this occasion and there's evidence that this occurred on other occasions as well, Mr Wood's tactic was to make threats to people who either were or might be complaining about his conduct. It was repeatedly done to divert attention from his own conduct and when you read through the evidence of each of the incidents there is a pattern here, of Mr Wood going on the attack to deflect attention from his own conduct.

PN35

Paragraph 59 on page 17, Registrar, again I just wanted to refer to this idea that was, the idea that Mr Wood was referring to the company and not to Mr Riley when he made his comments about Mr Thomas, and a "noose around his neck". We set out in that paragraph, a number of examples of where Mr Wood in referring to Mr Riley referred to him as, the company. What we say is that this disingenuous attempt to try and diminish or dilute the effect of what he said to
Mr Riley, to suggest that he was referring in a broad sense to unidentified people who might represent the company, the evidence we say shows that Mr Wood was clearly referring to Mr Riley, that he meant to refer to Mr Riley and that he meant those comments to be hurtful to Mr Riley.

PN36

At paragraph 60 we just make the point that Mr Wood conceded that he didn't follow the dispute's procedure set out in a certified agreement and again this happens on a number of occasions, Registrar. A failure to follow the dispute's procedure when it's a union official, in itself, constitutes improper conduct and the concession made by the respondent is a concession of improper conduct.

Registrar, section 8.5 of the submissions which is paragraph 67 through to 73, we deal with the evidence and the relevance of a meeting that took place in December 2003, this is the enterprise agreement meeting and I make this point that this issue was raised by Mr Wood in his statement, and you may recall there was an allegation about Ms Fensom having sworn at him during that meeting. So the evidence came because it was raised by Mr Wood in his case and in any event that meeting has relevance to the subsequent events that occurred at TT Line because arising out of this was the dispute over the issue of who did the mooring at the
TT Line operations or P&O operations involving TT Line.

It colours the subsequent incidents that occurred on 13 January, 30 January and
23 March. It provides the context for those incidents and what occurred. And it's also relevant to note, Registrar, that there was again a threat of unlawful industrial action. Mr Wood denied that he had made that threat but subsequently there were Commission proceedings and a recommendation was issued that no unlawful industrial action take place. Those proceedings didn't occur in a vacuum and Senior Deputy President Duncan obviously had a concern that there was a risk of industrial action otherwise the recommendation wouldn't have been issued.

Registrar, in section 8.6 of the submissions in paragraph 74 through to 81, we deal with the incident that occurred on 13 January. This was the safety vest issue, and again, I won't take you through the detail, set out in our written submissions. At section 8.7, which is paragraphs 82 through to 98, Registrar, we deal with the incident that occurred on 30 January. Again this involved TT Line. This was the calling of the marks issue and again in paragraph 98 - sorry, I withdraw that. If I can just refer you to paragraph 88 of the submissions, in cross-examination, Registrar, the respondent, Mr Wood, conceded that the operation of calling of the marks should be carried out without any interference, that any such interference could have catastrophic consequences, but to distract a person calling the marks, including by talking to them would be irresponsible, that it was a dangerous thing for him to be talking to Mr Gunther while he was calling the marks and various other things.

What is also relevant about that whole incident, Registrar, is that Mr Wood chose to confront Mr Gunther without having made any inquiries as to whether certification was in fact required by Mr Gunther, whether Mr Gunther was trained. In fact he had not informed himself at all. It illustrates, we say, something again that is a constant theme throughout the evidence of a cavalier approach to the duties and responsibilities which Mr Wood was entrusted with. In paragraph 90, we say that the conclusion you can draw is that there was no justification or excuse for Mr Wood's conduct on 30 January. It was irresponsible and dangerous. The suggestion that he was acting in response to safety concerns expressed by employees of Adsteam is not supported by any other evidence and we say should not be accepted. The respondent's own conduct created a safety risk when none otherwise existed and it would be hard to see how that could be characterised in any other way other than improper conduct.

In connection as well, Registrar, with what we describe as Mr Wood's cavalier approach to his duties and responsibilities in paragraph 97, we referred in various transcript references to the fact that although in these proceedings Mr Wood tended to justify his conduct by reference to some obligations in relation to New South Wales Occupational Health and Safety Legislation, he hadn't taken any steps to check whether in fact he had a valid authorisation under New South Wales legislation. There was not any evidence that he did have. There was evidence that he had an authorisation when he previously held office as a union official and that that authorisation had not been returned to the New South Wales Industrial Relations Commission as required by the legislation. So again, another example of a casual, cavalier and dismissive approach to what is a serious duty and responsibility.

In section 8.8 of the submissions, Registrar, this is at paragraphs 99 through to 107, we deal with the incident that occurred on 2 February. Again it is important to bear in mind, Registrar, that at that point in time Mr Wood's EA, or the provisions under the EA requiring no need to give 24 hours' notice or limit time of attendance still applied to Mr Wood. Mr Wood could enter the premises at any time pursuant to that provision of the enterprise agreement and again we say on a proper construction of the evidence that he was not invited by P&O, but Mr Wood was there purporting to exercise his rights of entry, that he was there conducting his business as a union official.

At paragraph 100 subsection B or subparagraph (b) we refer to evidence of Mr Riley regarding comments that were made by Mr Wood to him on the telephone and we say those comments on any view reflect obstruction and improper conduct.

In section 8.9 of the submissions, Registrar, at paragraphs 108 through to 121, we deal with the incident that occurred on 27 March. This is the minibus incident and again at the top of page 31 this is evidence from Mr Gunther about how he perceived the respondent's conduct of being loud, aggressive, hostile and offensive and we make this point, Registrar. This is how Mr Wood's conduct is perceived by people on the receiving end of it. Mr Wood does not seem to turn his mind ever to the effect of his conduct has on other people or if he does he does not care. What also arose in that incident, Registrar, you may recall the evidence, was a highly personal remark made to Mr Davis or about Mr Davis and his father which was repeated in an MUA newsletter and note again the propensity of Mr Wood to resort to, gratuitous, personal insults. He did it in relation to Mr ..... and he does it again in relation to Mr Davis and we say in the context of an intention to humiliate, belittle, hurt and intimidate people We say that is not conduct fitting of a person holding a public office or exercising a public duty.

Registrar, also bear in mind the evidence that Mr Davis gave evidence which I do not think was contradicted that, Mr Davis had only met Mr Wood on one occasion and that being in a meeting where he was not an active participant. You put the comments in that context, Mr Wood, to use the colloquial expression, hardly knew Mr Davis from a bar of soap, yet he thinks it is appropriate to speak to him in those terms. What comes out of that incident, Registrar, and this is at subparagraph (i) on page 32- it is subparagraph (i) of 117- is that Mr Wood again attempted to complain to Mr Blood and Miss Fensom about Mr Davis's conduct.

Again it is this tactic of going on the attack and making threats to anyone that stands up to him. At paragraph 118 again make this point, loud complaints are made about the fact that Mr Davis swore at Mr Wood and plus a bit controversy about whether it was once or twice. We say the evidence should be accepted that it was once, but the relevance of it is that it was in response to provocation from Mr Wood. None of the incidents involving Mr Wood's conduct are in response to provocation from any conduct of P&O other than in Mr Wood's own mind. They weren't,, to the extent that any conduct of Mr Wood could be characterised as a response to the conduct of P&O, it could hardly be a proportional response. Again, just by illustration, Registrar, the issue about who was driving the minibus, that is a matter that could have been dealt with through appropriate disputes procedures, not with confrontation and what we say the evidence shows is hostile and aggressive confrontation at the workplace.

Again another factor that comes out of that incident which we say is important, Registrar, it's at the top of page 33, where Mr Wood conceded that he sometimes makes idle threats of industrial action with no intention of carrying them through. He denied that this was irresponsible but we say that's a clear admission of improper conduct. It is not open to a union official to make idle threats of industrial action.

Then one other point I'd like to make about this incident, Registrar, in
paragraph 119 you may recall there was some evidence from Mr Daly, and I've already referred to the fact that Mr Daly only worked at Port Botany and had no knowledge of what happened at Darling Harbour. But he did concede that the transportation of management personnel didn't fall within the job description of the designated driver at Port Botany and he also said that there've been occasions when he'd seen management driving a bus on the wharf and no objections were raised. Again, it may be stating something quite obvious, Registrar, but isn't that the sensible approach? No responsible person acting properly could object to that and Mr Daly certainly didn't suggest that it was objectionable.

At paragraph 121, just going back to this point about the personal insults directed at Mr Davis, again what came out in the evidence, Registrar, was Mr Wood's refusal to accept it was inappropriate to have made the remarks that he did about Mr Davis and his father. Again it demonstrates Mr Wood's unwillingness to accept any fault, to accept that he's ever at fault and he doesn't show any contrition for his behaviour or his conduct. He doesn't care and the inference that can be drawn is that this conduct is intended to be harassment and intimidation.

In section 8(10) of the submissions, Registrar, we deal with the conduct of the respondent after 1 April. This relates, as you will recall, to the giving of notices, purporting to give notice of an intention to enter premises. At paragraph 126, We refer to the concession made by Mr Wood that when he sent notices purportedly giving an intention to enter premises to investigate suspected breaches, pursuant to section 285(b), he didn't in fact suspect at the time that there were any breaches but he was sending the notices as a means of getting around the requirement of the Act that he must give 24 hours notice. That is clearly an improper purpose. It is clearly an admission of improper conduct. Bear in mind as well, Registrar, that this occurred after these proceedings had been initiated. We've referred to references in the VAFI v Doyle case where its been held its improper conduct for union officials to notify right of entry not intended within reasonable proximity.

PN37

In 8(11) we deal with this issue of the improper taking of photographs. That's section 128 and 129. Registrar, you'll recall that you found that the taking of those photographs was improper. Again, we say this demonstrates the cavalier attitude of Mr Wood to his duties and responsibilities. And in this case, including the Commission - because proceedings were underfoot, an application could have been made to the Commission, either for an inspection or perhaps for photographs to be arranged to be taken but no process was followed.

At section 8(12), Registrar, we deal with the question of the respondent's conduct towards T T Line and that's in paragraphs 131 through to 138. Again, just a couple of points I'd like to emphasise about these issues. Firstly, they were in effect raised by Mr Wood himself. Mr Wood put in his statement that the incident on 13 January was a one off. But he knew that complaints had been made to the union to Mr Dolman, about him being repeatedly asked to wear a safety vest and that on some occasions he'd responded to requests from T T Lines staff in abrupt and colourful language. Mr Wood didn't put that in his statement. Whether he disputes it or not, he didn't refer to that. These are issues, at the very least, that go to Mr Wood's credit and the discretionary factors that he had to consider.

There were really two elements to this. One concerned the safety vest, the other raises, and we deal with it in paragraph 137, Registrar, about Mr Wood saying that he was - this may have been in evidence in chief rather - it was in MUA 7 which was Mr Wood's statement. I think we'll have to correct the paragraph reference in that section. It's paragraph 91, I'm not quite sure how it came to be 4,823, Registrar, but I hope it wasn't that long. Again this was an issue that was raised by Mr Wood himself, Registrar, about an explanation for the motivation for his conduct. What Mr Guirino of T T Line wrote to the MUA on 1 November, was that operational disagreements had been ongoing and they always involved Mr Wood. So what was being presented to the Commission in the statement wasn't an accurate representation of Mr Wood's relationship with the T T Line.

At section 8(13), which is paragraphs 139 to 142, we deal with this issue about colourful language on the waterfront. I've already made earlier the point, Registrar, that when Mr Wood is acting in his public duty role, then a higher standard of conduct applies regardless of what might ordinarily happen on the waterfront. The second point to make about this use of colourful language, is that it's not the language itself that is the problem, it is the way in which that language is used and its intent. The evidence from the company's witnesses, is that this language was used in an aggressive manner, hostile manner, it was personalised and had all those attributes. This wasn't the jocular, colourful exchange that perhaps Mr King and Mr Lee were referring to.

In section 9 of the submission, Registrar, we refer to what we say is the application of the relevant principles to the evidence and we deal with that in terms of firstly, 9(1) conduct and exercising powers under the Act, and that is in paragraphs 143 through to 150. Just to emphasise one point, Registrar,
paragraph 149, again its this issue about multiplicity of purpose. What we say is that even if Mr Wood was lawfully on T T Line premises exercising whatever rights he may have had to be there, the moment that he took it upon himself to involve himself in P&O's operations by talking to Mr Gunther, by talking to Mr Davis, by talking to other P&O employees, at that point he was purporting to exercise his P&O right of entry.

Simply put, absent that right of entry he had no right to talk to any P&O employees at all while he was on those premises. He could only have been doing it in purported exercise of the right of entry.
In section 9.2, Registrar, we deal with the evidence of intentionally hindering obstructing, in paragraphs 151 and 152, in section 9.3, the evidence of improper conduct, paragraph 153 and 154, and in section 9.4 evidence of abuse of power in paragraphs 155 and 156. Then finally, Registrar, in section 10 which deals with the exercise of discretion, that's dealt with at paragraph s 157 to 164 of the submissions and I just want to emphasise the points that we're making there, Registrar.

Firstly, the evidence is that this conduct's occurred on numerous occasions. It isn't just a one off, that there is a complaint about a one off piece of conduct, secondly, that the conduct complained of is serious, it's not trivial. In
paragraph 162, Registrar, we deal with the issue of whether P&O Ports exonerated the respondent's breaches by continuing to allow him to enter the premises and there's reference to the metal trades award, where I think there was evidence of, if you like, acquiescence, almost a forgiveness of the breach, but after each incident here, P&O Ports took issue with the conduct of the respondent and formally complained about his conduct, either to the MUA or to him directly.

In paragraph 163 we deal with the question of whether the effects of revocation can be taken into account and there's authority from the Australian Postal Commission v Doyle at page 41, Registrar, where that type of evidence was considered to be irrelevant. but importantly, to the extent that it even might be relevant, it's in a sense analogous to, if you like the argument, that's often put up in drink driving cases, that some one says I need my licence for my job.

That is even more reason why a driver, or in this case a union official, should be diligent to ensure that they comply with their obligations, so as not to jeopardise the statutory licence that's been given to them. If anything it simply reinforces all of the points about the duty of care, the responsibility, et cetera.

In paragraph 165, just dealing briefly with the point about whether the effect of the revocation of the respondent's permit, there's no compelling evidence that the MUA's capacity to service its members' interests would be affected by revocation. To the extent that it's even relevant, all there are, are some expressions that Mr Wood does a good job and he ought to be permitted to continue it, but that's not enough. Registrar, I've made a number of other points in the submissions in reply and I may be able if necessary, I'll deal with them once Mr Docking has - Registrar, I just want to make some points about the, again, about discretion. Registrar, if you have a copy of the document that was filed on 4 March.

I'll just take you to paragraph 62 onwards, Registrar, the discretionary considerations. In paragraph 64, there's a submission that's been made that these proceedings in themselves have had a salutary effect on the respondent and what we say is that throughout the proceedings has shown no remorse or contrition for his conduct at all, consistently demonstrating, in fact, a lack of remorse, a lack of acceptance, that his conduct was inappropriate in any way, or that he was in any way to blame for any of the incidents that occurred. He habitually blames others, deliberately goes on the attack, and we've given some examples there of where that occurred and they're set out in sub paragraphs (a) to (d).

Then, in relation to paragraph 66 of those submissions which is dealing with a suggestion that Mr Wood is engaged in positive and constructive work, there are two relevant points to make about that, Registrar. Firstly P&O Ports hasn't applied to revoke the permits of any other MUA officials. There's no evidence or even a suggestion that the relationship between P&O and the MUA is riddled with difficulties and is otherwise tempestuous. The parties are not constantly here in the Commission arguing about industrial disputes. The relationship is positive and constructive, but that's between the company and the MUA generally. Annexure EJF5 to P&O4 is an email from Mr Blood that is 30 August and this was following you recall, the first incident when the improper suggestion that had put the noose around Mr Thomas' neck and Mr Blood made the point of saying that:

PN38

over the past three years a great deal had been achieved by establishing a greater level of trust between employees, the union, the site committee and the company

PN39

Of course, what Mr Blood was expressing is concern that that work could be undone by Mr Wood's conduct. The second point to make about this is that, if
Mr Wood was in fact making a positive and constructive contribution then why would P&O be making this application? It would be illogical because they would want him there assisting in that process. It's pretty obvious the reason this application is being made is because P&O does not believe that Mr Wood has a positive and constructive contribution to make.

Those are the points I wish to emphasise. We of course rely on witness submissions in full, Registrar.

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Mr Barton.
Mr Docking I thought that before calling you we might take a short adjournment.

MR DOCKING: Certainly, and might I raise this procedural point, the whole idea of exchanging submissions is, in my respectful submission, that Mr Barton deals now with his written reply to our submissions. I assume that's what he just did and he's not holding the cards up the sleeve, so to speak, to wait in his final reply, and I think the Commission is best assisted now by both sides squarely dealing with all issues raised. He just seemed to be putting a bit of a qualifier on what he might say in his oral reply, which in my submission, is just inappropriate, given there's been this fulsome exchange in writing in advance.

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Barton, do you have anything to say?

MR BARTON: I don't have anything further to say in terms of our reply submissions. I'd perhaps just simply reserve the right - it might depend on what Mr Docking has to say and if there's anything new, but if there isn't, then I don't think there'll be a need for me to rise again.

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Mr Barton.

MR DOCKING: If there's something orally, that's new, I wouldn't dispute that Mr Barton should reply.

THE DEPUTY INDUSTRIAL REGISTRAR: I think we are all of a mind on that issue then. We'll take an adjournment, just for 10 minutes.

<SHORT ADJOURNMENT [11.14AM]
<RESUMED [11.31AM]

PN40

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr Docking.

MR DOCKING: Thank you, Registrar. The means in which I proceed to address orally will involve primarily cross-referencing the applicant's written reply with the respondent's written submissions. In the process, to the extent I'm able to on my feet, I will also cross-reference to what was said orally today on behalf of the applicant. That may leave some areas to mop up at the end in terms of oral submissions.

The Commission will have at least two written submissions made on behalf of the respondent. The first is that written submission on objections to evidence and the principles that it is submitted should be applied that was provided at the beginning of the hearing. I confirm I adopt that written submission. I'm not going to go to it. I can get another copy provided if necessary, but I just wanted to confirm that I adopt it for the current submissions as well. The second and longer submission is the one that was filed and served on behalf of the respondent. Apparently that has a date of a filed stamp 15 February 2005 on its face.

Immediately I note that there's been no attempt, when one looks at while I'll call the primary submission for the respondent - there's been no attempt to deal with the argument in paragraphs 2 and 3. It's not only union officials who visit premises of an employer. All sorts of people visit them. It's just absurd and monstrous to suggest that the common law invitation, permission or authority given by an employer to somebody who visits the premises has somehow been abrogated by the Workplace Relations Act. It's just commonsense that even union officials most of the time, certainly many times, enter the premises of an employer and what is relied upon is that common law permission, authority or invitation. It just has nothing to do with the Workplace Relations Act, because in my submission most, or certainly at least many, employers simply do not require that statutory regime to be used. The evidence is indisputable that that is the case in the case of T T Line, Darling Harbour Wharf 8 and also, up until the April 2004 period, for P & O Ports for its separate sites.

Quite apart from that common law position, the respondent's primary submission refers to the enterprise agreement right. This was also subject to the applicant's reply submission at paragraph 3. I do want to go to a letter which is part of exhibit MUA7, being the statement of Mr Wood. It is a letter which appears as GRW1, a letter dated 1 April 2004 from Tim Blood, managing director, P & O Ports Australia and New Zealand, because there's a fundamental shift from what Mr Blood in parts of that letter properly and correctly conceded to be the position and what's the legal case mounted in this revocation application. By looking at GRW1, after the formal introductory parts, Mr Blood wrote:

PN41

We write to you in accordance with subclause 9.1.2.3 of the ...(reads)...in my email of Wednesday, 24 March 2004.

PN42

Further down in the letter it says:

PN43

We have made the decision to revoke Mr Wood's right ...(reads)...conduct which has included -

PN44

There is then listed some allegations which have now been the subject of evidence and indeed submissions before the Commission. On the unnumbered page 2 at the top it says, in writing:

PN45

Accordingly, Mr Wood no longer has a right of entry ...(reads)...all of the requirements of the Act.

PN46

The Registrar will be able to see that there's no equivocation in Mr Blood's letter. He clearly understood the correct position - I'm putting aside common law, which he didn't deal with - that the correct position in respect of the enterprise agreements is there was a right of entry separately under that agreement. In addition, quite separately, there was the right to enter P & O Ports' sites provided by the Workplace Relations Act.

PN47

It was that latter right which Tim Blood, managing director, P & O Ports Australia and New Zealand wrote to Mr Crumlin, the national secretary of the MUA, cc'd the letter to Mr Glen Wood and Mr Robert Coombes, saying it was the Workplace Relations Act right which had to be used in the future. As it turns out, even then P & O Ports didn't strictly require compliance with the Act because, as I've dealt with in the respondent's submissions, when Mr Wood attended things like the site committee Port Botany meetings he wasn't required to comply with the Workplace Relations Act right of entry and nor could he, given the meeting wasn't at any meal break time or the like.

PN48

There's just this attempt in this application to rewrite the objective facts and history, but the true position was always recognised in GRW1 as at 1 April 2004.

PN49

In terms of the applicant's reply submission in paragraph 3, it's just a nonsense to suggest that every time you enter the premises as a union official who has a right of entry you do it under the Workplace Relations Act. It would mean, for example, that there would be a breach of the Act, and I'll come to it - it even has civil penalties attached to breaches of this Act if you didn't comply with provisions or it was thought that you were hindering or obstructing, for example, by coming and having a meeting out of meal breaks. I mean, that's the effect of their construction. It's just an absurd construction.

PN50

I then want to deal with the applicant's reply, paragraph 4, and it's this issue about evidentiary burden dealt with in the respondent's primary submissions at paragraphs 10 through to 13. There seems to be a resistance to having Briginshaw v Briginshaw applied, and as I can best read paragraph 4 of the applicant's reply, it said, "Oh well, it has to be criminal conduct". Let's just go back and check what Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, is about. Just relying upon the headnote, what it was a petition for divorce on the ground of adultery and it came under the Victorian Marriage Act, 1928. Briginshaw v Briginshaw has never been limited to the correct standard of proof in civil cases where there are allegations of criminal misconduct. True it is that it does include such allegations, but it includes any relevant type of alleged misconduct that
Briginshaw v Briginshaw comes into place.

PN51

In support of that submission, and nothing has been said against this authority - it's set out in the respondent's submissions at par 10 - is New South Wales Bar Association v Kalaf, and I've provided some relevant references there. The Commission will be able to go to that authority and see how
Briginshaw v Briginshaw was applied by both Kirby P, as he then was, of the Court of Appeal, and Mahoney JA, as he then was. I should note for Kalaf, perhaps at lunch time I might have to ask to have the Commission's copy of that case handed down. When checking it last night I discovered that the pages seem to be out of order and a few pages missing, so on behalf of Mr Wood could I seek over lunch a copy of that and try to rectify the order those pages are in and to insert at least two pages from Kirby J's judgment. It was behind flag 2 in the respondent's cases. I apologise for that inconvenience.

PN52

This is where there does arise importantly, recognising the whole context of Division 11A entry and inspection of premises by organisations of the Workplace Relations Act. The context in considering the present application must include that section 285E provides in effect that if you intentionally hinder or obstruct any employer it's a civil penalty. If my recollection is right, under previous legislation the similar provision was in fact a criminal offence, but there was that change from making it instead of a criminal offence a civil penalty type provision. This distinction has long existed in Commonwealth legislation, for example in tax offences they're called civil offence provisions and not criminal penalties. What the applicant employer is alleging against Mr Wood in this case, by making allegations of intentionally hindering and obstructing the employer, is something that actually constitutes a civil penalty offence, and that's something that must be taken into account in looking at what the evidentiary burden constitutes for the employer to make out its allegations.

PN53

Although not dealt with in the applicant's reply, I note from paragraphs 14 through to 18 in the respondent's submission there's the heading "Employer general appellations, unfocussed submissions and puzzling evidence". I refer to that in my oral submissions today because there has been an emphasising by Mr Barton of a number of paragraphs in the applicant's primary submission which fall under this category. For example, he pointed out that the cross-examination of Mr Wood in their primary submissions, the applicant provides some references about, "Well, with this general appellation" - which is my description, borrowed from the Full Bench in Fisher v Telstra Corporation Ltd - "would that constitute improper conduct or an improper manner".

PN54

What is spectacularly missing is then moving from that general appellation to then going to anything of substance relied upon in the revocation application, or if you like, the specifics and saying to Mr Wood, "Well, that is an example, is it, of improper conduct or belittling which you would think is improper". It just never happened and the difficulty with that is picked up in the respondent's written submissions from paragraph 19 through to 25 - might I say very helpfully assisted by a most recent Full Bench Rheem Australia Pty Ltd PR954993 - but there have just been fundamental breaches of a rule of procedural fairness of Browne v Dunn in the way Mr Wood was cross-examined, and indeed the way witnesses like Mr Lee, who I think Mr Barton referred to today, was cross-examined. There just simply wasn't the proper testing of the mettle of Mr Wood as a respondent or those other witnesses. I've heard it called the "slap and run" cross-examination. You never actually engage the witness, or here even the respondent, to give them an opportunity to respond. I've detailed examples of exactly how that happened in Mr Wood's case.

PN55

I should note, then, paragraph 5 of the applicant's reply, and this is dealt with in paragraph 26 of the respondent's written submissions. I assume an application is being made by the applicant that the voir dire evidence should be in for all purposes and not limited to the voir dire. On behalf of Mr Wood I don't object to that occurring, but the process should be regularised in the ordinary way.

PN56

There's another procedural point I'll come back to - I think I definitely will go after lunch - and it's this accusation about Mr Wood failing to call people. I've already provided one reference in the respondent's submissions and it's out of Kalaf, which makes it clear, in my submission, and this is set out as part of page 4 at the end of paragraph 10, that it was up to the employer, the applicant, the allegation-maker, the one alleging misconduct, to call Messrs Blood, Crumlin, Coombes, Falconer, Hartland, Smith and Guirino. Added to that list today orally as a result of Mr Barton's submissions is the security guard involved in the vest incident in January 2004. It completely misunderstands the obligations on this type of applicant alleging misconduct, seeking revocation of a permit, to say that it was up to Mr Wood to call all or some of these people.

PN57

I'll provide another authority, because it seems to be reminiscent of a Jones v Dunkel point which directly deals with that issue. I just note for the moment, let's deal with someone like Mr Hartland, an employee involved in one of the failure to report meetings. What could be inferred here is that the employer thinks that the employees have such little faith and trust in the employer that therefore the employer would never call that employee. I mean, it's just staggering for an employer who comes along and says, even for Mr Hartland or Mr King, "We've done nothing wrong. We acted according to our own policy and we will not call our own employee when we make complaints that should lead to", according to the employer, "the revocation of a permit".

PN58

If I can then move to the applicant's reply, paragraph 6. I've in part dealt with this already by referring to Mr Blood's letter and the common law. In addition there's this constant reference to a purported use of the right of entry power. I just don't understand where this applies to any of these allegations for Mr Wood. I don't think it was even suggested to him in cross-examination that he was purporting to use his Workplace Relations Act right of entry power for any of these pre-1 April 2004 incidents. This isn't a case of Doyle, where the argument was that the union official was there as a trespasser and therefore not there under the Workplace Relations Act right of entry.

PN59

I then want to deal with the cases by just noting them. It requires it to be found Mr Wood did some of all of his acts in the exercise of his powers under Division 11A, and this is dealt with in the respondent's submissions from paragraph 34 through to 42. What's relied upon is the Full Bench authority, including in Ferguson and the other first instance decisions. It's said, for example, in the applicant's reply, the last sentence that in Willow Ware the permit holder was found to have entered the employer's premises at the invitation of the employer. If I pause there, that's the evidence pre-1 April 2004 for Mr Wood. He's squarely in Willow Ware territory in that sense. He entered with T T Line's permission and he entered other times the site specific, if I call them P & O sites with the same permission, authority or invitation.

PN60

I then go to the applicant's reply. Paragraphs 7 and 11 put in issue whether it has to be shown Mr Wood as a permit holder acted without legal authority or a lawful excuse. As I understand it there's an attempt in the applicant's reply, paragraph 11, to distinguish Curran, being a judgment of Gray J of the Federal Court. In the applicant's reply it just doesn't deal properly or at all with the extract from Curran, which the respondent's submissions set out, page 19, paragraph 46 and then it continues on to page 20. These words "hinder and obstruct" are not new words used in legislation. That much is reflected by the beginning of the extract from Curran, where Gray J said, and this is paragraph 46 of the respondent's submissions, page 19:

PN61

The words "hinder and obstruct" have often been used ...(reads)...These authorities -

PN62

And the Commission will then be able to read the balance of that paragraph and the quote from Schubert v Lee. There's then the underlined or emphasised part, which relevantly says in Curran:

PN63

Similarly with respect to the offence of hindering ...(reads)...regard the police officer as hindering.

PN64

The quote then continues, and on the top of the next page in the submissions, Gray J said:

PN65

Applying this approach to the statutory provisions applicable ...(reads)...as between an employer -

PN66

And the Commission will be able to read the balance. It's just a trite approach of construction, apart from it being embraced by Gray J, that one is permitted and should be guided by the approach to the construction of like statutory provisions on hinder and obstruct. Part of what has clearly emerged by reading Gray J's judgment is that - and I'll come to the mental element or mens rea separately - that there are two other, I submit, elements or in the alternative at the very least they'll be defences Mr Wood can rely upon, and they are that he acted with lawful excuse or legal authority, and the other is that what he did was reasonable in the circumstances. I'll come to this "honest and reasonable mistake of fact" argument, and there are some differing views in the High Court on whether you need both honest as well as reasonable, but I'm going to come to that shortly.

PN67

It is submitted that again it has to be kept in mind that the context of Division 11A as the civil penalty provision that of course the Commission is not going to construe the civil penalty intentionally hindering and obstructing any different to the revocation provision. It would just be an absurd statutory construction to suggest a different standard or test would be applied if this was in the Federal Court as a civil penalty as compared to before the Commission in deciding whether there should be a revocation. The authority of the New South Wales Court of Appeal in Keenan is simply just another example of one of the many offences that are about hindering or obstructing and it shows a very persuasive appellate court's approach to its proper meaning.

PN68

I should note that in response to the applicant's reply the primary submission is adhered to that one element it has to prove is that Mr Wood acted without a legal authority or lawful excuse. In the first alternative to that submission I put that at the very least Mr Wood is able to show as a relevant defence, which he's proven on the probabilities, that any act or omission of his was done in circumstances where he had such a legal authority or lawful excuse. In the second alternative I put that at the very least when you look at - even if you found against me on the primary and first submission, that it's an appropriate discretionary matter to look at what was the legal authority or lawful excuse, if any, that applied to each allegation. I put those two alternatives, but vigorously adhere to the primary submission.

PN69

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry Mr Docking, I'm loathe to interrupt oral submissions - - -

PN70

MR DOCKING: I'm happy if there are questions.

PN71

THE DEPUTY INDUSTRIAL REGISTRAR: I have a question. I'm just trying to clarify in my mind in relation to that primary submission. It seems to me at paragraph 7 of the applicant's submissions in reply the point that is being taken is that the legislative regime here does not require the employer to prove that the permit holder acted without legal authority or lawful excuse and in my mind that's distinguished from the respondent having available to them the possibility of arguing that they had a legal authority or lawful excuse, and yet it seems to me that's not the point you're taking or have I misunderstood the point you're taking?

PN72

MR DOCKING: No, I maintain the primary submission that the applicant's reply in paragraph 7 is wrong. The respondent's submissions at, for example, paragraph 43 is correct. P & O, the employer here, has to prove Mr Wood acted without legal authority or a lawful excuse. It is an element it must prove. However, if the Commission was against me on that primary submission I then put the two alternatives as matters for Mr Wood to prove on the probabilities, I have to accept. The first alternative is he does have that defence, if I can call it that, that he had a lawful excuse or legal authority to act in the way he did. The second alternative is at the very least if any of the allegations were found to be proven to the requisite standard it would go to, well, as a matter of discretion should the Commission rely upon that allegation, either alone or in combination of any other, to revoke. The power put in the second alternative and I submit the primary submissions, squarely backed by Justice Gray's analysis in Curran.

PN73

I then go to the applicant's reply. Both paragraphs 8 and 12, take issue that it has to prove that Mr Wood as a permit holder did the act of entering the premises intentionally under his Workplace Relations Act, right. It is said, for example, that on behalf of Mr Wood there has not been any legal authority pointed to. With great respect, that is wrong. I am troubled by the suggestion that I would need to go beyond two High Court authorities. One relevant reference is set out at paragraph 47 of the respondent's submissions High Court, Teh v The Queen (1985) 157CLR 523. Even more recently, the judgment of Gleeson CJ, and Kirby J, in Ostrowski v Palmer (2004) HCA30. I want to go to Teh's case in some detail and a copy of that was provided in the folder. At least the part A cases have been copied and I should note if there is any case that the Commission requires on behalf of Mr Wood be provided, that can be organised.

PN74

Teh's case, it is just short of 20 years ago since that was handed down. It is a well known authority. It is behind flag 9. I wanted to provide references to the majority judgment and in so doing, that will conveniently deal with a number of these arguments, including what does it mean when you put in the word "intentionally" and also this argument about having as a defence or something negativing, having the mens rea of intention, an honest belief or do you have a defence separately of honest reasonable mistake of fact.

PN75

If I can deal with four propositions that I say Teh supports and then I will cross reference the references. The first proposition I seek to extract from Teh is that use by parliament of the word "intentionally" applies to each essential factual ingredient and therefore would include both. Mr Wood has to have intended to enter premises under his Workplace Relations Act right of entry and he has to have intended to hinder or obstruct. Likewise, he would have to be found to have intended to act in an improper manner.

PN76

The second proposition I seek to extract from Teh's case is why, as a matter of statutory construction, intentionally or a mens rea requirement applies to not only hinder and obstructing, but also this second class of prescribed conduct, the improper manner class. As I understand the applicant's reply submissions, it disputes that there is any mental or mens rea element applicable for the improper manner.

PN77

The third point that I seek to extract from Teh's case, and this is where some of the majority judges are slightly different, is that given that the word "intentionally" is used in the provision this application turns on, it is enough for Mr Wood to have an honest belief, even if it is unreasonably based, to prevent intentionally hindering or obstructing or acting in an improper manner being made out.

The fourth contention from Teh's case, and this is really an alternative to that third contention, even taking the most conservative reading of the majority in Teh's case, Mr Wood is able to say that he had an honest and reasonable view of the facts. This is where it is submitted it is up to the employer in a revocation application to negative that belief or, as an alternative within this fourth heading, at the very least Mr Wood is able to raise it as an exculpatory defence that he had an honest and reasonable belief on the facts.

Can I then try to provide the references which make out each of those four contentions. Going to Teh's case, I start with the then Gibb CJ judgment and I should note that Mason J, as he then was, agreed with Gibbs CJ. The relevant principles can be found on this issue of, intention will apply to both the entry and hindering or obstructing or improper manner in Gibbs CJ, judgment at page 531 about point 3 and it can be seen there that there is this reference:

It can hardly be doubted that a person would not commit an offence against section 233(1)(d) if he did not intend to import either the narcotics themselves or the container in which they were found.

There is then a discussion which continues and it says, for example:

..... with no intention that they should be unloaded in Australia and that they are not in fact unloaded. They will not be imported in the ordinary sense of the term.

It is submitted the entry of Mr Wood is very much like bringing the container into Australia. You have to have intended to do that. Here he has to have intended to enter under his Workplace Relations Act right of entry.

There is also the reference to this first contention in Brennan J, judgment, as he then was, at page 565 and it is from about the third line where it says this:

However the definition of the criminal offence ordinarily comprehends only the prohibited act or omission (conduct) circumstances in which the act is done or the omission is made and in some instances the results of the act or omission.

These elements, conduct, circumstances and results are what Dickson CJ, in Valance v The Queen called the external elements necessary to form the crime:

When a statue creates and defines a defence only by reference to its external elements, a mental element is usually implied in the definition ...(reads)... unless the mental element is present.

The point made again is this supports that it is not only the intention applies to hindering and obstructing and an improper manner. It would also apply to the alleged conduct of entering under his Workplace Relations Act, right of entry permit.

Can I then provide the references to the second contention out of Teh, which was as a matter of statutory construction intentionally or a mens rea element must apply to improper manner and these involve issues of statutory construction which in part are moulded on the criminal law, but also are of general application, more so here when I emphasise again that hindering and obstructing in the same division of the Act is a civil penalty and if my recollection is right under previous legislation is used to be a criminal offence.

Curran's case, for example, Gray J talks about the matter being set down for sentence because a part of it was proven beyond reasonable doubt. Unfortunately, I meant to check the old act and I accept, I'm relying upon recollection, it's something I should have checked when this dichotomy between criminal offences and civil penalties was introduced has long been hindering in obstruction provisions in the current act or former acts.

In terms of these tenants of statutory construction it's dealt with by Gibbs CJ from page 528 to 531.5 that there will be a presumption that you have to prove a mens rea before you find Mr Wood committed a proscribed conduct. The same applies to Brennan J at page 565.9 to 567. Dawson J, the other judge in the majority 590.7 to 591, and Dawson J returns to this presumption or what I submit are tenants of statutory construction at page 594.8 and following.

I then go to the third contention out of Teh's case, this is made clear by page 534 being the judgment of Gibbs CJ, 534, picked up about point 3. It says:

It is of course clear that if guilty knowledge is an element of an offence an honest belief, even if unreasonably based, may negative the existence of the guilty knowledge and thus lead to an acquittal ...(reads)... reasonable but mistaken belief of the accused.

Registrar, that's why I've said as the third contention it's enough what Gibbs CJ with whom Mason J agreed that Mr Wood, in this case, given intentionally is clearly part of an element of an offence or a guilty knowledge, if he holds an honest belief, even if unreasonably based it negatives the existence of that guilty knowledge.

Under this third contention I then refer to what Dawson J said at page 592.2, it's the first full paragraph which reads:

Thus, at common law because intent is an ingredient of a crime that must be proved by the prosecution and a mistaken belief and facts which are inconsistent with ...(reads)... then the prosecution fails to prove its case.

So three of the High Court justices support that an honest belief is enough even if unreasonably based, this leads me to the fourth contention from Teh's case, which as I said is the more conservative approach, which in my submission Mr Wood satisfies and that is that the belief also has to be honest and based on reasonable grounds. Brennan J at page 582.3 has a summary of what was said to be the relevant principles, this was in the context of section 233(1)(d) and (c) of the Customs Act. That provision, unlike others, didn't use the word knowingly, for example as the other provision in the Customs Act, knowingly concerned. That's why there was this debate, well was there mens rea?

I immediately note as it says in one of the judgments that the penalties imposed under those provisions were at the top end of the calendar in criminal cases. I used to know this back to front but they include life imprisonment for a commercial quantity which is prescribed in the Customs Act and there's a lesser penalty if it's a trafficable quantity. But that's not a sufficient basis to distinguish the application of those principles because the principles I've referred to are basic principles of statutory construction, they apply to whether it's a criminal offence, an offence that only has a civil penalty attached or here when there's an application to revoke for alleged misconduct a right of entry permit. The Commission will see it is Brennan J in Teh's case, 582 does that summary in four points, describing them as general principles.

There is one other point that I do want to refer to in Brennan Js judgment and it deals with something that was submitted orally today on, I think it was at least two occasions by Mr Barton, it's really an impermissible blurring of what constitutes intentionally. There was references to reasonable foresight, for example, that's not the test. Reasonable foresight is incapable, as at law, of making out intentionally. Already provided in the part A list of the respondent is an extract from Kenny's Outlines of Criminal Law, as referred to by Roden J in Storey, this was behind flag 12 in the respondent's cases. To make it quite clear, what Mr Barton is referring to is recklessness, not intention or intentionally, and that's not what the Act says, and that's not what can be inferred for even the improper manner type of conduct. If I can just note it's Brennan Js judgment in Teh, page 568, about point 7 it says:

Where a mental state is applicable to results it may be either foresight of the possibility of their occurrence (if recklessness is an element) ...(reads)... if a specific intent is an element.

With great respect to the applicant, it's inviting the Commission to fall into the clearest and plainest error by making reference to foresight of the possibility of an occurrence because that's recklessness. It's not the mental state or guilty mind required under the Workplace Relations Act which is expressed for hindering and obstructing, it's intentionally, and in my submission for the references I've already made to Teh's case, also applies to improper manner.

If I can then leave Teh's case. I accept there's a matter of statutory construction which I raise on behalf of the respondent and I make reference, for example, to the applicant's reply at paragraph 15 and the respondent's submissions at pages 23 to 24, paragraph 56(c)(i). I do submit for improper manner that the proper approach to statutory construction limits what falls within improper manner to what I've set out in that part of the submissions. I accept that, I think it's Munro J in Daniels has suggested otherwise and Mr Barton has even read part of that quote today in his oral submissions. In my respectful submission, such an approach fails to apply proper tenants of statutory construction that I've set out on behalf of the respondent at paragraphs 58 and 59. 58 is a well known quote from Project Blue Sky and paragraph 59, in my submission, is an equally well known quote from Gray J in AFAPNS v Ansett Transport.

I strongly submit that the applicant is wrong to argue that Gray Js construction principle of construing the provision, this is improper manner with some degree of strictness, should not be applied. There's then a reference in paragraph 60 of the respondent's submissions as to how this reliance upon personal styles comes into play and that was conceded by Ms Fensom to the extent that she found Mr Wood someone who uses a loud voice, talks more loudly than some other people.

Registrar, I adopt the same submissions for both classes of prescribed conduct as to how the mens rea element applies, how lawful excuse and legal authority apply and how an honest belief, whether it be reasonably or unreasonably based also applies for improper manner. I then turn to the applicant's reply, paragraphs 20 and 21 which dealt with the respondent's submissions from paragraph 64. This is where it's suggested that - I think it was said again today - how cavalier Mr Wood has been and he didn't get to know what was in the relevant parts of the Workplace Relations Act. But it's again these general appellation, slap and run cross-examinations, which don't go to matters of substance or specifics.

Let's look at this case, what's actually relied upon to revoke Mr Wood's permit. It's allegations that don't involve 285B which is the provision about investigating suspected breaches of the Act. The submission I just make for the moment is the pre 1 April 2004 period, and I'll deal with post 1 April 2004 at the end of my submissions. There's been all these references about public duties but they just don't apply to any of these allegations pre 1 April 2004 made against Mr Wood. The Victorian Association of Forest Industries case Mr Barton referred to deals in paragraphs 26 and 27 expressly with when someone's using the power for the purpose of investigating a suspected breach of the act, an award, or order of the Commission, or a certified agreement. That just doesn't arise, that line of territory or argument pre 1 April 2004.

Let's just remind ourselves the sorts of powers that are then given to an entry permit holder, they're set out in 285B(2), 285B(3), it has the powers about looking at timesheets, paysheets, inspecting or viewing any work, material, machinery and the like. In terms of the - if I use the employer's or applicant's expression, purported right of entries, it's disputed, that's just a wrong construction, but even if for the purpose of the argument accepting it, nowhere have they pointed out that Mr Wood didn't understand that he should go under the Workplace Relations Act right of entry during meal breaks, in other words not during working hours, or that he should give 24 hours' notice. Where's this deficiency in his knowledge of the Workplace Relations Act right of entry? More importantly, pre 1 April 2004 when Mr Blood, on behalf of P&O revoked his enterprise agreement right of entry, where's the deficiency pointed to about that enterprise agreement right of entry? The answer is there is none.

Let's compare Mr Wood to Ms Brady here. This was somebody who gave evidence and was cross-examined and part of that witness's evidence is, and it's at PN 1656 to 1658, she's a person who has a practising certificate as a solicitor with the New South Wales Supreme Court, held such a certificate for two and a half years, also says she's experienced in, I paraphrase it, industrial relations matters. That's part of the background. This is the problems even a lawyer has, it seems, in understanding the Workplace Relations Act. If one goes to the transcript at PN 1702. Question:

In other words he entered, you know, by agreement, invitation permissions of the employer?---He entered on the basis that we waive the requirement to give 24 hours' notice.

PN 1703:

What requirement did he have to give of 24 hours' notice to attend the site committee meeting which has nothing to do with meal breaks or ...(reads)... to attend the site and we waived it.

PN 1704:

Where is it found for Mr Wood, as a union official, to attend a site committee meeting, where is the requirement ...(reads)...?---I'm not certain.

PN 1705:

It doesn't exist does it?---Well, that's your submission.

PN 1706:

No, you've got it in your statement. Can you please point to me where is the requirement ...(reads)...?---I can't point it out to you.

The Commission can see this is one of their human resources or industrial relations persons they hold out as having some expertise, a practising solicitor of two and a half years, comes up with this notion it's not found in the Workplace Relations Act that Mr Wood had to give 24 hours' notice to attend the site to go to a site committee meeting when that was at the invitation of an employer, how dare they criticise Mr Wood when that's what their own witness says. When they criticise him without drawing the Commission to any specific deficiency in his knowledge of the Workplace Relations Act right of entry about meal breaks,
24 hours' notice or what he was using on occasions before 1 April 2004 the enterprise agreement right of entry.

The cross-examination of Ms Brady that then followed included, and it's been dealt with in the respondent's written submissions, that demonstrably unreliable - I don't need to go so far as false - but the Commission could go so far, suggestion that he must have got in at 8 o'clock because it may have been a scheduled meal break. Well, there was the cross-examination of Mr Riley at the end, I say at the end, it's in our written submissions at the end that confirmed that of course 8 o'clock was never a meal break and that he'd even talked to Ms Brady about this, about the circumstances post 1 April 2004 that Mr Wood would have to get permission, this is when he's going into Port Botany, on every occasion. So again, how dare this applicant, the employer, make that type of criticism when in many respects one of their senior people has a fundamental misunderstanding of the right of entry position that existed from 1 April 2004 onwards.

Going then to the specific allegations, I think the approach of both the applicant and the respondent is to deal with them each in turn. The respondent's submissions particularly concentrated on the transcript references because the statements, I think, of both sides conveniently have the subheadings for each incident and the Commission will be able to compare both sides' statements. So that's the approach that's been taken then in the respondent's submissions, that the first allegation is this 29 August 2003 disciplinary interview and I also want to go to some transcript here which is of general application. It's some transcript of
Mr Riley. The Commission will find this occurred before his evidence in chief there were some objections taken to Mr Riley's reply statement.

In effect I'd submit now that what the employer did, somebody woke up finally that there's a huge gap in the employer's evidentiary case, they just don't have any evidence, certainly of admissions, and nothing that could grant any inferences to support the mental element or mens rea requirements they needed to make out. For example, that Mr Wood even entered under his Workplace Relations Act right of entry before 1 April 2004 and the quantum leap unsuccessfully sought was to put all these argumentative submissions in Mr Riley's reply statement, the objections to those were taken at, for example, from PN 1966 right through until Mr Riley was called, PN 1999.

Mr Riley was then called, gave his evidence in chief from PN 2001. The cross-examination to which I refer commences, and I want to take the Commission to, commences PN 2025:

I'll take you to your first statement paragraph 4 page 1, second line, you make reference to Glen Wood's request, do you see what I'm referring to?---Yes.

PN 2026:

What occurred was that Mr Wood, on behalf of the employees, sought to be present for a further meeting and it was agreed to by the employer?---Yes.

PN 2027:

Before 1 April 2004, you didn't send any correspondence to Mr Wood setting out what was P&O's expectations about the conditions under which you would enter premises?---No.

PN 2028:

After 1 April 2004 you've provided no such correspondence to Mr Wood?
---No.

PN 2029:

You understand that's the role of somebody like Mr Blood to send such correspondence?---Yes.

2030:

You've never communicated to Mr Wood you have P&O's expectations about the enterprise agreement?---In what regards, sorry?

There's a series of clarification questions. PN 2034:

But you've never had the role to communicate to him the expectations of P&O about the right of entry in the enterprise agreement?---No.

PN 2035:

You've never had the role, have you, to communicate P&O's expectations about a right of entry under the Workplace Relations Act?---No.

I pause there, Registrar, the reason those questions were required, when you marry it up with the debate over the objections, it was suggested somehow that Mr Riley could give evidence about expectations that Mr Wood would have. It was exposed that was just untrue or unreliable, I'm happy to use the more neutral expression, that he could ever have given any evidence. This was the quantum leap, the inadmissible arguments and opinions, and that's why I made clear at the beginning of my oral submissions I rely upon the written submissions that were first provided on the objections which set out principles.

Then going specifically to this whole area, element 1, they're struck out, they don't get off the home base. Look at PN 2036:

You're in no position to express opinions on behalf of P&O about what expectations it had of Mr Wood for right of entry under the enterprise agreement are you ...(reads)... conditions of right of entry, as I said in my statement.

PN 2037:

That he complied with, say the attended disciplinary meeting, you know the enterprise agreement allowed the employee to elect to have a representative?
---Correct.

2038:

That could be a representative who doesn't even have a right of entry under the Workplace Relations Act?---Correct.

2039:

So the right of entry of Mr Wood when he attends disciplinary meetings has nothing to do with his ...(reads)...?---If Mr Wood is coming on site then he has to phone us and give us notification that he's coming on site.

2040:

Yes, but if he attends as the employee's nominated representative for a disciplinary meeting Mr Wood doesn't need any right of entry...(reads)... I'm going to attend for the employee?---M'mm.

2042:

Is that right?---Yes.

2043:

But back to my question, in attending as the employee's representative, Mr Wood doesn't need a right of entry...(reads)... ?---That's my understanding.

2044:

It's always been your understanding?---M'mm.

2045:

Isn't it?---Yes.

It's exactly what Mr Blood wrote on April 2004, it's just this construct of the applicant's case before this Commission to change what they always have known and admitted to be the position. Mr Wood didn't go to any disciplinary meeting on 29 August 2003 or any other time under his right of entry under the Workplace Relations Act. They've just got a glaring evidentiary gap which Mr Riley was the attempt to resuscitate or fill that gap and he candidly admitted in his answers he was unable to do so.

The Commission will then be able to marry up both the primary submissions of the applicant and its reply submissions on this 29 August 2003 disciplinary interview. But I do want to note it's dealt with in the respondent's submissions at the bottom of page 32. It's this disputing what I say is clear from the first instance decision from Doyle, what Mr Barton read was the bottom of page 32 of the respondent's submissions about embarrassed or belittled. The Commission, of course, will read over the page Doyle went further as set out in the respondent's submissions at page 33:

Even if considered insensitive and offensive the comments of Mr Wood in the context of heated dispute over Mr King do not warrant revocation ...(reads)... Doyle at 96.

What I know the Commission will do is not approach it in the way suggested on behalf of the applicant. Let's look at the applicant's reply, paragraph 24 at the bottom of page 5 onto page 6: At the top of page 6 there's this reference to Mr Riley being required to identify the body after the death. I haven't had a chance to check the cross-examination of Mr Wood. My recollection, I'll be corrected if I'm wrong, is that it was never suggested to Mr Wood that that is something he knew of other than from reading the statements served and filed as part of the applicant's case. It's not suggested that Mr Wood knew that at the time and it's that sort of emotive and prejudicial language that the Commission will not be distracted with in deciding if any of these allegations of misconduct are made out.

Different and reasonable minds would express different views. One would be; you frankly should be up front and express what you're thinking and other people might be a bit more conservative and say, it's better to keep your silence, but there is no correct view. And might I pick up on this theme, Mr Barton said well
Mr Wood never in effect, this is my paraphrasing says that he's sorry or the like. Well that's not right. Let's look at Ms Fensom's statement and it's P&O4, the exhibit reference, that's exhibit EJF3, an email from Glen Wood to MF Fensom, dated Friday 29 August, 2003, 4.01 pm. It's EJF3 and it has a hand written
page 18. It says:

Dear Emma, further to our conversation this morning, first may I say if I've offended you I'd like to say I'm sorry.

Now, what Mr Wood said up front and then as he should, he then points out his concerns, that:

my opinion of how your human resources department in Sydney is working, is in need of convincing the attitude towards our members is what can only be described as appalling. Our members are being subjected to total harassment, verbally and bullying by this department. For instance Mr King in an interview by your HR department this morning was shown no natural justice in this interview. Had Mr King not asked to see his personal file, he would have been unaware that a letter dated 14/8/ 03, which he had not been sent, also when he inquired about this letter your HR department acknowledged that this letter had not been sent to him. Why?

He then continues and the Commission will be able to read the balance towards the end, the last four lines says:

And other letters that Mr King has been sent by your HR department is starting to have an affect on Mr King's state of mind, and I would hate to think what Mr King might do if the harassment by your HR department continues and you would be well aware that if it does not cease, I will not hesitate in having the matter listed in the AIRC for workplace harassment. Regards.

Now Mr Wood as he was entitled to, and might respectively submit, should on behalf of his member, raised the point. What the reply of the applicant is spectacularly shy to accept is that Mr King was treated inconsistently with its own policy and treated so unfairly that it required Mr King going to Mr Blood, who we've yet to hear from as a witness in this case, the managing director, to rectify the situation. It was like extracting teeth from the various applicant employer witnesses to get them to accept that Mr King was right and it required Mr Blood's intervention to rectify the file.

Then they tried to suggest in the reply, paragraph 27, P&O Ports denies that its treatment of Mr King was unfair. In any event this issue's not relevant to the question of whether the respondent acted in an improper manner during the events that took place on 29 August 2003. They're still denying the concessions made in cross examination by their own witnesses in this case. They still are trying to deny what Mr King gave evidence about and I don't think he was cross examined in relation to - it took Mr Blood's intervention to rectify his treatment by this employer.

The Commissioner will be able to look at their primary statements and even their reply statements after getting Mr King's statement and that of Mr Wood. Where do they candidly concede, yes Mr King's right? His file had notes on it and letters on it, that should never have been there, but he only found out about it perchance, but after this meeting none of Mr Stone, Mr Riley or Ms Fensom did a thing to rectify the file. Instead Mr King resorted to the managing director. There was another meeting, raised, it got fixed, and this what I've described with great respect to the employer, their disputes settlement fetish about Mr Wood, if you go to the respondent's written submissions at paragraph 82, what the employer's cross-examination proved, and I put it in quotes:

There was no dispute to notify.

And I think it explains the part that the union had that they weren't happy with the way it was being conducted. Mr King had to go to Mr Blood to get it settled. Why would Mr Wood notify a dispute when quite properly Mr Blood, the managing director, has rectified the situation, which his underlings failed to act on?

It can equally be said, well why wasn't there a dispute notification put on by P&O? Well obviously it didn't because it had done the wrong thing. It was hardly going to bring that matter to the Commission and admit that our managing director had to act, because all these various specialists human resources or industrial persons failed to act. Can I just note before leaving this allegation, this is a good example where the Commission will be able to marry up the statements, the transcripts and the respective submissions. I go to paragraph 80 of the respondent's submission. The Commission will need, as I assume it would, to read the evidence carefully. I've made the point there that a reasonable or fair reading of the cross examination of Mr King, does not support that he said he relied on notes when making his statement. I've set out the PN 2960 to 2963 and the Commission will be able to read how a statement's prefaced at 2960:
so when you made this statement what were you relying upon?

And then this reference to "my little diary, my little book, I had it at home", three questions later at PN 2963. The intervening questions made no reference at all to what you're relying upon. Now Mr King's undoubtedly a lay witness, not experienced in court or Commission matters, not like some of the human resources industrial relations experts, that were called on behalf of the employer who it can be safely inferred are much more familiar with the Commission's processes and the giving of evidence and the like. I've made the submission on that and its really unfair to a lay witness to make that criticism. This is where, might I say quite properly, it was clarified in cross-examination, the extent to which Mr King's treatment left him having a closed period of depressive type disorder where he had medication as a result. There's no dispute about that having occurred.

There's then dealt with in the reply paragraph 28. This is this August 2003 telephone conversation, a reply to his conversations with Ms Fensom following the disciplinary interview. Can I note it's a most unfair submission to make at the end of paragraph 28 where it says:

Evidence of these telephone conversations and their connection with the disciplinary meeting were first adduced by the respondent.

It's an extremely unfair submission, with great respect, to make because as the Commission will recall, and I've dealt with it in paragraph 83 of the respondent's submissions, Ms Fensom's statement only became available 15 September 2004. Mr Wood made his statement on 24 June 2004, but he had to deal with what's in the application filed back in, I think it's April, which made reference to this conversation and now he's been criticised and suggested that he first adduced evidence. It was part of their initial application.

What's even more bizarre and just palpably incorrect as a matter of law and principle, is the applicant's reply at paragraph 28 saying this telephone conversation is part of the conduct of the respondent in exercising powers under the Workplace Relations Act. I can only read that as saying the powers, because this is all about right of entry powers, is being exercised over the telephone. And he's not even on the premises. I've provided that reference to Scott J, in Zaknich v McDonald. The Supreme Court, Western Australian justices have squarely dealt with it. It's not governed by section 285C or in my submission Division 11A of the Workplace Relations Act at all.

I then turned to this vest incident on 13 January 2004. The Commission will see in the applicant's reply at paragraph 29 at the bottom of page 6, it says:

The respondent has attempted to use his arrangement with T T Line to circumvent the W R Act and protect himself from the consequences of his conduct in hindering and obstructing P&O Ports and its employees and otherwise acting in an improper manner.

This is the most basic and fundamental failure to give due process to Mr Wood. It would've been assisted by some reference in cross-examination by giving us the paragraph number where it suggested that proposition was put to Mr Wood. I assume in the absence of it being provided and I accept I haven't had a chance to reread Mr Wood's evidence, it just never was put in those terms, as asserted in paragraph 29. I assume if there was a reference it would have been provided. Likewise working up paragraph 29 on page 6, it was never put to him that he was acting outside the permission granted by T T Lines. I say that in the sense that there's a suggestion he was purporting to exercise his right of entry with respect to P&O Ports. I assume that's a reference to a right of entry under the Workplace Relations Act, the way that is drafted in paragraph 29. The Commission will be able to marry up again the submissions and the summaries of the evidence and plus go to the headings in each person's statement who deals with this incident.

I do note in the respondent's submissions, page 46, paragraph 92. The primary submission is that in the present facts and circumstances, given the seriousness of the complaints, it's not sufficiently established on the evidence by P&O that this employer was ever in charge of the land at Darling Harbour, wharf 8 or the vessel. Alternatively, T T Line always remained the principle person in charge and P&O, even if found to be another occupier, was never able to revoke or override the authority or permission or invitation extended to Mr Wood by T T Line. Then there is set out a series of arguments which support that proposition through to page 48. But let's look at what Mr Gunther said. The best P&O's argument can be is that Mr Gunter is a natural person, was in charge. But let's see what he admitted at the bottom of page 47 of the submissions, at PN1266:

Of course it was up to T T Line because they operate Darling Harbour wharf 8 and the vessel don't they?---Yes.

There is the rest of the quote on the top of page 48 of the respondent's submissions where Mr Gunther conceded the first time he ever told Mr Wood that Mr Gunther was responsible for safety of people and the facility is when Mr Gunther put on his statement 25 August 2004. Mr Gunther was under no misapprehension and he candidly admitted, or least in cross-examination, that it was up to T T Line because they're the ones who operated Darling Harbour wharf 8 and the vessel.
There's then covered, the 30 January 2004 Spirit of Tasmania incident and I do note in terms of the reply, paragraph 35, of the applicant, it doesn't deal with it all, what's at page 49, sub paragraph (v), of the respondent's submissions. The reference to the OHS Act 2000 is a reference objectively. Mr Wood never said at the time that's what he exercised and he always made that clear. By making it clear - he checked his right of entry under the Industrials Relations Act 1996 when preparing this statement. I've provided a reference to a Full Bench authority, the New South Wales Commission, Inspector Keenan v Lucan, Australia which supports that one can look objectively to see - look even if the power used at the time .which was the common law right he had, was inadequate, was there any other head of power that could have been relied upon.

I've made the point and I took the objection at the time about the unfair
cross-examination of Mr Wood and this is dealt with in the respondent's submissions at paragraph 101. The Industrial Relations Act 1996 has an extended meaning of authorised industrial officer and in particular the meaning of an officer of an industrial organisation includes:

Any person who is concerned in or takes part in the management of the organisation.

I objected at the time and said the cross-examination is unfair. There was a deliberate - I mean in a forensic sense, no more than that - a forensic choice, not to put the full definition and this is despite Mr Wood saying - this was after he was removed from office - that I was still a delegate and I raise the objection that the State system doesn't limit giving right of entries to a full-time official. In any event, and I think this is where the Commission said, helpfully for both sides, it would be able to get a certified copy of the rules as they are. Part of the rules was tendered as exhibit MUA3 and Mr Barton tendered a copy electronically. The rules of the MUA and 4 objects, relevantly for Mr Wood, includes:

To regulate and protect the wages and conditions under which all employees or other persons entitled to become members of the union may be employed.

This is sub object (a) in 4. Also (d):

To protect members from any infringements of their rights.

And also subrule (d):

To do all such other acts and things as are incidental or in any way related to the carrying out of the above objects.

Mr Wood, in the position where members approached him and even consistent with the rules, the registered rules, he acted consistently and it is for this matter that there is a complaint now made about not calling anyone from Adsteam. Again the references in the transcript will make it clear, and Mr Barton in reply will be able to assist. I am not sure if it was ever suggested to Mr Wood what he said about that was untrue or did not happen. Why would you call anyone from Adsteam on a point that is not in issue. Again, he would be more familiar with his cross-examination and might be able to assist if it is said that that was squarely put, that it never happened that anyone from Adsteam approached Mr Wood. It seems there is no dispute by this time that it was the Adsteam employees who were doing the mooring and unmooring. They were undoubtedly present. By then, P & O and TT Line had agreed that the usual people at Port Jackson, the port of Sydney, would perform that work.

I have still got some time to go. I note the time.

THE DEPUTY INDUSTRIAL REGISTRAR: We will take the luncheon adjournment now - - -

MR DOCKING: Certainly.

THE DEPUTY INDUSTRIAL REGISTRAR: - - -if that is a suitable time to break, Mr Docking. We will resume at 2 o'clock.

<LUNCHEON ADJOURNMENT [1.05PM]
<RESUMED [2.05PM]

MR DOCKING: Thank you, Registrar. Might I hand up a copy of Payne v Parker [1976] 1 NSWLR 191. It's in response to a list of people Mr Barton referred to today suggesting - it's really a Jones v Dunkel type submission. The judgment I go to is that of Glass J at page 200. At opposite F there's set out a number of propositions. Although Glass J was in the minority on the result, these principles are often quoted on Jones v Dunkel in subsequent appellate authorities. It starts at the bottom of 200 opposite F, the principles commencing at 1, then it continues through to page 201. Principle 6 says:

Whether the principle can or should be applied ...(reads)...his absence is unexplained.

I'll pause there. It must show the vintage of the judgment, 1976, the (b) reference. Then there's principle 7:

The first condition is also described as existing ...(reads)... unrealistic for the other party to call him -

there are some authorities referred to:

- or where the witness's knowledge may be regarded ...(reads)...judicial opinion that this is not necessary.

A number of authorities are then set out. I just note principle 9:

The third condition is satisfied if no explanation ...(reads)...or refused to waive his privilege.

Orally today Mr Barton made reference to a number of MUA officials. Mr Crumlin is not here. Generically said no other officials, talked about there was not called the other delegate, even though Mr King and Mr Wood were called. This is for a 2003 meeting. He referred to Mr Smith. He referred to an unnamed generically titled security guard. He refers to the Adsteam employees. He referred to Mr Hartland, Mr Falconer, no Queensland delegates and did not call the legal advisers. I confirm the submissions based on Kalaf that in this type of proceedings, akin to disciplinary proceedings, it's incumbent upon the applicant to call all such persons that he identified.

In the alternative, can I deal with the MUA officials of the like of Mr Crumlin. There's no suggestion that he was an eye witness who saw or heard any of these incidents. Why would Mr Crumlin be called? I'm going to come to Mr Smith, because in fact I'll be relying upon this assertion now as to why the Commission should not permit at this late stage, the close of the submissions, any amendment to the further application. The Commission will see there's an attempt by the applicant to rely upon this meeting in the union rooms, said to be in about mid-December 2003. There's been no application to amend and it's going to be vigorously opposed if such an application is made. A good example would be if Mr Wood and his lawyers had been put on notice that it was part of the grounds and reasons relied upon for revocation then an informed decision would have been made at that stage about calling Mr Smith.

I then deal with the security guard. Looking at Payne v Parker, there's absolutely no suggestion in those principles that Mr Wood in his case would call the security guard. Rather, it's quite clear from Payne v Parker that the applicant would be expected to call that person. The Adsteam employees, I've already noted and hopefully the applicant has checked - I don't recall any suggestion criticising Mr Wood, suggesting he was never told anything by the Adsteam employees at the time, but that will be corrected on the transcript.

It picks up - I broadly said that there seems to be this notion they don't have any trust in their own employees to call them in their own case. Mr Hartland falls squarely at the very least within principle 7 in Glass J's judgment, Payne v Parker, where he's equally available to both parties. Then in terms of Mr Falconer, that's squarely within the earlier part of principle 7. The application would be required to call him. The applicant alleges Mr Falconer makes allegations of being in effect abused. He'd be considered in the camp of the applicant in that regard, and it would be unrealistic, as it says at the bottom of page 201, to expect Mr Wood to call Mr Falconer.

As to the Queensland delegates, and I'll come to this at the end, all Queensland officials - there was no cross-examination suggesting that what Mr Wood set out in his statement was incorrect. You wouldn't expect Mr Wood to call anybody else when there's no challenge to his evidence. The Commission will recall there was a summons to produce issued and I confirmed at the beginning of the hearing, when Mr Turner appeared for the applicant, I'll be relying upon what he said in response to that summons to produce and the Queensland position. Mr Turner indicated, in effect, that they had no-one from P & O who could talk about the position other than working backwards from the day of that summons to produce for 2 years. Mr Wood has never been challenged by anyone that what has been used in Queensland is the same as what has been used in Sydney arising out of the Patrick dispute, the date of which is February 1998. How could they come here and suggest Mr Wood had to call anyone when on their version, put on record by their instructed lawyer, they have no-one who can give instructions about the matter, that is from 1998 until about the middle of 2002? Why would Mr Wood call anyone in those circumstances? The Commission will recall that attached to Mr Wood's statement is a series of examples of "This is what Queensland has issued on a daily basis, every 24 hours", and the information he was given from Queensland is only keep them on the computer and that is why he could only produce those, kept for the number of days as he explained, attached to his statement.

Finally, as to the legal advisers, I don't recall any cross-examination of Mr Wood disputing that he had received such legal advice. The explanation why no legal advisers are called is because it was not put into dispute. You don't call evidence corroborating Mr Wood in those circumstances when nothing was put in dispute. The Commission can recall, even though there was a cross set of summonses from P & O and despite having Mr Woods' statement, there's nothing that was sought by way of legal advice. There could have been an interesting argument that by Mr Wood saying, "Well, I've acted on legal advice" that he'd waived that legal advice or client privilege. None of that was sought, again reflecting it simply wasn't in dispute. It's just unrealistic at this stage and unavailable to submit that any legal adviser, whether it be Joanne White, as Mr Wood expressly identified in his statement is concerned, or Mr Gibbons for that matter, who instructs me in this case.

I then want to return to the reply and also the written submission of the respondent. I just note going to the latter, the respondent's submission, page 52, paragraphs 99 and 100, of course there's no response by the applicant about this refrigerated truck because it was never there, as Mr Wood explained. That's a good example of where the photographs have, in my submission, provided great assistance to the Commission in understanding the layout of the wharf and the like.

The next matter which is not dealt with in the reply but I note is in the respondents submission, page 54 and 55, paragraphs 102 to 108 - this is Mr Gunther complaining about being ignored by Mr Wood. The Commission will see at paragraph 105 what Mr Blood had done some months earlier was put in writing, "In the interim I have directed Brian Riley to have no communication with you". The point is then made that, what's the difference? P & O complains about the trend, what Mr Blood directs and the practical, commonsense approach Mr Wood took of trying to avoid further conflict with Mr Gunther. The reply does, at paragraph 39, deal with the 2 February 2004 telephone conversation of Mr Riley. I adopt the comments I made before about any such telephone conversation. It just has nothing to do with this application because of what Scott J said in Zaknich v McDonald.

The next matter deal with are the 2 February 2004, using the employer heading, disciplinary sick leave interviews. We know Mr Hartland is one of the employees, but what's extraordinary is there's this complaint by the applicant about cancelling a score or so other interviews. Can I just flag the answer which has been extracted at the top of page 64 of the respondent's submissions? This was questioning Mr Riley:

Q. What about for the six who were scheduled 2 February 2004?
A. I don't even remember who they were, mate. I wouldn't know.

Is it seriously suggested that these were such critical interviews, used to try to revoke someone's permit, and Mr Riley gives that answer? Again, the Commission will be able to marry up the respective submissions and parts of the statements relevant to that issue, but I note like "without legal authority or legal excuse" wherever there's a submission about Mr Wood having an honest and reasonable mistake of fact that the primary submission is that that's up to the applicant employer to negative. The first alternative submission is it's an exculpatory defence that Mr Wood is entitled to rely upon, and I submit he's proven on the balance of probabilities. The second alternative submission is that at the very least it goes to relevant factual matters that are capable of being used and exercising any discretion as to whether any revocation should take place.

Before leaving these disciplinary matters I should refer to what is at page 63 of the respondent's submission, paragraph 117. It is vigorously put that really the employer has come up with this nonsensical explanation that these meetings were never rescheduled because there was insufficient stevedoring employees and human resources employees at the Darling Harbour site to conduct these meetings. Then set out is the evidence from people like Mr Stone, Mr Riley, Ms Grady about that matter. It is really nonsensical to come up with that justification as to why the meetings never took place. The reply at paragraph 45 in the respondent's submissions from 119 to 122 then deal with another telephone conversation, this time with Ms Fenson. I adopt the submissions made before, incapable at law of grounding a revocation application. Secondly, there's the unfair submission about it was first adduced by Mr Wood. All Mr Wood did in his statement was respond to the application in April 2004, but it's worse in this situation in terms of dictates of fairness. I've made the point at 120, and there's nothing in reply so I assume it's accepted, Mr Wood was never cross-examined or tested on this conversation. This was despite myself, as his counsel, flagging before the Commission what I saw as the procedural difficulty and raised it with Mr Barton obviously present about, "What's going to happen with matters about Mr Wood's never being cross-examined on". Quite clearly they're just not submissions that can be pressed. It's not Mr Wood's fault and it's beyond his control if Ms Fensom was unavailable having a child. Her allegations were referred to in the application. They then put in their reply statements what really was the statement in chief of Ms Fensom who, by the effluxion of time, became available.

There's then dealt with, both in the reply and the respondent's submissions, the 23 March 2004 bus incident. I note for the respondent's submissions at the bottom of page 67, it makes interesting reading comparing parts of the application, as I've sought to do in the submissions, with what the evidence was of the employer witnesses. My reading of the application is actually consistent with Mr Wood's version, but it was Mr Wood who approached the window. In other words, the application wasn't suggesting that he stood out in front and stopped a bus. The application on my reading is entirely consistent with what Mr Wood has always said. In any event even if, against the application and Mr Wood's version, it was found that he did temporarily stop Mr Gunther from driving the bus, the undisputed evidence of Mr Gunther is he drove the minivan away and towards the berth. He wasn't stopped from doing anything.

I then just note in terms of the respondent's submissions at the bottom of
page 78, paragraph 147, there's an extract from Meagher JA, part of Commissioner of Police v Anderson. It's applicability and appropriateness has been confirmed today by the submissions of Mr Barton. Even though none of the allegations against Mr Wood involve him investigating a suspected breach of the Act or agreement or award, there was this elevating of the suggestion in his flourish at one stage it was suggested he held public office but then it was corrected to he was a public official, but let's have a look at what's been found for police officers talking in police stations not to have been legally offensive. The point I make is at an appellate level, that's what has been found is not legally offensive. Anything - and this applies to what Ms Fensom said and Mr Davies said as well - anything that Mr Wood said is incapable at law of being legally offensive. Meagher JA so eloquently summarised the position, and Mr Wood doesn't suggest that he's like a gentle old lady or a convent school girl, and nor does he suggest any of the P & O managers are so considered or characterised.

Mr Barton orally today again talked about idle industrial threats. I confirm what's set out in the respondent's submission at paragraph 150. It's industrial commonsense, not inconsistency and unreliability, was confirmed in cross-examination and there are three passages set out from Mr Wood's cross-examination and the relevant one that concludes the passage is at the top of page 82 of the respondent's submissions:

Q. Isn't that irresponsible as a union official, Mr Wood?
A. Not really. Sometimes it's the only way some employers listen.

Now even though I may have a view about the Workplace Relations Act swinging a pendulum back a particular direction, I don't think if you talk to many balanced industrial practitioners that they're going to dispute that that is a view that one would expect, if not every, just about every union official to express. It's just plain industrial commonsense.

If I then go to the reply in paragraph 53 deals with the amended application allegations or really the post-1 April 2004 matters. Paragraph 155 of the respondent's submissions makes it clear even here are P & O, the applicants, not being consistent because on a few occasions when he has attended site committee meetings he wasn't required to comply at all with the regime in the Workplace Relations Act.

I then deal with - in the respondent's submission at paragraph 159 I'm not sure if it's being suggested orally or in writing that the allegation against Mr Wood is that he went in to investigate something he reasonably suspected was a breach of the Act, agreement or award. What the facts establish is that Mr Wood used the pro forma letter which pleaded, if you like, or expressed the two alternatives gaining access through right of entry. He hasn't suggested in his statement or any cross-examination that he went in for the purposes of investigating a suspected breach.

Then paragraph 160 of the respondent's submissions deals with why had both an honest and reasonable mistake that you could use the pro forma letter referring to both alternatives. I've already made reference to the misapprehensions held by Ms Brady, a lawyer of 2 and a half years standing at the time of her evidence. She thought for a site committee meeting that apparently you had to give 24 hours' notice. That's clearly wrong. Mr Riley admitted so. In addition, Ms Brady just completely misunderstood that going in at 8.05 am, nothing to do with meal breaks, but she thought it must have been a meal break.

Then I want to go again to Mr Wood's statement, and this has been unchallenged evidence on this topic in a number of aspects. It's exhibit MUA7, Mr Wood's statement, and it's GRW7. It's a statutory declaration of Bernadette Whelan, office manager of the Sydney branch of the Maritime Union of Australia. There's the formal part of the statutory declaration and its substance says:

The right of entry form that Glen Wood was using ...(reads)...with the issuing of this notice.

This was a statutory declaration subscribed and declared 23 June 2004. I say it's undisputed because obviously, having been provided with Mr Wood's statement, it was provided many months ahead of the hearing, which ultimately took place in November 2004. There was no request to have Ms Bernadette Whelan called. She would have been called if there was such a request. That's why a statutory declaration was provided. And there was no objection taken to that evidence. The same applies - let's have a look at GRW8, which I perhaps a bit obtusely referred to before as, "There's the examples of the notifications from the Maritime Union of Australia Southern Queensland Branch". Those notifications run from 14 June through to 18 June 2004. This is where Mr Wood just wasn't challenged about this matter which, quite apart from the stat dec covering the Sydney branch, he dealt with at paragraph 154 through to 156 the position at the Queensland branch, southern Queensland branch. "Based on my inquiries with Trevor Munday, deputy branch secretary" - he's provided with the types of notices used by MUA officials to enter premises at Hamilton and Fisherman Islands terminals. He attached them, confirms that they're sent every day by the MUA.

According to Mr Munday there's been no complaints ...(reads)...these types of notices.

Paragraph 155 of exhibit MUA7 confirmed why Mr Wood could only provide notices for the dates set out, and he then confirms he's acted in conformity with - the Queensland position is in conformity with the custom and practice established by the MUA with P & O in the industry.

I've provided the references, going back to the respondent's submissions at page 85, to the transcript on 16 September 2004, where the employer is asked to produce any - I'll withdraw that, sorry. That's the letter - exhibit MUA11 is a letter from Mr Giddens asking the employer to produce any written protocol. The Commission might recall that - I think it was first in the summons to produce hearing and then in Ms Brady's statement - that there was a protocol and that explained the Queensland position. That was a complete fiction, something invented

And I think there was orally today that it is suggested to the effect that Mr Wood was circumventing the Act and that he had made a concession. Looking at the transcript references provided, I do not think he made any concession in those terms about circumventing the Act. This was, I assume orally, was addressing the reply at 56, PN4866 to 4889. I do not see any reference in those passages about agreeing and conceding that he was doing this to circumvent the Act in those terms. What Mr Wood did say, for example, at PN 4867, that is a standard letter that has that written in it and then he says, for example, at PN 4873, it's a standard letter that says that all in the letter, the same as what it does in Queensland. PN4874 question:

Right and that Queensland letter of course was a letter that was developed up there pursuant to the enterprise agreement ...(reads)... the same as the city one was.

The Registrar will be able to read the cross-examination, for example, at 4880 and Mr Wood confirmed so far as the Queensland position is concerned it is a document that worked in Sydney too. The Commission will be able to see that Mr Wood made it clear that during a period, for example, at 4884, over the Easter period he was the only official on duty. There were other establishments where anything could happen, including accidents or disputes, which could stop him going from P&O. He confirms that he provided over a period of time, that the pro forma standard letter, but there is a distinction even in what the applicant argues. Unlike Queensland, Mr Wood did not provide it each and every day irrespective. Mr Wood was less regular so to speak. Queensland, the evidence just does it routine everyday.

Ms Brady conceded that, well, they don't actually, probably correct it, every day and we know there has been no complaint about Queensland using it everyday and not entering every day and suggesting that's a breach of the Act. Instead they invent this fiction about the protocol. How could that ever be done on proper instructions given, as I said before, Mr Turner's concession when the summons for production was argued that they had no one going back 2 years from that date. Couldn't comment about the Patrick 1998 dispute since then being the standard letter. We had to establish by sending a letter and tendering it that there was no such written protocol. It is only ever what has been in the enterprise agreements which, as I understand it, are consistent across Queensland and New South Wales. The only common variable or protocol, if you want to call it that, is the standard letter and the Commission will be able to compare the one that Mr Wood used, as attached in some of the evidence and the samples he has used for Queensland.

I have already dealt with the reply at 57 says no legal representatives called. Well, it would have helped if there had been some cross-examination suggesting that was in issue. I should note for the reply at paragraph 58 that there is no suggestion that
Mr Wood had to be supervised when he entered the premises at Port Botany.

Can I go to the respondent's submissions at page 89. This was some of the
cross-examination of Mr Riley and it can be seen at the top of page 89 there is confirmed that unless Mr Wood gave 24 hours' notice, P&O would not grant him access. PN2181 question:

That was well understood wasn't it amongst management?---Definitely ...(reads)... 24 hours' notice?---That's correct.

And then PN2194 question:

Mr Wood couldn't just turn up for the secretary and say let me in without management approving his entry ...(reads)... That's my understanding.

And then there is extracted PN2234 question:

Now you know the system in place. The receptionist of P&O Port Botany actually calls management ...(reads)... she will call me or some other manager, that's correct.

There is no suggestion there has been any difficulty with what has occurred at
Port Botany post, 1 April 2004 or at any of the other specified dedicated P&O sites.

I then want to go to the reply to further, further allegations which is dealt with in the respondent's submissions, page 90 from paragraph 170 and I can hand up a number of references I want to rely upon. Even though this was in the Part D list it was not photocopied because it was Part D. I provide a copy of MUA v CSL Australia Pty Ltd (2002) 113IR at 326. I will be able to give Mr Barton a copy of these in a moment. I also provide a copy of - it is the loose leaf, Uniform Evidence Law, Hodges. It is a part that deals with the proper construction of section 138(1)(a) of the Evidence Act 1995. The loose leaf was last updated until November 2004. There has been a more recent newsletter that the loose leaf services, the last relevant parts and then I provide a reference by way of extract only Dubbo Base Hospital v Jones (1979) 1 NSWLR 225. I need to go to these, in finishing the submissions.

I go to a judgment of Justice Branson because for the three matters that are referred in the applicant's submissions, I oppose them being included in the grounds and reasons of the revocation application. There has been no application to amend and it is too late, in my submission, even as a matter of discretion acting on correct principles to permit such an application. The three matters covered are, the meeting at the MUA rooms, the TT Line hearsay documents and this allegation of improperly taking photographs. Justice Branson dealt with the proper exercise of such a discretion in MUA v CSL Australia, at pages 330 to 331 paragraphs 17 through to 19.

It can be seen at the end of paragraph 17 on page 330 there's a reference to senior counsel for the union applying to amend the statement of claim. This was during the final submissions of the applicant's. Paragraph 18 sets out the relevant rule of the Federal Court and I think when the first amendment was made, which I call the further application, I accept that there was a power to amend and I still accept there's a power that it's then paragraph 19, Branson J decided to refuse the amendments. The reasoning includes:

I took into account particularly the serious nature of the proceedings, that is proceedings claiming amongst other things the imposition of penalties and an injunction restraining the implementation of a significant business decision ...(reads)... for a prohibited reason or for reasons that included a prohibitive reason.

Registrar, there has been no application yet to amend, at best it's going to occur in the applicant's final submissions in reply. I confirm what I said before, a good example is if Mr Wood had have been put on notice that the applicant wanted to rely upon this meeting at the MUA rooms, it suffices that he may have adduced additional evidence for example from Mr Smith on that point. The applicant hasn't got any complaint about not knowing about that matter because it was expressly referred to in Mr Wood's statement.

The applicant then chose to put on reply statements from Mr Gunther and Ms Fensom, the latter was really her evidence in chief, not a reply statement. When there was the further application and leave to amend it was not sought to include this allegation. I also confirm for the TT line hearsay documents and for that matter even the photographs, if notice had have been given there's further evidence that there's a real likelihood that may have been called, it includes from the Tasmanian official, Mr Wickham, who was present as part of one of these allegations that is said to have taken place at Darling Harbour Wharf 8 about late October, early November 2004. It includes crew members and delegates from the TT line, that much must be clear from even looking if the Commission goes to page 93 at the top of the respondent's submissions. There was actually tendered the crew's email.

The Commission should just not permit these three grounds and reasons to be relied upon in this revocation application, it's just inexcusable that they were not included in the further amendment if they were seriously to be relied upon. Quite apart, as the point is made in the respondent's submissions at paragraph 171, it's not really suggested that when Mr Wood is in the MUA room, that is in the union building, that he's exercising a right of entry in respect of any employer's premises. I should note what's dealt with in the respondent's submissions from paragraph 176 page 91 and I say this seriously, do they really want to put allegations of other - not wearing the vest or abusive comments, how can the Commission seriously consider those allegations?

Mr Barton is going to have to get up and specify the classic factual ingredients, the time, that involves a date, and the time of day. I suppose we know where, it's somewhere but we don't know whereabouts, the Commission has seen the photographs, somewhere on the vessel to that whole area of Darling Harbour Wharf 8, I don't know, and he's going to have to tell the Commission what he wants to find about manner. What were the words used? What was actually said? Where was Mr Wood when he allegedly wasn't wearing a vest on another occasion? The Commission is left in the position that the only sworn or affirmed evidence is that of Mr Wood who has denied the allegations. If they want to make a Jones v Dunkel type submission it would have been a delight to have Mr Guirino take those few short steps into the witness box, given as Mr Wood said he's seen him at Darling Harbour Wharf 8 on one occasion and there was no suggestion then that he wasn't wearing a vest or was talking inappropriately on that occasion.

I then deal with the photographs matter. Might I say that it's no criticism of the Commission dealing with this by an ex tempore decision in transcript, the Commission has throughout shown a level of incisiveness on these issues that would stand the Tribunal in good stead in many jurisdictions. However, I do make the point in the respondent's submissions at paragraph 184 that really, given it was the applicant's submission it should have taken the Commission to Branson Js judgment that it relied upon in Williamson. I've highlighted the various parts which show that what was alleged against Mr Wood was nothing like what Branson J referred to.

The Commission might recall there was the reference to Williamson in the Hail Creek suitability case decision which was presided over by Ross VP. The facts of Hail Creek were that the reason improperly obtained or evidence obtained in contravention in Australian law arose is there is in Queensland a regulatory and legislative scheme that attaches confidentiality to personal medical details of coal miners. It was established, on my reading of that Full Bench decision, that those regulatory provisions were breached by the doctor or the employer or both. Now nothing like that is alleged against Mr Wood, that he's breached any legislation. As I said, it was raised as a red herring to begin with but it's remained a red herring.

I then have provided to the Commission an extract from Odgers because on the relevant pages it summarises conveniently where the improperly obtained discretion has been found to be triggered and I don't need to read all of those examples but it can be shown by looking at those that what is alleged against Mr Wood, in my respectful submission, comes nowhere near any of those established examples. Nothing Mr Wood did was improper as that expression is properly construed.

I then, just on this issue, refer to Dubbo Base Hospital, it's the judgment of President Moffat at page 227. Why I rely upon this is that - it's that short extract from 227 to letter E through to G inclusive - it's really this whole notion just above G that, in a trial without a jury:

The interests of finality and judicial economy usually will be best served by not deciding the question of the issue upon an objection to evidence.

It talked about the evidence can be admitted. Earlier near E it's in the context of how a judge alone rejecting evidence and it says look really the notion should be that the trial judge can reconsider that and you shouldn't be leaving it to an appeal.

Of course, in this case the Commission did let the evidence in but the same notion in my respectful submission applies that there's a matter of finality and judicial economy rather than if it ever went to an appeal. I'm inviting the Commission in its final decision - I'm not saying in an ex tempore way now - to reconsider the evidentiary ruling that the evidence was improperly obtained and I make that submission saying it's consistent with the approach in Dubbo Base Hospital and having given the Commission some better assistance by actually referring to what Williamson was about and the various examples quoted in Hodges. I make it clear, I'm not asking for an ex tempore decision now, but ask that the Commission reconsider the matter in final determination. I then deal with the reply at page 11, paragraph 62 deals with discretionary considerations, the respondent's submissions deal with that at page 96 from paragraph 188 onwards. It can be seen that paragraph 188, there's no dispute that Mr Wood entered Port Botany between 1 July 2003 and 1 April 2004, some approximate 43 times according to the records without a single employer complaint.

The Commission might recall that also sought - and this will be in the transcript where Mr Turner appeared for the applicant - any records for the site's specific Darling Harbour sites. Nothing could be produced because P&O didn't control the gate or the entry, but it's safe to infer on the evidence that Mr Wood, in a like way has been as active at those other Darling Harbour sites - I'm not referring to TT Line site - and also White Bay and he's entered there tens and tens of times as well in the same period. It really gives this context that these are isolated allegations, put in the proper context of how many times he's visited, including on other disciplinary movements and then the reply at paragraph 63 disputes the respondent's submissions at paragraph 189.

My submission, it would be double jeopardy. I've already taken the Commission to Mr Blood's letter and Mr Riley's evidence where he revoked his enterprise agreement right. It appears sometimes but not always they won't give him common law permission, authority, to enter. I say not always, because he was allowed in, in early May 2004 with permission to enter P&O site committee meetings. I've already made the point that the reply makes a great song and dance about no remorse, contrition or acceptance.

The other side of the coin is, let's have a look at Mr King and Mr Hartland again. Where's the candid acceptance on behalf of the employer about getting any of those wrong. Why did it have to be like extracting teeth to get those confirmations out of the employer witnesses. A good example was Mr Stone for Mr Hartland. I've got it in the submission. Originally, he tried to say it was fixed up subsequently Mr Hartland, but when he was taken back and cross examined he actually had to admit, well at the end of the meeting it was agreed that the FTR entry in effect was incorrect, and then in the reply at paragraph 66 and orally today,.I think Mr Hartland wanted to give a bit of evidence from the bar table concerning what was in writing in 66 about P&O's motive and its view on what's positive and constructive work. I'd ask the Commission to limit itself to what's in the evidence rather the sort of emotive submissions form the bar table that were made and let's look at the evidence.

I've set out in the respondent's submissions at paragraph 98, the example of Mr Wood being constructive working with Ms Fensom about settling a dispute they had at Glebe Island. Even that was like extracting teeth out of the employer witnesses, such as Ms Fensom,, for her to accept that it was Mr Wood's assistance that actually suited the business requirements of P&O Another example that in Mr Wood's statement at paragraph 151 - he wasn't cross examined about this - as how he helped a supervisor of P&O over the Easter break resolve an issue. There was just no issue taken with it. The oral submissions in paragraph 66 are really trying to pull themselves up by the boot straps. As to the respondent's paragraph 197, page 98:

I do rely upon the correspondence that was sent on behalf of Mr Wood that led to the submissions day, which is now taking place, not occurring in December:

There was simply no co-operation about getting an agreed time table. Mr Barton's wrong. It wasn't at that stage subject to direction, because it was thought both sides would be able to sort the matter out. Mr Giddins had the right to the Commission on behalf of Mr Wood in the end. By the time, belatedly the submissions were received on behalf of the applicant, it just made it impossible for the submission to take place in late December 2004. It is in that sense, it is submitted, it shows there really is no real problem requiring any revocation because they would have made sure they got their submissions in time It's not a submission lightly made because the evidence has established the vast resources of P&O on this issue, that cross examination of Ms Brady. They even use solicitors sometimes for normal industrial matters and I've extracted that cross- examination already in the submissions. Now as to the reply at paragraph 68, it's really breathtaking, it's just so fundamentally wrong that makes it breathtaking, suggesting the Commission should lump all the matters together and not look at each one individually in deciding whether the conduct's been proven.

It's suggested it's not necessary to determine whether each individual incident involving the respondent has been proven on the evidence. I ask rhetorically where's the authority for that for this Commission or any other tribunal. The answer must be it doesn't exist. It does the desperate state that the application has been driven to, gloss over all the factual difficulties, gloss over that we don't get off our home base, because Mr Wood was never there, pre 1 April 2004, under the Workplace Relations Act, right of entry. I have to accept Registrar that it's another matter once the Commission has decided on its own evidence each and every individual incident. The Commission looks at what's proven and not proven in the exercise of discretion. I don't want it to be suggested I'm disputing that approach but it's just wrong. Not necessary to determine whether each individual incident involving the respondent has been proven on the evidence. It's a heterodox view. It just has no foundation in principle, let alone equity and good conscience, and then there's paragraph 69 of the reply:

Commission could be assured if they could come up with any other allegation about Mr Wood, it would have been raised

And the answer is, the best they could do, despite him re entering their premises, despite him going to TT Line unfettered. Are these hearsay documents, they rely upon from TT Line? They don't raise any other example to substantiate this allegation of continue to behave inappropriately, but that submission should be soundly rejected. Finally, Registrar, I just wanted to do what I said might be a mopping up on a few points orally today.

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr Docking, before you go on, can I just clarify something? In relation to what you're describing as the hearsay documents relating to the TT Line, can you tell me specifically which documents you're referring to?

MR DOCKING: Yes, certainly. Exhibit P&O19 is one of the documents and also exhibit P&O18. Exhibit P&O18 of 10 March and 16 April 2004. Actually they'd be in the further application period. I think it's limited to exhibit P&O19. For example, part of that's extracted in the primary submissions of the applicant, page 37, paragraph 137. It's a 1 November 2004 letter of Mr Guirino. Just some short points - - -

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr Docking, I'd actually like to just go off the record for a moment.

OFF THE RECORD

MR DOCKING: Some short points Mr Barton referred to, Mr Wood having a duty of care. Well, that's a species unknown at common law as far as I'm aware. There was a failure to add to Mr Barton's list, Ms Kirsty Bunt, who was present on 2 February 2004 meeting as an employer representative. I've got no idea why she was not called. There's been no explanation. There was this assertion again today that Mr Wood in the December 2003 meeting made a threat of industrial action. I've covered this in the respondent's submissions at some length and the Commission will be able to see that even the contemporaneous note of Ms Fensom, records no such allegation - records no such threat at all. And rather than Mr Wood provoking anything of that meeting, unfortunately for the applicant and the cross-examination of Ms Fensom on one version, and the cross-examination of Mr Gunther, actually corroborates what Mr Wood said and did. How Mr Wood actually, after Ms Fensom swearing, to the effect of, I think
it's "You won't be fucking stopping us do the mooring", Mr Wood had the joke about not swearing in the union rooms to try to add a bit of light heartedness and alleviate what was then a tense situation.

I agree with Mr Barton that the Commission should read the evidence of Mr Daly, but to read all of it, not just the parts that Mr Barton's made reference to because the entire context of what he said will become clear. I do have to say and I appreciate it was part of the Commission's ex tempore reasons that the idea of coming to the Commission to get a direction or permission, it's really a council of perfection, given there was no impropriety, it begs the question why would that be necessary. There's no relevant breach of any act or law. Even still argued by the applicant, on a number of occasions there was this reference to Mr Wood doing things and the exercise of the purported right. This is no cross-examination of him. You can't make that submission. Didn't bother challenging him when each one went through in detailed specifics and substance and said, this is why I was on the premises at that time.

Finally, the suggestion they don't have any other difficulties between P&O and the union ignores the evidence that the dispute about the mooring is actually being conducted by the national office of MUA of which Mr Wood is not a member, he's part of the Sydney branch and P&O. You can't rewrite history in that way. Unless there's some other matter I needed to answer rather than submissions on behalf of the respondent.

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr Docking. Mr Barton?

MR BARTON: Registrar, if I may, I just have a number of points in response to the oral submissions and I will avoid extending the argument on the written submissions. Just a couple of points because I don't think they are dealt with adequately. Firstly, it's been put in a couple of contexts regarding firstly, a letter that Mr Blood sent and also evidence that Mr Riley gave in cross-examination that contradicted the position regarding the relationship between the enterprise agreement and the statutory right of entry. What we say about that is that's a question of law, it's not a question of whatever Mr Riley or Mr Blood may think is the case. They may well have been wrong. It doesn't really matter. Their role for the Commission is to determine what the legal position is, as to the relationship between the rights given under the ..... and the rights given under the legislation.

The next point related to a submission that somehow the words - when the legislation refers to intentionally hindering or obstructing that reference to intention should be transported into the provision dealing with improper conduct. The legislation doesn't say that, Registrar, and you can test the proposition in this way. If it really was a subjective test that Mr Docking suggested, then a union official could act in the most offensive and improper manner, but if he has a different set of values to other people, he couldn't be sanctioned for that. There has to be an objective standard that the Commission applies to determine whether conduct is improper and it cannot be up to Mr Wood, or any other union official for that matter, to determine what is proper and what is not.

The next point, there were references - I think in response to a comment I made about the lack of contrition from Mr Wood there is a reference to an apology that Mr Wood tendered to Emma Fensom and it's found in EJF3, I think it is, at paragraph 7 of Ms Fensom's statement. The point to make there, Registrar, is that in a subsequent e-mail on the same day, Mr Wood repeated the offensive allegation that Mr Riley had been responsible for Mr Thomas committing suicide. If it was an apology, it certainly wasn't a sincere one. And secondly, there was evidence and it's at PN4067, where Mr Wood conceded that the apology that he made in writing to Mr Riley was only given because he'd been directed to give that apology by Mr Crumlin.

This is perhaps a trivial point, but just to close this point off, Registrar, and it really deals with the issue about Mr Wood being authorised under the
New South Wales legislation as an authorised officer to investigate safety disputes and it was suggested that Mr Wood believed, because he was still a delegate, that somehow that continued his authorisation. What I think is meant by that is that at the time Mr Wood was employed by Patrick's and this is in the period between when he acted as a union official and he was a delegate. But it can't - - -

MR DOCKING: I object to any - you can't give evidence from the bar table. I've made the point and I objected at the time. It's not an opportunistic submission. I objected at the time. You can't now make a submission from the bar table as to factual matters. It should have been done in cross-examination.

MR BARTON: I'll put it hypothetically then, Registrar. If it's been put that he was a delegate in his capacity as an employee of another company, it cannot seriously be put that that somehow gave Mr Wood the right to enter P&O premises to investigate safety issues. There's simply no relevance to the issue's here.

As to the issue about whether the proposition that Adsteam employees had informed Mr Wood they had concerns about safety. No, it wasn't put to Mr Wood in the sense that we challenged him that he was telling the truth. But what would have been the point of that. As with other matters, it would simply have been met presumably by Mr Wood standing by his statement. If you refer to transcript at page 4367 to 4370, you'll see that what was put to Mr Wood was whether those concerns had ever been communicated in writing by the MUA to which the answer was no, and whether the Adsteam employees had ever communicated those concerns in writing. Again the answer was no.

In relation to the submissions regarding Jones v Dunkel and the references to witnesses who were conspicuous by their absence, we didn't raise that to make the submission that an adverse inference could be drawn in the sense that they're evidence - it could be presumed, their evidence would be adverse to Mr Wood. What we referred to there was the fact that unlike the witnesses for a company, Mr Wood's version of events was not corroborated by the evidence of any other persons.

Then, in relation to the comparison between Mr Wood's conduct to Mr Gunther and Mr Blood's direction to Mr Riley that he had no communications with Mr Wood, there is one very significant difference, Registrar.

In the case of the dealings with Mr Riley, it was Mr Wood that was the protagonist and it was for that reason that Mr - well, sorry, - I withdraw that. Mr Wood was the protagonist. It cannot be said that Mr Gunther was the protagonist in the dealings with Mr Wood, but again it simply isn't a fair comparison.

In relation to paragraph 120 of the respondent's submissions, Registrar, as I understand the submission it was put that Mr Wood was disadvantaged because Miss Fensom's statement which was, as it was put effectively evidence-in- chief, was filed on 15 September and Mr Wood did not have an opportunity to respond, but Mr Wood had over 2 months before this hearing to respond to Miss Fensom's evidence. There was no application for, if directions were ever needed, further statements to be filed in that regard We say it is not realistic to say that he was prejudiced in any way or had no time to respond or deal with it.

In relation to the submission was made that Mr Wood did not concede that he had used this notice to get around the 24 hour requirement, Mr Wood did in fact make that concession.

THE DEPUTY INDUSTRIAL REGISTRAR: Circumvented.

MR BARTON: Well, you can play games with the words, Registrar, but I refer you to transcript at paragraphs 4906 to 4917 and perhaps if I could just take you to that for a moment, Registrar. Sorry, Registrar, paragraph 4906 the question was put:

So if for instance let's say something happened at 10 o'clock on Sunday night?---I would not be able ...(reads)... that's exactly right.

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr Barton, what paragraph numbers? That does not match what I am looking at.

MR BARTON: PN4906. I have not got a page number.

THE DEPUTY INDUSTRIAL REGISTRAR: No. Sorry, I have actually just transposed a couple of numbers there which has found me completely in the wrong place. Thank you, Mr Barton.

MR BARTON: Sorry, Registrar, if you see at paragraph 4906 a question was put:

So if for instance let's say something happened at 10 o'clock on Sunday night.

And Mr Wood then said:

I would not be able to go in until 10 o'clock Sunday/Monday. No that's only 4 hours ...(reads)... start of the shift what time is - - -

There is a question about what time the shift started. At paragraph 4909:

So let's say something happened at 7:30 and they ring you and say we want you here, Glenn, giving them notice ...(reads)... shifts within the 24 hours' notice.

And then over the page at paragraph 4915, Registrar:

So in effect you've got permanent access by doing this?---It wasn't meant to deceive anybody ...(reads)... haven't given us the notice to come in.

You will see down at the next question - sorry, paragraph 4917:

Yes, there's nothing there, nothing sinister in it. I just had to cover the 24 hours.

So there was that concession, Registrar, that the purpose of the notice was to overcome the 24 hour limitation in the legislation and whether that is circumvention or avoidance, whatever label you like to put on it, but that was the reason and that was Mr Wood's evidence.

Registrar, there was a suggestion - sorry, a submission that Mr Wood did not have to be supervised, but if you look at section 285B(3) and section 285B(4) you will see that when a notice is given of an intention to enter premises where there is a suspected breach, significant obligations are imposed on an employer. A requirement to facilitate the inspection of time sheets, pay sheets and in fact any other documents to facilitate the inspection of work, machinery, to interview employees and, Registrar, that is during working hours. The absence of employees from their normal duties would have to be managed and in 285B(4) an employer is required to produce documents that may be requested. So there are obligations imposed on employers when notices such as those are given.

Then, if I could just deal with this argument about amendment, whether it is necessary to amend the application, whether it is necessary for an application to be made for that to happen, we would say that the Commission can act on its own motion in that. There is no prejudice to Mr Wood. These issues have been dealt with, but perhaps just to clarify what we say the relevance of those three issues are.

The evidence in relation to the December meeting, as I said earlier, provides context for the events that occurred in January and March at TT Line operations. We are not asserting that the conduct at the meeting constituted conduct in the purported exercise of a right of entry. That has not been put and nor is it suggested at least by us.

In relation to the photographs, firstly, you have already ruled on the impropriety of that conduct and we hadn't understood that that would be open to challenge. Secondly, the suggestion that we should have applied at the time we made an application for the - on the last occasion for the amendment to the application , you may recall, Registrar, we were unaware of the existence of those photographs at that time. They came out when Mr Wood was shown them, I believe, in examination- in- chief and, whilst Mr Gunther had given evidence he believed Mr Wood had taken photographs, those photographs had not - we had not been put on notice that those photographs were intended to be used in these proceedings.

In any event what we say about the photographs and the TT Line letters is that - three things. Firstly, that evidence was led in response to Mr Wood's statement in which he made a number of assertions. Sorry, I am talking about the TT Line letters at the moment, Registrar, the first relating to the fact that the safety vest incident was a one off and the second relating to the motivation of his conduct and that he had the best interests of TT Line in - he took those things into account. So the evidence is relevant in two respects, one goes to credit, but secondly, it is in response to the Mr Wood's evidence about the motives that actuated his conduct. So, even if they are not separate matters in themselves that would justify revocation, they are relevant to that evidence.

Then two final points, Registrar. There was criticism of our paragraph 68. I say our paragraph that is in the submissions filed on behalf of the applicant in reply where we refer to the relevant question being, whether the respondent's overall conduct justified the revocation of his permit. That approach was adopted in Doyle's case where there were comments made about patterns of behaviour and, Registrar, you are familiar with that.

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I am quite familiar with the Doyle's case, Mr Barton.

MR BARTON: I can look at overall patterns of behaviour to form an assessment about whether revocation is just. That is, if you like, a discretionary - or may be part of that discretion. I do not necessarily disagree with the submission put that you have to look at incidents to determine what conduct has occurred and what did not occur, but the relevance in paragraph 68 was to say that you can look at the overall conduct to determine whether revocation is justified or warranted.

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Barton, isn't the objection in relation to this paragraph really goes to facts. What you are now saying to me orally is actually, I think, not what that paragraph actually says. I am quite familiar with the case in relation to the Australian Postal Corporation v Doyle and I think it is fair to say that DR McCarol was satisfied of all the various elements in relation to a number of incidents and the point that case makes is that although as an exercise of discretion each of those individual incidents might have led to revocation.

MR BARTON: Yes.

THE DEPUTY INDUSTRIAL REGISTRAR: Because, each having been proven in terms of the evidence, provided a pattern that then satisfied the registrar to revoke the permit.

MR BARTON: I think it may be that we haven't expressed that very well in 68, but that is certainly the proposition we put. Then lastly, and again this is a point which it is regrettable I even have to deal it I have to say. In terms of the argument about delay in prosecuting this matter, Mr Docking may not have been aware, but I think Mr Giddins was and certainly the Commission would be aware that there was a delay in providing the transcript to Freehills. Although the maritime union were provided with the transcript a day after the last day of the hearing, we were not provided with it until a week later and it was that week that put us in the difficult position of being able to have our written submissions prepared in for the last day. This, of course, is not the only matter that we would be working on, Registrar, and that week delay is relevant to the argument that there was any default on our part in having this matter diligently prosecuted. I think there would be correspondence on the Commission's file about that delay.

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, Mr Barton.

MR BARTON: Thank you, Registrar.

MR DOCKING: I did not want to reply, but there was one factual matter that is incorrect, that was asserted and it is the suggestion, I think, it was only until Mr Wood's examination- in- chief that the photographs were revealed. I think the transcript will show that it was day 1, Mr Davis, who was cross-examined on these.

MR BARTON: I think that - sorry, Registrar, I think they were presented to
Mr Gunther and it was at that point there was a debate about how the photographs came into existence, but I think the application had already been made by that time.

MR DOCKING: I think Mr Davis was first and that is when the red herring, as I have called it, was raised about breach of security of legislation, but in any event it was not until Mr Wood's evidence and in any event Mr Gunther's reply statement acknowledged photographs had been taken. It was not a new matter at all.

MR BARTON: I think the point I was making, Registrar, was that there was an application to amend which was dealt with, I think, at the start of the proceedings. It was subsequent to that, and I accept Mr Docking is right that it was in
cross-examination, I think, of Mr Gunther that the photographs were brought to everyone's attention for the first time, but it was subsequent to the application to amend.

THE DEPUTY INDUSTRIAL REGISTRAR: I understand your point.

MR DOCKING: I think the transcript will show it was Mr Davis, but it might be that the application to amend was made before Mr Davis got in the box. There's four other days of evidence, including day 1 when no application to amend and now, I don't think it is still made. The Commission is invited to act on its own motion for the reasons Branson J set out against the MUA, that strenuously opposed the Commission doing anything off its own motion, let alone on application.

THE DEPUTY INDUSTRIAL REGISTRAR: I think a close reading of the transcript will assist me in resolving the situation in terms of those last couple of points that have been made. If there is nothing further, I intend to adjourn and reserve my decision.

<ADJOURNED ACCORDINGLY [3.36PM]