C2006/2914, Transcript of Proceedings [2006] AIRCTrans 1028 (1 September 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15597-1

SENIOR DEPUTY PRESIDENT HAMBERGER

C2006/2914

TERMINALS PTY LTD
AND
NATIONAL UNION OF WORKERS
s.496(1) - Appl'n for order against industrial action (federal system).
(C2006/2914)

SYDNEY

8.59AM, THURSDAY, 17 AUGUST 2006

PN1

MR R WARREN: I appear by leave for Terminals Pty Ltd.

PN2

MR A JOSEPH: I seek leave to appear for the NUW. I have with me
MR S MUELLER and MS A PERKINS from the union and also three site representatives, MR D SULLIVAN, MR GORWAY and MR O'BRIAN.

PN3

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Well, I assume there are no objections to leave, so leave is granted. Mr Warren.

PN4

MR WARREN: Your Honour, this is an application for orders pursuant to section 496 of the Act. It's an application commenced as a result of asserted overtime bans that it will be put - have been put in place at the company's Botany Bay terminal in support of negotiations for a new enterprise agreement. The current enterprise agreement and the details of it are raised in the application and the agreement indeed is due to expire on 29 August this year, but in terms of the Act is a current agreement and currently enforced and currently in turn. Can I say from the outset, your Honour, that the application seeks orders both against the employees concerned in the asserted overtime ban and the union.

PN5

The company does not press the orders raised in the application in C, D and E, the orders against the union. The company presses the orders against the individual employees. So for the purposes of today's proceedings the company does not press the orders sought against the union. That being the case, your Honour, there have been three affidavits filed in these proceedings, one of Mr Douglas George Eng spelt .....

PN6

MR JOSEPH: I'm sorry, your Honour. I just had to advise my learned friend I am only currently instructed by the union. I would seek a brief adjournment. As I said this is - the approach now being taken by the applicant is I believe - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Just discovered, yes.

PN8

MR JOSEPH: I would like briefly, if I might, just a couple of minutes to take some instructions.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR JOSEPH: And I'll have something to say of - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Okay, I think that makes sense. Well, we'll just briefly adjourn.

PN12

MR JOSEPH: Thank you, your Honour.

<SHORT ADJOURNMENT [9.03AM]
<RESUMED [9.11AM]

PN13

THE SENIOR DEPUTY PRESIDENT: How did you go, Mr Joseph?

PN14

MR JOSEPH: Well, I can report this, your Honour. I have instructions to appear for the three individuals who are here, Mr Sullivan, Mr Gorway and Mr O'Brian.

PN15

THE SENIOR DEPUTY PRESIDENT: Right.

PN16

MR JOSEPH: None of those individuals have been served, but they are obviously, they are aware of the application. I do not have instructions to appear for any of the other employees.

PN17

THE SENIOR DEPUTY PRESIDENT: Right.

PN18

MR JOSEPH: To the best of my knowledge they have not been served with the application. Although they're not named it is quite clear that the application is directed to those other persons.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MR JOSEPH: And I think there are eight other persons.

PN21

THE SENIOR DEPUTY PRESIDENT: Okay. Can I ask, Mr Warren, my understanding is that you're alleging that there are these overtime bans that basically relate to the deliveries for a particular customer?

PN22

MR WARREN: Yes that's exactly right, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: And presumably those deliveries aren't every morning, if I can put it that way?

PN24

MR WARREN: No, that's correct.

PN25

THE SENIOR DEPUTY PRESIDENT: When is the next delivery due?

PN26

MR WARREN: Tomorrow morning.

PN27

THE SENIOR DEPUTY PRESIDENT: Tomorrow morning? Okay.

PN28

MR WARREN: There was one this morning, there's one tomorrow morning. What happens every Friday the customer gives us a list of their requirements for the following week and the position of the company is they then seek from the employees the commitment to work overtime for that period of time and seek an allocation of persons. They need two persons each morning. It might be Monday, Wednesday, Thursday, Friday the next week, or something along those lines, whatever the arrangement is with the client. It's a new client and they're trying to establish a new business, a new part of their business, and this client apparently services country areas in New South Wales so needs to leave the terminal early in the morning with the diesel fullers.

PN29

So that's the reason for it and the company needs to know on the Friday when Freedom Fuels tells them this is our requirement for the following week. The company needs to know who's going to be available so that they can tell Freedom yes, we can do the deal.

PN30

THE SENIOR DEPUTY PRESIDENT: Can you tell me any more about what notification, or not notification, what warning it was served in terms of the application?

PN31

MR WARREN: Mr Joseph is correct. The union and the individual employees were not served and a decision was taken this morning in my chambers in conference with the company that the union would not be pursued in these proceedings for reasons I don't really need to go into, but will probably become evident when your Honour looks at the material. But it is clear, of course, that the employees were aware of it. The three employees in the court are the three job representatives.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. We're talking about how many employees again?

PN33

MR WARREN: About 12, 11.

PN34

THE SENIOR DEPUTY PRESIDENT: 12, yes. I presume you're a tight knit group.

PN35

MR WARREN: It is a very tight knit group.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I think we'll continue on. I mean, I did think about whether we should adjourn and give the employees an opportunity to have, you know, be consulted further, but I think we'll continue on and see how we go, I suppose.

PN37

MR WARREN: Thank you, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: So if you're happy to represent the delegates who are here.

PN39

MR JOSEPH: I am happy to do so.

PN40

THE SENIOR DEPUTY PRESIDENT: I appreciate you're not representing anybody else.

PN41

MR JOSEPH: I can only say that, and I say this without a - I say this, your Honour. I would be putting a submission in relation to the other employees.

PN42

THE SENIOR DEPUTY PRESIDENT: Right.

PN43

MR JOSEPH: There'll be other material before your Honour, I think, that would submit this submission, but be that as it may in relation to the other employees that your Honour couldn't proceed to make an order against those other employees absent.

PN44

THE SENIOR DEPUTY PRESIDENT: Right, though you're not representing them?

PN45

MR JOSEPH: No.

PN46

THE SENIOR DEPUTY PRESIDENT: Okay, yes. Okay, we'll see how we go. Okay, well sorry, Mr Warren.

PN47

MR WARREN: Just on that point of course, your Honour. As your Honour will see from the material, or if your Honour hasn't seen will see when the material is presented, that it's asserted that all of the employees are members of the union. The company makes union deduction fees, deductions of all of its employees and remits it to the union and that's contained in the material. So it's not a question of some of these employees not being a member of the union, or not being made aware of that situation.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN49

MR WARREN: Your Honour, there have been three affidavits filed in support of the application, one by Mr Douglas George Eng, one by Bradley Maxwell Crockett and one by Edward Arthur Jones. I understand from brief discussions I had with my friend prior to your Honour coming on the bench that he requires them for cross examination and they are here and perhaps I could call Mr Eng and ask him if he can join, he's outside.

<DOUGLAS GEORGE ENG, SWORN [9.17AM]
<EXAMINATION-IN-CHIEF BY MR WARREN

PN50

MR WARREN: Thank you, your Honour. Mr Eng, your full name is once again Douglas George Eng, spelt E-n-g. Your work address is 45 Friendship Road, Port Botany, New South Wales?---That's correct.

PN51

Mr Eng, you have prepared an affidavit for the purpose of these proceedings?
---Yes, I have.

PN52

Do you have it with you in the witness box?---Yes, I do.

PN53

It's an affidavit that you swore on 15 August 2006. It comprises some 12 pages, 30 paragraphs and annexures A to J. Is that correct?---That's correct.

PN54

Could I just take you to that affidavit, Mr Eng, and your Honour can I indicate here an apology. The automatic spell on my instructing solicitor's word processor changed a word that is embarrassing. In paragraph 7, Mr Eng - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR WARREN: In the fourth line, should the u in that word be changed to an e?

PN57

THE SENIOR DEPUTY PRESIDENT: Yes.

PN58

MR WARREN: We do so. It's probably not the first time they might have had that problem.

PN59

THE SENIOR DEPUTY PRESIDENT: No.

PN60

MR WARREN: Mr Eng, I also take you please to paragraph 28. Therein you refer to an annexure G. Should that read F?---Yes, that should read F.

PN61

Thank you. And in the next paragraph, 29, the third line you say:

PN62

Mr Eng said words.

PN63

Do you want to change that to "I said"?---Yes, that's right.

PN64

With those amendments I formally read the affidavit and seek to tender it.

**** DOUGLAS GEORGE ENG XN MR WARREN
PN65

THE SENIOR DEPUTY PRESIDENT: Okay. Any objections?

PN66

MR JOSEPH: There are. Your Honour, my objection goes to the file note which is annexure G. Now, bear with me for a moment. My objection specifically, if your Honour wants to have a brief look, is particularly for the words in brackets, in parenthesis, contained within that file note.

PN67

THE SENIOR DEPUTY PRESIDENT: You're right, yes.

PN68

MR JOSEPH: For the obvious reason.

PN69

MR WARREN: Well, it is the accurate file note. We don't press for the purpose of these proceedings those words, which would be this witness's - - -

PN70

THE SENIOR DEPUTY PRESIDENT: Surmise?

PN71

MR WARREN: Yes, exactly.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes. I wouldn't really give any weight to it myself.

PN73

MR WARREN: Precisely, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: I wouldn't be giving it any weight - I mean, not any weight. It's obviously his personal views as to what conclusions he's drawn, but they're not real, it's not real evidence.

PN75

MR WARREN: We don't rely on those for the purpose of these proceedings, your Honour, but it is the file note in its entirety, that's what's attached.

PN76

MR JOSEPH: So can I take it that, your Honour - - -

PN77

THE SENIOR DEPUTY PRESIDENT: I will give no weight to the words in brackets. I'll ignore them.

PN78

MR JOSEPH: Thank you.

PN79

THE SENIOR DEPUTY PRESIDENT: So apart from that, well, Mr Eng's affidavit is T1.

**** DOUGLAS GEORGE ENG XN MR WARREN

EXHIBIT #T1 AFFIDAVIT OF DOUGLAS GEORGE ENG DATED 15/08/2006

PN80

MR WARREN: That is the evidence.

PN81

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Joseph.

<CROSS-EXAMINATION BY MR JOSEPH [9.21AM]

PN82

MR JOSEPH: Thank you, your Honour. Mr Eng, I note you are the New South Wales state manager of Terminals?---Yes, that's correct.

PN83

And you've been in that position since 1 September 2003?---That's correct.

PN84

So it's fair to say that you have a reasonable working knowledge of the Port Botany site?---Yes.

PN85

And you've worked with the guys, the employees who are covered under the certified agreement reasonably closely over that period of time?---Yes.

PN86

And you have a good working knowledge of the way in which things are customarily done, normally done on the site?---Yes.

PN87

Thank you. Now, sir, you say there are 11 full time operators?---There are 10 full time operators. One operator is a permanent employee on a fixed term contract of two months.

PN88

Of two months?---Yes. So 11 permanents.

PN89

Okay, sure. And, sir, you say that the employees are covered by the certified agreement, their employment is covered you say at paragraph 7 by a certified agreement?---Yes, that is my understanding, yes.

PN90

Now, sir, the dispute here, is it not, you allege that the employees are engaged in industrial action by virtue of not committing a week in advance to providing names for overtime for deliveries by Freedom Fuels at 4 am Monday to Friday?
---That's correct.

PN91

That's in essence what you say the industrial action is?---Yes, that's right.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN92

All right. Now, sir, can I take you to annexure A to your affidavit. That is the certified agreement. Now, you say at paragraph 11, you say the agreement also provides for, at clause 5.5.16, late early truck procedures, the agreement provides for the payment of overtime for the loading or unloading of trucks prior to 6 am. That's right?---That's right.

PN93

All right. Well look, if we go to annexure A and we actually go to 5.5.16 what you're actually referring to there - - -

PN94

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph are we talking about?

PN95

MR JOSEPH: 5.5.16, late and early truck procedures in the certified agreement. You'll find that on the beginning of page 19.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes.

PN97

MR JOSEPH: Now, sir, nowhere within that subclause 5.5.16 does it actually say that operators employed under this agreement are required to present themselves prior to their normal start time to meet early truck deliveries. You'd agree with that, wouldn't you?---It is normal custom and practice for the guys to come and do early trucks by arrangement.

PN98

Sir, please answer my question?---It doesn't specifically.

PN99

It doesn't say. It is not a requirement under the enterprise agreement that the employees present themselves before 6 am, or before their normal start time for work?---No, it doesn't say that in that clause.

PN100

No. And there are requirements contrary to that in, for example 5.5.16.7, there are requirements for operators on late trucks being required to work up until a specified time, being 6 o'clock in the evening?---Yes, that is correct.

PN101

That is actually a specific requirement?---Yes.

PN102

Okay. You see, because of the 10 or 11 guys who work at the site, if we can just talk about how they're normally rostered just so the Commission understands the rostering system. We have how many guys how start at normally at 8 o'clock in the morning?---It varies on the work activity, but normally there'd be, say, five guys.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN103

Five guys start at 8 o'clock and when do the others start?---They start at 6 o'clock normally.

PN104

And what about some people who start late? Are there not employees who start later in the day?---At 8.30.

PN105

At 8.30? That's the late start?---6 o'clock and 8.30.

PN106

6 o'clock?---6 am and 8.30.

PN107

And that takes account of the entire unionised workforce, if I can call it that?
---Yes, normally.

PN108

Okay. So that would be their, that's their normal start times without any overtime. So five at 6 am and five at 8.30?---Yes.

PN109

And if the five at 8.30 who share amongst themselves the overtime work in the afternoon when trucks come in after finishing time?---Yes. They have a roster for late trucks.

PN110

They have a roster for late trucks?---Yes.

PN111

Okay. And there's no issue with the way that's operating?---No.

PN112

No. So in fact what we have here, if I'm correct, in your mind is an issue with five of the guys being prepared to roster themselves to work on the early shift?---No, the entire group. The problem is we have to service this customer, this new important customer, and they want trucks loaded early in the morning and they are provided that.

PN113

I understand that. I understand that, Mr Eng. Sorry, just excuse me. Sorry. So are you saying then that as far as you're concerned even though guys would normally start at 8.30 in the morning you're expecting them to turn up at 4 am as well?---No. There's the - they rotate week about to the best of my knowledge. They rotate week about, who does early shifts, who does late shifts. So between them they can work out a roster because that's the typical practice for them to organise the overtime to cover that week going forward as they do on shipping.

PN114

Yes. Excuse me, I just want to take instructions. But nevertheless would it be fair to say even if the guys rotate, say, five on the late shift and five on the early shift, if we can call it that, in any one week there are going to be five persons who would be called upon to start at 4 am, or amongst those five that you would require two. Is that right?---Yes.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN115

On every day when Freedom Fuels want work done?---Yes.

PN116

Now it's necessary to have two people present?---Yes, that's the site rule.

PN117

Site rule?---Mm.

PN118

And that's one, because it's contained within the agreement and two, I presume for health and safety reasons?---That's correct.

PN119

Yes. Now, you worked during the period of time when the employees were doing the Mobil contract, when the Mobil contract was being performed?---Yes. Towards the end of that period, I think it was from 2001 to 2004.

PN120

And, sir, it was during that period of time that as I understand it during the period of time in the Mobil contract employees were on occasion required to work at
5 am, to begin work at 5 am. Is that right?---Quite regularly, yes.

PN121

Quite regularly?---Yes.

PN122

But, sir, you'd agree with me that the way in which that was organised was a day or two in advance employees would be asked to make themselves available for that overtime to begin at 5 o'clock. Is that right?---I can't - I'd understand that that was the practice, I can't comment on it for sure because we never had any problems with providing labour for Mobil.

PN123

You would agree with me that there was no roster in place, there was no requirement by management at any stage to ask people to commit a week in advance to working on particular days?---I can't comment on that. I was not aware of any roster.

PN124

So you're not aware of there being a roster?---I'm not aware of it, no.

PN125

I see. And to the best of your knowledge - and you say there was no problems. To the best of your knowledge it was done on a more ad hoc basis a day or two in advance?---Again I can't comment on that because I'm not aware of there being a roster for that work.

PN126

Are you aware at any stage ever in the time you've worked at the site of there having been a requirement in the form of a roster a week in advance of overtime, for overtime to be worked?---No, I'm not aware of that.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN127

Thank you. So where you say that in paragraph 14 of your affidavit that it's the usual practice for the allocation of overtime to raise times and dates for overtime with the representatives of the consultative committee, namely Kyle O'Brian and Dan Sullivan, and then they discuss it with the employees and decide which of the employees will work the overtime, in fact what happens is there's a book, isn't there? You're aware there's a book?---There's a book, there is an overtime book, yes - - -

PN128

Where the employees - - -

PN129

MR WARREN: Let him finish.

PN130

MR JOSEPH: Sorry. If I might supplement the question. Sorry, no. You continue, sir. Sorry, go on?---Yes there is a book for that, but what I'm referring to in my affidavit is the normal custom and practice on a Friday for shipping, the guys - or prior to any shipping - the guys will get together as a group and they allocate the overtime and it might be a 48 hour shift or 36 hour shift and they go through and allocate in a way of a roster as to who's going to do the shipping on that day, or two days, or three days and - - -

PN131

Yes. Just - sorry?---And in fact perhaps even a whole week in front.

PN132

Sorry. Just so the Commission understands we're talking here about an operation where you operate a bulk liquid terminal and there is a requirement in the certified agreement, much as there is with the late trucks, there is a requirement for the employees to make themselves available for the shipping?---That's correct.

PN133

That is actually a requirement because obviously if people didn't make themselves available you've got ships sitting off shore?---That's correct.

PN134

And all sorts of costs arise. So their custom and practice you're referring to there relates to shipping where the overtime is going to actually involve a requirement for employees to relieve each other as part of the group over a period of 24 or 48 hours as a ship is being unloaded?---Yes.

PN135

Unloaded its load into the terminals?---That's right.

PN136

Yes. That is not the way, if I can call it yard overtime, that doesn't apply to yard overtime as distinct from the shipping?---No, it doesn't.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN137

No. And in fact in relation to the yard overtime, if I can call it that, such as unloading trucks the employees operate by way of the book where they record the overtime that each person has worked over a period of a week or so is recorded and then people who work the least go to the top of the list as it occurs?---You would have to ask them about that. It's not a management book that we are in charge of. The guys run their own book as I understand.

PN138

Yes, okay, all right. So you're not in a position to deny the proposition I'm putting to you?---No, I'm not, no.

PN139

And you're aware that they operate that by way of a book?---I understand there's a book, yes.

PN140

Yes. And that operates different to the way the shipping overtime is done?---I presume so, yes.

PN141

Now, you say that it is rare for the employer to be unable to find persons to work overtime?---That's right.

PN142

But there are occasions on which management request people to work overtime and for whatever reason people aren't available?---Yes, very rare.

PN143

And overtime itself is not generally an everyday occurrence?---No. On the contrary overtime is a common occurrence.

PN144

I'm not saying - I didn't say - I said every day, sir?---Every day? There's frequently in excess of 10 hours overtime per man a week.

PN145

But that doesn't mean there's overtime every day?---That's this year.

PN146

That doesn't mean there's overtime every day?---Well, no.

PN147

So, for example, if you were to go to annexure B or C to your affidavit - sorry, to B excuse me - if we just go to the first page there we see June 2006 and we see that for some days, some times many days in a row, there is no overtime. That's correct?---That's correct and you also see that there's many days where there is overtime consecutively.

PN148

Certainly, yes, that's true. And the times at which the overtime is worked also varies?---Yes.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN149

As in you can see some of it's in the afternoon on the late shift, you can see some of it starts at midnight and you can see some of it starts early in the morning,
5 o'clock or 2 o'clock or 3 o'clock as the case may be?---Yes.

PN150

It's all over the place. I don't mean that in a majority sense, but it varies. That's right?---Yes.

PN151

And the employees are expected to work that overtime, or are expected to work that overtime and do do it generally?---Yes, that's the nature of our business.

PN152

Certainly, all right. Now, you say that a meeting was held on or about 2 August?
---Yes.

PN153

And it was at this meeting where management advised the employees that they had a new contract with Freedom Fuels and that from the following Monday you required two people to be available every morning from 4 am?---That wasn't the first time that we'd informed the employees or the consultative group that we have a new contract. Some four to six weeks prior to that and indeed other informal occasions I advised the guys of a new customer and how that was good news for our business going forward. That was the day that was Wednesday the 2nd, I think it was, that we advised them we had formally received notification from this new customer, Freedom Fuels, that we would require the 4 am start the on following Monday the 7th. So we passed that on to the group to see if we could get labour to do it on the Monday.

PN154

So just cutting through all of that, Mr Eng, what you are in fact telling me is that it was five days before you required them to do this that you told the employees, you told the workplace representatives, that management required two employees to be available?---For the Monday.

PN155

For the Monday every day following?---Yes. It wasn't the first notification that they - - -

PN156

No, I'm not saying it was the first time you mentioned Freedom Fuels, sir, I'm just saying it was the first time you told them what was going to be happening, what you required of them?---Yes.

PN157

So it was five days beforehand. And this was, you say, a new customer?---Yes.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN158

And you expect that to last for some months I understand?---Yes, some six to seven months.

PN159

And you reached agreement with Freedom Fuels, did you sir, or the company reached agreement - if you can answer this question, if you have knowledge to answer this question - the company reached agreement with Freedom Fuels that these deliveries would occur, or would be undertaken by, or a section of these deliveries would be undertaken by Terminals, at 4 am every weekday for a period of some months. You've reached that agreement with Freedom Fuels before discussing it with the employees?---It was raised in the initial discussions and as part of getting that, achieving that business, that was probably going to be one of their requirements, yes.

PN160

I'm sorry, sir. Was that a yes to my question?---Yes.

PN161

Thank you. Right. So that was actually formally signed off as part of an agreement?---That came some time later.

PN162

I see, but before 2 August?---Yes.

PN163

Right. And in order to undertake this contract in your mind what you had agreed as part of that contract was that Freedom Fuels would advise you a week in advance of what days the trucks would be turning up?---Yes.

PN164

So that's what they're doing? They're telling you on the Friday for the following Monday, Tuesday, Wednesday, Thursday, Friday and so on of what days the trucks are turning up?---Yes, that's right.

PN165

I see, okay?---It is a new business and they're just settling down through a trial period at the moment and, what, are we 11 days into it now? And they have provided us with the roster last week, yes.

PN166

I see. And this required for the first time, to the best of your knowledge, for you to ask the workplace representatives to enter into an agreement, as it were, a sort of a site agreement, if we can call it that, to get a roster happening where the company would know a week in advance which employees were making themselves available Monday through to the Friday?---Yes.

PN167

Yes, thank you. Now, sir, if we just look at the days on which - see, this has no operated, or been in operation now, the procedure over which the dispute is occurring, you say since Monday, 7 August. Is that right?---That's correct.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN168

Now, do you have knowledge of on what days, if I was to go through a series of days on what days people had provided there's been guys there for overtime?
---Yes. Reasonably so I think, yes.

PN169

All right. On Monday, 7 August there were no available operators?---That's correct.

PN170

On Tuesday, 8 August there were no available operators?---No, there were on the Tuesday as I think, yes.

PN171

Right. But could I just say there would you be aware that in fact some employees worked overtime on the Tuesday in any case, staying back in the afternoon?---I couldn't comment, I don't know.

PN172

All right. I mean, you're not suggesting that employees are not working overtime?---No.

PN173

No. And on Wednesday, 9 August a couple of employees were making themselves available, but the delivery got cancelled by management the previous night?---By the customer.

PN174

By the customer. And Thursday, 10 August two employees came in at 4 am and loaded the trucks as required?---Yes.

PN175

Friday, 11 August two employees came in and loaded trucks as required?---Yes.

PN176

Saturday, 12 August, and I understand does Freedom Fuels also require some work done on the weekends?---On the Saturday.

PN177

On the Saturday. And in fact are you aware that two employees were available to load the truck as required, but the truck didn't show up?---That's correct.

PN178

Monday, 14 August no operators were available?---Correct.

PN179

Tuesday, 15 August the trucks were loaded as required?---Yes.

PN180

Wednesday, 16 August two employees were available to load the trucks as required, but the trucks were cancelled?---The trucks were cancelled by Freedom, yes.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN181

And this morning you required two employees to load trucks and they were in fact there and loaded the trucks as required at 4 am?---Yes.

PN182

I see.

PN183

THE SENIOR DEPUTY PRESIDENT: Can I just confirm. So how many days are you saying that there weren't people available to work there overtime?
---There's been the two Mondays, the 7th and the 14th.

PN184

So only the Mondays, the 7th and the 14th?---Yes.

PN185

So what I just want to confirm this is people turning up - how far are they indicating they're available, the operators?---It's varied between - sometimes it's been less than 24 hours.

PN186

Right. But there has always been someone there apart from those two Mondays?
---Those two days, yes.

PN187

Thanks. Sorry. I just need to briefly adjourn. I'm sorry about this.

PN188

MR JOSEPH: Certainly.

PN189

THE SENIOR DEPUTY PRESIDENT: Sorry, we won't be long.

<SHORT ADJOURNMENT [9.47AM]
<RESUMED [9.50AM]

PN190

THE SENIOR DEPUTY PRESIDENT: Sorry, I apologise for that.

PN191

MR JOSEPH: So, sir, just given the answers that you've given where you say at paragraph 30 of your affidavit as a result of the employees refusing to load the trucks at 4 am and give a ready and weekly reliable roster for overtime you say there was a potential for the company to lose the new customer?---Yes.

PN192

Your evidence of the employees refusing to load the trucks at 4 am has to be seen in the context that of all the days on the Monday, the Monday as it were, have there not been employees available?---No. My problem is I've got a million dollar customer who wants trucks loaded and we can't provide the labour on two of those days and we jeopardise that business. The employees will not allow us to use casual, so they've withdrawn their consent, and as a result what are we to do? How are we to go forward? We can not service this important customer.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN193

Sir, you agree with me that - can you tell me where there's a requirement to work reasonable overtime?---No, there is nothing in the - - -

PN194

There's nothing in the agreement or award or anything of that nature?---No. The custom and practice is to work overtime.

PN195

Is to work overtime?---That's right.

PN196

And the employees work overtime?---Yes, they do. They work a lot less overtime this year than they've done in 2005 and in 2004 in fact. 2004 they worked 16 hours per man average overtime, 2005 they worked 12 hours per man per week average overtime and this year they're down to 10. So it's they're doing less overtime now, you'd think that they would be keen to do this extra work to supplement their income under normal circumstances.

PN197

But you say the requirement, you say if on a particular day as on the two Mondays that no employees turn up, you say that's industrial action? That's what you're saying?---Their failure to provide labour to our new and important customer, we certainly see that as industrial action in support of the EBA negotiations.

PN198

Now, the custom and practice, you say, has always been for the delegates, subject to the answers that you've given, that when it comes to shipping, for example, the employees, the workplace representatives, the delegates, they organise a roster with the guys so that the ships are covered for the 24 or 48 hour period?---Yes.

PN199

And you say that in relation to yard overtime their custom and practice is that the employees work through - or you agreed with me that there's a book?---Yes.

PN200

You're not sure how it works, but there's a book?---Yes.

PN201

Now, in relation to this issue whereas normally the yard overtime would be left to the employees themselves to sort out, you actually took matters into your own hands with Mr Crockett on or about 11 August?---To do what?

PN202

Well, I'm presuming to go out and speak to each individual and ask them whether they were prepared to work on the following Monday?---Yes, that's right.

PN203

Right. And actually and those are the responses contained at G, annexure G?
---Yes.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN204

And the responses you've got there you see:

PN205

Gary Wilson, I can't do Monday, Dave, I've got my opinion about all of this.

PN206

And you've recorded that. John Strange says no problem, he would fill in. Dan Sullivan says no, he's not available on Monday, but 99 per cent sure there'll be blokes available on Tuesday and:

PN207

Then we will let you know each day who is available.

PN208

Petkoski says:

PN209

I'll talk to the blokes, I'll let you know.

PN210

Barnett says:

PN211

Not available on Monday, I am on late shift.

PN212

And so on?---Yes.

PN213

Now, you're not aware of any other problem with overtime being worked?---No.

PN214

With people being required to work overtime and in fact working that overtime?
---That's right.

PN215

And you agree with me that there are any number of reasons why an individual might not be available on a particular day to get out of bed at 2.30, or 3 o'clock as the case may be, to be at work at 4 am. So you concede, you concede that - and in the environment when you've only got really five people to choose from on any particular day to get two?---Yes.

PN216

So you concede that there's at least some possibility on each day that two people won't be available?---Yes, of course there's that possibility.

PN217

And so - yes. And that has in fact happened twice in the last two weeks?---Yes.

PN218

No further questions, your Honour.

PN219

THE SENIOR DEPUTY PRESIDENT: Thank you.

**** DOUGLAS GEORGE ENG XXN MR JOSEPH
PN220

MR WARREN: Just briefly, your Honour.

<RE-EXAMINATION BY MR WARREN [9.57AM]

PN221

MR WARREN: Mr Eng, my friend asked you some questions about the working of overtime and the history of working overtime and he put to you - or actually I'm not sure whether he put to you, or you said to him, it was very rare not to be able to man up overtime?---That's correct.

PN222

Can I take you back prior to the last two weeks?---Yes.

PN223

When was the last time to your knowledge that you've attempted to have people work overtime and overtime has not been worked?---I can't remember. When that question was put to me I couldn't recall when we had a problem prior to this current situation. It's that long ago.

PN224

You've thought about it now and you still can't remember?---No.

PN225

MR JOSEPH: Well, I object to that. He's leading the witness.

PN226

MR WARREN: Now, Mr Joseph took you to the enterprise agreement which you have annexed as A and he took you to clause 5.5.16.7. Do you see that?
---Yes.

PN227

Could you read the next clause to yourself please?---Yes.

PN228

And could you then read the next clause, so 16.8 and 16.9?---Yes.

PN229

When to your knowledge do those clauses have effect at your site?---Prior to 0600 hours in the morning. It's always in effect.

PN230

What's always in effect?---The way I - what it says is that sufficient operators are scheduled to start work before 0600 and prior notification is given and that the fact that there is a method of paying them overtime prior there is a mechanism by which they can work by prior notification. They can work before 0600 at any time.

PN231

How do you schedule people to start before 0600?---By notifying the people, the work group of the work that was required and they, within their group, work out who's going to be available to do that.

**** DOUGLAS GEORGE ENG RXN MR WARREN
PN232

THE SENIOR DEPUTY PRESIDENT: Actually, Mr Eng, can I ask you about in relation to the certified agreement there's a provision 5.1 that talks about, I mean, it says:

PN233

The intent of the labour coverage clause is to ensure that when permanent operators are unavailable casual labour will be engaged under the terms prescribed in this clause.

PN234

You made a - I think you referred to a sort of withdrawal of agreement by the operators to the engagement of casual labour?---Yes.

PN235

To fill in presumably for this, to do this extra work?---That's correct.

PN236

Can you just tell me a bit more about that?---There's a provision in there that the men, I think further down the page there, sir, 5.1(a) there requires the mutual agreement for the need, of the need for casual operators. During the discussions that have been going on for some time as you'll see from the file notes we weren't able to get the coverage for those shifts. So we had a meeting and I suggested that we use casuals and sought their agreement to use those casuals so that it would reduce the demands on the operators. Their consent was withheld.

PN237

Did they give a reason?---They said that during the current environment, during the EBA negotiations, they thought it would be better to abide by the EBA.

PN238

Right, okay. Thank you. Yes, thanks, you can sit down now.

<THE WITNESS WITHDREW [10.02AM]

PN239

MR WARREN: I call Bradley Maxwell Crockett.

<BRADLEY MAXWELL CROCKETT, SWORN [10.02AM]
<EXAMINATION-IN-CHIEF BY MR WARREN

PN240

MR WARREN: Mr Crockett, just once again your full name is Bradley Maxwell Crockett?---Correct.

PN241

And your work address is 45 Friendship Road, Port Botany, New South Wales?
---Correct.

PN242

Mr Crockett, you've prepared an affidavit for the purpose of these proceedings?
---Yes, I have.

PN243

And you have it with you in the witness box?---I do.

PN244

It's an affidavit that you swore on 15 August. It is of some 14 pages, 22 paragraphs and annexure A to F. Is that correct?---Correct.

PN245

Could I just take you to paragraph 21 please, Mr Crockett, and the third line?
---Yes.

PN246

You there mention an annexure marked G. Should that read F?---It should.

PN247

And you wish to change it to F?---I do.

PN248

Thank you. With that amendment I formally read and seek to tender the affidavit of Mr Crockett.

PN249

THE SENIOR DEPUTY PRESIDENT: Yes. Any problem, Mr Joseph?

PN250

MR JOSEPH: No.

PN251

THE SENIOR DEPUTY PRESIDENT: Okay.

EXHIBIT #T2 AFFIDAVIT OF BRADLEY MAXWELL CROCKETT SWORN 15/08/2006

PN252

MR WARREN: That's the evidence of Mr Crockett.

PN253

THE SENIOR DEPUTY PRESIDENT: Mr Joseph, when you're ready.

<CROSS-EXAMINATION BY MR JOSEPH [10.04AM]

PN254

MR JOSEPH: Yes. Thank you, your Honour. Mr Crockett, you say you're operations manager at Terminals and you were appointed to your current position on 7 August 2006?---Yes.

**** BRADLEY MAXWELL CROCKETT XXN MR JOSEPH
PN255

Where were you before 7 August 2006?---I was still an employee of Terminals. My position at that time was operations manager designate.

PN256

Yes. Well, you say in your affidavit that on the 15th day of August that your operations manager designate. So I'm sorry, I'm just trying to - - - ?---Yes, I'd say that's a drafting error.

PN257

Okay, that's all right. So before 7 August you were operations manager designate?---Correct.

PN258

Sounds quite formal. And what did that involve? Doing the job, but not formally having the title yet? Is that - - - ?---I was working with a colleague, Eddie Jones, an understudy to him whilst I was learning the full nature of the role at the Terminals operation at Port Botany.

PN259

How long have you actually been there for, at Terminals?---I believe I started in early May, about the 7th or 8th.

PN260

Okay. So your knowledge of the site and the way things have been done at the site over a period of time really doesn't go back beyond May?---That's correct.

PN261

Now, since May you would agree with me that there are approximately 10 full time operators?---Correct.

PN262

And five work starting at 6 am and five start at 8.30 am?---No.

PN263

No?---No, three start at 8.30 am.

PN264

Okay. And how many start at six?---The remainder. We also have a permanent, or I should say a fixed term permanent as well, so in fact there is 11 operators if you include the fixed term permanent.

PN265

All right. And when does he start?---He starts - well, they roster the 8.30 starts within the work group and three at any particular time start at 8.30.

PN266

I see. And seven start at 6 am?---Eight.

PN267

Eight. And the three people out of the group start at 8.30 every week?---Yes, that's correct. And there's a roster for that that's followed.

**** BRADLEY MAXWELL CROCKETT XXN MR JOSEPH
PN268

And there's a roster for that that's followed?---Correct.

PN269

And whilst there's no roster for it those employees who start at 8.30 are expected to stay back in accordance with the EBA, are expected to stay back and hand all the late trucks up until at least 6 pm?---In line with the terms of the EBA, correct.

PN270

Yes. And also in line with the terms of the EBA the employees do have a roster that they organisation amongst themselves for ships that are coming in in the week before. Is that right?---They establish a manning roster in advance for the ships when, I guess, normally the day before. Sometimes it could be a little bit earlier, but generally the day before when we've got the times for the ships arriving.

PN271

Okay, all right. So you'd agree with me that this issue with Freedom Fuels is the first occasion on which your, albeit limited, period of time with the company that the company has asked the employees to commit a week in advance to an overtime roster in effect?---In my time yes, that's correct.

PN272

Yes. Just bear with me, sir. I see at paragraph 9 of your affidavit you make reference to later on, 4 August 2006, after the manning meeting you spoke to a Terry Adams, an operator?---Yes, I did.

PN273

Why did you do that?---I was seeking advice from Terry about who was going to man the trucks the following Monday, the early start the following Monday.

PN274

Why were you asking Terry?---Because he'd actually chaired the manning meeting that day, he was the man in the lunch room at the time.

PN275

I see, all right?---I might add that Terry is also a senior operator and generally conversations of those natures are usually held with senior operators.

PN276

Would you agree with me that the only overtime that hasn't been worked this week - sorry, in the last fortnight - the only overtime that you're aware of that management has requested that people work that has not been worked has been Monday morning, 7 August the 4 am start and Monday morning, 14 August 4 am start?---That is correct. The customer originally wanted overtime to be worked on the first Tuesday, which was I think it might be 5 August, but as we advised them that we couldn't give them any guarantee they didn't request an early truck from us so in fact there was probably at least an additional day in advance of the two that were presented.

**** BRADLEY MAXWELL CROCKETT XXN MR JOSEPH
PN277

But my point is what I'm saying is employees were - yes, okay. But all the other Saturdays working back after shift employees, you had no issue with employees doing that work?---In my time with the company no.

PN278

No, I see?---No, sorry, I disagree. I need to correct myself there. There was a time when we had a late truck come in in my time in the company. That late truck was unable to comply with the terms of the EBA, ie. They didn't provide the required notice by 1.30, I think it was 1.35, and the operators decided, as is their right I might add, not to actually provide overtime on that day.

PN279

But you're not - yes, okay, that's fine. Do you agree with me that of the guys who work at Terminals there's a number of them who have families, have children?---I understand there are a number of people who do have families, yes they do. Yes, in my conversations with the operators.

PN280

Yes. And you understand that for any particular individual there might be reasons why they are not available to work on a particular morning?---Of course, of course. What I would say is that the nature of the operation of the terminal is one that requires a considerable hour of hours worked and there is some history of that, whether it be shipping or trucking. So there is some history in terms of it being not a normal, in this case six to 4 pm operation. Overtime is part and parcel of working at this particular terminal.

PN281

Yes. I've got no further questions, your Honour.

PN282

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN283

MR WARREN: There's no re-examination.

PN284

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

<THE WITNESS WITHDREW [10.13AM]

PN285

MR WARREN: I call Mr Edward Arthur Jones.

<EDWARD ARTHUR JONES, SWORN [10.13AM]
<EXAMINATION-IN-CHIEF BY MR WARREN

PN286

MR WARREN: Mr Jones, is your full name Edward Arthur Jones?---It is.

PN287

And your work address is 45 Friendship Road, Port Botany, New South Wales?
---It is.

PN288

And you have prepared an affidavit for the purpose of these proceedings?---I have.

PN289

Do you have it with you in the witness box?---I do.

PN290

Is it an affidavit of some three pages, 10 paragraphs, sworn by you on 15 August with one attachment A?---That's correct.

PN291

And I note that there is a correction in paragraph 2 where it reads January. The typed year is 2006 and you've corrected that to 2000?---That's correct.

PN292

Thank you, Mr Jones. I formally read the affidavit and tender it.

EXHIBIT #T3 AFFIDAVIT OF EDWARD ARTHUR JONES SWORN 15/08/2006

PN293

MR JOSEPH: Just a couple of questions.

PN294

THE SENIOR DEPUTY PRESIDENT: Yes.

<CROSS-EXAMINATION BY MR JOSEPH [10.15AM]

PN295

MR JOSEPH: Mr Jones, you talk in your affidavit about the Mobil Oil contract?
---Yes.

PN296

The employees routinely over a period of some years did overtime, or some employees did overtime, where they'd come in at 5 am?---That's correct.

PN297

To man the yard?---To work the Mobil trucks.

PN298

To work the Mobil trucks?---Mm.

PN299

To the best of your knowledge was that overtime generally organised the day before?---Yes.

**** EDWARD ARTHUR JONES XXN MR JOSEPH
PN300

And would it be correct to say that there were occasions when there were no employees available to start at 5 am?---I don't recall not having anybody available. The overtime was generally there every day. If it wasn't there it was by exception, Mobil would let us know they didn't need anybody that day, the following day. But my recollection is there was always people available.

PN301

All right, thank you. No further questions.

PN302

THE SENIOR DEPUTY PRESIDENT: Okay, you're excused.

<THE WITNESS WITHDREW [10.17AM]

PN303

THE SENIOR DEPUTY PRESIDENT: Could I ask, Mr Jones, are you going to call any witnesses? I mean, so can I take it from that that apart from where you specifically put a contrary view, which generally you haven't under cross examination, you accept the evidence that's in the - not the sort of general assertions or submissions, but there are reports of conversations that occurred and you are not challenging, you haven't challenged the terms of those conversations as included in those affidavits. I mean, if you're not calling - I think I didn't quite catch that, but generally I think the people who are here, the employees who are here, or at least partly, are those who were involved in those conversations. If you want to just check.

PN304

MR JOSEPH: Yes. I'm content for us to go on, your Honour.

PN305

THE SENIOR DEPUTY PRESIDENT: Yes, that's okay. Look, I've got a proposition, if I could put it that way, which is that we go into conference at this point. Is there any objection to doing that?

PN306

MR WARREN: No objection from our end at all.

PN307

MR JOSEPH: Yes thank you, your Honour.

PN308

THE SENIOR DEPUTY PRESIDENT: Okay. Look, what I'd like to do in fact is actually talk to the union and the employees separately at this point off the record.

<SHORT ADJOURNMENT [10.19AM]
<RESUMED [10.58AM]

PN309

THE SENIOR DEPUTY PRESIDENT: Mr Warren.

PN310

MR WARREN: Yes, your Honour. Your Honour, as indicated briefly in opening this is an application pursuant to section 496 of the Act for orders and the orders that we press are orders A, B and F as set out in the application. Your Honour, your Honour has had evidence from three persons. There have been three affidavits tendered marked T1, 2 and 3. Much of the evidence that we say goes to prove the need for these orders and prove the existence of the industrial action. Indeed if I could just briefly take the Commission to section 420 of the Act, the meaning of industrial action. 420(1)(a):

PN311

The performance of work by an employee in a manner different from that in which it is customarily performed -

PN312

I pause there. We say that is applicable. I continue:

PN313

- or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work.

PN314

We say that also is applicable for two reasons. It is clear, we say, from the largely uncontested evidence principally of Mr Jones in T3, but also referred to in T1 and 2, that there is a history of employees on this site when the need arises to work overtime prior to the commencement of normal work at 6 am and there is a long history of these employees working overtime to service the loading of Mobil tankers at the terminal. The overtime that is sought to be worked by the employees now is also loading of tankers at the terminal. Admittedly it is a requirement for those employees to work at 4 am rather than 5 am, but they are recompensed at the rate of double time in accordance with the overtime clause of the award as opposed to the agreement.

PN315

Your Honour, it is clear that there is a custom and practice, we say, in place for the working of overtime prior to the normal starting time. We then get to the restriction and the reason for the restriction as claimed. As has been evident this is a recent contract that the company have obtained from Freedom Fuels. It is, I think, it's described in a trial period in the early stages. It requires Freedom Fuels to advise the company, it appears on the Friday, of their requirement for the following week. That has occurred. It occurred indeed last Friday that Freedom advised of their requirement for the following week.

PN316

In the normal course of events it would be most days that a fuel truck will be turning up and on most days it is at 4 am. Yes it's a fact that on two of those occasions Freedom Fuels cancelled the truck and on another occasion it just didn't turn up. These are the teething areas of this contract and that has to be understood. With respect to the cancellation the employees received, as is noted in the affidavits, a cancellation payment for not being required to attend on the overtime as requested. The telling part of the evidence indeed comes both in
Mr Crockett's affidavit T2 and in Mr Eng's affidavit T1 and this is the link between what we say is this ban on the guarantee of making persons available to work overtime, the reluctance to work overtime, this difference in the way the work practice is now being performed by the employees as to the way it was and it's all linked, we say, to the negotiations for the EBA.

PN317

It is here that the employees are linking the negotiations for a new EBA with their availability to work overtime and so much is clear, we say, from their recounting of the conversations between members of management and indeed employees who are present in court today. In paragraph 25 of T1 Mr Eng recounts a conversation that he was involved in with Mr Sullivan and Mr Crockett and I note towards the bottom of page 8 when he says:

PN318

And when pressed Mr Sullivan said no one was going to break the EBA while a discussion was going on.

PN319

Later Mr Gorway said:

PN320

I'll give you a tip. I don't have to, but I will. Bring forward the next EBA meeting as it might help.

PN321

Now, that wasn't challenged and it's almost, your Honour, a wink's as good as a nod. It's quite clear what the inference is. I'll give you a tip, bring forward this EBA meeting as it might help. And this was in connection with a request from the company to engage casuals when the employees could not guarantee that they'd make themselves available to work the overtime. Now, the position on this one is quite clear, your Honour. The company aren't demanding that those employees currently employed as full time permanents must turn up to work at 4 am, two of them, most days of the week. That's not the demand.

PN322

The requirement is that someone be there. Now, in accordance with the enterprise agreement unfortunately, or fortunately, it's both the employees who organisation the overtime, and I refer particularly to annexure A to Mr Eng's affidavit, clause 5.1(ii) about half way down the page which is 11:

PN323

It is a further requirement to ensure overtime is shared equally over all TPO operators as we manage by the operators.

PN324

And earlier in that same clause it is apparent that it is the operators that must give their mutual agreement before the company can engage casuals. So the company is caught with a double difficulty here. They've said well, if you're not available to work overtime we'll engage casuals and the employees who have the right to veto the engagement say you can't engage casuals. So they don't want to work the overtime and they're not allowing the company to engage casuals. Now that, of course, is an inevitable path down to a problem and may only lead to one conclusion. But that's the difficulty.

PN325

Now, so it's against that background the company has put this position and
Mr Gorway say I'll give you a tip, bring forward the next EBA meeting as it may help, help being the working of the overtime or the engagement of the casuals or both. And indeed at paragraph 29 on page 10 Mr Eng once again - as I note none of these conversations are challenged - half way down the page Mr O'Brian says:

PN326

If the work group were happy then they might go more out of their way to do the trucks. The blokes are not going to commit to a roster when they are doing reasonable overtime.

PN327

And Mr Sullivan then says a bit way down the page:

PN328

There are a number of issues here and if these get resolved then the blokes will be more willing. You want us to make a commitment, but the company is not prepared to guarantee our future.

PN329

One thing that will assist the future, that's the retention of clients and the gathering of clients. But here it is clear, we say, from the wink and the nod that the employees are saying that you sort out our EBA problems and we'll make ourselves available to work the overtime. And that's repeated, of course, at the top of page 11 where Mr O'Brian says:

PN330

There are numerous issues at play and if you brought the meeting forward as suggested then we might get somewhere.

PN331

Now, your Honour, words of a similar nature are recounted by Mr Crockett, although perhaps a little bit more obtuse. In paragraph 9 of Mr Crockett's affidavit in exhibit T2 he goes Mr Adams saying when Mr Crockett's put to him what are the issues, what's the problem with the work group:

PN332

You should know, it's not hard to work out.

PN333

Over the page, or a bit further over in paragraph 19 on page 9, Mr Crockett recounts a conversation that Mr Eng had with Mr Gorway and Mr Sullivan. In paragraph 19 Mr Eng said:

PN334

This is causing huge problems. Freedom are our new client. We have to meet this requirement. This is jeopardising the contract and future contracts. Are you guys willing to work with a casual?

PN335

And Mr Sullivan asserts it would breach the EBA, or it would breach the EBA if Mr Sullivan didn't give his consent and that's where the difficulty sits. On paragraph 20 on page 10 once again Mr Sullivan is saying:

PN336

No one is available on Monday to work with a casual.

PN337

Over the page at page 11 towards the bottom of that page where Mr Crockett says:

PN338

What about a permanent part time person to help alleviate the work load with the early starts working four hours a day.

PN339

Mr Sullivan said:

PN340

No, that's overtime. I'm pretty sure under the EBA we have first rights to do it until the part time can be arranged on a daily basis.

PN341

And then tellingly over the page Mr Gorway says:

PN342

I'll give you a tip. I don't have to, but I will. Bring forward the next EBA meeting as it might help.

PN343

Now, what is clear we say in submissions, your Honour, is that the employees have linked their consent to cooperate with the requirement to work overtime to load the Freedom Fuels trucks to the negotiations for the EBA. And we say it is clearly an industrial ban. We say it is clearly industrial action within the meaning of section 420. It's the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on the performance of that work. And quite clearly it is a deliberate restriction and it is a deliberate attempt by the employees to bring industrial pressure to bear on a company attempting to make a good relationship with a new client, to establish a business, to establish new ways of maintaining a viable business.

PN344

And it's being restricted by the industrial action of these employees who are putting it quite squarely you do a deal on the EBA, you bring forward the EBA negotiations - which are, as the evidence shows, have been going on for some time - and we'll ease up the purse strings on the overtime. That's industrial action. That should be the subject of the orders that we put and we press those orders.

PN345

THE SENIOR DEPUTY PRESIDENT: Mr Joseph.

PN346

MR JOSEPH: Yes, thank you, your Honour. Your Honour, in order to make orders in accordance with section 496 obviously the main jurisdictional fact that needs to be established is that in fact industrial action is taking place, it seems to me, or it is probable or threatened. The evidence before the Commission, in my submission, particularly from the cross examination of Mr Eng establishes the following propositions. Firstly, overtime is a common occurrence at this particular site. Secondly, overtime in accordance with the EBA and I pause to note that the award requires reasonable overtime to be worked, that's recognised, but that the overtime takes a number of forms at the site.

PN347

It takes the form where employees organise a roster amongst themselves, approximately 48 hours or thereabouts in advance, for shipping and it takes the form whereby it is mandated, or required, by the certified agreement in respect of late trucks and your Honour's been taken to that part of the certified agreement. Then there is other overtime which is not specifically required to be done, but is available and falls under the rue brick of overtime or may in some cases fall under the rue brick of a reasonable overtime for which penalties are provided. The overtime that we're talking about here fits into that category.

PN348

Whereas the certified agreement requires the other forms of overtime that I've referred to to be done, this form of overtime has traditionally be done, if it is done, by agreement and the employees operate a book, as it were, an overtime book where they organisation the overtime on a system amongst themselves. What
Mr Eng agreed, and he is an employee of some year standing with the company, was that never before had the company approached the employees. And I hesitate and stop there because orders A and B, 1A and 1B, refer to the employees. It doesn't name the employees, but refers to the employees and I presume that means all of the employees whether represented here or not.

PN349

But the orders are directed to those employees in the context of those employees failing to commit or to provide agreement to the employee that they will man a roster, as it were, one week in advance for the work of this particular overtime for this particular customer. I think that is what is said to be the industrial action. Now, I think the evidence establishes that the request by the employer in this context was brought up very late in the piece, was actually brought before the employees only five days before the said roster was meant to start, secondly was brought about in an environment where it was the first time ever employees had been asked to commit to a roster of this fashion and thirdly was brought about in an environment where the employees have worked and are continuing to work most, if not all, the overtime that is on offer at the request of their employer, including shipping, including late trucks and including the vast majority of these early starts.

PN350

What appears to be missing from the employer's point of view is the guarantee that every single day they will have employees available to do the work in question. In my submission in that environment a failure to agree in advance by an employee - and this lacks a bit of precision because obviously not submission has been put yet about every individual employee and seemingly the Commission is being asked to make orders against individual employees because there would be no other basis on which the Commission could make orders - but the evidence is not there, if I can put it a precise way, your Honour, to support the proposition that the employees are adopting a practice or are working in a method different from that in which it is customarily performed such that it results in a restriction, or limitation, on the performance of work.

PN351

If a failure of an employee to turn up for work in an overtime situation for whatever reason, say for example because a child was sick and he couldn't get there or something of that nature, it wouldn't fall within the exceptions in E, F and G in section 420 and so presumably if what's being put is that that is a practice, that is the failure of an employee to turn up to work overtime, then that amounts to industrial action. That seems to be what's being suggested. What I'm putting to your Honour is that it can only be the performance of the adopting of the practice which is different from the performance of work in which it is customarily performed that can be such a practice which results in a restriction which can be regarded as industrial action.

PN352

The applicant here, in my submission, has failed to present evidence which supports the proposition that the employees are doing anything that thereby becomes industrial action. The Commission in making an order, although the Commission is not required if it is satisfied that industrial action is taking place, is not required to specify the type of industrial action that it is ordering cease or not take place and would, as a matter of practicality and as a matter of general procedure, if I can use that, would want to be satisfied in its own mind with respect of the actions that are being taken that amount to industrial action such that persons who are the subject of the order would know with some certainty what it was they were not allowed to do, if I can put it in those terms, your Honour.

PN353

And I say that for this reason. Here we have orders being sought against employees. Now, it seems that the employer is saying in this case the guys have always worked most overtime, if not all overtime, that they work. The fact that they've said on this occasion because of other issues that are going on - and frankly that's not entirely relevant, it's more the actual whether they fit into the definition section of 420 as distinct from the motivation for it - but in a situation where it's been said that the employees are engaging in such action it would be a very strange and unfair result if a failure of an employee to agree to do any overtime that was offered to him or her would put them at risk of being in breach of any order that was made.

PN354

THE SENIOR DEPUTY PRESIDENT: Just on the issue of motivation. In the Act, section 420, there's actually a couple of notes. The second note actually refers to a decision of the Full Bench of the Commission AMWU v The Age which actually does draw a distinction between an employee who does not attend for work in support of a collective demand of the employee agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness. So doesn't that imply that actually motivation, the reason why you might not turn up for work, for example, is relevant to what is industrial action?

PN355

I mean, to be honest the argument is one that is common sense. I do take your point, though, about the need for any orders to be clear and people to know when they're breaching them or not. I mean, I hear what you're saying on that, but I'm just pointing out that maybe there is an issue that motivation is not obviously irrelevant.

PN356

MR JOSEPH: I saw that. I saw that, your Honour, but to the extent that the notes form part of the Act, well, there's a question as to whether they do and the definition itself doesn't .....

PN357

THE SENIOR DEPUTY PRESIDENT: Refer to motivation?

PN358

MR JOSEPH: Doesn't refer to motivation.

PN359

THE SENIOR DEPUTY PRESIDENT: Yes.

PN360

MR JOSEPH: It's a curious result for that reason. But I take your Honour's point. There's not much more I can say about the industrial action itself. I might just add, your Honour - and I thank your Honour for noting the point about the precision of any orders. My learned friend, I think his submission is that the industrial action is happening. I'm assuming that, or perhaps he didn't turn his mind to that.

PN361

MR WARREN: I did turn my mind. That is part of the submission. That's exactly what we're saying until now.

PN362

THE SENIOR DEPUTY PRESIDENT: Okay, yes, thank you.

PN363

MR JOSEPH: Okay, sorry. I'm not - - -

PN364

THE SENIOR DEPUTY PRESIDENT: Yes, you're not verballing it.

PN365

MR JOSEPH: I query that in the context where, certainly for the last three days, the work has been performed. As to whether it's threatening, impending or probable I suppose that really would be decided, your Honour, by whether your Honour agreed with the proposition that the failure of the employees to agree to a roster giving a guarantee to the employer of a particular outcome a week in advance amounts to it being impending or probable. But as of today it's not happening. And I don't know that it's being suggested that it's being organised, but again my friend might want to respond on that.

PN366

THE SENIOR DEPUTY PRESIDENT: Yes.

PN367

MR JOSEPH: I think the only other thing I can say, your Honour, about the proposition is that the application ask that the orders remain in force for a period of two months. That seems an excessive period of time. Certainly if your Honour was minded to - well, certainly the length of time that the orders remain in force is a matter entirely within, I think, your Honour's discretion. The agreement itself has a nominal expiry date, I think, of 29 August, but there seems no reason why any orders would remain in force for a period of two months.

PN368

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Mr Warren, just can I ask you a couple of questions? I mean, if you have other things you want to add at this point. But sort of actually really picking up on what Mr Joseph was saying, what do you - just to be clear on this - would you say that the failure to agree to a roster is industrial action?

PN369

MR WARREN: My friend has put that too simplistic.

PN370

THE SENIOR DEPUTY PRESIDENT: Yes. Let me just finish to ask my question if that's okay. I mean, or are you saying a failure to work reasonable overtime would constitute industrial action and if so, what would you say reasonable overtime meant in these circumstances?

PN371

MR WARREN: The history - I'll start from the back. The history from Mr Eng is that reasonable overtime two years ago was an average 15 hours a week, or that was what was worked, one year ago was 12 hours a week and now it's 10. So the history of overtime on the site is that there is a fair bit of overtime there. The history is that at no time have, and Mr Jones gave this evidence to a question in cross examination, to his recollection there hasn't been an occasion when overtime has not been met.

PN372

THE SENIOR DEPUTY PRESIDENT: Can I just ask you about that. You see, my understanding of the way the overtime works on this site is that basically the operators actually work it out amongst themselves.

PN373

MR WARREN: Yes.

PN374

THE SENIOR DEPUTY PRESIDENT: So while it might be true that when the employer wants overtime to be worked, you know, it almost always is.

PN375

MR WARREN: He advises the work group - - -

PN376

THE SENIOR DEPUTY PRESIDENT: Yes, but that doesn't mean, just to clarify, it doesn't necessarily mean that amongst those employees nobody ever says I don't want to work overtime?

PN377

MR WARREN: No.

PN378

THE SENIOR DEPUTY PRESIDENT: There may well be people who at times couldn't work overtime.

PN379

MR WARREN: There may well be I can't do it, can you do it and it's organised.

PN380

THE SENIOR DEPUTY PRESIDENT: Yes. But as a group they can always, or virtually have always been able to provide - - -

PN381

MR WARREN: And that gets to the organisation of it.

PN382

THE SENIOR DEPUTY PRESIDENT: Right.

PN383

MR WARREN: It's organised through the work group.

PN384

THE SENIOR DEPUTY PRESIDENT: Yes.

PN385

MR WARREN: And indeed my friend indicated that he wasn't sure, or indicated that the evidence didn't go to the organisation side of it. It is clearly, we say, the organised side of it. It is clearly, we say, an organised reluctance to make themselves available for overtime. That comes clearly from the persons who have said this, being the employee reps on the site. They're the ones that the evidence says have reported this to the employer. It is not just simplisiter, they won't commit to the roster therefore there's industrial action.

PN386

Recall there was two of the occasions that the employees did not make themselves available for overtime, on the last two Mondays. It is the link between the uncontested conversations between the employee representatives and management, the link between the inability to make employees available contrary to the company's expectations and the site history, the employees' reluctance to make themselves available and to commit to making themselves available and the link between that and the EBA negotiations clearly puts that there is some organised attempt to change the way the work practice has been done in the past.

PN387

It is clearly a restriction or a delay in the performance of the work. It's a restriction, it's not a delay. Once the truck isn't loaded, it's not loaded, but it's a restriction in the way that work is done. And whilst yes, a part of that industrial action asserted is the failure to commit to an overtime roster, that's not the start and finish of it, your Honour. It is this conversation that comes through well look, you know, if you sit down and talk about the EBA it might free things up a little bit. The blokes are unhappy. Well, what are they unhappy about? You know what they're unhappy about.

PN388

It's clear that there is a link between the organisation of the overtime and the inability for the employees to organise that overtime as we are obliged to allow them to organise it in accordance with the EBA.

PN389

THE SENIOR DEPUTY PRESIDENT: But couldn't it be that, you know, you're asking - let's just say hypothetically, I'm not saying this is necessarily the case here - but you're asking someone to go above and beyond the call of duty, for example, and you say well, you know, if we were really happy with you, if things were really going well then we'd do it, but because we're not happy we're not going to do it. That in itself, it still comes back to the issue of is what you're being asked to do, you know, acceptable or not. So it doesn't get around that issue. If they're being asked to go above and beyond the call of duty, if you like, to do something more than they can be reasonably required to do, then the fact that they don't want to do more than they are reasonably required to do - this is still hypothetical - because they were unhappy doesn't make it industrial action.

PN390

MR WARREN: Well, there's a couple of things in that, your Honour. It's not above and beyond.

PN391

THE SENIOR DEPUTY PRESIDENT: Well, that would be the issue.

PN392

MR WARREN: It clearly is not above and beyond when one looks at the amount of overtime that they've consistently worked on the site and that indeed when the Mobil trucks were loaded early in the morning Mr Jones can't recall employees ever refusing to make themselves available, or not being available to work the overtime. So there is the pattern there of the working early morning overtime. There is the pattern of overtime displayed in the evidence that shows it's reducing, it's not going up. There is no complaint from the employees in the evidence that we're working too much overtime.

PN393

They're saying we will work reasonable overtime. And what the company is saying is the requirement to load the truck in the morning is reasonable overtime and that's against the background of the employees always making themselves available. And then you link that with another one where it's the employees that organise the overtime. The EBA says the employees have to be given the preference to work overtime and indeed that's one of the conversations that is recounted, the employee reminding the company of their right under the EBA to get the overtime.

PN394

And then they're saying it's our right to have the overtime, but if we don't want to work it, or we can't work it, you can't employ anyone else to do it either. That is really the disingenuous, with respect to my friend, nature of that submission saying that these employees are working reasonable overtime. Well, if that's asserted it's less overtime than they were working before, it's overtime of an essential nature for the company's business. They know the company's business, they know that it's a business that is a high overtime industry, a high overtime business and they've been happily working it in the past.

PN395

Then you link that to them saying wink-wink, nudge-nudge, talk the EBA with us and there won't be any problem in getting your overtime worked. Now, that is where we say there is a clear link between the restriction, the acceptance on this site that overtime is there and is required to be worked and the link between that and how much overtime they worked before and work now and not making themselves available for two of about 10 or 11 occasions that have been required to be done and then saying we're not going to make a commitment to the future for a week, but if you talked about the EBA, you know, we just might be able to do that.

PN396

THE SENIOR DEPUTY PRESIDENT: Okay.

PN397

MR WARREN: Now, that to us is industrial action.

PN398

THE SENIOR DEPUTY PRESIDENT: Right, okay. What I'd like to do is to take a 10 minute adjournment and I'll come back and give you my decision.

PN399

MR WARREN: Thank you, your Honour.

<SHORT ADJOURNMENT [11.35AM]
<RESUMED [11.54AM]

PN400

THE SENIOR DEPUTY PRESIDENT: Section 496(5) says that as far as practicable the Commission must hear and determine an application for an order under subsection (1) or (2) within 48 hours after the application has been made. If it appears to the Commission that industrial action that is or would not be protected is happening, is threatened, impending or probable or is being organised the Commission is obliged to make an order to stop that action. In this case it is not yet clear to the Commission that industrial action is occurring. The employees in question are obliged to work reasonable overtime.

PN401

What is reasonable overtime clearly has to be considered in the particular context. At this terminal the need to work a significant amount of time outside ordinary hours is well understood. However, there are clearly occasions where it would be unreasonable to expect individual employees to work overtime, for example for reasons of health or family responsibilities. I have decided to adjourn this application with the applicant being at liberty to call it on at a later date. In the event that the matter is re-listed what happens with the working of overtime in the meantime will assist the Commission in determining whether there is in fact industrial action occurring.

PN402

The employees are well aware of the critical need for employees to be available to work overtime to meet the needs of Freedom Fuels. Under the arrangements prevailing at the terminal they are obliged to work out who amongst them will do the overtime. If this matter is brought on again and in the meantime there have been further problems in employees being available for overtime the Commission would need to be satisfied that there were good grounds for this failure. If no such grounds were found to exist I would consider this prima facie evidence that industrial action was indeed occurring and appropriate orders would need to be made. So I'm adjourning this matter.

<ADJOURNED INDEFINITELY [11.57AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DOUGLAS GEORGE ENG, SWORN PN49
EXAMINATION-IN-CHIEF BY MR WARREN PN49
EXHIBIT #T1 AFFIDAVIT OF DOUGLAS GEORGE ENG DATED 15/08/2006 PN79
CROSS-EXAMINATION BY MR JOSEPH PN81
RE-EXAMINATION BY MR WARREN PN220
THE WITNESS WITHDREW PN238
BRADLEY MAXWELL CROCKETT, SWORN PN239
EXAMINATION-IN-CHIEF BY MR WARREN PN239
EXHIBIT #T2 AFFIDAVIT OF BRADLEY MAXWELL CROCKETT SWORN 15/08/2006 PN251
CROSS-EXAMINATION BY MR JOSEPH PN253
THE WITNESS WITHDREW PN284
EDWARD ARTHUR JONES, SWORN PN285
EXAMINATION-IN-CHIEF BY MR WARREN PN285
EXHIBIT #T3 AFFIDAVIT OF EDWARD ARTHUR JONES SWORN 15/08/2006 PN292
CROSS-EXAMINATION BY MR JOSEPH PN294
THE WITNESS WITHDREW PN302