C2006/2548, Transcript of Proceedings [2006] AIRCTrans 769 (24 May 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15004-1

COMMISSIONER LARKIN

C2006/2548

TERMINALS PTY LTD
AND
NATIONAL UNION OF WORKERS
s.496(1) - Appl’n for order against industrial action (federal system)
(C2006/2548)

SYDNEY

10.34AM, WEDNESDAY, 10 MAY 2006

Continued from 9/5/2006

PN63

MR A SALMON: I seek leave to appear on behalf the applicant in these proceedings. I have with a MR V CROCKETT.

PN64

THE COMMISSIONER: I believe it was granted on the last occasion.

PN65

MR SALMON: Thank you, Commissioner.

PN66

MR R REITANO: I appear for the National Union of Workers and I seek leave to appear.

PN67

THE COMMISSIONER: Thank you. I don't presume I'd have an objection to the application?

PN68

MR SALMON: No objection, Commissioner.

PN69

THE COMMISSIONER: Leave is granted, Mr Reitano. Now, on the last occasion we had Mr Eng had concluded his evidence-in-chief and he was to be subject to cross-examination. The matter was adjourned. Mr Reitano, my understanding you would have a copy of the transcript from Mr Eng's evidence-in-chief?

PN70

MR REITANO: No, I don't

PN71

THE COMMISSIONER: It was forwarded to the union.

PN72

MR REITANO: For some reason we don't have it.

PN73

THE COMMISSIONER: It's not extensive.

PN74

MR REITANO: I understand that.

PN75

THE COMMISSIONER: Yes. Do you seek to view a copy of it prior to commencing cross-examination?

PN76

MR REITANO: I would be grateful. If it's not extensive I'd probably only need five minutes.

PN77

THE COMMISSIONER: Yes, all right. I will provide my copy to you and then we can ascertain how we get you your own copy.

PN78

MR REITANO: Thank you.

PN79

THE COMMISSIONER: We'll adjourn for a period of five minutes.

PN80

MR REITANO: Thank you, Commissioner.

<SHORT ADJOURNMENT [10.36AM]
<RESUMED [10.44AM]

PN81

THE COMMISSIONER: Mr Reitano, you've had an opportunity to sight that transcript?

PN82

MR REITANO: Thank you, Commissioner, yes.

PN83

THE COMMISSIONER: I wish to raise with you the requirements of section 496(5) or actually (7) - (6). My copy is all over the place at the moment. On my file the application was lodged on 8 May 15.15 so we have a limited time to hear this matter, gentlemen.

PN84

MR REITANO: Yes.

PN85

THE COMMISSIONER: If you disagree with me, but I think by - well, to err on the side of caution by at least 3 o'clock I must - - -

PN86

MR REITANO: I would be surprised if the matter wasn't finished by then.

PN87

THE COMMISSIONER: Yes, all right then. And Mr Eng is ready for cross-examination, Mr Salmon?

PN88

MR SALMON: Before Mr Reitano commences his cross, Commissioner, I ask that the other witnesses that are present in the court room leave whilst he's giving his evidence, if the Commission pleases.

PN89

THE COMMISSIONER: Yes.

<DOUGLAS GEORGE ENG, RECALLED ON FORMER OATH [10.46AM]
<CROSS-EXAMINATION BY MR REITANO

PN90

THE COMMISSIONER: At your own good time, Mr Reitano.

PN91

MR REITANO: Mr Eng, I firstly want to ask you some questions about what it is that you say is the industrial action that you're concerned about. Could you outline to the Commission as best you can what that is?---My company is very concerned that we're unable to unload ships because the staff are not presenting at the berth to unload the ship the Bow Wave.

PN92

Well, with respect to you, that's not true, is it?---Yes, it is.

PN93

There was a ship berthed yesterday that needed to be unloaded and that in fact happened, didn't it?---It was eventually unloaded.

PN94

Forget eventually, it was unloaded, wasn't it?---It was unloaded.

PN95

All of the gentlemen who were here, amongst others, participated, the gentlemen who were here are all employees of Terminals, correct?---Yes.

PN96

And all or at least some of them were present yesterday performing work which involved, amongst other things, unloading the ship?---Yes, that's correct.

PN97

And the ship has gone, hasn't it?---The ship has gone.

PN98

And indeed all of the gentlemen here and the other union members at the site participated in unloading that ship from 6.30 the previous night, correct, or thereabouts?---They participated in unloading the ship.

PN99

Yes. And performed work associated with unloading the ship?---Correct.

PN100

Without complaint?---They did not turn up to do the ship at the time when the ship arrived. When the ship arrived they were not present to unload it and as we would normally go about doing that.

PN101

Do you understand that you're giving evidence on oath?---Yes.

PN102

And do you understand that it's very important for your evidence to be accurate?
---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN103

All right. Now, I want you to just go back to your last answer for a moment. Did you tell the Commission that the workers, the people here and I'll name two of them in a moment and bear in mind that I've only met them this morning so I have a problem remembering their names, but are you telling the Commission that none of those workers turned up to unload this ship when it docked?---I understand your question, sir. Two of the workers went down to the dock in the morning to park the ship. It was later that they then came to me and said that they would not unload that ship on safety grounds.

PN104

So you agree with me that to the extent of your previous answer, the one that we're talking about might be wrong, you agree with me that it was wrong to the extent that they went down there for the purpose of unloading the ship?---Two workers went down there in the course of their normal duties and found that there were white collar workers from Vopak as I understand it.

PN105

Forget about the colour of people's collars for a moment, they went down there to unload the ship, correct?---Yes.

PN106

One of those workers was Mr O'Brien, Kyle, correct? Is there something humorous?---No.

PN107

Was there a reason why you smiled?---Just that you indicated that that was Kyle O'Brien - - -

PN108

No, no, no, Mr O'Brien was sitting here before, sorry, I didn't mean to confuse you?---Okay.

PN109

Mr O'Brien who was behind me earlier one of the people who went down there, correct?---Yes.

PN110

To perform work unloading the ship?---Yes.

PN111

Has the ship got a name?---It's a ship the Bow Wave.

PN112

Well, let's call it a ship, it's probably easier. If we talk about the ship you know which one we're talking about?---Mm.

PN113

And did Kyle tell you that that happened at about 11 o'clock last Monday?---We had a meeting at 12.10 with Kyle and Dan following them going down to the dock.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN114

As best as you understood it was immediately, let's say within an hour that he'd gone down there for that meeting?---Fairly shortly after.

PN115

Prior to that time, so if we could just call that 11 o'clock, we won't worry about the preciseness of the time, prior to 11 o'clock on Monday there were no bans, limitations or restrictions on the performance of work, were there?---That's correct.

PN116

At all?---That's correct.

PN117

And nor do you suggest there were any?---That's correct.

PN118

Did Kyle tell you when he first spoke to you at about 10 past 12 or thereabouts that he had driven a fork lift carrying - just pardon me a moment - six inch shipping hoses to the bulk liquid berth?---I don't recall that.

PN119

Is it possible that he told you that?---It may have been.

PN120

Because the reason that he would have done was for connecting the ship on arrival, correct?---If you're asking me if that's normal practice, yes, it is.

PN121

So if he did that that's why he would have done it?---Yes.

PN122

Normal work, correct?---Yes.

PN123

And did Kyle tell you that when he arrived he found that the berth access was blocked by the Vopak truck and hose trailer?---I don't recall that specific, quite honestly.

PN124

I'm not suggesting that you're being anything other than honest. Do you recall that he told you something like that?---Possibly.

PN125

You wouldn't doubt Kyle's word if he told you that that's what he thought he said?---No, I wouldn't.

PN126

He's an honest person?---I believe so.

PN127

A person you've known for some years and you have some mutual respect for each other, correct?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN128

And did Kyle - we'll perhaps do it another way. When Kyle came to talk to you he wasn't coming to talk to you about the rugby league results on the weekend, was he?---The issue I remember most clearly - - -

PN129

No, no, please - - -?--- - - - was me having a meeting at 10 past 12 with Dan and Kyle and discussing the issue of the Vopak white collar workers being present at the dock and they said that on health and safety grounds they would not do the ship, would not unload the ship.

PN130

Is it fair to say that you weren't paying attention at that time to the detail of what was going on but were rather were looking to the generality of what the problem was?---Yes, it's a significant problem that if the ship is not unloaded.

PN131

Yes?---Yes.

PN132

It's also of course a significant problem if the ship is unloaded in a manner that's unsafe, correct?---Absolutely.

PN133

Because we're not unloading orange juice, are we?---That's correct.

PN134

We're unloading highly dangerous and hazardous goods, correct?---They can be, yes.

PN135

On this occasion they were?---There were some, yes.

PN136

To name a few from memory, acetone?---Butyl acetate.

PN137

Acidic acid?---Yes, we were not handling that material but - - -

PN138

But it was unloaded from the ship?---Yes, yes.

PN139

Can you tell me what the consequence of exposure to acetic acid is?---Well, potentially burns, inhalation of fumes.

PN140

Let's just take them one by one. Not just burns but burns holes through people's limbs, correct?---Mm.

PN141

MR SALMON: Is that a question?

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN142

Correct?---Sorry, is that a question?

PN143

No, no, that's what Mr Salmon asked. I'm not concerned with what Mr Salmon is asking. Is it correct that it can burn holes through people's limbs?---There were hazardous chemicals on that ship.

PN144

No, no, deal with my question. I'm asking you about acetic acid and the consequence of it coming into contact with your skin?---Potentially, yes, but I'm not an expert in those chemicals, if you understand me.

PN145

I understand. You know the consequences are extremely serious?---Yes, they can be, yes.

PN146

They can be life threatening?---Yes, so that's why we have systems in place to protect our workers.

PN147

We'll come back to the systems in place to protect workers. But you knew when Kyle came to talk to you about health and safety issues that what was happening or what was becoming an issue was the way in which highly dangerous chemicals were being unloaded from the ship, correct?---They were concerned that the Vopak staff were down there and they're not the usual staff down there and they had concerns, safety concerns relating to that.

PN148

And that was because, amongst other things that we'll come to, because we're dealing with highly dangerous chemicals?---Yes, that was their view.

PN149

Well, that's your view too, the chemicals were dangerous. You don't - - -?
---There's no doubt there are dangerous chemicals on that ship, yes.

PN150

Well, there were, they're not any more?---No, there still are.

PN151

Well, they're not at your wharf, not berthed. The ship's gone, hasn't it?---That's correct.

PN152

Having been unloaded?---Yes, the ship would still have chemicals on it, it's departed elsewhere.

PN153

Yes, I understand that. Yes, but not in relation to any work that you're required to do?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN154

Okay. And did Kyle tell you that he thought it was strange that the berth access was blocked by the Vopak truck and hose trailer?---As I said previously, I don't recall that particular detail of that conversation and regarding the truck being there.

PN155

Did he tell you that the Vopak fork lift drivers had brought their shipping hoses down to the wharf?---Yes.

PN156

And that instead of having dropped them in the normal position, continued to drag them between the wharf and the manifolds?---What he said as I recall was that they dropped the hoses on or near the manifold and there he was concerned about that activity.

PN157

Because and the grating, bashing against all of - just you have to - - -?---Yes, I recall that, yes.

PN158

No, no, I'm sorry, you can't mind read, you have to let me finish because everyone else doesn't know what we're going to say?---Mm.

PN159

So can I just finish it. Did he tell you that he was concerned about them grating between the wharf's manifolds and bashing against all of Terminals and Vopak's pipe work?---I recall him saying that they dropped hoses in the manifold area and they were concerned about possible damage or that that was an unsafe practice. I don't recall details about it being dropped particularly between a certain area if you understand.

PN160

Right, I understand, okay. But in any event you agree that he indicated that just dropping the hoses in the way that it had been done was an unsafe practice?---He was concerned about that, yes.

PN161

Were you concerned about that?---I never saw the event. It's difficult for me to say.

PN162

If it were true and it had happened was that something that would concern you?
---It would not be a normal practice that we would endorse from our staff.

PN163

Because your systems would not permit that to happen because it's dangerous, correct?---Potentially - well, I can't answer that actually. I don't know whether any damage would be done or otherwise.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN164

Tell me this, if Kyle said to you I am concerned about my safety at work because of what other people are doing, you wouldn't think Kyle was having you on about that, would you?---We would investigate.

PN165

No, no, but you wouldn't think given his experience and qualifications and the fact that you know him and you believe him to be an honest person, you wouldn't think that he was making that up, would you?---I would talk to my supervisors and we'd have a look and see what the situation was.

PN166

I'm not concerned about who you would talk to. Please address my question?---I would take his concern seriously and investigate.

PN167

And in the ordinary course of events having regard to what you know about Kyle, his qualifications, his experience and his character, you wouldn't think that he would make such a thing up, would you?---That's not in question. I'd say that I would go and investigate and check out what he was saying and treat it with a serious manner relating to health and safety.

PN168

You would accept his word, wouldn't you?---I would investigate.

PN169

Would you accept his word?---About?

PN170

That he considered various things that were happening were endangering his health and safety at work?---I can only say that I'd go and investigate and go and find out the facts relating to the issue.

PN171

Would you accept his word, sir, can you please address my question? Four times I've asked you. I'm not concerned about investigating, would you accept his word?---Yes, I can't give you any clearer answer because you'd have to - it really depends on the circumstances.

PN172

The circumstances are that Kyle has come to you and said there are things happening on that ship that I believe are endangering my health and safety. You wouldn't think knowing what you know about him that he would make that up, would you?---In fact because I took it so seriously the company, myself and some of the officers of the company went down and went and investigated that issue.

PN173

I am not asking you whether you would treat it seriously. I am not asking you whether you would investigate it?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN174

I'm not asking you any of those things and I'm not interested. Can you address my question?---Yes, I think I have.

PN175

Is that right? You believe you have answered my question which was and I will say it again for you, my question was if Kyle told you he was concerned about his safety at work would you accept his word, you believe you have answered that question, do you?---I'd investigate.

PN176

I didn't ask you whether you would investigate. I'm asking you whether you would accept his word, yes or no?---I can't answer that. I - - -

PN177

Do you refuse to answer my question?---I think I have answered it.

PN178

Do you refuse to answer my question?---I believe I've answered it.

PN179

Would the Commission direct the witness to answer the question?

PN180

THE COMMISSIONER: Accept his word on what, Mr Reitano?

PN181

MR REITANO: That he believed there was a risk to his health and safety.

PN182

THE COMMISSIONER: That's right, accept his word that he was concerned or accept his word that there was an unsafe practice?

PN183

MR REITANO: No, I was asking the first one first.

PN184

THE COMMISSIONER: Well, why don't you ask that one?

PN185

MR REITANO: All right. Would you accept his word that he was concerned for his health and safety?---Yes, yes, I would.

PN186

If he told you that?---Yes.

PN187

And would you accept his judgment on such a matter?---That I would investigate.

PN188

Right, okay. How would you investigate it?---I would get perhaps it might be myself or our national safety and health manager to investigate, our operations manager to go and see what the particular issue was and have a look and see if practices were not being done in the correct way. We might do a job safety analysis and it really depends on the circumstances.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN189

You mentioned a lot of people that you'd involve there, but you studiously avoided mentioning one, didn't you?---It might involve me.

PN190

You mentioned me?---Mm.

PN191

You said yourself. The one that you studiously avoided mentioning was the WorkCover Authority. Was there some reason why you didn't mention the WorkCover Authority?---We don't normally involve WorkCover and to a routine procedural matter perhaps on site.

PN192

No, we don't normally but you were proposing it on this occasion, weren't you?
---Yes, I was, to try and broker an impasse on getting the work done at the dock.

PN193

Is there some reason why you left it out of the list of people that would investigate in this case?---Because it's not a normal practice.

PN194

But this was not a normal case either, was it?---No, it certainly wasn't.

PN195

No. So is there some reason why you left WorkCover out?---No, the reason it was left out was because it's not a normal practice to involve WorkCover. We had a number of meetings during the course of Monday and tried to broker a way forward to the allay the health and safety concerns and one of the suggestions was to bring in the WorkCover officer to investigate and in fact the work group accepted that if the WorkCover person deemed it to be safe then they would come back and start unloading the ship.

PN196

Indeed?---But it was very unusual to call WorkCover in.

PN197

Very unusual. But Kyle said that if WorkCover say it's safe I'll do it, didn't he?
---Yes.

PN198

As did others?---Yes.

PN199

Okay, we'll come back to that meeting in a moment. Can I just clear up a few things with you, going back to this conversation shortly after 10 past 12. Kyle told you some of the - you can't remember the detail of it, but Kyle told you some of the specific things that have caused his concern for his health and safety, correct?---Yes, about the hoses, yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN200

And some things that you probably can't recall now, some other things?---Such as?

PN201

I asked you about - I think I asked you about the vehicle blocking the - - -?---I don't recall that.

PN202

You don't recall that but you wouldn't cavil with the suggestion that he might have told you about that?---He may have done.

PN203

Yes, okay. It is not true to say that Kyle did not give you specific reasons why other than the white collar workers who were not trained were doing the work, is it?---Myself and my colleague Brad Crocker, we asked what specific issues there were about the Vopak staff engaging in unloading the ship were causing them concern.

PN204

Yes?---The only issue that I recall in fact was regarding the hoses being dropped.

PN205

And training?---I pressed numerous occasions for them to give me specific examples of what was giving them concerns about them engaging in that activity.

PN206

They gave you two things, one is they were concerned about their level of training and they were concerned, the one that you can you remember at the moment is about the hoses, correct?---I don't consider that training is a specific issue. It's a very broad comment and I had addressed that in the meeting with them earlier on.

PN207

We'll come to the meeting in a moment, all right. I promise you we'll come to the meeting?---Yes, okay.

PN208

I know you want to get to the meeting and so do I, so we'll come to it. But at least in respect of the hoses he had given you a specific concern that he had, specific detail or specific example of what his concern was?---He said he saw the hoses being dropped in what he considered to be an unsafe way.

PN209

So he gave you some detail of what his concern was about, correct?---Not about unloading the ship.

PN210

Well, the hoses were intimately connected with unloading the ship, sir. The product don't come off the ship unless we connect the hose, correct?---That's correct.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN211

Right. So he told you one of his specific concerns, correct?---Okay, yes.

PN212

So the other day when you told Commissioner Larkin that they didn't give you specific reasons other than that the white collar workers were not trained to do the work was not correct, was it?---I pressed them repeatedly to give me specific examples or reasons so that we could address them together to overcome their safety concerns such as the way in which they flanged the pipes together or some specific examples. Continually the response came back, you know, they are not trained, we have never seen them down there before. To me those are not specific examples so I hold with that view that they never gave me specific examples.

PN213

He gave you a specific example in respect of the hoses, didn't he, correct?---He mentioned that they had seen the staff down there and they dropped a hose down around the manifold, yes.

PN214

He gave you a specific example?---Yes, he gave an example - - -

PN215

So the other day when you told the Commissioner that he didn't give you any specific reasons or details that was incorrect?---It's not relating specifically to the unloading process. There were no hazardous chemicals going through the hose at that time.

PN216

Is there anything else you wanted to add to that answer?---No.

PN217

Okay, all right. Now, let's come to the meeting. The meeting occurred about half an hour after the initial contact with Kyle or a little bit longer than that perhaps but within an hour?---Yes, I think so, yes.

PN218

Are you looking at something there?---Yes, I've got the minutes of the meetings that we had during the course of the day.

PN219

Sorry, assuming that they're the same minutes I've got, they're minutes that management prepared?---I provided the delegates with a copy, yes, after they requested it so it probably is the same as you've got.

PN220

Well, how do you know? I want to make sure that we're talking about the same document, I'm not just being clever. Could you hold it up and turn the page. Yours has something written on the smaller page that mine doesn't have at the top?---My handwriting says 12 midday alongside. That's referring to the ship being docked.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN221

Right, okay. Otherwise it looks like it's the same. Can I ask you about the longer page first, that is what is your second page?---Mm.

PN222

Actually I might do this, did you prepare these?---Did I? No, I didn't.

PN223

Did you cause them to be prepared by I think Brad or someone else?---Yes, Brad.

PN224

But you've read them?---Yes.

PN225

And generally you think that they're fairly accurate as to what occurred?---Yes.

PN226

And if I asked you or when I asked you questions about these minutes in a moment you'd say that substantially, I mean there might be words here and there that might be matters of detail, but substantially this is what occurred at the meeting?---It's a condensed version I think of what - - -

PN227

How long did the meeting go for?---The first meeting went for 10/15 minutes.

PN228

Was the first meeting at what time?---12.10.

PN229

12.10 or 12.50?---12.10.

PN230

So you do have a different document. Could I have a look at your document?

PN231

THE COMMISSIONER: We are talking pm on the 8th, aren't we, gentlemen?
---Yes.

PN232

MR REITANO: Can I show you this document, please?---Yes.

PN233

While I'm looking at your document. Just read that to yourself while I'm reading yours. So one of your pages is the same but one of them is different?---Yes.

PN234

One of the document you have or one of the pages - could you keep that, please. The one headed 1512 hours?---Yes.

PN235

Do you see that?---The last meeting of the day, yes.

PN236

That's not in the documents you gave me, if I give those back to you?---Yes, I thought they were.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN237

I don't think it is?---No. Yes, that's fine. I'm happy with this version that you have given to me.

PN238

I'm sure you are but I want the whole document?---Yes.

PN239

The 1512 hours, are you happy with that, the one that's headed 1512 hours?---Yes.

PN240

Because that was another meeting?---Yes, that was the last meeting of the day, yes.

PN241

So if we put that with the document you gave me, is that the whole series of meetings?---1215, yes, there seems to be a page missing, yes.

PN242

So if I give you the one that's got 1512 hours and you give me your document back for a moment?---I've got that.

PN243

You've got that, okay?---You've given me that.

PN244

Can I have all the documents back and I'll put them in a bundle. We want to give them to the Commissioner and I want to make sure we're giving her the right documents. So we'll put all of those together with a clip of them. You're happy with all the minutes of all those meetings being reasonably accurate. There's no tricks in that, sir?---No, I know.

PN245

I understood that that's what you're going to say?---Mm.

PN246

I tender those.

EXHIBIT #R1 MINUTES OF MEETINGS

PN247

MR REITANO: I'm sorry, Commissioner, I didn't - - -

PN248

THE COMMISSIONER: I'm sorry, R1, Mr Reitano.

PN249

MR REITANO: R1. Now, have you still got a copy?---I don't have a copy.

PN250

You haven't got anything. Well, let me give you the one that I asked you some questions about, I'm sorry. We did get copies made.

PN251

THE COMMISSIONER: This is a three page document, Mr Reitano, isn't it?

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN252

MR REITANO: Yes.

PN253

THE COMMISSIONER: Thank you.

PN254

MR REITANO: We only got copies made of the two pages that we had and I'm not saying that critically of anyone but can I give you those two pages. Can I ask you, have you got the page headed 1250 hours?---Yes.

PN255

That's the meeting I want to take you to now. Kyle is the bloke we've been talking about, Doug is you, Brad is your offsider, Dan, who is he?---Dan's sitting behind you at the moment.

PN256

Right. And what's his role?---He's an operator, terminal operator.

PN257

Does he have any role in respect of safety?---He is also on the health and safety committee.

PN258

Thank you. I don't want to overstate this issue too much, sir, but you would agree with me because of the nature of the stuff that these blokes are working with safety is a pretty big concern?---Very much in our culture, yes.

PN259

It's a cultural thing?---Absolutely.

PN260

And I'm not going to play cute games, it's a big concern that you have too?---Yes.

PN261

Okay. Do you see there:

PN262

Work group reiterated their position as follows -

PN263

What had happened was that the 12.10 meeting had adjourned, the work group went away and had a meeting and they came back to talk to you, correct?---Yes, yes.

PN264

And their action was HSE related. HSE translated to union speak is OHS as well, correct?---Yes.

PN265

HSE is health, safety and environment?---Yes.

PN266

In the other language it's occupational health and safety?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN267

Okay. So they were still asserting to you this is about safety?---Yes.

PN268

Can I say did you doubt their bona fides in that respect?---I was of the belief that the issue was not related to that but related to the fact that there were white collars down on the dock on the Vopak and I made that clear.

PN269

Right. They then said their view was that Vopak management did not have the expertise?---Yes, yes.

PN270

Blah, blah, I won't read the rest?---Yes.

PN271

And in the third dot point, would return once those people left the area, right?
---Yes, yes.

PN272

And then you said, this is you speaking -

PN273

Doug offered to allow staff to depart the area during operational activity by Vopak management staff so that Terminals employees would not be exposed in the event of an incident.

PN274

?---Yes, yes.

PN275

Translated to how things would work, Vopak management or contractors, or whoever it was, would unload the ship - sorry, there's an exception to whoever it was that I'll come to, would unload the ship and Terminals people would not be required to unload the ship while they were there, correct?---No, what I was getting at was - - -

PN276

Forget what you're getting at, what this sentence says. That's what it says, isn't it? You would be allowed to vacate - sorry, depart the area during operational activity by Vopak management staff?---That is not the understanding of the meeting.

PN277

Your minutes that you say were the truth?---Yes, yes.

PN278

What you were offering was that whilst Vopak people were working on the ship Terminals employees would be allowed to "depart the area", correct?---No, no.

PN279

You say that the words written on the paper don't say depart the area?---What I was saying was trying to broker away for us to get the ship unloaded and specifically what we were saying is any time, and my colleague will support me in this, any time that they were doing a hose change or doing any activity our operators would depart the area to the concrete bunker until they had completed that activity and would continue. During ship discharges there are long periods of time when product is going through the hoses and the operators from Vopak and Terminals will sit inside the bunker and it's just an observation issue going on. So what we were getting at, if they had concerns about safety that they would depart from the area into the bunker while the Vopak staff made any changes and when they were completed then our people could go out and do their normal checks.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN280

Sir, what this document says is that whilst work was being undertaken on the ship by Vopak people unloading the ship you would not require Terminals employees to be working on the ship?---I've explained the understanding of that. the meaning of that.

PN281

What this document says?---Yes.

PN282

Is what I just said?---That's what the document said. What I said is what I believed my work group has the understanding, my work group as well.

PN283

Now, I will just remind you, earlier today I asked you about understanding that you're giving evidence on oath?---Yes.

PN284

And earlier I asked you are these meetings truthful and substantially represent what happened?---Yes.

PN285

And I asked you had you read them before and you said yes, remember?---Yes.

PN286

And I asked you did Brad prepare them and you said yes, Brad being a management person?---Yes.

PN287

Right. And I've just asked you does this mean that while Vopak people were working on the ship you would not require Terminals people to be on the ship and you say it doesn't mean that?---That's correct, it does not mean that.

PN288

And you say that on your oath?---Yes.

PN289

Do you say on your oath that you offered to the employees to have a WorkCover inspector to come out and look at the work?---I said if we could get a WorkCover person to come out and prove it safe would that be an acceptable way to move forward and get the ship unloaded.

PN290

And they all said in one voice, yippee, yes?---And Kyle said yes.

PN291

They agreed to that?---Yes.

PN292

They agreed with you to the suggestion that you posed, WorkCover inspector looks at work and signs off and says it safe, we go back to work?---Yes, yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN293

That was your suggestion?---Yes.

PN294

And they agreed to it?---Yes.

PN295

So the next sentence, you would agree with me, is an accurate reflection of what you just said?---Which sentence was that?

PN296

Doug also offered to have the workplace inspected by a WorkCover inspector.

PN297

?---Yes.

PN298

And they said yes - - -?---To see if I could get one, et cetera, yes.

PN299

No, you didn't say that. You didn't say that. You at no time said that. In that meeting you did not say that?---I really don't understand what you're getting at. The discussion - - -

PN300

Well, don't worry about what I'm getting at. Try and stick with the truth, sir. My question was you did not say in the meeting if I can get one. What you said was if we can get a WorkCover inspector to come out and inspect the work and sign off will that be good enough for you and they said yes?---Yes, yes.

PN301

You didn't say if I can get one, did you?---That's correct.

PN302

So they were happy to go back to work if that step was taken?---Yes.

PN303

At that stage you must have formed the view that their concern about their safety was a bona fide?---I was again, as I've repeated, trying to broker a way forward to get them back to work on the ship.

PN304

And they were happy to work on the ship if a WorkCover inspector said it was safe for them to do so?---Yes, they were.

PN305

So you must have formed the view at that stage that white collar, red collar, green collar was not the issue, the issue was safety?---No, not the case at all. I still am strongly of the view that they were not doing the work because they were white collars down - - -

PN306

They said they would do the work if a WorkCover inspector said it was safe, on your evidence?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN307

They didn't say that if a WorkCover inspector says that the collars are of a particular colour they will do the work, did they?---That's correct.

PN308

Right. So you must have known that they were real in their concern for their health and safety at that point, if not at any other point?---I also think that they had a view that it would take me some time to get the WorkCover gentleman
there - - -

PN309

Did you ask them that?---No.

PN310

Did you ask Ms Perkins that?---Ms Perkins was never present.

PN311

Did you ask anyone else that?---I spoke to Brad about it.

PN312

Did Brad tell you the employees will probably think it will take some time to get a WorkCover inspector out?---No, he didn't say that but he said normally it will take some time to get a WorkCover person out, maybe 48 hours.

PN313

Who said that?---Brad.

PN314

Brad said that?---Mm.

PN315

Did you get from any of the employees any information that would have allowed you to form the view that they thought that it would take a long time to get a WorkCover inspector out?---No, I didn't.

PN316

Did you ring WorkCover?---Yes.

PN317

Who did you ring?---I rang the Gosford head office initially and then I was called back by a Robert Roland from - I guess he was from Sydney area branch.

PN318

I guess?---I'm not sure. He never said which branch - - -

PN319

You didn't ask him?---No, I didn't.

PN320

I see, all right. And he rang you back, yes?---And said that he would see whether he was able to get out to the site to inspect but advised me that it would probably not be for 24 hours, or thereabouts.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN321

24 hours?---At least a day, yes. He later called me back and said that he would be able to be there on the Tuesday.

PN322

So Monday at approximately 1 pm?---No, it was later in the day. That was the discussion about the - when was it here. Yes, probably about 1.30. Yes, okay.

PN323

At about 1.30?---Yes.

PN324

Right, he said I can get there in 24 hours and it's 1.30 Tuesday, correct?---Yes.

PN325

And then he later - sorry, that's still Tuesday then, so he told you he'd get there on Tuesday?---It's on Monday so he said he'd be there on Tuesday, yes.

PN326

At what time?---He hadn't advised me at that stage.

PN327

Well, didn't you say to him when because I've got a ship that I need to unload?
---Yes, I said it was, you know, important that we got you down there as soon as possible and he said he couldn't guarantee me when he could get there.

PN328

Well, did you ask him to give you some idea?---Yes, he said 24 hours I'll probably be able to get there on Tuesday morning.

PN329

So Tuesday morning at what time?---He didn't give me a specific time until Tuesday in fact.

PN330

And you didn't press him for a time?---I asked him if he would call me back with a time as soon as he could.

PN331

And that was at about 1.30?---That was the initial conversation with him. It may have even been later before I got a call and just backing up, sir, I called WorkCover Gosford probably about 1 o'clock. It was a little time later, I think probably more like 2 o'clock or 3 o'clock before I got a call back from this WorkCover gentlemen. They must have transferred it onto a different branch or whatever.

PN332

At 2 o'clock or 3 o'clock?---Yes.

PN333

Between 2 o'clock and 3 o'clock you were satisfied - sorry, you didn't know one way or another when the WorkCover inspector was coming?---No, not specifically what time he'd be there.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN334

Not specifically or generally because you hadn't spoken to him?---He said I might be able to get there on Tuesday morning some time.

PN335

When did he say - I'm sorry, but when - - -?---In the afternoon.

PN336

Between 2 o'clock and 3 o'clock?---Somewhere around there, yes.

PN337

But before that you didn't know whether an inspector was coming or what time?
---When I called the head office they said it can take at least 24 hours/48 hours. That was their head office.

PN338

But you persisted nonetheless with chasing up whoever this was between two and 3 o'clock that you spoke to who said I might be able to be there the next morning?---Mm.

PN339

And at the same time where you thought you'd brokered this deal and didn't know how long it was going to take you were busily filing an application for orders in this Commission, is that right?---I had been in discussion with our lawyer, yes.

PN340

And did you tell the blokes that at that stage?---We first told them about - I think it was the last meeting or second last meeting that we were going to go to the Commission to get the return to work.

PN341

On Tuesday I think Deputy President Hamberger made some orders against Vopak, correct?---As I understand, yes.

PN342

On Monday, I'm sorry, I misled you. I'm sorry about that. On Monday afternoon Senior Deputy President Hamberger made some orders in respect of Vopak employees, correct?---Yes.

PN343

Pardon me a moment. And by 6.30 Vopak employees who'd been partaking in industrial action went back to work?---Yes.

PN344

And I think maybe you don't know this but perhaps you found out and I'm not holding you to specific times, I'm just trying to get approximates, but the orders were made at approximately 5 o'clock that afternoon?---That's what I've been told, yes.

PN345

Did you understand that at the time, that is, at about 5 o'clock? Had you been told then is what I'm asking you?---I don't recall what time it was I heard that.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN346

Somewhere around then, somewhere prior to 6.30?---Yes.

PN347

The reason we focus on 6.30 is we know that that was when they went back to work?---Yes.

PN348

And when they went back to work?---And our people went.

PN349

All your people went back to work?---Yes.

PN350

And there hasn't been an issue since, the ship has been unloaded, so on and so forth?---That's correct. Our customer is not very happy.

PN351

Well, I'm not really concerned about the emotional welfare of your customer. But in any event, everything has been fine since then?---Yes.

PN352

I need to ask you some other questions that I should have asked you earlier. On the Monday when Kyle - I keep focusing on him only because he's the first person who comes to see you I think about this, when Kyle came to see you the one thing that everyone indicated either by what they said or by what they were doing is that they were quite happy to do lots of other work that was around the place. The only thing that they weren't going to do was work unloading this ship in circumstances that they considered endangered their health and safety?---Yes, that was the message.

PN353

Pardon me a moment. And about or approximately 80 200 litre drums of product was filled that afternoon?---In the evening, yes, probably after 5 pm, after I instructed them to do that. The group were in the tea room and I said I wanted them to do that work activity because they were otherwise not engaged in an activity.

PN354

Is that right?---Yes.

PN355

Do you say that afternoon, that is before 5 o'clock?---No, they had been doing trucks. There was just no activities at that time.

PN356

At that time?---Yes, correct.

PN357

That is, that afternoon people had been busy doing work?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN358

Without limitation?---Yes, that's right.

PN359

And when you said go and do the drums at 5 o'clock?---Yes.

PN360

Could you do 80 drums in an hour and a half?---That crew was on till midnight.

PN361

Sorry, the ship came back and work commenced on the work at 6.30?---Well, I don't think they finished doing all of those drums that night in any case.

PN362

Is that right? We'll hear what they say?---I'm not sure.

PN363

Are you sure about that?---No, no, it's not something I specifically keep an eye on.

PN364

Okay?---I know they were done on the following morning because I asked the work group there and they said they were completed.

PN365

Yes, all right. I want to briefly turn to I hope one other matter and then I hopefully will sit down. I don't know if you were around when Senior Deputy President Hamberger certified the Terminals Port Botany Terminal Agreement 2004?---Yes, I was.

PN366

Was that an agreement you played an active in negotiations?---Yes.

PN367

And it probably like a lot of these agreements do, picked up a handful of provisions or a substantial number of provisions from previous agreements?
---Yes.

PN368

And the only thing that was probably negotiated was specific things that people wanted to put on the table. Do you remember if the grievance, I think it's 3.2, the grievance and I'll show it to you if you need to see it or when you need to see it, do you remember whether the grievance and dispute settling procedure was one of those clauses that was put on the table as it were and renegotiated or alternatively, was something that had just been carried forward from previous agreements?
---There were no changes made to the grievance procedure in that last EBA.

PN369

In 2004?---Yes.

PN370

So I presume that it was a procedure that had worked very reasonably well over time?---Yes. As far as I know, yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN371

And you were reasonably, and I'm not going to give you an exam on it so don't worry - I better withdraw that because you might think exam is different from what I think. But you were reasonably familiar with it, the grievance procedure?
---Moderately so, yes.

PN372

And one of the things that is required under the grievance procedure and if you ask for it I'm happy to give it to you, but one of the things that's required under the grievance procedure is that whilst there is a dispute or a disagreement, or a grievance, normal work is to continue, correct?---Yes.

PN373

What's the exception to that?---The exception that's in there, it talks about safety issues and I'm sure that it's in that particular clause, but there is a clause elsewhere regarding during shipping activities.

PN374

I will show it to you. I will show it to you. Does the Commission have a copy of the agreement?

PN375

THE COMMISSIONER: No, I don't think anybody gave me one.

PN376

MR REITANO: I'm only going to refer to the grievance procedure and I think - it doesn't have the whole lot. As long as my friend is happy with that, I'm happy with it, but it's not quite the whole clause but we have - - -

PN377

THE COMMISSIONER: It's all you people are going to rely upon.

PN378

MR REITANO: Yes. One from the witness and one for the Commission and I tender it.

EXHIBIT #R2 GRIEVANCE CLAUSE

PN379

MR REITANO: I think the clause you're looking for, sir, if I can help you, is 3.21(c) and just take your time and read that?---Yes.

PN380

And in particular can I do it this way to make sure your understanding is the same as mine in I think three steps, firstly, the rule is that if there's a dispute normal work continues, that's the usual rule if you like. Do you agree with that?---Yes.

PN381

The next step is where loading or unloading, this is (a) and (b), has commenced it will proceed to actual conclusion?---Yes.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN382

And then the third step is the exception to all of that is where there is unloading or loading and health and safety of employees is at risk then the loading/unloading operation will cease until such time the conditions are made safe?---Yes, it does say that.

PN383

And it's the case, is it not, and I'm putting this very much in the general as to your understanding of what Kyle and others were telling you, was that they felt that while unloading and loading of this ship was being undertaken by people who they did not think were doing the task safely, that their health and safety was at risk?---That was the view that they were promoting, yes.

PN384

And did you at any time when they were promoting that view say, Kyle, I have known you for 100 years, you are a liar?---No.

PN385

You at no time put to him that he was using this as some sort of smoke screen for some other purpose, did you?---Not to Kyle but later in the day I did say that I believed the issue was relating to the fact that there were white collar workers down there.

PN386

And their health and safety issues that they were agitating with you was a complete and utter fabrication?---Yes.

PN387

You said that?---Yes - no, I didn't say that to them. You've asked that was that my view.

PN388

Did you say that to them?---No.

PN389

Did you say anything like that to them?---No.

PN390

And I put it to you the reason that you didn't say that to them was that you considered they had a legitimate concern?---I'm not one for making brash statements like that in a situation. As I said earlier, I tend to investigate things and follow up. Further to this clause I might mention it talks about and the second clause about consultation cooperation regarding these procedures. What occurred on Monday was a unilateral decision was made to withdraw the labour relating in their opinion to safety matters. We spent some time trying to broker a deal and get the work done that would satisfy their concerns, so always I was taking the matter, their concerns seriously and trying to get it resolved so that we could move on. The problem is that the decision that they took was unilateral and we really were not given any opportunity to - there didn't appear to be any willingness on the work group's part to try and get a way forward to do the work. They had said no, we will not work when those people down there. They said if they departed from the - as you've seen in the minutes, if they departed from the dock that they would do the work, or if the Vopak people came back onto the scene they would do the work.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN391

Just pardon me a moment. Have you finished your answer, sorry?---Sorry, yes, that's it.

PN392

Finally, sir, you've just said in answer to a question I asked you that there didn't appear to be any willingness to broker a deal on behalf of the employees?---Their view seemed very firm and fixed, yes. That's what I mean, yes.

PN393

There was one deal however that demonstrated that they had some willingness to solve this impasse, wasn't there?---Regarding getting the WorkCover gentleman out there?

PN394

Yes?---Yes, yes.

PN395

Did that factor into the answer that you just gave to me, that there was no willingness on their part?---Perhaps not.

PN396

No, because that demonstrated in a real way to you and everyone else that their concern was safety related and they were prepared to do something that would address their concern, correct?---My concern is that the person wouldn't be there until after the ship had departed.

PN397

Whatever you say about their concern about the person not being there was you knew, you knew that that person told you he would be there within 24 hours?
---Approximately, yes, he hoped he would be.

PN398

Yes, and the ship would still be there in 24 hours?---No, it was gone.

PN399

The ship was there yesterday at 3 o'clock?---No, it wasn't.

PN400

What time did it leave?---It left at - yes, okay, 2 o'clockish, round about.

PN401

Thank you sir.

**** DOUGLAS GEORGE ENG XXN MR REITANO
PN402

THE COMMISSIONER: That was yesterday, was it, Tuesday?---Yes, Tuesday.

PN403

Yes, Mr Salmon, whenever you're ready.

<RE-EXAMINATION BY MR SALMON [11.41AM]

PN404

MR SALMON: Thank you, Commissioner.

PN405

Mr Eng, Mr Reitano asked you a number of questions in relation to the Vopak order, do you recall that, the Vopak order, and that order you became aware on Monday afternoon?---Yes.

PN406

So the situation behind that was that your employees, the employees in question indicated to you that there were genuine safety issues and your evidence to date has been you believed that there were ulterior motives in relation to that, is that right?---Yes.

PN407

Did the employees, your employees return to work straight after the Vopak order?---No, they were still at work at that time and they were engaged in some other routine activities in the terminal, not at the dock.

PN408

So they commenced unloading the vessel, the Bow Wave?---Yes.

PN409

Immediately after the Vopak order was given, is that right?---No.

PN410

Okay, tell the Commission was occurred?---They returned to work - they only returned to work when the Vopak terminal operators returned to the berth and my understanding of that it was like 6.30. The orders were given at approximately
5 pm.

PN411

So they returned to work to your understanding after the Vopak operators went back?---Yes.

PN412

Did the employees tell you after raising these safety issues as to why they were happy to go back to work to unload the Bow Wave, did the employees provide any explanation to you why they would now do this work that previously they've raised safety issues as a result of?---I only assumed that it was regarding the - that they felt that the Vopak people were trained.

PN413

The question is did - - -

**** DOUGLAS GEORGE ENG RXN MR SALMON
PN414

MR REITANO: I object. He's answered the question.

PN415

MR SALMON: Sorry?

PN416

MR REITANO: I object. He's answered the question. He's asking the question again. He's already answered it.

PN417

MR SALMON: I withdraw it. Did WorkCover inspect the vessel?---No.

PN418

Did WorkCover inspect the wharf?---No.

PN419

The employees returned to work, did they not, without that event happening, is that right? Your employees did their full range of duties without WorkCover conducting an inspection, is that right?---They didn't go to the berth.

PN420

Did the employees provide you any explanation as to what has changed since the time they refused to do the work until the Vopak order was given?---No.

PN421

Thank you. The other question I have is in relation to exhibit R2, the disputes procedure which Mr Reitano has provided you with a copy of one page. Can you inform the Commission of your understanding as to how that particular subclause would work in relation to the identification of the risk?---Normally we would if there was a health and safety issue raised by the work group, as I said before we'd investigate and we have a system of job safety analysis, formal procedure sheet where we can investigate with the workers and identify the hazard and put in place whatever means that is required to make the job safe. We have extensive health and safety procedural manuals to cover these sorts of issues and I would expect that we have some consultation about the way in which it's made safe or satisfy everyone that we can continue with work.

PN422

So in your view does this clause read that it's just the employees who determine the risk?---Absolutely not. It shouldn't be.

PN423

I have no further questions, Commissioner.

PN424

THE COMMISSIONER: Yes, thank you. Thank you, Mr Eng, for giving your evidence. You may step down.

<THE WITNESS WITHDREW [11.45AM]

PN425

THE COMMISSIONER: Mr Salmon, your next witness, please.

PN426

MR SALMON: I will seek to call Paul Sullivan who is outside the court room.

<PAUL IVEN SULLIVAN, SWORN [11.46AM]
<EXAMINATION-IN-CHIEF BY MR SALMON

PN427

THE COMMISSIONER: Please be seated, Mr Sullivan.

PN428

MR SALMON: Thank you, Commissioner.

PN429

THE COMMISSIONER: Please don't wait for, Mr Salmon. I will get myself organised.

PN430

MR SALMON: Mr Sullivan, are you employed by Terminals Pty Ltd?---That's correct.

PN431

In what capacity?---My position is operations manager of the hydrocarbon terminal at Port Botany.

PN432

Can you briefly explain what your duties are?---At present my duties are to supervise and train and basically run the hydrocarbon plant which includes ship ashore discharges and all facets of the facility.

PN433

And what is your experience in the stevedoring, Mr Sullivan?---I've been employed by Terminals for 18 years and I've had experience basically in all facets of the operation at Port Botany including the bulk liquid terminal.

PN434

You're aware of an incident involving industrial action on Monday - I withdraw that. You're aware of an incident involving UD bulk liquids operators not unloading - - -?---I'm aware that the bulk liquid operators refused to go to the berth.

PN435

What was your involvement in relation to the resolution of that issue?---I actually went to the berth to observe the Vopak personnel.

PN436

When did you do that?---Approximately 2.30 on Monday afternoon.

PN437

And who told you to do that?---Well, I was advised that labour had been withdrawn.

PN438

By who?---By Doug Eng and so I decided to go to the berth just to observe the connection and work that the Vopak people were carrying on and I also wanted to speak to the Port Authority.

**** PAUL IVEN SULLIVAN XN MR SALMON
PN439

And who did you observe from Vopak working?---I only knew one of the people who were there, Brian Williamson, I'm not aware of the other people's names. I spoke to Brian.

PN440

Do you know Brian Williamson?---I've known - Brian's worked in the industry about the same length of time as what I have.

PN441

So in your view is Brian an experienced operator?---In my view, yes, he is.

PN442

So you had some discussions is your evidence with Mr Williamson and what was the nature of those discussions?---I asked Brian what the discharge plan was, where they were at with their procedure at that stage and - - -

PN443

Yes, what did he say to you in relation to that?---He told me that the operators have withdrawn their labour and they were going ahead to discharge the cargo and he - - -

PN444

Who was going to go ahead to do that?---Vopak management and that he was there supervising the discharge of that ship.

PN445

Did you have a discussion with him about the nature of that discharge involving the Vopak managers as to what was to be done?---Only in regard to the order of discharge of the cargo.

PN446

Was Sydney Water Corporation involved in relation to the - - -?---A Sydney Port representative was at the berth at the time when I observed the hoses being connected to the ship's manifold and I - - -

PN447

What was Sydney Water Corporation's involvement or - - -

PN448

MR REITANO: I object. I think it's called Sydney Port Corporation, not water.

PN449

MR SALMON: I'm sorry. I thank my friend for that.

PN450

Sydney Port Corporation, what's their - - -?---Sydney Port Corporation, well, they're the owners of the berth.

PN451

Yes?---And they have representatives at the berth who check that the safety check list has been completed satisfactorily and that all operations are being carried out as per the correct procedures there.

**** PAUL IVEN SULLIVAN XN MR SALMON
PN452

Did you speak to someone from Sydney Port Corporation?---I spoke to the representative on the berth.

PN453

What did they say?---Well, I asked, the first question I asked was that was Sydney Port aware that Vopak management were discharging the ship and he said yes, that's correct. I said has Sydney Port got any issues with the Vopak management discharging that vessel and he replied that in Sydney Port's opinion that the people were experienced and qualified to carry out the discharge.

PN454

So what reason do you believe is the reason the operators did not perform the unloading of the vessel Bow Wave?---The terminal operators?

PN455

Yes?---I've got no doubt it was because Vopak management were on the ship.

PN456

If Vopak managers in the future were to work on a ship what is your likely view in relation to what would happen involving operators in those circumstances?---I think the same circumstances as Monday, I have no doubt that they won't work the shift.

PN457

Mr Sullivan, can you explain to the Commission the effect that this action had on the company, the action that occurred on Monday?---Well, there's a monetary effect, you know, we're paying overtime for operators obviously. The customer has demurrage costs that are incurred by the ship being delayed. We had customers who wanted product that was coming in off that ship, they had trucks waiting to take that product from the terminal so they had delays in picking that product up and I guess also eventually there's, you know, a slight on the business, on Terminals name.

PN458

I have no further questions, Commissioner.

PN459

THE COMMISSIONER: Yes, Mr Reitano, whenever you're ready.

<CROSS-EXAMINATION BY MR REITANO [11.52AM]

PN460

MR REITANO: Mr Sullivan, how long have you known Mitch Galway?---I've known Mitch Galway probably five years maybe.

PN461

Did you work with him as an operator?---I have, yes.

PN462

Someone who you know pretty well?---I'd say I know him fairly well, yes.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN463

He's the union delegate?---I'm not aware of that.

PN464

You're not aware of that?---No, I was not aware of that.

PN465

Okay. And are you aware that on Monday morning he went to the bulk liquids berth to unload a ship - the ship, if I can call it that?---Okay. I'm aware that there were operators that went to the berth and once again I wasn't 100 per cent sure exactly who those operators were.

PN466

Did you at any time have a conversation with Mr Galway about what he saw when he went there?---No, I didn't.

PN467

What about Kyle, I can't remember his surname?---Kyle O'Brien?

PN468

Yes, did you at any time have a conversation with him about what he saw when he went there?---No, I didn't.

PN469

Did you at any time have any discussion with any anyone where they told you that Vopak employees had left a hose trailer blocking an emergency exit gate?---No, I had - - -

PN470

Had you heard that before?---No, I haven't.

PN471

But the first time that you've heard the suggestion that that might have been what was seen on that morning was when I just said it to you?---That's correct.

PN472

You wouldn't think, I would imagine with your experience and what you've told us about how long you've been working in the industry and your qualifications, that that was a particularly clever thing to do, would you?---Yes, look, I'd have to make that judgment if I saw it. I mean I can't comment if I'm not there to see. It's a pretty broad - - -

PN473

It doesn't sound like a good idea to leave things blocking emergency gates, does it?---Well, if it's in front of the emergency gate, no, it's probably not a good idea.

PN474

It's not a good idea from the perspective occupational health and safety, correct?
---Yes, I guess that's correct.

PN475

Did you speak to the bloke from Sydney Ports Authority about the prospect that a vehicle had been left in front of the emergency exit gate?---No, I couldn't. I didn't know that there was a vehicle in front of the emergency exit gate.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN476

Did you speak to him about anything else that had happened - sorry, how long were you there? 2.30 you went there, roughly how long - - -?---Probably 40 minutes.

PN477

How long did you speak to the - I said bloke, I shouldn't have assumed that, the person from Sydney Ports Authority?---I was talking to him while I was there.

PN478

It was a man?---I'm sorry?

PN479

It was a man?---It was a man, yes.

PN480

And you were talking to him while you were there?---Yes.

PN481

So how long did you talk to him, 40 minutes?---Well, most of the time. First of all I asked him did he have any issues and then I looked at him - I looked with him as these management were connecting the arm, pressure the arm, the procedure that they were going through and there were a couple of minor adjustments that he suggested that they may make to the position of their hose, but most of the time I was there I was talking to that person.

PN482

In the 40 minutes that you were there?---Yes.

PN483

There were things that the bloke from Sydney Ports, I think it's Sydney Ports Corporation is it?---It is, yes, Sydney Ports Corporation.

PN484

I'll just call it SPC?---SPC.

PN485

There were things that the bloke from SPC thought that weren't being done in accordance with - - -?---No, that's not correct.

PN486

What was my question going to be?---In accordance with whatever regulation I guess.

PN487

In accordance with anything, you were just going to disagree were you?---No, not particularly.

PN488

Well, would you do me the courtesy of letting me finish my question before you answer it?---Certainly.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN489

And I'll do you the courtesy of letting you answer it?---Certainly.

PN490

When you were speaking to the gentleman from SPC did you ask him how long he had been there that day?---No, I didn't.

PN491

Did you ask him if he'd been there at 10.45 that morning?---No, I didn't.

PN492

Did you ask him if he'd been there at midday?---No.

PN493

Did you ask him if he'd been there at any time before 2.30 when you got there?
---No, I didn't ask him that.

PN494

Did he tell you?---No, but he was there when I got there.

PN495

Did he tell you how long he'd been there for?---No, he didn't.

PN496

Did he tell you why he was there?---Not particularly, no.

PN497

Now, you didn't know - how many Vopak employees were there?---I think there was four.

PN498

And you didn't know three of them?---When I said that, one wasn't working and that was the state manager or the general manager who I do know, Glen Dailey, and I knew one of the persons who was working.

PN499

There were three working and you knew Williamson?---That's correct.

PN500

Did you speak to Williamson?---Yes, I did.

PN501

Did you speak to the other two?---No.

PN502

Not at all?---Not at all.

PN503

You didn't think it appropriate to satisfy yourself to go to them and say what's your training in doing work like this?---No.

PN504

Why not?---Well, I don't do it to anyone down the berth that's not working from my terminal.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN505

You knew when you went down there that one of the issues that the blokes from Terminals were concerned with was the level of training that the people doing the work had, correct?---That's correct, yes.

PN506

For better or for worse, like it or not, you knew that Kyle and others had suggested that these people who were doing this work on behalf of Vopak weren't trained in the work?---Well, that's what they suggested, yes.

PN507

Yes, I understand that?---Yes.

PN508

You didn't know whether that was right or wrong?---No.

PN509

You knew probably, I imagine, that Kyle and others, whoever they be, Mr Galway or whatever, might have had some insight into why they would be saying that, might have had some reason to be saying that?---Well, I don't know how they can make that judgment.

PN510

Well, one way they might make that judgment is that they went down there, as you know I think Mr Galway and Kyle, I keep forgetting, O'Brien?---O'Brien, yes.

PN511

Mr O'Brien might have thought that is that they went down there and saw the people doing the work and made that assessment?---Yes.

PN512

And you knew they had been down there, didn't you?---As I said, I don’t know what particular operators have been down there. I knew that operators had
been - - -

PN513

Right, you knew some?---Yes.

PN514

And you knew that whoever those operators were, that they had observed the work of the Vopak people, or didn't you know that either?---Well, no, I guess I'm assuming that because they complained, made a complaint that they thought they weren't properly trained.

PN515

So in order to I suppose make an assessment of your own as to whether the work was being carried out safely or not, there were a number of things that I suppose you'd fairly naturally do, correct?---Mm.

PN516

You have to answer because it's being recorded?---I'm sorry, yes.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN517

One of them would be to look at what was going on?---I did.

PN518

That's one of them. But there would be other things you'd do, wouldn't there, correct?---Yes.

PN519

One of the fairly natural things that you would do would be to talk to the people doing the work, correct?---I did speak to Brian Williamson, yes.

PN520

Yes, but talk to the people doing the work, not just Brian Williamson, talk to the other people too, correct?---That's not normal practice.

PN521

Let's call them Bill and Ben, the other two gentlemen?---Mm.

PN522

In respect of Bill and Ben you had no idea about their qualifications or experience, correct?---Not at all and I don't with any other operator at the berth.

PN523

That's fine, sir. You had no idea about their qualifications or experience, correct?
---No, I didn't, that's correct.

PN524

You didn't know whether in a previous life or before that day they had worked as lawyers, did you?---No, I didn't.

PN525

Or in some other occupation, correct?---That's correct.

PN526

And in order to satisfy yourself to make an informed assessment of the work being conducted was being conducted safely, it would have been vitally important for you to know what their qualifications and experience was, correct?---I spoke to Sydney Ports and asked whether those people - was there any issues with those people working on the ship and they assured me, Sydney Ports management, those people were suitably qualified to work that vessel.

PN527

They told you that they were suitably qualified. Did you ask them what qualifications the people had?---No.

PN528

Did you ask them about the people's experience in doing the kind of work?---No, I only know that Brian Williamson has had as much experience as I have and he was supervising that job.

PN529

Did you ask the person from Sydney Ports where they got the information that led them to the view that those people were suitably qualified?---No.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN530

And you certainly didn't ask the person from Sydney Ports how long he'd been there watching the work being performed?---No, I didn't.

PN531

Now, on this day did you perform a job safety analysis in respect of the work?
---No, I didn't.

PN532

Now, I think you will agree with me that other work was performed that day, correct, by the operators?---Other work as in - - -

PN533

As in other work?---At the terminal?

PN534

Yes?---Yes, that's correct, yes.

PN535

It wasn't as though they were standing idly by doing nothing?---No, they were doing some work in the terminal.

PN536

Yes, they were filling drums and so on, correct?---That's what I believe, yes.

PN537

Were you there?---Not all day, no.

PN538

What time did you leave?---Well, I actually went back to the hydrocarbon terminal which is a separate terminal to - - -

PN539

Is it geographically away from this terminal?---Yes, it is geographically away, yes. It's not far but it's not there.

PN540

That doesn't help me much. Give me travelling time?---A couple of hundred metres, 400 metres.

PN541

All right. But somewhere where you would have had no involvement with this terminal?---I had no involvement, no direct involvement after I left the berth for some time.

PN542

So you left at about 3 o'clock, roughly 10 past three?---Roughly.

PN543

Using 40 minutes?---Yes.

PN544

And you arrived at 2.30. What about before 2.30 what you had done, were you at the hydrocarbons terminal before then?---Well, I was at both actually. I was at the bulk liquids terminal in the morning for some time.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN545

Till what time?---I would say only to maybe 9 o'clock, I'm not sure.

PN546

So between nine and 2.30 you were, approximately, I'm not going to hold you to it?---At a different terminal, yes.

PN547

At a different terminal. So you hadn't observed anything else that had happened earlier that day in respect of the issue that we're talking about?---I stand corrected. I actually went back to the bulk liquid terminal about 11.30 because I'd been informed by Vopak management that their operators would not be working the ship and I went back to inform Doug Eng in case he wasn't aware of that situation and at that stage I also relayed that information to one of the operators of the bulk liquid terminal.

PN548

Right. Was that it?---Yes.

PN549

How long have you known Mr O'Brien, I asked you about Mr Galway I think, what about Mr O'Brien?---Probably around the same amount of time. I'm not sure how long Kyle has worked at the terminal.

PN550

Sorry, I will come back to Kyle and Galway in a moment, but do you remember the name of the person from Sydney Ports Authority, SPC, you were talking to?
---I only know him by first name, yes.

PN551

How long have you know him?---10 years, 12 years.

PN552

Did you say to him will you come up and speak to the blokes about the conversation I've just had with you?---Excuse me, what blokes are we talking about, I'm sorry?

PN553

Sorry, Mr O'Brien and Mr Galway and those who were refusing to load the ship - or unload the ship?---Did I ask Sydney Ports officer?

PN554

Yes, the SPC bloke, yes?---No.

PN555

And you didn't, I think you said this, you didn't ask him if he had been there at
11 o'clock that morning or at any other time?---No, I didn't ask him, no.

PN556

Mr Galway and Mr O'Brien who you've known for some time - this is your son over here, isn't it?---That's correct.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN557

And he works as an operator?---He does, yes.

PN558

And you've known him for a long time too?---I have.

PN559

As unfortunate - - -?---Beg your pardon?

PN560

As unfortunate as it may be for you I would have said. I was being light hearted, sir. He has worked as an operator how long?---My son?

PN561

Yes?---I think about seven years.

PN562

So the people that I've nominated so far are all of about the same level of service and so on?---That's correct.

PN563

Can we just deal with O'Brien first - sorry, I'll deal with them all and if we need to separate them out you tell me, it might be easier. They're all people who are firstly, qualified and experienced in the kind of work that was being undertaken on this day?---That's correct.

PN564

They're all people that have been appropriately trained in the relevant procedures and the like?---Correct.

PN565

And you would regard each of them, I think, as people who are acutely safety conscious?---I'd agree with that.

PN566

You - - -?---I would agree with that.

PN567

Part of the reason anyway that I expected you to agree with it is because of the culture of - - -?---That's correct.

PN568

You've interrupted me and tried to mind read again?---Sorry.

PN569

The culture of the workforce that exists at terminals and at the berth?---I agree with that.

PN570

And that culture is at least in part attributable to the fact that not always but quite a lot of the time we're dealing with fairly dangerous and hazardous product?
---Correct.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN571

And if things go wrong it can have catastrophic effects on a general scale, correct?---Correct.

PN572

And it can also have very serious effects even on the individual scale?---That's correct.

PN573

Such as exposure to assets and the like, correct?---Correct.

PN574

Now I will take them separately because I don't want to single have your say in which - for this purpose, but if Mr O'Brien said that he was concerned about the safety matter you would respect his opinion about that?---Yes.

PN575

You don't know Mr O'Brien to be a dishonest person, I don't?---I don't.

PN576

And he's not a person who you would - if you needed a testimonial or a reference for any reason he would be someone who you would say good thing about, correct?---Correct.

PN577

You don't think he'd make up things, do you?---No, I don't.

PN578

And if Mr O'Brien said the reason I'm not going to get onto that ship and help unload it with those people there is because I don't believe that they are doing it safely and that is jeopardising my safety, you would have no reason to doubt his word on that, would you?---No, I would not reason to doubt his word on that.

PN579

Similarly with Mr Galway?---Yes, similarly with Mr Galway.

PN580

And like similarly with your own son?---Yes, correct.

PN581

Thank you, sir.

PN582

THE COMMISSIONER: I'm sorry, I just want some clarity. Mr Sullivan, you said that you went back and you had a discussion with Sydney Ports people in relation to any concerns they had with Vopak management unloading the ship?
---That's correct.

PN583

You went back and spoke to Terminals management and you relayed that discussion to them?---Yes.

**** PAUL IVEN SULLIVAN XXN MR REITANO
PN584

Did I hear you correctly, you spoke to operators, did I hear that correctly?---I spoke to one operator prior to the operators going to - well, I spoke to one operator.

PN585

Can you tell me who that was?---Yes, his name's Murray Barnett. That was earlier in the morning, at probably around about, I would think, about 11 o'clock because I wanted him to be aware that Vopak management were working on the ship.

PN586

Yes. Did you talk to any operators after you had your discussion with the Sydney Ports Corporation representatives, you went back and relayed that discussion to management of Terminals?---That's correct.

PN587

Did you relay that discussion to any of the operators?---I didn't.

PN588

I did hear you incorrectly, that's what I wanted to clarify?---I'm sorry.

PN589

So you didn't discuss that with the operators of that discussion?---No, I didn't.

PN590

Okay. Anything arising, Mr Reitano?

PN591

MR REITANO: No, thank you.

PN592

THE COMMISSIONER: Yes, Mr Salmon.

PN593

MR SALMON: Yes, I have some brief questions, Commissioner.

<RE-EXAMINATION BY MR SALMON [12.11PM]

PN594

MR SALMON: Mr Sullivan, when you arrived at the wharf on Monday afternoon and you had your meeting with the SPC official did you observe any occupational health and safety issues in relation to Bow Wave and the wharf?
---No, I didn't.

PN595

Did you look for such issues?---I did. I observed the connection and pressure testing of the loading hoses.

PN596

Did you observe any blockage of the emergency gate?---No, I didn't.

**** PAUL IVEN SULLIVAN RXN MR SALMON
PN597

Mr Sullivan, you've given evidence to this Commission that you know
Mr Williamson personally and your evidence is that he's at the same level of experience as you in relation to operations on the wharves, can you confirm whether Mr Williams was the supervisor, as counsel put it, Bill and Ben? Was
Mr Williamson the supervisor?---That's right, Mr Williamson advised me.

PN598

And finally, Mr Sullivan, in relation to what the SPC official told you, you've given evidence that you did not relay that to the operators, are you aware that the company related that information to the operators?---No, I'm not.

PN599

No further questions, Commissioner.

PN600

THE COMMISSIONER: Yes, Mr Sullivan, thank you for taking time to give your evidence, you're free to step down.

<THE WITNESS WITHDREW [12.12PM]

PN601

THE COMMISSIONER: Mr Salmon.

PN602

MR SALMON: No further witnesses from me, if the Commission pleases.

PN603

THE COMMISSIONER: Mr Reitano, before you start I think it's appropriate that we have a 10 minute courtesy break and then we'll start with your witnesses.

<SHORT ADJOURNMENT [12.13PM]
<RESUMED [12.23PM]

PN604

THE COMMISSIONER: Mr Reitano, do you have any your witnesses in the room at the moment?

PN605

MR REITANO: I do. I have one, only because I was - - -

PN606

THE COMMISSIONER: Could you just ask him to step outside.

PN607

MR REITANO: I apologise for that. I've made some assumptions.

PN608

THE COMMISSIONER: I just want to clarify the case that I do have.
Mr Reitano, I presume your argument is that no industrial action within the meaning of the Act was occurring on that particular day?

PN609

MR REITANO: Yes.

PN610

THE COMMISSIONER: On the basis of definition of industrial under section 420 and in particular (g), that employees had a reasonable concern in relation to an imminent risk to their health and safety?

PN611

MR REITANO: Yes.

PN612

THE COMMISSIONER: And then your next limb, therefore I need not even consider probable - - -

PN613

MR REITANO: Probable is all you have to consider though because that's all
Mr Salmon relies on. I read the transcript and I thought Ms Perkins was pulling my leg when she told me but I read it in the transcript where he says that he only relies on probable. He threw everything else away as I understand it in the transcript and what I say is there wasn't industrial action back then so how can you justifiably come to any conclusion that industrial action is probable in the future, that's the first point, for the reasons that you, Commissioner, have outlined.

PN614

THE COMMISSIONER: Yes. But I must form a view whether it appears to me that it was industrial action.

PN615

MR REITANO: Yes. Sorry, I'm putting it in shorthand.

PN616

THE COMMISSIONER: No, that's all right. I can't get to the next limb until I attack the first limb.

PN617

MR REITANO: Yes.

PN618

THE COMMISSIONER: Yes. And therefore then your next argument is that I can't be satisfied that it's probable in the future.

PN619

MR REITANO: Well, yes, and there's another reason why you can't be satisfied about that in addition to the one that I've already outlined as you've read back to me and that is this and I reckon it's a humdinger, Senior Deputy President Hamberger made an order that has been complied with which requires Vopak employees to go back to doing their work and in fact they did on Monday as you might recall the evidence.

PN620

THE COMMISSIONER: Yes, I do and the order is operative for a month.

PN621

MR REITANO: And if they are correct that our refusal to work is because of the colour of collars on the ship, well, that concern doesn't exist any more because the Vopak people are back doing the work, in accordance with the order.

PN622

THE COMMISSIONER: Yes. I wanted to clarify because if we don't get through the witnesses, which you feel confident we will, but if we don't get through them, well, it's up to you gentlemen but I'm not going to have submissions so to speak. It will be on the basis of the opening to this case and the evidence as given - - -

PN623

MR REITANO: Well, I better say something else because there's a third matter that I've got up my sleeve.

PN624

THE COMMISSIONER: Yes, please.

PN625

MR REITANO: You have identified, if I can call it the safety issue and therefore not in the definition of industrial action, also there is an issue about whether it was conduct that was agreed to by the employer which you will also find in the definition of industrial action as being a relevant exclusion.

PN626

THE COMMISSIONER: Whether conduct as agreed to.

PN627

MR REITANO: Yes. I think it's conduct. Once again I've colloquialised the Act.

PN628

THE COMMISSIONER: All right.

PN629

MR REITANO: And that relies largely in part on two things but principally the work - - -

PN630

THE COMMISSIONER: Authorised but does not include the following -

PN631

Action by employees that is authorised or agreed to by the employer of the employees.

PN632

MR REITANO: Yes, and it relies principally and mainly and importantly upon the evidence about the WorkCover inspector and less importantly but nonetheless what was said during the course of the meeting which is in the minutes and that is that you can depart the area during operational activity, et cetera, et cetera, by Vopak's management staff.

PN633

THE COMMISSIONER: So section 420?

PN634

MR REITANO: 419 - sorry, 420, yes.

PN635

THE COMMISSIONER: Definition, meaning of industrial action.

PN636

MR REITANO: Yes.

PN637

THE COMMISSIONER: 420. At (e) and (g).

PN638

MR REITANO: Yes, yes. Could I indicate this as well, depending on how the evidence goes I might not need to call the five people.

PN639

THE COMMISSIONER: I will leave that to you, Mr Reitano.

PN640

MR REITANO: Well, I'm just indicating that we may well finish by 3 o'clock.

PN641

THE COMMISSIONER: I wouldn't mind finishing a little bit earlier than that if I could to try and get my thoughts in line.

PN642

MR REITANO: Would the Commission consider shortening the luncheon adjournment?

PN643

THE COMMISSIONER: I wasn't even going to take a luncheon adjournment. Was anybody hungry?

PN644

MR REITANO: Yes, but I'm happy to hear that.

PN645

THE COMMISSIONER: Yes. Mr Salmon, is there anything you thought at the moment to clarify in what regards Mr Reitano has said?

PN646

MR SALMON: As I understand it, Commissioner, are you giving the opportunity for me to make a brief submission in relation to the evidence so far as Mr Reitano appears to have done?

PN647

THE COMMISSIONER: Yes, my apologies for interrupting you.

PN648

MR SALMON: Yes.

PN649

THE COMMISSIONER: The difficulty is the time and providing each party with the opportunity to lead the evidence that they seek to lead.

PN650

MR SALMON: Perhaps this may assist, I don't agree with Mr Reitano's view on the transcript. Obviously in relation to establishing a case under 496 it is a requirement to establish that there is industrial action and what I was getting to in relation to my earlier submission on Tuesday was that because the employees are back at work and there's no evidence of being organised, the limb is the (b), specifically in relation to probability and that was the basis of my argument. Commissioner, the basis upon - and I have the alternative view in relation to what Mr Reitano has put to you, my evidence in support of - the evidence in support of my application and assertion that there is industrial action is the basis of the evidence of Mr Eng who is of the view that that action did not occur because of safety issues but it occurred because of white collars. That's the basis upon which I submit the action taken was industrial action.

PN651

In relation to probability, again evidence based on the evidence of Mr Sullivan and Mr Eng in relation to if this happened again then the same issue would arise. I also disagree with my friend that just because you've got an order in place
means that activities will not occur, just because you've got a speed limit of
60 kilometres an hour does not mean that all vehicles will travel at 60 kilometres. The Vopak operators may not comply with the order. There may be a circumstance which the - - -

PN652

THE COMMISSIONER: Although - yes, my apologies.

PN653

MR SALMON: Now, if they do there are obviously circumstances and implications for that but the fact is they still might do that and my client's concern and the nature of the application is if they do that and the reasons based on management doing the work, well, that is industrial action and this Commission should make such orders as to stop it or prevent it. If the Commission pleases.

PN654

THE COMMISSIONER: Yes, thank you. All right, Mr Reitano, we might call your next witness, please.

PN655

MR REITANO: I call Mr O'Brien.

PN656

THE COMMISSIONER: Or your first witness, my apologies.

<KYLE O'BRIEN, SWORN [12.32PM]
<EXAMINATION-IN-CHIEF BY MR REITANO

PN657

THE COMMISSIONER: Please be seated, Mr O'Brien.

PN658

MR REITANO: Mr O'Brien, your full name is Kyle O'Brien?---That's right.

PN659

You work as an operator for what I'll just call the Terminals?---Correct.

PN660

And how long have you worked in that position?---Ten and a half years approximately.

PN661

You don't hold any position with the union, do you, as a delegate or otherwise?
---No.

PN662

Do you hold some other position other than as an operator when you're at work?
---A grade 5 operator which is a senior operator.

PN663

Are you on any consultative committees?---Yes, I'm a consultative committee member.

PN664

And what's the purpose of the consultative committee?---Virtually to liaise with the management regarding any EBA negotiations or just work conditions.

PN665

Last Monday at about 11 o'clock did you drive a forklift to one of the berths?
---Yes, I did.

PN666

And what was on the forklift?---Shipping hoses.

PN667

And what was the purpose of taking those to the berth?---Just preparing to connect to the ship. A ship had just come alongside.

PN668

What was the name of the ship?---The Bow West.

PN669

When you got there what did you see?---When I first arrived I went to drive onto the wharf and the access was blocked by Vopak and they've got a hose trailer they bring their hoses down on, that was blocking the access to the wharf so I just pulled up and just watched what was going on. I was a bit confused as to why they had parked there because they've blocked the whole access to the wharf.

PN670

And what was the consequence of blocking the access to the wharf?---Well, we couldn't get down there until they got out of the way and we wanted to get down all our stuff down there to connect to the ship plus they'd actually blocked the emergency exit from the wharf as well at the time, blocked both.

**** KYLE O'BRIEN XN MR REITANO
PN671

Did you form an opinion or a belief as to why someone might have - or who might have blocked the access?---I actually wondered because normally there's actually a parking area for your truck and your trailer which is a fair bit away from that, out of the way from that position so there's no access to the wharf otherwise. But when I looked at them I didn't recognise the blokes who were driving the fork and another bloke who was helping me get the hoses off. Actually I thought at the moment they must be their casual operators.

PN672

All right. What happened next?---I just said to the block we need to get onto the wharf but the hoses are in the way and he said righto, so he's moved the fork and the hoses out of the way and I just drove down the wharf then and continued on and took the hoses down the wharf and put them down there into the area where we connect the hoses.

PN673

And what did the other forklift driver do?---Well, then he sort of followed me down with a load of air hoses, the Vopak bloke.

PN674

And how did he do that or what did he do with them when he got them there?
---Well, there's usually sort of a drop off point if you like where you put the hoses all down and then you sort of drag them up in front of all the pipe work because it's a very thin area, but he just got the forklift and barged right down between the pipe work and the edge of the wharf which straight away I was going what's this bloke doing because it sort of starts bashing into all our pipe work and you've got sprinkler systems. You're not supposed to take them down there and he just dumped them all over the manifolds and their manifolds which I, you know, wondered what was going on.

PN675

All right. Was someone else who worked for Terminals with you at the time?
---Yes, they were.

PN676

Who was that?---Mitch Galway.

PN677

Did you have a conversation with him?---Yes. I just said to him, "What's doing with these blokes, you know, they don't seem to know what's going on". I said, "Are they casual", he goes, "I don't know, I haven't seen them either".

PN678

Did you with Mr Galway go and talk to some of them?---Yes, I was sitting on the floor and Mitch approached one of them and I think he just asked, "Who are you blokes, casuals", or something along those lines and the blokes said "No, we're management", and he said - - -

**** KYLE O'BRIEN XN MR REITANO
PN679

Yes, go on?---And Mitch asked him, "What sort of experience have you got doing this, mate, you know, it doesn't look like you know what you're doing", and the bloke just told something along the lines of I was in the navy for eight years. And then he come back to me and I went "Oh, what's going on here".

PN680

And did he tell you anything about any of the other people that were there?
---There was a bloke on the fork lift.

PN681

Yes?---I think Mitch approached him and said, "And do you anything what's going on here" and he sort of mumbled something about he's done some training or something along those lines.

PN682

Was there someone else from Terminals present during those discussions that you had or those conversations?---At that time I don't think so but Murray come
down - - -

PN683

Just freeze if there. Murray, who is he?---Murray Barnett. He was the leading hand on the day.

PN684

So he came down and what happened then?---I think Mitch filled him in. I went back up to the terminal because I was on the fork. I was going to get some more hoses and just ask a couple of questions and then Murray said he'd been told by management that Vopak managers were doing the ship. Murray was coming down to start the ship anyway and Mitch has informed him of what we'd just seen taking place with the blokes that were down there and then they decided we better go up to our terminal and find out what's going on.

PN685

All right. I'll come back to the sequence of events in a moment, but from what you had seen when you were down there what was it that concerned you about the way in which the work was being done by the Vopak people, can you tell the Commissioner bearing in mind that neither I nor the Commissioner normally do this work and you do, what it was concerned you?---It was just nothing normal about it. Everything was sort of totally opposite of what you'd normally do down there. It was making our life hard just for the access and then it was - it could be called as damage just the way they took their hoses down there, bashing against the pipes and then just dumping them in the wrong spot so - - -

PN686

Did you have any concern for your own welfare?---We stood back when we saw how the bloke was dragging the hoses. We just got right out of the way and watched him what was going on.

**** KYLE O'BRIEN XN MR REITANO
PN687

Did you form an opinion after you'd had the conversations with them about their ability to perform the work?---Yes.

PN688

Sorry, and what you had seen?---Yes.

PN689

What was that?---Well, obviously didn't know what they were doing.

PN690

So what did you do next going back to the sequence of events, what did you do next?---Well, I went back up to the terminal and I spoke to I think our co-delegate in the yard.

PN691

Who is that?---Todd Bell.

PN692

Right?---He was in the terminal and I just let him know what was happening down the wharf and with that situation with what we just come across and yes, I think we just went from there and then we went to talk to management.

PN693

So who went to talk to management?---I think the first two was maybe Murray come back up, Murray and Todd might have been the first two to inform them.

PN694

And who from management did you see?---Doug Eng.

PN695

And did you have a conversation with Mr Eng?---I did. After that I sat in on the meeting. He convened a meeting with the consultative committee.

PN696

And did you tell him anything about what he had seen earlier that day?---I relayed what I had seen when I first got down the wharf about the trailer and the access blocked and just the other way they'd taken hoses down the wharf and everything like that.

PN697

And what did he say to you?---He said, well, fair enough, I'll go and look into it.

PN698

And did he go and look into it?---Yes, I think from memory Doug might have went to the wharf then and to find out what was going on. Went straight to the Port Authority I think.

PN699

And what did you do?---I stayed up in the terminal and we just, a couple of blokes - there was a couple of blokes working in the terminal while we were on the ship so I think we just got everyone together and just told them what had just happened down there just so everyone knew what was going on and we just sort of waited round the terminal, just helped out round the terminal while we heard back what else is going on.

**** KYLE O'BRIEN XN MR REITANO
PN700

Did Doug then return?---He did, yes.

PN701

And did you have another conversation with him?---Yes.

PN702

And what was said by you and by him, what's the guts of it?---I think Doug come back and said he spoke to them down the wharf and Vopak have agreed to change the managers that were down there because they admitted they didn't know much about what was going on or something and they were going to put a bloke down there who'd been a terminal manager for a long time and change him down there and just sort of - and we just said, well, all right, what hands on experience has that manager had on in shipping.

PN703

And what did he says?---Well, he said he's been assured - he assured us he knows what he's doing.

PN704

And was anything said after that?---He might have asked us are we going to go back down with that manager or whatever and we said, well, until they can prove that there's someone down there who's hands on experience we're not going to work alongside them on the ship considering the cargo they had to discharge.

PN705

Right. Was anything else said at that time?---In that meeting?

PN706

Yes?---I think it might have been in that meeting or the next one but it was suggested, we suggested to him would he asked Vopak how about they stand aside and just let us get on and do the ship until they can supply someone experienced to do it who knows what they're doing, I said we've got no problem going down there now but we're just worried about the blokes they've got down there, the capabilities of them. When he asked them, I think Doug approached them to see if they would stand aside and let us get on with the job while they just sort out their own troubles but they said no, we're just going ahead with it.

PN707

Was anything else said about how the problem might be resolved in that meeting?---Yes, Doug asked if they got WorkCover in along with our safety officer to go and inspect and watch them work and they found it to be safe would we agree and we said yes, we would, if that was all agreed upon as a safe working environment we'd go down there no worries.

PN708

Did you know when Doug that said to you about WorkCover how long it would take for WorkCover to come out?---No, we've never had WorkCover out there in the 10 years I've been there so I wouldn't know.

**** KYLE O'BRIEN XN MR REITANO
PN709

Have you ever been involved in anything where WorkCover were required to be called anywhere else?---No, not our plant.

PN710

Now, what happened after that, was there anything else discussed in that meeting?---No, I think Doug went and organised WorkCover and we just went out and saw - Murray's our safety officer, I told him, you know, they're going to try and get a WorkCover bloke out there and he'll be going down there to check it out with him.

PN711

Did you have any conversation with Murray about how long it would take for a WorkCover inspector to come out?---No, I don't - I didn't even think about it.

PN712

Did you do any - sorry. What was your next involvement then with Mr Eng after that?---I think we called back around there and he said we can't WorkCover out here for up to 24 hours or something and he sort of - and we just sort of said, well, unless it can be proved that the area is safe we're not willing to put blokes at risk down there.

PN713

And what did he say to that?---I think pretty much Doug said, well, all our options are expired, we'll have to look at taking some other action or something.

PN714

Did you tell him anything about what work you were prepared to do?---We said we were working. At that time the blokes that come up were working around the yard doing the normal yard duties and anything else. That was only area we said on the ship we weren't willing to work alongside.

PN715

And what shift were you working that day?---I was working a 10.30 till midnight shift.

PN716

And did anything else happen with Mr Eng - sorry. At about 5 o'clock did
Mr Eng have another discussion with you about what was going to happen down at the wharf with this ship?---I think he wanted to discuss that with our union delegates, Todd and Mitch.

PN717

Did you hear from Todd and Mitch something about what was going on down at the wharf or what was likely to be happening some time after 5 o'clock?---I don't know whether it was from that message but I know they said Vopak might be returning to work shortly, something along those lines, or they're in the Commission, they're having a meeting and they might be going back to work.

**** KYLE O'BRIEN XN MR REITANO
PN718

Did you actually perform any work, during that shift did you perform any work on this ship?---Yes.

PN719

When did you do that?---It was about 1830. I think we got the word that they're going to have experienced people down the wharf so we headed straight down there and continued on connection with the ship.

PN720

And when you continued with connection of the ship who was with you?---On the wharf at that stage there was Murray Barnett, Mitch Galway and one other operator, John. His name is John Strange.

PN721

Is that his name or you can't remember it?---No, John. He is a bit strange too but.

PN722

What about from Vopak who was there?---When we got down there operators - I think one bloke called Rick who's been there, I don't know, he's been there as long as I have, and one of their other operators they've just trained up I don't really know him.

PN723

Was Rick someone who you'd worked - sorry, just for the Commission's benefit. When these ships are being loaded and unloaded?---Yes.

PN724

Is it unusual for you to work alongside Vopak employees?---No.

PN725

Or operators?---No, like you might be working this far apart if your products are next to each other on the ship.

PN726

And was Rick someone that you'd work with before?---Yes, I'd seen him down there numerous times over the years.

PN727

So there were only two Vopak people?---Yes.

PN728

Can you in your own words and this isn't in the statement that I think you prepared for me, but in your own words can you tell the Commissioner why you weren't prepared to work on that ship on Monday?---Well, it was mainly to do with the nature of the chemicals that were being discharged they were highly dangerous and to work on a ship it's all about hands one experience. We need three months hands on experience before they let us have anything to do our own down there and you can do up to 20 ships in that time. So at that time the people they had there I didn't feel from what I'd seen earlier and I couldn't get any guarantee these blocks had done enough hands on work down there to guarantee they knew what they're doing and there was no risk to my safety or any of my work mates. So that's the gist of it and they were very dangerous products that were coming off. They were class 3 and class 8s which are hazardous to your health and it doesn't take much for an accident to happen down there. You're working under high pressure, all the lines and that, if something hasn't been done up property it just sprays so you're working in a very close proximity together with your back to them sometimes, you're not always watching what they're doing so you've got to have a bit of trust that they know what they're doing with the bloke next to you. Sometimes you've got cranes swinging around your head and you've got to know the bloke, trust him, he's not going to get you taken out by a crane or anything like that. So there's a fair bit of trust involved that the bloke next to you knows what he's doing so in that situation I wasn't confident that the people down there were capable. That's what it sort of come down to, for me anyway and I think everyone else who was there.

**** KYLE O'BRIEN XN MR REITANO
PN729

Could I ask you, you referred to, I think you said they were class 3s and class 8s?
---Yes.

PN730

Once again that's something I do know but you can assist everyone else to the extent that they might not, class 3 and class 8 what?---That's every product is given a rating on virtually how dangerous it is. Class 3 is highly flammable and class 8 is corrosive. Class 3 has usually got fumes which are all part of that too which are usually pretty dangerous too.

PN731

In respect of this ship you knew what you were to unload?---Yes.

PN732

And do you say that the chemicals fell either in class 3 or class 8 that you were unloading?---Yes.

PN733

And are you trained in, for example, dangerous goods generally as part of your training?---Yes.

PN734

And are you trained in how to read, once again for example, material safety data sheets?---Yes, we are.

PN735

And they're provided to you in the course of your employment?---Yes.

PN736

And are there various procedures and we don't need to go through them either one by one or otherwise, but are there various procedures that are laid down by Terminals that you are required to follow in unloading and loading a ship?---Yes.

PN737

And those procedures are to do with matters concerned with safety?---Yes, they are.

PN738

And did you do - sorry, what training have you done in those procedures?---Well, the company actually every couple of years we've got to sit down and go through every procedure in the terminal and show that we know what each procedure means and that we understand it. We do like little modules on every procedure in the place. It takes you about two months to get through them all.

PN739

Every year?---No, every couple of years. I think it's two to three years or something along those lines we've got to prove, sit down, that we do know what's going on.

**** KYLE O'BRIEN XN MR REITANO
PN740

And when you initially started, I think you mentioned this earlier, but when you initially started work for Terminals did you undergo some training?---Yes.

PN741

And I'm not concerned about things other than safety. What sort of safety training did you go through at that time?---You do fire training. You do a bit of a fire course. You do first aid, St John's Ambulance course and just basic on the job training, you know, which is all about experience out there, what to look for and what to be aware of.

PN742

Over what period of time was that initial training undertaken?---Your first three months you're virtually not allowed to touch anything but, you know, to be proficient out there you're looking at 12 months until you've virtually had your hands on most jobs around the place. They don't all come up every week.

PN743

Thank you.

PN744

THE COMMISSIONER: Yes, Mr Salmon.

PN745

MR SALMON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR SALMON [12.54PM]

PN746

MR SALMON: Mr O'Brien, as I understand your evidence and correct me if I'm wrong, but there were two major issues that you had concerns with in relation to occupational health and safety when you first went down to look at Bow West and that was the blockage in the hoses, is that right?---Yes.

PN747

Is there anything else besides those issues, specific issues?---Just after they told us they had no experience that was I suppose the other issue.

PN748

Do you know who you spoke to?---No.

PN749

You didn't ask for their names?---One bloke said his name was Cory, that's what he told Mitch I think. That's all I know.

PN750

Did you have any discussions with the union about this matter?---Yes. I didn't personally but someone spoke to them. We just informed them of the situation with - yes, we felt we were being put in an unsafe situation.

PN751

Who determined that you were put in an unsafe situation, did you determine that yourselves or you were told that was the case?---No, we determined that ourselves.

**** KYLE O'BRIEN XXN MR SALMON
PN752

Why did you go back to work on Monday afternoon after the Vopak order was issued?---Well, we were told they were going to have experienced operators down there, people knew what they were doing and we were confident that our safety concerns would be allayed I suppose.

PN753

So you didn't know that, you assumed that?---Well, that's why we went down there and we seen blokes that we knew had been trained and we were confident then.

PN754

You assumed that they were okay to do the work?---Yes, well, I've worked alongside them.

PN755

Were you informed by the company that the City Ports Corporation had determined that it was a safe place to work?---Yes.

PN756

And what was your response in relation to that?---Well, we just said, well, they've just taken that bloke's word on it and we said, well, have had they had hands on training. We asked that, have they got proof they've actually done hands on training on shipping and they said no, it's just his word.

PN757

So do you seek proof from other operators down at the ship who you don't know to establish that they're trained in the particular work, is that right?---No.

PN758

What do you do?---Well, we just wanted - if one of the managers said he'd been an operator before or something we'd go, well, obviously he's done the work. We wouldn't have had a problem.

PN759

Well, I put it to you that a Mr Williamson, a Brian Williamson, are you aware of Mr Williamson from Vopak?---He's the manager of site B down there.

PN760

Did you see him there?---Only when we went back at about 1830 - - -

PN761

Did you - - -?---He was walking off.

PN762

I'm sorry, I interrupted your answer?---He was just walking off the wharf then.

PN763

But you saw him later in the day?---No. I only saw him at 1830 when I went down, back down to the ship.

**** KYLE O'BRIEN XXN MR SALMON
PN764

And you were aware, were you, that he was the supervisor in relation to the work being done by Vopak management then?---We were told that.

PN765

Did you have no satisfaction or belief that because of that it would be a safe place to work?---No, I didn't, I didn't. Just because he'd been a manager it was no proof to me that he'd actually worked on a ship and picked up the tools.

PN766

I put to you that Mr Williamson has approximately 18 years experience working on the wharves, what do you say about that?---Well, that's in an office isn't it? Hasn't been a manager for 18 years?

PN767

No, I put it to you that he's had operations experience for 18 years?---Well.

PN768

Mr O'Brien, you said that the reason that you did not do the work of unloading the ship was mainly to do with these issues. Was there any other issue on your mind as to why you shouldn't do this work?---None at all.

PN769

Could it have been, Mr O'Brien that the work being undertaken was being undertaken obviously by Vopak management and you had concerns in relation to Vopak management doing the work?---None at all.

PN770

You had no concerns about that?---The only concerns if they were management was if they had no experience doing the job. They could have been anyone, not Vopak management, they just weren't experienced.

PN771

So you're satisfied that they're adequately trained you'd have no problems with Vopak managers performing work on a vessel side by side with your work?
---That's correct. If they can prove they've done the work.

PN772

And the same would apply to any person who then is trained in relation to the work, you would have no problem in working side by side with an operator or a person who has that appropriate training, is that right?---That's correct.

PN773

No further questions, Commissioner.

PN774

THE COMMISSIONER: Anything in re-examination?

**** KYLE O'BRIEN XXN MR SALMON
PN775

MR REITANO: No, thank you.

PN776

THE COMMISSIONER: Thank you, Mr O'Brien, you're free to step down. You may stay in the hearing room if you choose, or you may leave.

<THE WITNESS WITHDREW [1.00PM]

PN777

THE COMMISSIONER: Mr Reitano.

PN778

MR REITANO: I call Steve Madden. I wonder if I might just give my friend a copy of the sort of proof of evidence thing I've got to shorten his evidence. It might be satisfactory to him if I just ask Mr Madden if it's true and then tender rather than taking him through the evidence.

PN779

THE COMMISSIONER: You've going to have to give me time later on to read it but that's fine.

PN780

MR REITANO: It will take the best part of 30 seconds to read it, it's very short.

<STEPHEN MADDEN, SWORN [1.01PM]
<EXAMINATION-IN-CHIEF BY MR REITANO

PN781

THE COMMISSIONER: Please take a seat.

PN782

MR REITANO: It is an appropriate course for my friend so I will just show it to Mr Madden and ask him if it's true and then tender it and I have to ask him one other question I think.

PN783

Can I show you this document, Mr Madden, which has your name and a red line on it that you didn't put there, I think I did. Other than that is the document in your own handwriting?---Yes.

PN784

Is what you've said there true?---Yes.

PN785

I tender that.

EXHIBIT #R3 STATEMENT OF MR MADDEN

PN786

THE COMMISSIONER: Whenever you're ready, Mr Reitano.

PN787

MR REITANO: My only question, Mr Madden, of you is how long have you worked as an operator?---About two weeks off 10 years.

PN788

You're just due for your long service leave. Can I just raise another question, you talk in the statement that you've provided about an exposure you had to, was it acetone?---Acetic acid.

PN789

Acetic acid. When was that?---I couldn't be completely correct, it would be about three years, two or three years in that period of time.

PN790

And can you tell us what the consequence of that was for you?---Well, it seems to absorb the moisture and burn your throat. I had sore eyes and a pretty sore throat for a few days and it was only a very minimal amount of acetic acid that was dropped into a tray while we were on a ship discharging. It was dropped by the other terminal who we work alongside, the Vopak terminals, not by us.

PN791

What do you say of a suggestion that you and your colleagues were refusing to unload or load a shift because Vopak management were involved in that process?
---Well I wasn’t aware that it was Vopak management. I was aware that it was Vopak staff which could have been anyone from management to the guy that does the weigh bridge and my concerns were raised - one of the reasons was specifically because of the acidic acid and the repercussions of that being spilt anywhere and because of the my perceived lack of training that these people would have had.

**** STEPHEN MADDEN XN MR REITANO
PN792

Did it have anything to do with the fact that they were "white collar workers"?
---No. The reason I went and approached Doug Eng was the fact is that they weren't trained or we believed that they weren’t trained and we have a long training period and none of these guys had ever been seen on a ship before and before you're allowed to discharge a ship you have to an extra man on a ship and be shown the ropes, exactly what you need to do and safe procedures in doing so.

PN793

Yes. I should have asked you this at the begging. You occupy another position at the company, don’t you, not only as an operator but you're also a safety officer?
---Yes.

PN794

Yes and how long have you held that position?---Only until recently when an operator moved to another part of the terminals employment.

PN795

Approximately how long?---Only a few weeks.

PN796

Right?---I've been on the consultative committee and other committees as well before that.

PN797

Thank you.

PN798

THE COMMISSIONER: Yes, whenever you're ready, Mr Salmon.

<CROSS-EXAMINATION BY MR SALMON [1.05PM]

PN799

MR SALMON: Thank you, Commissioner. Mr Madden, you were what rostered to work on Monday 8 May, were you?---Not rostered.

PN800

You were rostered to work on Monday 8 May which was last Monday?---I was at work, yes.

PN801

Yes and you were required as part of your duties to unload Bow West?---No I wasn’t.

PN802

You weren't?---No.

PN803

That wasn’t part of your duties?---Not on that day, no.

PN804

Do you have any concerns in relation to working with persons who are trained to unload vessels, working side by side with those persons?---No.

**** STEPHEN MADDEN XXN MR SALMON
PN805

Do you have any concerns in relation to working side by side with Vopak management in relation to unloading vessels?---Not if they're trained.

PN806

Not if they're trained, and the same applies to casuals and contractors?---We work with casuals and contractors all the time.

PN807

Yes?---But they are trained operators.

PN808

And what were you told in relation to - you're aware that certain operators refused to unload the vessel, Beau West?---No they didn’t refuse to unload the vessel, they refused to work along side untrained operators to unload the vessel. They were quite prepared and that was a conversation I had with Mr Eng that we were quite prepared, its nothing to do with any dispute or anything else. What our problem is, is we see it as a safety issue that you have up there, there's untrained people going to hook up that ship and pump hazardous chemicals off while we're working along side them and as I said my feelings were exacerbated because of the simple fact that I'd come in contact with the one of the chemicals which was going to be the first product untied.

PN809

So there was no issue in your mind as to any concern as to doing work, terminals operators, doing work side by side with Vopak management?---If they're trained, that was the whole - the whole reason we're here is because of the people who were on that ship weren’t trained. We haven’t the right to say who we work along side as long as we're working in a safe and they're working in a safe manner and they're trained to do the operation. These people were not trained to do the operation. I spoke to a leading hand from Vopak Terminals and asked him are these blokes trained and he said, not trained at all, he's been there - he's a leading hand been there 15 years and he said in the 15 years that I've been here I've seen Brian Williamson who was the major manager down there on a ship to discharge a ship and one of the blokes he said he's only been here about six months so I don’t where is training was.

PN810

Yes. Okay. You've answered the question?---When you're employed you have to do the training.

PN811

No further questions, Commissioner.

PN812

THE COMMISSIONER: Yes. Any re-examination, Mr Reitano?

**** STEPHEN MADDEN XXN MR SALMON
PN813

MR REITANO: No. No further questions.

PN814

THE COMMISSIONER: Mr Madden, thank you for taking time to give your evidence. You may stay in the hearing room if you chose and you may leave, you're excused.

<THE WITNESS WITHDREW [1.08PM]

PN815

MR REITANO: I need five minutes just to make a decision.

PN816

THE COMMISSIONER: Yes.

PN817

MR REITANO: I wonder if I could have that because it will significantly shorten things if the decision goes one way and I anticipate it will.

PN818

THE COMMISSIONER: All right. Why don’t we give you 10 minutes?

PN819

MR REITANO: If the Commission wants 10 but I'll only need five.

PN820

THE COMMISSIONER: You've got five.

PN821

MR REITANO: Thank you.

<SHORT ADJOURNMENT [1.09PM]
<RESUMED [1.16PM]

PN822

THE COMMISSIONER: Yes, Mr Reitano?

PN823

MR REITANO: That's the evidence, Commissioner.

PN824

THE COMMISSIONER: Yes. Thank you. All right, gentleman, you're going have to be economical with your submissions. How long do you think you'll be Mr Salmon?

PN825

MR SALMON: Commissioner, I'll be extremely brief. I've in fact had a brief discussion with my friend. It may be of assistance to the Commission or it may not, I just propose to put a brief submission in relation to industrial action and industrial action is a jurisdictional prerequisite to make an order. I could put a submission in relation to that and Mr Reitano could reply. If you make a finding in relation to that that it was an industrial action well obviously that’s the end of the road of the application but I'm quite happy to make general submissions in relation to probability as well. The Commission did mention that point earlier on the proceedings.

PN826

THE COMMISSIONER: Yes. Well I think you should give me what submissions you seek to give me but I would like some time after those submissions to consider what has been put, gentlemen, as well you would appreciate and I will then reconvene at approximately 3 o'clock. So I will leave it to you to give the Commission a certain amount of time. Yes, please, whenever you're ready.

PN827

MR SALMON: If the Commission pleases. This matter is an application by my client, Terminals Pty Ltd for an order under part IX division 6 of the Workplace Relations Act 1996. Section 496(1) provides that if it appears to the Commission that industrial action by an employer or employee to an employer that is not or would not protected action (a) is happening or (b) is threatened, impending or probable or (c) is being organised, the Commission must make an order that the industrial action stop, not occur and not be organised. In my submission there are jurisdictional foundations upon which you must be satisfied to enable for an order to be made. My application is based upon the probability of industrial action and the jurisdictional limbs are firstly to establish that there is industrial action.

PN828

Industrial action is defined under the Act. My submission is that on the basis of the evidence presented to this Commission by Mr Douglas Eng, my client is of the view through Mr Eng that the industrial action was taken not for a safety reason but for reasons going to Vopak white collar management working on the vessel and that was the reason for the industrial action. The probability issue is the second jurisdictional issue - well I withdraw that. The second jurisdictional issue is whether the action is actually protected industrial action within the meaning of the Act and obviously if it is protected industrial action well then there will be no ability to make orders with respect to that action and that's set out in sub-clause 496.13.

PN829

The evidence which has been uncontested is that there is no protected industrial action in relation to this matter. Commissioner, thirdly there is the issue of probability and I simply refer to and I've copies here available if necessary, Macquarie Concise Dictionary Third Edition about probability, the definition of probability and that defines probable. The definition of probable is likely to occur or prove true. I submit that on the basis of the evidence of Mr Eng he is of the view that notwithstanding the situation that if Vopak management perform work on a vessel then the operators will refuse to work on that vessel. I also make the submission that the order given by SDP Hamberger in relation to the Vopak matter should not be taken as an active consideration that industrial action will not occur.

PN830

There obviously will be significant implications in relation to industrial action that may occur in relation to Vopak arising from that order but that's not to say that that industrial action or industrial action cannot occur. Commissioner, the final jurisdictional point is sub-clause 4 of section 496 which requires the Commission to make or it actually goes to who can make the order and it has to be ultimately the person affected.

PN831

THE COMMISSIONER: The application - yes, go on.

PN832

MR SALMON: Yes. And I submit that the evidence given by Mr Sullivan in his evidence regarding damage that has occurred to terminals on the Monday on the basis of that my client, Terminals Pty Ltd, is a person affected by that particular industrial action.

PN833

THE COMMISSIONER: Yes.

PN834

MR SALMON: On the basis of - - -

PN835

THE COMMISSIONER: Can I just interrupt you, Mr Salmon?

PN836

MR SALMON: Yes.

PN837

THE COMMISSIONER: I don’t know that I have an argument from Mr Reitano that the application wasn’t properly bought by a person who was affected. I didn’t envisage I would have to address 4. Mr Reitano, do I have to address 4?

PN838

MR REITANO: I don’t think so.

PN839

THE COMMISSIONER: No.

PN840

MR SALMON: Well, a person obviously is a constitutional corporation or includes a constitutional corporation.

PN841

THE COMMISSIONER: Yes.

PN842

MR SALMON: But you did mention in earlier proceedings, Commissioner, and that's the reason I've referred to it just for clarity.

PN843

THE COMMISSIONER: Yes, well, that's as I said, that's one of the jurisdictional issues.

PN844

MR SALMON: Yes.

PN845

THE COMMISSIONER: The application must be bought so, yes, well thank you, I'm sorry I interrupted you.

PN846

MR SALMON: If the Commission please, my final submission is the authority of Munro J in Rheem, Rydalmere case. I have copies, PR929970 where his Honour was dealing with orders relating to industrial action at the Rheem, Rydalmere plant and on page 14 of his decision he states:

PN847

It requires that the relevant industrial action be at least based upon the person taking the action having a genuine and reasonable belief about an imminent risk to the health and safety of that person or of others. In addition, the action taken must be proportionate to the risk. Dispute settlement procedures relevant to safety disputes at the site must have been fully complied with.

PN848

That decision also refers to an authority of Ranger Uranium Mines and Nader J where various issues are considered as to whether it's legitimate safety issues and (1) consideration is, is the issue genuine or is it a pretext to further a less worthy objective and my submission is on the basis of Mr Eng's evidence that the safety issue is being given as a pretext to a further less worthy objective and that is to Vopak management or working beside Vopak management in relation to the unloading of the vessel. Finally, Commissioner, there's an issue that has arisen - arises in relation to exhibit R2, the disputes procedure and the sub-clause where my friend took various witness to about the determination of the risk in place.

PN849

I put to Mr Sullivan as to whose decision is that in relation to the risk, in my submission the employees in this matter have taken it upon themselves under that sub-clause (c) to make a decision in their own mind as to whether there's a risk or not. In those circumstances I submit that if there is an issue in relation to a risk arising i.e. management believes that there is not an issue, the appropriate process to follow is to follow the disputes procedure to determine whether in fact there is a risk issue and the clause is not designed to provide for a unilateral determination of risk. It doesn’t expressly state that the employees determine the risk nor does it expressly state that management determines the risk. It provides that the tank ship, the operation will cease and made safe if the employees' health and safety is at risk.

PN850

I submit in this matter that the employees made a unilateral decision about the risk without it being objectively tested and withdrew their labour in relation to performing that particular work inconsistent with the terms of the grievance and dispute settling procedure. In my submission that is inconsistent with what his Honour, Munro J, stated in his decision in Rheem, Rydalmere. They are my submissions, if the Commission pleases.

PN851

THE COMMISSIONER: Yes, thank you, Mr Salmon. Mr Reitano?

PN852

MR REITANO: I think the start point and I'll have to deal with what I think is - rather than any particular logical order deal with firstly what I think is the ultimate difficulty apart from the fact that there's no industrial action that resides in my friend's case right up front and that's this that he invites the Commission to move on in making an order that is of grave consequence and a serious matter for this Commission upon the mind reading abilities of Mr Eng and his ability to speculate about something in the future based on nothing. I invite the Commission to resist making such an order on the basis that Mr Madden (safety officer) and Mr O'Brien (worker) have both got in the witness box and told you and frankly and forthrightly told you, Commissioner, that they consider working with untrained people in this kind of work to be something that placed them at risk.

PN853

Their evidence is capable of objective testing when one returns to what Eng and others said in their evidence, that is, this is inherently dangerous work with potentially catastrophic consequences. It would be a serious step for anyone to prefer mind reading over the evidence of two of the employees who performed the work. Neither Madden nor O'Brien were the least bit challenged in the legitimacy of their belief and their concern for their health and safety. It was not put to them that they were lying to the Commission when they said that was their concern nor was it put to them that this was some sort of smoke screen behind which an excuse to engage in industrial action was being hidden.

PN854

None of that was put, not that least suggestion was made to either of them and if the submission my friend makes that Mr Eng's speculation should be preferred over their evidence, he needed to test them and at the end of the day he didn't even go close. Could I remind the Commission that the last questions of both questions were asked that they answered without hesitation, they didn’t sit there and think of a way out, without hesitation, would you work alongside Vopak management in the future? In the answer, yes, if they were trained, I'll work alongside anyone as long as my health and safety isn’t at risk. In my submission that really creates a fairly insurmountable barrier for my learned friend in terms of an evidentiary foundation for suggesting that what was being undertaken was industrial action.

PN855

Can I then proceed to some other problems that one has in relying on the type of speculation involved in Eng's evidence. Firstly, you have been given no evidence of any history of these workers engaging in any similar type of conduct ever before or indeed this union acting in such a way, There is just nothing before the Commission that would allow you to conclude that what's being suggesting is something that's used to circumvent the Act. Secondly, you're given no other foundation for it, for the speculation other than this, when Mr Eng says, well I'll get WorkCover in and if WorkCover say's its safe, will you work, and what do the workers say, yes, we'll work if WorkCover say it's safe.

PN856

Mr Eng says, well I think they knew how long it would take to get WorkCover in. Not put to them in cross-examination, not tested on it. Mr O'Brien didn’t know, had never involved, had any dealings with WorkCover before but was happy if WorkCover were brought in and certified the work as being safe, we're happy to do the work. All of the foundation for suggesting that this was some sort of rouse is all the other way. Can I then go to the two other issues that I outlined to you that I wish to put and the safety issue is well and truly on the table. Could I remind the Commission that the Commission does not have to be satisfied that someone died or someone has been injured at work.

PN857

What the Commission does have to be satisfied is that there is an imminent risk. It focuses upon not whether the risk has manifest itself in some sort of consequence, which is what my friend says that everyone under the dispute settling procedure should have just continued work and the workers like chattels should have continued to work and if there was some consequence to them and acetone being spilt or a more devastating or catastrophic consequence to them then so be it. They should not have had any concern for their health and safety at work. They should have just continued on work and that's a proposition that just defies common sense.

PN858

The enterprise agreement, the certified agreement makes clear that the exception to continuing work is if the safety of employees is at risk and you have before you evidence of Mr Madden, the safety officer and Mr O'Brien in particular one of the people who was required to do the work who said, I am at risk, and in my respectful submission it could not be suggested that they were anything but at risk in circumstances such as those outline by Mr Madden, I didn’t know what - these people didn’t appear - sorry, not Mr Madden, Mr O'Brien. They didn’t appear to know what they were doing and they could not be given any assurance as to the training qualifications of experience of any of the people that were required to work alongside with hazardous product.

PN859

Next I tendered to the Commission and I don’t have a note but I think it was R1 or R2 was the notes of the meetings with Mr Eng. Put aside the deal that was done, the authority that the employer gave of the agreement that was made about well okay we'll get WorkCover in, put that to one side for a moment. The agreement of the employer that was put forward which was to the effect that staff can leave the area during operational activity by Vopak management staff so that Terminal's employees would not be exposed in the event of an incident consistent with O'Brien's evidence not challenged. So you either have an agreement that you don’t need to work while Vopak are on the shift or Vopak management I think it's referred to are on the shift.

PN860

Once they're not on the shift then back to work and that’s exactly what happened, condoned by the employer once again within the exception to industrial action. Thirdly can I deal with this issue of probable. It is not simply a matter of saying that Deputy President Hamberger made an order and you can assume or you should assume that that order means that no industrial action is going to occur because of the fact of the order. It is a nonsense to suggest that that’s the submission I would make or am making. That the submission I make and do make and affirmatively place before the Commission is that the order was made and complied with and normal work continued from the very moment that Vopak's skilled and qualified employees were back on the ship.

PN861

And there is no suggestion in this Commission or elsewhere that those skilled qualified and experienced employees will be removed from the ship. Not the slightest. There is no evidence from my people, no evidence from Madden that Vopak people are going to be withdrawn and untrained people are going to go back on the ship, none from the other side, no evidence of that at all. If it were the case if there was any room for Eng's mind reading abilities or speculation, if there were any room. If it could be suggested for one moment that someone who was untrained or unqualified in the performance of this work was going to perform the work, then it would be open to the Commission to say, well yes there is some likelihood. There is a likelihood that something like this might happen again but the evidence is all one way.

PN862

The only evidence the Commission has is that the trade skilled qualified Vopak employees who have for a very long time worked alongside the Terminal's employees doing this work are back at work doing the work and Vopak has not insisted on something else. It proved true or likely, so unlikely as to be nonsense. I've said what I wanted to say about my learned friend's suggestion that the Commission should - sorry, that the Commission like Terminal's management should force these employees to expose themselves to a risk to health or safety.

PN863

Can I say that if the Commission is minded to given any consideration to making an order and we strongly submit that the Commission would not because it is without jurisdiction and because it is without merit that any order directed towards the NUW that requires publication of a written notice as is contemplated by that proposed by my learned friend would need to include in bold and in capitals and surrounded by neon lights this order does not require people to put themselves a risk and should not be construed in that way by any employee. The NUW should not be ordered to be a party to publishing a notice that in any way shape or form exposes its members, these workers, to a risk to their health or safety because the order is being understood to require them to do things that are unsafe in particular in this work environment.

PN864

It might be different, I'm not sure that it would be, but it might be different if we were talking about something that was not as dangerous and not as risky. But in any event that is very much a secondary submission, we say, as I put that the Commission has no jurisdiction, there was no industrial action, none is probable within the meaning of the section and the Commission should simply dismiss the application.

PN865

THE COMMISSIONER: Yes, thank you, Mr Reitano for your submissions.
Mr Salmon?

PN866

MR SALMON: I just rely upon the submissions put to you earlier, Commissioner.

PN867

THE COMMISSIONER: Yes. Thank you. Gentlemen, as you have finished a bit earlier than what I anticipated, you might leave your contact details with my associate and if I've reached a decision prior to 3 o'clock he will contact you and we'll reconvene.

PN868

MR SALMON: Thank you.

PN869

THE COMMISSIONER: Thank you, the Commission stands adjourned.

<SHORT ADJOURNMENT [1.39PM]
<RESUMED [2.43PM]

PN870

THE COMMISSIONER: Yes, thank you gentleman for waiting. I am prepared to release a decision in relation to the application as filed. On 8 May 2006 at 3.15 Terminals Pty Ltd lodged an application seeking orders under section 496(1) of the Act in relation to industrial action by its employees. That action was stated to be a refusal by employees to unload a burst vessel which is part of the employees' duties Section 496(1) states:

PN871

If it appears to the Commission that industrial action by an employee or employees or by an employer that is not or would not be protected action is happening or is threatened, impending or probable or is being organised the Commission must make an order that the industrial stop, not occur and not be organised.

PN872

The matter was listed on 9 May at 10.30. On that occasion the NUW sought an adjournment. Due to the circumstances as outline in the submissions I decided to grant the NUW application. The matter was then listed and heard today, 10 May 2006. The Commission must be satisfied that the jurisdictional prerequisite exists with the issuing of an order under section 496(1). Those prerequisites are:

PN873

The Commission must form a view that the industrial action is happening, threatening, impending or probable or is being organised, that the industrial action is by an employer or an employer as defined by the Act, that the industrial is not or would not be protected action, that the application is bought by a person who is effected or likely to be effected whether directly or indirectly by that industrial action or bought by an organisation of which that person is a member. If the Commission is satisfied that the jurisdictional prerequisites are met the order must issue. The applicant bears the onus of satisfying the Commission as the existence of the jurisdictional prerequisites.

PN874

The background to this matter concerns another section 146(1) proceeding before Senior Deputy President Hamberger on 8 May in relation to an application lodged by Vopak Terminals Sydney Pty Ltd. On my understanding Vopak employees had withdrawn their labour and Vopak management were performing the duties required in relation to the vessel, the Bow Wave. The employees of Terminals advised their management that on the basis of safety grounds they would be withdrawing their labour.

PN875

Senior Deputy President Hamberger made the orders sought by Vopak under section 496(1). That order came into effect at 5 pm on 8 May to remain in force for a period of one month. As a result of that order Vopak employees returned to work, as did the Terminals employees albeit they were not subject to that order. Terminals do not argue that the industrial action is happening and the argument on behalf of Terminals was that the industrial as defined was probable and not protected action and was the action on 8 May 2006 by terminal employees industrial action within the meaning of the Act. It appears to me that it was not.

PN876

I accept the evidence of Mr O'Brien in relation to his concern for his health and safety. Further, I accept his evidence that his concern was not from Vopak management performing the operation but whether or not they were trained. On the evidence these concerns were not addressed. While there 11 operators involved, given Mr O'Brien's level of experience I'm persuaded that his concern would have been reflective of the concern of the other operators. The operators concern of an imminent risk in my view was reasonable given the circumstances as outlined by Mr O'Brien in his evidence. I am not persuaded that there did exist an ulterior motive.

PN877

Mr Madden's evidence in my view supported the position as put by Mr O'Brien. I am satisfied that the action taken by the employees concerned was not industrial action within the meaning of the Act. Industrial action is defined at section 420 of the Act. At section 420(g), action based on a reasonable concern by the employee about an imminent risk to his or her health or safety is not included in the definition of industrial action. It appears to me that in all the circumstances of this case that the events that occurred on 8 May 2006 concerning the terminal employees was not industrial action.

PN878

If I am proven wrong and the action taken on 8 May by terminal employees was industrial action I would nonetheless decline to make an order as I am not persuaded that industrial action is probable. In Grocon it was said that -

PN879

The formation of a view that industrial action is probable involves a degree of subjective evaluation and judgment. A pattern of intermittent but continued industrial action may be sufficient to support a finding that industrial action is probable. It is not necessary that industrial action be occurring at the time of making any orders.

PN880

I do not take from the decision in Grocon that a pattern or history of continued industrial action is a requirement for a finding action is probable. That was the case in the Grocon decision. In this matter the Commission must form a view that industrial action is probable on the basis of the circumstances in this case having regard to the evidence led and the material presented. Terminals management are of the view that industrial action is probable on the basis that if Vopak management perform work on a vessel in the future its employees will again withdraw their labour. If that is the basis and the only basis on which the applicant in this case has formed the view that industrial action is probable, then I cannot concur.

PN881

There is no evidence before this Commission that the employees concerned have a history of taking industrial action within the meaning of the Act. Further, there is no evidence that the employees concerned do not comply with the dispute settling provisions contained in the parties certified agreement. Having the benefit of hearing and observing Mr O'Brien and Mr Madden in the giving of their evidence I am persuaded that they held a genuine belief that if terminal employees performed the duties required they would have been exposed to a safety or health risk. I accept their evidence as to their concern. I also accept the evidence of
Mr O'Brien that if he and the operators could be satisfied that Vopak management were experienced and trained in the duties required this would alleviate any concerns he held.

PN882

Having heard and considered what has been put to me in these proceedings I am not satisfied that it is probable that industrial action will occur. In this matter I am not satisfied that a jurisdictional basis exists to make an order. I therefore decline to make the order as sought and the application is dismissed. Thank you, gentlemen, for your submissions.

<ADJOURNED INDEFINITELY [2.50PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DOUGLAS GEORGE ENG, RECALLED ON FORMER OATH PN89
CROSS-EXAMINATION BY MR REITANO PN89
EXHIBIT #R1 MINUTES OF MEETINGS PN246
EXHIBIT #R2 GRIEVANCE CLAUSE PN378
RE-EXAMINATION BY MR SALMON PN403
THE WITNESS WITHDREW PN424
PAUL IVEN SULLIVAN, SWORN PN426
EXAMINATION-IN-CHIEF BY MR SALMON PN426
CROSS-EXAMINATION BY MR REITANO PN459
RE-EXAMINATION BY MR SALMON PN593
THE WITNESS WITHDREW PN600
KYLE O'BRIEN, SWORN PN656
EXAMINATION-IN-CHIEF BY MR REITANO PN656
CROSS-EXAMINATION BY MR SALMON PN745
THE WITNESS WITHDREW PN776
STEPHEN MADDEN, SWORN PN780
EXAMINATION-IN-CHIEF BY MR REITANO PN780
EXHIBIT #R3 STATEMENT OF MR MADDEN PN785
CROSS-EXAMINATION BY MR SALMON PN798
THE WITNESS WITHDREW PN814