C2008/2281, Transcript of Proceedings [2008] AIRCTrans 108 (19 March 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18226-1

COMMISSIONER REDMOND

C2008/2281

s.496(1) - Appl’n for order against industrial action (federal system).
Dempsey Australia Pty Ltd
and
Maritime Union of Australia, The
(C2008/2281)

SYDNEY

10.14AM, THURSDAY, 06 MARCH 2008

Continued from 5/3/2008

PN1100

THE COMMISSIONER: Yes, Ms Howell. The witness can come back to the witness box, please.

PN1101

MS HOWELL: Thank you, Commissioner.

<TERRENCE HARMSE, RECALLED AND RESWORN [10.14AM]
<EXAMINATION-IN-CHIEF BY MS HOWELL

PN1102

MS HOWELL: If I could approach the witness?

PN1103

THE COMMISSIONER: Yes.

PN1104

MS HOWELL: Mr Harmse, I've just handed you two documents. Have you seen those documents before?---Yes, I have.

PN1105

Are they documents which you brought to the Commission with you this morning?---That's correct.

PN1106

Can you tell the Commission what they are?---The first one is an information statement for employees regarding collective agreements and the second one page document is workplace relations fact sheet, your rights and obligations.

PN1107

How did those documents come to be in your possession?---The first one I was given when I signed the collective agreement and then the last one is a document we got when I had to sign a document to say that the agreement had been sent off to the fairness test.

PN1108

Just with respect to the first document that you say you got with the agreement, did you get any other copy of that document at all at any stage?---No. That's the only copy I got.

PN1109

Can I just ask you to have a look at page 5 of that document?

PN1110

MR MCARDLE: It's necessary to object to this line of questioning. I think we're on record as saying that this tribunal has no jurisdiction to rule - - -

PN1111

THE COMMISSIONER: I understand that.

PN1112

MR MCARDLE: I am just bemused as to why we're proceeding along this line.

PN1113

THE COMMISSIONER: We might get there in the end. Carry on, Ms Howell.

PN1114

MS HOWELL: I am sorry, I've lost my line of questioning now. Is there anything on page 5?---No, there's nothing.

PN1115

Thank you. I tender the information statement. I don't have copies.

**** TERRENCE HARMSE XN MS HOWELL
PN1116

MR MCARDLE: I haven't seen them. I am not necessarily objecting. Can I see them first, please? If I've got it clear, just this simple one page document is the second document he received and the other one is the first document?---Yes, that's correct.

PN1117

No objection.

PN1118

MS HOWELL: I tender the document as an information statement for employees.

EXHIBIT #H2 INFORMATION STATEMENT

PN1119

MS HOWELL: Now, you were asked I think some questions yesterday about the circumstances in which you signed a copy of the agreement?---Yes.

PN1120

And perhaps just to recap you can remind us what was said to you when you were asked to sign the agreement?---Initially we were given the agreement and asked to sign it and that's when we raised issues regarding living away from home allowance and rates and then a while later were given another copy. After discussions with Barry, agreement was made to actually rectify the living away from home allowance and then we were given another copy and told to sign that copy.

PN1121

When you say told to sign that copy, what was that?---We were just given a copy and said this needs to get signed.

PN1122

By whom?---I recall it was Nicole, she gave it to us.

PN1123

At that stage did you regard yourself as having any choice as to whether you signed the document or not?---In my previous experience, I mean, I've been with construction diving since, well, March/April last year. I've never had a document, I've never got an employment record. There's no record of what I've been paid. There was nothing about superannuation, so, no, I'd never actually had anything like that and I had quite a bad experience with Barry, so as far as I was concerned, the agreement, you either signed or you left.

PN1124

I asked you yesterday about whether to your knowledge there was an emergency evacuation procedure in place or a document setting out any emergency evacuation procedure?---Yes. I've never seen one.

**** TERRENCE HARMSE XN MS HOWELL
PN1125

I'll just show you a document which has been produced by the respondent today, if I may?---This document, I've seen the emergency contact telephone numbers and I have seen these maps here, but the rest of the document I haven't seen before. That's actually on a notice board in the yard, but I haven't seen the other document.

PN1126

Generally speaking, with the prospectus that you're required to follow, is there a process whereby you sign to acknowledge that you've seen them?---Yes. Normally if there's any document that's been passed down with a signing list, we've actually signed to show we've actually seen them.

PN1127

Turning back to the issues we were starting to deal with yesterday, we were starting to touch on the issues of how injured workers would be evacuated from the work site when they were diving and you would agree that generally speaking there would be a number of stages to that process?---Yes.

PN1128

Firstly, if the diver was below the water, he would have to be raised to the surface?---That's correct.

PN1129

And then he would have to be lifted somehow into the barge?---Yes.

PN1130

Then he would have to be transferred to another conveyance of some sort to be returned to the shore?---Yes.

PN1131

Just by way of overview, what type of injuries are divers most at risk of?---Any in water, anything could happen to a diver there, could get anything. There's so many different scenarios from the pressure of the water that could happen to a diver or he could be injured from the tools he's working with, or the equipment around as well.

PN1132

Is there also a possibility of injury relating to getting into and out of the barge?
---Yes, there is as well.

**** TERRENCE HARMSE XN MS HOWELL
PN1133

How can that arise?---What happens, we actually deploy off the barge itself, so the diver actually jumps off the barge and if he doesn't time it correctly, he could actually bash himself against the barge if there's quite a big swell around and the same as getting back onto the barge, we climb up a ladder, the ladder is suspended into the water, so if he doesn't time it correctly, he can also get bashed by the ladder.

PN1134

If you have an injured worker or a diver, I'm sorry, potentially with a broken bone for example or some kind of incapacitating injury arising from one of those examples that you've given, in your understanding on the procedures up to and including the time you start work last week, what methods were available for you to use, to get the worker onto the barge?---It's a matter of help yourself and actually make do with the equipment you have and there's no actual procedure, there was no equipment available to actually get the person out of the water. We just use whatever we had at hand, probably put a rope under the bloke's arms and pull him out of the water.

PN1135

I see. In the case of one of the barges, I think, there was a device called a HIAB operator, is that right?---Yes, on the LC20 and there's to my knowledge only been out three times, so it was never really a barge that was worked on.

PN1136

With the other barge, there's no HIAB device?---There is a HIAB on the barge. It's not operational, it's not connected up to the hydraulics.

PN1137

So on that barge which is called?---The Aquila.

PN1138

The Aquila. Thank you. You would have to somehow physically haul the person out of the water?---That's correct, yes, and that's a barge we've actually done all the work on.

PN1139

What problems in your mind does that throw up, that process?---Numerous problems. It just becomes a huge safety factor.

PN1140

And why is that?---Trying to get a diver out, I mean, any movement of the barge in relation to the water, yes, potentially just aggravating injuries itself could actually create more injuries.

PN1141

I've handed you a copy of the occupational health and safety regulations 2001.

**** TERRENCE HARMSE XN MS HOWELL
PN1142

MR MCARDLE: If the witness is about to be called up to give legal definitions or comment on anything that would require legal training, I object to the question.

PN1143

MS HOWELL: Perhaps my friend should hear the question, then, in that case.

PN1144

THE COMMISSIONER: Don't jump the gun, Mr McArdle.

PN1145

MR MCARDLE: No, simply if.

PN1146

THE COMMISSIONER: Off you go, Ms Howell.

PN1147

MS HOWELL: You see I've handed you occupational health and safety regulation 142?---Yes.

PN1148

You see I'm just drawing your attention to number 3(d) which says:

PN1149

Persons are not lifted or suspended -

PN1150

I withdraw that. Subsection 3 says:

PN1151

An employer must ensure that in relation to plant designed to lift or move people, equipment or material -

PN1152

And then (d):

PN1153

Persons are not lifted or suspended by plant or an attachment to plant other than plant specifically designed for lifting or suspending persons -

PN1154

And then certain conditions are set out. First of all, do you know what the HIAB is designed for?---I've seen them on trucks when they're lifting up loads.

PN1155

Do you know whether they're designed to lift people or not?---To my knowledge, no.

PN1156

MR MCARDLE: Was the answer he does know or he doesn't know?

PN1157

MS HOWELL: To my knowledge, no.

PN1158

MR MCARDLE: He doesn't know? I misunderstood him.

**** TERRENCE HARMSE XN MS HOWELL
PN1159

THE COMMISSIONER: It's not designed to lift people, that's what he said.

PN1160

MR MCARDLE: That's to the extent of his knowledge?

PN1161

THE COMMISSIONER: Yes.

PN1162

MR MCARDLE: I thought he said he didn't know.

PN1163

MS HOWELL: I just draw your attention to (ii), it's not to be used for lifting, et cetera -

PN1164

unless a suitable and adequate personnel box or carrier designed for the purpose is used and is securely attached to the plant.

PN1165

In the case of the HIAB, it is operational?---Yes.

PN1166

Does it have such a device?---No, it doesn't. It just has a hook on it and in the diving industry, that's called a stage where the divers actually go down on a stage and get lifted up on a stage again. It doesn't exist on the HIAB at present, no.

PN1167

So there's no such device?---No.

PN1168

Have you heard of a device known as a davit?---Yes, I have.

PN1169

What is your understanding of what a davit is?---Well, it's a nautical term as far as I know. It's used, it's like a crane device where lifeboats are attached to.

PN1170

Is there any such device to your knowledge on either of the barges?---No, definitely not.

PN1171

You can certainly speak up to last week effectively?---Yes.

PN1172

Assuming an employee who's in the water can be lifted into the barge somehow, he then has to be transferred into a suitable conveyance?---Yes. We need to evacuate that person to medical care quickly.

PN1173

What is your understanding of what is currently available to be used in that scenario?---As far as I'm concerned, there's nothing. There's a tug, but its sole purpose is to tow the barge out and then tow it back in again once the day's work is done. There is a survey's boat around sometimes which is a small six metre boat. Just getting blokes on and off the surveyor's boat, when we do that, becomes a huge issue, so it's never really made sense to use that as a means of actually conveying somebody back to the shore.

**** TERRENCE HARMSE XN MS HOWELL
PN1174

In terms of the surveyor's boat, is it always available?---No, it's not.

PN1175

How much of the time would you say it's available?---In the initial part of the project, it was there all the time. Now the anchor points are in place, we actually have a GPS system on the barge, so we know in relation to the barge where we must be on the job, so it's basically obsolete. We don't really need the surveyor's boat around any more and it's not there often, anyway, any more.

PN1176

On the occasions when it was either there or nearby, is it a suitable boat to put an injured worker into?---Definitely not, no.

PN1177

Why is that?---It's just a small little boat and there's not much deck space in it and it's so unstable as well, it rocks all over the place. Blokes have been in it for half an hour and they've just been so seasick. It just doesn't make sense to use it as an evacuation boat.

PN1178

Just returning to the tug, are here any particular difficulties in your mind in transferring an injured worker who might be on a stretcher, for example, onto a tug?---Yes, definitely. Just the nature of the work conditions, the place we're working, with the swell and the movement and the current and everything like that, having two objects that are moving around at different ratios, yes, potentially to try and transfer somebody - I mean, we nearly lost a bloke falling off, you know, transferring between the tug and the barge before and that is just a guy who's able bodied. If we try and get a stretcher, it would just be chaotic.

PN1179

When you did the exercise in the bay of evacuating an injured worker, did you transfer them to a barge on that occasion?---Yes, on a barge onto the tug, yes.

PN1180

Was that effective?---Yes, it worked pretty well, yes, all nice and calm and we tied the tug up next to the barge and, yes, it worked pretty well.

PN1181

Would it be possible to reproduce those conditions when you're 300 metres out?
---On a perfectly calm day, I suppose so, but it's hardly ever those conditions.

PN1182

What is your understanding of the arrangements which should be in place in order to safely convey an injured worker back to the shore?---We need a suitable boat and something that's been thought out properly and it's actually been designed for that purpose and the whole thought process must be done correctly. It is a huge problem, anyway, but we need a suitable vessel.

**** TERRENCE HARMSE XN MS HOWELL
PN1183

What in your mind would be a suitable vessel?---Well, we had a vessel there that is on site, the Zane Grey, we were diving off before which in my mind would have been a suitable vessel and actually it was. We had it on site for about two weeks and then all of a sudden it was taken off site. It was confusing at the time. Brian even raised the issue about the Zane Grey and we discussed it and he asked me to have a look at the tugs and I had a look at the tugs and I said to him I don't think a tug is suitable, it's slower, it doesn't have the deck space, the deck is wet most of the time, there's no place to put a patient. He also indicated that the Zane Grey is the right vessel to use. It was surprising to him and myself that it was taken off the site.

PN1184

What were the characteristics of the Zane Grey that made it more suitable?---It was a catamaran design hull, so it had two hulls in it, so it was pretty stable in the water. It had a nice big deck space. There was enough space for the patient in a dry condition as well. It had more than enough room and space to move around if you had to treat a patient on there.

PN1185

Is it your understanding that in the absence of such a suitable craft that in an emergency you would have to use a tug? Is that your understanding?---If that wasn't available?

PN1186

Yes?---Yes, depending on the day and whatever happened, I mean, we'd have to just make do with what we had and we'd probably end up using the tug, but it also wouldn't make sense to me. We have the barge sitting out there anchored and, I mean, you could just slip an anchor or snap a cable which is done before. It doesn't make sense. You leave a barge there, get the patient back to shore and then the barge is all alone, so it just doesn't make sense.

PN1187

Are you telling the Commission that when the barge is anchored, the tug generally remains in the vicinity to perform some safety role?---It actually anchors up as well. It hooks onto one of the buoys, so it's hanging around there, so if something happens, if an anchor should slip or get dragged or a cable snaps, which has happened calling the tug to actually hook up and actually hold it in position again so it can get sorted out.

PN1188

What happens if the tug is not there to perform that function because it's taking someone back to shore?---The potential, a huge problem. I mean, we're 200 metres off the cliff and the swell and winds prevailing and it's pushing into the cliff all the time, so, yes, I mean, there's been a near miss before. We were on one barge and we could hear the blokes on the other barge - - -

**** TERRENCE HARMSE XN MS HOWELL
PN1189

THE COMMISSIONER: Mr McArdle, if you want to have a conversation, can you take it outside?

PN1190

MR MCARDLE: My apologies. I thought I was whispering.

PN1191

THE COMMISSIONER: No, you weren't whispering and it was throwing Ms Howell off her questions.

PN1192

MR MCARDLE: My apologies.

PN1193

THE COMMISSIONER: Carry on, Ms Howell.

PN1194

MS HOWELL: Thank you, Commissioner?---Sorry, I've lost my - - -

PN1195

The near miss?---Yes, the near miss. We were on the one barge and then we heard on the radio the blokes on the Aquila actually really getting onto the blower and calling the blokes on the tug to come and help them because they actually slipped an anchor and they were drifting towards the cliff face, so it's pretty hair-raising.

PN1196

Do circumstances ever arise where it may be necessary to evacuate all the staff or crew off the barge?---Are you asking has it happened?

PN1197

Is there a potential for that to arise?---Yes, definitely.

PN1198

In what circumstances might that arise?---In that kind of situation, it was drifting towards the cliff face and it was imminent that as soon as it happened, you'd have to evacuate.

PN1199

How many people would that involve evacuating as a maximum?---Maximum, probably about 20 blokes if all the divers are on board and the crew that's on the barge, probably about 20 blokes.

PN1200

What plan is in place, if any, to accommodate that scenario?---We've all got life jackets on. There's no life raft or anything on the barge itself. It's not really a scenario we've thought about much.

PN1201

What provision would you expect to be in place ideally for that situation?---It's stuff we've discussed before about getting an inflatable rescue type boat that can actually be used. Even a man overboard scenario, if a bloke goes overboard and we're being towed out to the site as well and the tug's taking the barge, how do you rescue the bloke that's gone overboard? The tug can't go fetching because it's taking the barge. There's actually no way of actually retrieving somebody or if everybody actually abandoned ship, where do they go to? There's no life raft on one of the tugs. There are life rafts on the tug itself, but not on the barge.

**** TERRENCE HARMSE XN MS HOWELL
PN1202

You've heard of a craft known as the Zodiac?---Yes. It's just a brand name of an inflatable boat.

PN1203

That's the type of boat you have in mind when you're saying an inflatable, is that right?---Yes.

PN1204

In terms of these evacuation issues, both for injured workers and able bodied workers and rescuing people who've gone overboard, are these issues which to your knowledge have been raised with management on occasions?---Definitely has, yes.

PN1205

How many times to your knowledge approximately have those issues been raised?
---I can't say exactly how many times, but it's been raised numerous times. It's been ongoing problems. Even if I just look at a scenario, right at the beginning of the project we were actually clambering over rocks to get to the barge and then actually pulling ourselves across on a punt and we raised those issues numerous times and nothing was ever done about that either, until they got the actual walk put up, so it's just a case of, I mean, we've raised issues over and over and over again and you were hitting your head against a brick wall. You weren't getting anywhere.

PN1206

Just in terms of the evacuation issues that we've discussed today, in your mind are those the most important safety issues?---Definitely, yes.

PN1207

Do you tell the Commission that there has been other safety issues raised with management?---On numerous occasions, yes.

PN1208

Just as a general proposition, have you found the responses to those other issues to be prompt?---Not at all, no, definitely not.

PN1209

Mr Harmse, you attend when you were working at least meetings known as pre-start meetings?---Yes.

PN1210

What is the purpose of those meetings generally speaking?---The first thing in the morning, before we go out and do work, either in the yard or on the barge to discuss the day's work ahead and then any potential problems that could occur.

PN1211

I just want to show you a record of a meeting of 7 February if I can. Was that a meeting you attended?---Yes. I have signed that, yes.

**** TERRENCE HARMSE XN MS HOWELL
PN1212

Just taking you to the second page, the top box, can you just tell the Commission what - - -?---It's under a heading general issues and it says in brackets:

PN1213

Discuss general issues, eg. interface environmental.

PN1214

And in a hand-written note, it says:

PN1215

Evacuation procedures for barges.

PN1216

And then another sentence:

PN1217

Stretchers and straps, we need answers.

PN1218

Do you remember anything about that meeting?---I don't remember that particular meeting, but I do recall that incident and quite a few times it's been raised, anyway.

PN1219

Do you know whose hand-writing that is?---This is probably Shane. Yes, Shane would have been the guy taking notes in this meeting.

PN1220

The words we need answers, that obviously sounds fairly emphatic?---Well, that's it. I mean, it's been going on for a long time, so we want to know what's happening. We've raised the issues over and over again. That case there as well, the issues on stretchers has been going for ages. We eventually got stretchers. It's like a point of desperation. We just want to know what's happening now. The blokes are concerned.

PN1221

It says there we need answers. In your mind, did you get those answers with respect to evacuation procedures?---No.

PN1222

The issues were raised at a number of these meetings, is that right, the evacuation issue?---Yes.

PN1223

Were they also raised at meetings known as toolbox meetings to your knowledge?
---Most of the times they were raised actually at the toolbox meetings, yes.

PN1224

I tender that minute, just for that day. We will need to get copies.

PN1225

THE COMMISSIONER: When you get the copies, I will mark it.

**** TERRENCE HARMSE XN MS HOWELL
PN1226

MR MCARDLE: No objection.

PN1227

MS HOWELL: Apart from the meetings, I think you mentioned there was some ongoing discussion about these evacuation issues?---Yes. As I said, Brian had actually called me into his office. I think that was late November, early December, around about the time when we had been using the Zane Grey as the boat and we had transferred all the equipment from the Zane Grey onto the Aquila barge and then Zane Grey was being used as the evacuation boat and then when that was withdrawn, the issue was raised and Brian showed a huge concern for our safety and there was a discussion and we did a bit of research into it, spoke to the captain of the Zane Grey and spoke to the captain of the tug, yes, and that carried on and we discussed it and it was never resolved, obviously, because it still wasn't resolved and, yes, in toolbox meetings we discussed it, so it was an ongoing situation.

PN1228

So roughly when was the discussion that you had about the Zane Grey?---I seem to recall the end of November, early December was the time frame. I'm not exactly sure when it was.

PN1229

It's your understanding that the conversation was that Mr Fitzsimons was aware that the arrangements in place thereafter were not - - -?---Yes, definitely, and he indicated himself he was unhappy with the whole scenario, yes.

PN1230

But nonetheless nothing has been done up until last week at least to your knowledge?---Yes. I was under the impression at the time that it was an issue with John Holland on the boat. I wasn't sure what the issue was, but that's my understanding, that John Holland was where the hiccup was.

PN1231

Prior to becoming a diver, you worked in what area?---I was a fire-fighting paramedic for 13 years in South Africa and I did a bit of work in the engineering field as well.

PN1232

What did your job as a fire-fighting paramedic involve?---I was a dive supervisor as well, so we ran a rescue dive team as well and I ran that for a while. I was a paramedic so I had to go to accident scenes and just general trauma and did fire-fighting duties.

PN1233

Having regard to the experience you've had in those areas, how significant in your assessment are these issues concerning evacuation?---Yes, it's huge, it's a huge issue and if you don't have the right equipment to do the job, you're just creating a potential for a major disaster.

**** TERRENCE HARMSE XN MS HOWELL
PN1234

You were not in Sydney on 29 February, I think, which was a Friday?---No, I was in Mackay at the time.

PN1235

You returned to Sydney on 3 March?---Yes, on Monday, Monday afternoon.

PN1236

When you got back, you obviously realised your co-workers were not at work?
---Yes. I actually heard on Monday morning. I was in Mackay, in the Mackay offices and I had to hand the keys and stuff back to the ladies upstairs in the office in Mackay and Denise, the one lady in the office, came through and said have you heard what's happened in Sydney? I said, no, I haven't heard anything and she said that tools were down on the job site, you know, the divers had put down tools, so that's the first time I'd heard of it.

PN1237

Did you know at that stage, before you returned to Sydney, why they had done that?---Denise actually mentioned something about a colleague that had been fired a while ago, Rowland. That's what she mentioned.

PN1238

Did you know anything about those circumstances?---About Rowland being fired?

PN1239

Yes?---I actually wasn't here. It just happened to be I wasn't here when he got fired either, but I heard what happened.

PN1240

What was your understanding - - -

PN1241

MR MCARDLE: Objection to hearsay evidence.

PN1242

MS HOWELL: It's for the purpose of establishing the witness's state of mind.

PN1243

MR MCARDLE: An objection to hearsay evidence.

PN1244

THE COMMISSIONER: It is hearsay evidence. Can you move on, Ms Howell? He doesn't know.

PN1245

MS HOWELL: You returned to Sydney on the Monday afternoon?---That's correct.

PN1246

Did you then speak to the other divers about why they had ceased work?---I actually got fetched by Richard from the airport, one of the divers. I had made arrangements to get fetched at the airport and he fetched me and told me this is what's happened, we're unhappy with the safety on the site and they're protesting about the conditions at work, so I said to him, mate, I'm with you. It concerns us all and I went with him to - he actually took me to the site.

**** TERRENCE HARMSE XN MS HOWELL
PN1247

In your personal position to stop work or to join the other divers in stopping work, how significant was the safety issue to you?---It's a huge concern.

PN1248

You're aware that there is also a desire amongst divers to obtain a union collective agreement?---Yes.

PN1249

In your mind, is there a connection between the safety issues and the union collective agreement?---Yes, definitely. The confidence levels at work, with what's happening on the site and I believe personally if we can get a union collective agreement, we basically guarantee that issues we raise will get sorted out and we'll have a safe workplace.

PN1250

There are some of the divers protesting outside the premises?---Yes.

PN1251

Have you taken part in that protest or demonstration?---Yes, when I haven't here or in other meetings and stuff, I've gone there, yes.

PN1252

Roughly how much time have you spent there on what is colloquially described by Mr McArdle as the picket line?---Yes, well, I got there on Monday afternoon, so I spent a good part of the late afternoon, into the evening. I got home probably about 1 o'clock in the morning. I was back at 5 o'clock Tuesday morning. I was there until we went to meetings with the union, then I was back again that evening until after 12, then we came in yesterday and spent the whole day here yesterday. I was back there last night until after 12 and then I'm back here today.

PN1253

In the time you've spent there, have you observed other people not involved in the dispute going to and from the site?---Yes, we've had huge support from numerous other unions and people off the street.

PN1254

Have you observed any persons obstructed or stopped from passing through the protesters into the site itself?---I haven't seen anybody stopped, no.

PN1255

Have you heard anyone suggest that people should be obstructed or hindered in any way?---No, not at all. I did actually witness Brian's car being ..... (10.54.12). I apologised. It wasn't us and there just happened to be some bloke, I don't know where he came from and there just seemed to be a bad element at the time and everybody complained after it happened, said, listen, mate, this isn't what we're here for and that's the only thing I've seen that was like an aggressive manner or anything like that, but nobody was actually stopped. It was just some stupid idiot throwing coffee.

**** TERRENCE HARMSE XN MS HOWELL
PN1256

It wasn't on the divers?---No, it definitely wasn't. It's not what we're all about.

PN1257

Thank you very much. Mr Harmse, are you aware as to whether some of the divers or any of the divers are considering resigning from their positions?
---There's no talk about resigning. We all love our positions. Most of us are actually qualified in other lines of work. There's boilermakers and butchers and things like that who decided to take diving as a career. We would probably earn more money doing other professions, anyway. It's not a well paid profession. It's something we're really passionate about, we enjoy it. There's no talk about resigning.

PN1258

What would happen if the safety issues weren't resolved to your satisfaction?---It wouldn't make sense. It's like you having a car and not having brakes on your car. Why drive a car? What's the point of us being at work if we can't be guaranteed it's going to be a safe environment. As it is, we work in a hostile environment, anyway, so we need to try and get steps in place to actually make it as safe as we can. On the diving side, we've got steps in place to make the diving safe and we look after one another there, but, I mean, with evacuation stuff, this is where the issues are.

PN1259

Thank you. Nothing further.

PN1260

THE COMMISSIONER: Mr McArdle.

<CROSS-EXAMINATION BY MR MCARDLE [10.56AM]

PN1261

MR MCARDLE: Am I correct in understanding that you earn about $1500 a week before tax?---It depends on what kind of hours we've been working.

PN1262

Just think of the last three weeks. You don't put to sea all the time because of the weather?---Yes, on an eight-hour day, yes, 1500 is probably about - a week.

PN1263

Yes, a week I am talking about?---Yes.

PN1264

So once the weather behaves itself and you can go out and you can work the longer hours, you can get more than $1500 a week?---If that's what you're led to believe, well, it actually has happened. If we've worked a 12-hour day, we can earn some good money.

PN1265

If the weather behaves itself, you could make a hundred grand a year, if the weather behaves itself?---I don't think we're doing that well, but I suppose if we're working seven days a week and we work the whole year, 12-hour days, we would be earning good money.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1266

Have you ever seen this pamphlet I'm holding up?---Actually, I did see quite a few.

PN1267

Did you hand this out at all?---I didn't hand out any, no.

PN1268

But you saw it being handed out?---No, I just saw them lying in a trailer there, where we were sitting.

PN1269

Have you read it?---Yes, I have.

PN1270

It says:

PN1271

Join us on the picket line.

PN1272

I will show you. Have you read it before?---Yes, I have.

PN1273

This pamphlet, does that represent your view?

PN1274

MS HOWELL: I object.

PN1275

THE COMMISSIONER: Why is that, Ms Howell?

PN1276

MS HOWELL: Because there's a lot of different things in the pamphlet.

PN1277

MR MCARDLE: Join us on the picket line, does that represent your view? Would you like people to join you?---Yes, I would.

PN1278

And the union officials told you it's a picket line?---No, nobody said it was a picket line.

PN1279

No-one's used the words picket line?---I haven't heard it being said, no.

PN1280

Have you seen it written, though?---Yes, I have. I've read the pamphlet.

PN1281

Anyone tell you it wasn't a picket line?---It was never really raised as an issue.

PN1282

Just setting that aside for one moment, does the pamphlet represent your views? Have you read it?---I read it on the first day I got there. I haven't studied it in depth. If you want, I can read it now.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1283

It says:

PN1284

A union collective agreement is all we want.

PN1285

That's the first sentence. Do you agree with that?---Yes, I do.

PN1286

Our employer says no, so we have said no as well.

PN1287

That's correct?---Yes.

PN1288

No work until we get a fair go.

PN1289

Do you think that?---Yes.

PN1290

The Australian people voted against WorkChoices and now Construction Diving Services want to use these anti-worker laws against us.

PN1291

Is that your thought? Do you agree with that?---I agree with that, yes.

PN1292

Sacked for being in the union. Just recently, the MUA delegate on site was sacked after raising safety concerns in the workplace. The delegate was sacked because he was a member of the union.

PN1293

You probably can't answer that one way or the other, because you've already mentioned that?---No.

PN1294

The guide contractor on this New South Wales state government project is violating the government's stated policies in opposition to WorkChoices.

PN1295

Does that represent your views?---That's what I feel about it as well, yes.

PN1296

The days of being sacked for being in the union should be gone forever and we urge your support for workers on this dangerous project.

PN1297

Do you think that's what's happening?---If that's the reason why somebody was sacked, I agree with that, yes.

PN1298

All we want is a fair go and collective bargaining rights.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1299

That's correct, is it?---Yes.

PN1300

And so on:

PN1301

All the other workers on this New South Wales government desalination plant project have union collective agreements.

PN1302

That's what you want, too, would that be correct?---Yes.

PN1303

The MUA divers are the only ones without the basic right to collective bargaining.

PN1304

That's your understanding, is it?---There was never collective bargaining.

PN1305

You think that should change?---Yes.

PN1306

This agreement should be set aside and the MUA should negotiate an agreement?
---Yes, together with us, yes.

PN1307

Of course, representing you?---Yes.

PN1308

Not one person was consulted as to the contents of the employer's agreement, no consultation, you can cop the boss's position or there's the door, that's what's going on at the desalination plant.

PN1309

Does that represent your understanding?---It's happened to me personally.

PN1310

And you believe that the solution to this is to set this agreement aside and have an MUA collective agreement?---I believe we'll get - I personally believe I'll be more confident in the work environment if I know I'm working in a safe work environment and management will actually listen to our point of view with the backing of the union and the collective agreement.

PN1311

Are you happy about going back to work without the union collective agreement and with this current agreement? Are you happy about going back to work with the current agreement?---I must say I wouldn't be confident that the issues had been solved under the present agreement. No, I don't believe we'll get things - - -

PN1312

So you don't believe you should go back to work under this current agreement?
---That's not what I'm saying. I'm just saying on the present agreement, if we go back to work now, who's to say the next problem that crops up will be solved. The history so far is pretty poor, that problems have been solved on the site.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1313

So the solution is to set this agreement aside and have the union collective agreement?---Personally, I think it's the solution, yes.

PN1314

I am not arguing with you?---Yes.

PN1315

You live in Enmore, you're got a flat in Enmore?---I'm staying in a tenant house, four of us are staying. I actually live in Mackay.

PN1316

I understand. I'm just trying to establish whether or not you're in this group. Do you recall a telephone conversation in a car? I want you to cast your mind to December, at the time of the agreement, after everyone had been given a copy of the agreement to look at? Do you recall, if you don't, say so, if you do, that's what I am asking you, do you recall being in the car when you got a loudspeaker telephone call from Glen Edwards and everyone else in the car, asking if there was any problem with the agreement? Do you recall that conversation when all four of you were driving along in the car?---No, I don't.

PN1317

It's just when someone took a phone call in the car and then someone put it on loudspeaker from Glen?---What did Glen say? I actually don't recall ever speaking on a loudspeaker in the car at all.

PN1318

Forget loudspeaker, then. Do you recall anyone mentioning that Glen had rung and anyone in the car saying has anyone got any problems with the agreement because they want us to sign it? Do you recall any such conversation?---No, I don't at all.

PN1319

That's no problem. I just thought I'd ask. You heard about it on - - -?---That morning in the car.

PN1320

Before you took the flight, before you got on a plane?---Yes, that's correct.

PN1321

The lady in Mackay said they've downed tools in Sydney?---Yes.

PN1322

You said what for?---Yes. She just said have you heard what's happening in Sydney, the divers have downed tools. I was pretty shocked.

PN1323

You said what for and she said it's something about - and I've forgotten the person's name, something about someone being sacked?---Yes, she mentioned Rowland. Rowland Keith is his name.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1324

Did she say it was for any other reason?---That's the only reason she mentioned.

PN1325

Did you ring any of the blokes up from Mackay?---No. I was on the way to the airport, so there wasn't time.

PN1326

So you jumped on the flight and came to Sydney?---Yes.

PN1327

Then one of your colleagues picked you up from the airport?---I phoned Richard from the airport, when I got to the airport and I asked him if he would pick me up, yes.

PN1328

You went from the airport to the picket line?---Yes.

PN1329

You didn't go into the office on the Monday?---No, no. The Monday afternoon?

PN1330

You didn't go through the gate and into the premises?---No.

PN1331

You didn't say that you - you didn't go and tell your employer that you had a concern about an imminent risk to your health or safety on Monday, did you?
---No, I didn't.

PN1332

You didn't give the employer an opportunity to assign you to other work as an alternative to you stopping work?---No.

PN1333

How long have you worked for Construction Diving Services?---I worked for Construction Diving Services, I started at the beginning of March. I worked for four days. Barry chased me out of his yard and then I was back with them a month and a half later and I've been with them since April last year.

PN1334

THE COMMISSIONER: Who is Barry?---Barry Dempsey owns the company.

PN1335

MR MCARDLE: Can I show the witness a document?

PN1336

THE COMMISSIONER: Yes. Can you speak up, please?

PN1337

MR MCARDLE: Did you fill one of those out?---Yes, I have.

PN1338

Construction Diving Services is on the letterhead. Could you read out the ABN number for me?---The ACN number or the ABN?

**** TERRENCE HARMSE XXN MR MCARDLE
PN1339

ABN?---It's 77374840782.

PN1340

I wish to tender this, Commissioner.

PN1341

THE COMMISSIONER: When you get a photocopy, you can tender it and then we'll see if there's any objection.

PN1342

MR MCARDLE: Very well.

PN1343

THE COMMISSIONER: The same with Ms Howell.

PN1344

MR MCARDLE: In the meantime, I'll have my friend look at it. If I could show the witness another document?

PN1345

THE COMMISSIONER: Yes. Just speak up, Mr McArdle, when you're over there.

PN1346

MR MCARDLE: Mr Harmse, could you look at that document? Ms Howell showed you that?---Yes, the two first pages, yes.

PN1347

That is what you have seen, is it?---Yes, I've seen that. It's actually on the notice board.

PN1348

And equipment has ambulance, police, fire brigade, 000 and it's got the Port Botany emergency radio system, you switch to channel 13?---Yes.

PN1349

Just explain to me, when you're on the barge, for communication do you use the public telephone networks or do you use the two-way radios within the complex, within the operation?---If we're communicating with who?

PN1350

Good question. If you're communicating with the office, say?---You don't really get mobile phone reception at all. There is a radio system and there's a radio in the office as well. We have been using the mobile phone, but it actually breaks up, so you've actually got to try and find a spot on the barge if you need to speak to anybody.

PN1351

So it's just like anywhere else?---But, yes, there's a radio system on the barge. I personally haven't used it, so I don't know what the reception is like within the job site.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1352

So the normal communication day to day is two-way radio, like with the office?
---I haven't actually had to deal with the office on the barge much, so I don't know what the norm is there, no.

PN1353

So you've never had to switch to channel 13 which is the Port Botany emergency radio system?---I've never used it, no.

PN1354

Which is the second phone number given after 000?---Yes.

PN1355

From your 30 years' experience, have you ever - - -?---Thirteen. I am not that old.

PN1356

From your experience, have you ever had road accident victims, say, and had them winched off by helicopter?---No, not winched off in a helicopter. The helicopter actually lands and then we'd load them on.

PN1357

Wouldn't you agree, perish the thought, if someone say broke both their legs under the water and you had to drag them up, you wouldn't want to put them in a Zodiac, you'd want to put them in a helicopter, wouldn't you, to get them straight to hospital?---Yes, but the problem with that is with all the equipment on the barge, I actually can't see a helicopter being used with cranes and stuff on as well.

PN1358

It couldn't land, could it?---It couldn't land and to use a winch as well is going to become a problem, because that winch wire and the bloke on the winch wire is actually swaying all over the place. With the cranes and stuff on the barge, I could never imagine helicopters agreeing to do it. They'll never do it.

PN1359

With a Zodiac, it would toss around in the swell like all the other boats, wouldn't it?---Yes, it probably would, depending what the swell is like.

PN1360

So you really need to discuss the solution with your employer, don't you, if a helicopter is no good?---Well, Brian had and the solution was there, the Zane Grey was there and it was in my mind the perfect vessel for the job.

PN1361

But it would toss around in the swell, too, wouldn't it?---Not nearly as much as any one of those smaller boats, just the configuration of the hull, the catamaran hull, it's much more stable. We dived off it, we dived off the Zane Grey for ages and it was a very stable platform.

PN1362

So you would agree with Mr Fitzsimons that the Zane Grey is the solution?---Yes, we discussed it and we agreed that's the boat we should be using.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1363

Have you ever as a responsible person, you've never refused to work until some safety issue has been resolved, have you? Obviously forgetting about now, I am talking about before last Thursday, you've never refused to work?---I've actually never experienced this kind of condition in any workplace I've been to and it was just amazing to actually - I mean, South Africa is not a first world country as Australia. I'm originally from South Africa. I've only been here for 19 months and it was just, yes, a bit of a shock to come to a place and you think you're in a first world country and issues that get raised don't get rectified.

PN1364

How long have you been on this site at Port Botany?---Initially I think it was June or July last year, I spent two weeks not on the site, but actually out on the marine site doing the survey, so it was two weeks then and I've got the second last week of September, so I've actually been in Sydney since the second last week of September, so about five months.

PN1365

Engaged in diving work, how long have you been? It's all been diving work, has it?---That's what we do, getting all the gear and stuff sorted out, but the whole thing was when the weather was good, we were diving. We've been pushing the diving flat out.

PN1366

How long have you been covered by the agreement?---Since 30 December I think it was.

PN1367

You went on Christmas holidays?---Yes.

PN1368

When did you come back from Christmas holidays?---I think I flew back on 2 January I think it was.

PN1369

And went straight to work on the 3rd?---Yes, back at work.

PN1370

So between 3 January and 3 March, in other words two months, nine weeks say, you didn't at any time - well, before you went to Mackay, between 3 January when you came back from your Christmas holidays and last Thursday when you went to Mackay for work, you didn't refuse to work for safety reasons?---No.

PN1371

Are you a member of the MUA?---Yes, I am.

PN1372

If I could tender the document I discussed.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1373

THE COMMISSIONER: Yes. I will mark it when I get the photocopies through.

PN1374

MR MCARDLE: Just to a layman, could you explain when the person goes over the side, he climbs down a ladder and then just goes into the water?---He actually jumps off. It's easier to jump with all the gear, so you just hold on to all your gear, you've got an umbilical which is your breathing hose and your communications. You jump into the water and you go up to a line which goes all the way down to the bottom, you grab onto the line and then work your way down to the bottom.

PN1375

So the ritual is you stand on the edge of the barge, you kit yourself up?---Yes.

PN1376

You don't wear flippers or anything, do you?---We walk on the bottom.

PN1377

So you wear - - -?---Just booties, with weights on your ankles, so it makes it easy to walk around.

PN1378

So you get our tools and equipment and everything and you coil up your air line and your radio line?---Yes.

PN1379

Then you jump out?---Yes.

PN1380

And there's a person standing there holding the line so it doesn't foul, is that correct?---That's correct.

PN1381

Then you go down?---Yes.

PN1382

There is a standby diver?---Yes, he's on deck, kitted up ready to go, except his hack is not on his head and he'll be sitting down ready to go if he's needed in the water.

PN1383

Thankfully that never happens?---It does happen, but it hasn't happened on the site.

PN1384

It hasn't happened at Construction Diving Services?---No.

PN1385

But it's no other role other than an emergency person?---Yes.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1386

When you come up - you go into the water and you seek the guide rope in the water?---Yes, the shot line.

PN1387

Yes, and then you pull yourself down basically, do you?---Yes.

PN1388

And then you walk to the work site?---Yes.

PN1389

Which is a few metres away and you are instructed by a person above?---You would actually discuss the job before time, so you would actually know what your task is for the duration of the dive. We have a video link as well on the hack and so the supervisors sitting in the dive shack can actually see what's happening on the job, so he gets the same view you're getting and it's being actually taped as well on a DVD, so he'll tell you and you know what you have to do and then he'll just keep on refreshing, because it's a bit awkward working down there. It's not the same as working on the surface. You tend to forget things as you're going along as well, so you have somebody reminding you, refreshing you with what you have to be doing. Unless it's just a continuous, monotonous task like cleaning the seabed, that you just do continually.

PN1390

If you felt sick or something, you'd say I'm feeling sick and they'd pull you up, would they?---Yes. That would be the first thing is to get the bloke to surface as quickly as possible. If it was a situation where he couldn't actually look after himself, you'd send the standby diver down to help him out.

PN1391

That's not happened on this job?---We did have a bloke that had a problem, had tunnel vision, which is a symptom of possibly oxygen toxicity and he was taken out of the water. I wasn't actually on the job at that time.

PN1392

From your knowledge, though, when that happens, the person is brought to the surface by a combination of being pulled up and being guided up by the standby diver who's gone into the water to help him?---In that case, the standby diver wasn't actually in the water. The bloke was still communicating, so he was fine, he wasn't snagged up, so it doesn't make sense to have two blokes in the water, get the bloke up out of the water.

PN1393

So you pulled him up?---He got himself out of the water.

PN1394

So you'd pull him up?---Yes.

**** TERRENCE HARMSE XXN MR MCARDLE
PN1395

If he required it, if the symptoms indicated that he was sick, it's straight in the decompression chamber?---If it was necessary, he would have gone, but he didn't go into the chamber.

PN1396

You agree with me from your industrial experience that safety is a daily event, something we have to take care of on a daily basis?---Yes.

PN1397

And it's a movable feast, things really need to be monitored day in, day out?
---Yes.

PN1398

We've talked about the rescue boat and the helicopter and other issues and we've talked about the stretchers. The stretchers are now there. Has there been anything that the company has said, no, we're not doing that?---No, there's never been a definite no about anything, no.

PN1399

They've never said to you, you've never said I'm not doing that because it's dangerous and I won't do it and they've never said to you, well, you either do it or you're sacked or anything like that?---I've never, ever said no to doing something.

PN1400

So it's never happened?---No.

PN1401

You would expect, wouldn't you, what am I thinking, something bizarre, naked electrical leads at 240 volts or something and you said I'm not touching that, you would expect, wouldn't you, when you said I'm not touching that, it's because it's just inherently dangerous? You would expect the employer to say, well, everybody, get away from that, that gets fixed as priority one, wouldn't you?
---Yes.

PN1402

And if it was not priority one, if it was not possible to fix it immediately, you would expect it to be cordoned off and everybody assigned other duties, wouldn't you?---Yes.

PN1403

So nothing has arisen where you have said that to the employer or they've refused to assign you to other duties?---No, we just raise the issues.

PN1404

Thank you very much, sir.

PN1405

THE COMMISSIONER: Mr Coleman, any questions?

**** TERRENCE HARMSE XXN MR MCARDLE
PN1406

MR COLEMAN: No, thank you.

PN1407

THE COMMISSIONER: Ms Howell.

<RE-EXAMINATION BY MS HOWELL [11.20AM]

PN1408

MS HOWELL: Thank you, Commissioner.

PN1409

You were asked some questions about the leaflet which you saw when you were on flight and you were asked whether you agreed with certain statements which are in the leaflet?---Yes.

PN1410

You remember no work until we get a fair go and you said you agreed with that statement?---Yes.

PN1411

What do the words a fair go mean to you in that context?---Well, a fair go in my mind is that we sit down around a table and thrash out the issues and that in my mind is a fair go. We're all sitting down, we're discussing issues and we're resolving the issues.

PN1412

Are you referring there to safety issues?---Yes, definitely safety issues, yes.

PN1413

I think you said that you believed that if there was a collective agreement in place, problems would be resolved. What problems were you referring to there?
---Health and safety issues.

PN1414

You were asked some questions about whether you ever had a discussion in a car where Glen was on the other end?---Yes.

PN1415

I think I might have asked you this, but just in case I didn't, did anyone ever suggest to you that Glen was authorised or should be authorised to speak on behalf of other employees about the agreement?---No, that never happened, no.

PN1416

It was also put to you that you had never up until the current events refused to work until any given safety issues were resolved and you said, no, you'd never done that before. Do you remember that evidence?---Yes.

PN1417

Does that mean in your mind that you've never been required to work in conditions which were unsafe?---I actually don't understand the question.

**** TERRENCE HARMSE RXN MS HOWELL
PN1418

Having regard to the evacuation procedures and your views about them, did you regard the work you were doing as safe in all respects?---No, I didn't, no.

PN1419

So in effect you continued to work for a certain period of time in conditions which you regarded as unsafe?---Yes.

PN1420

Why did you do that?---Right from the beginning of the job, things have occurred, as any job does, especially on this kind of site, problems identified and in my understanding, the way it should be done is problems are identified and the problems should be solved and nobody expects it to be solved straight away or overnight, but in a reasonable time frame which hasn't happened and, yes, this is why we've actually looked at scenarios and in our own minds figured out scenarios how to try and cope with the problem to the best of our ability at the time, but it's not the suitable thing and that's why we've kept on raising the issues.

PN1421

As of Monday obviously your position has changed on that?---Well, definitely, because it's just gone on for so long.

PN1422

Nothing further, Commissioner.

PN1423

THE COMMISSIONER: Thank you, Ms Howell. Thank you for giving evidence. You're excused from the witness box. You can either stay or go.

<THE WITNESS WITHDREW [11.24AM]

PN1424

THE COMMISSIONER: Maybe somebody might help me here. I am making inquiries, but I haven't got the answers yet. Can anyone tell me who's responsible for safety on the job? Is it WorkCover or is it a combination of WorkCover and the Maritime Services Board?

PN1425

MR MCARDLE: Obviously the responsibility is under the Act, all the employees are responsible and the employer is responsible.

PN1426

THE COMMISSIONER: But who sets the safety standards? Who says what happens under water?

PN1427

MR MCARDLE: Under water - could I ask Mr Fitzsimons to assist there?

PN1428

THE COMMISSIONER: Yes. We will go off the record for a moment.

<OFF THE RECORD

PN1429

THE COMMISSIONER: We had one witness excused last night. Do you want to cross-examine?

PN1430

MR MCARDLE: Yes.

PN1431

THE COMMISSIONER: Could we call Ms Dempsey back, please?

<NICOLE DEMPSEY, ON FORMER OATH [11.27AM]

PN1432

THE COMMISSIONER: Ms Dempsey, I remind you you're still under oath. Ms Howell.

<CROSS-EXAMINATION BY MS HOWELL [11.27AM]

PN1433

MS HOWELL: Thank you, Commissioner.

PN1434

Ms Dempsey, you identified two collections of emails yesterday which were marked MC4 and MC5?---Yes.

PN1435

Ms Dempsey, I will just take you to MC5, if I can ask you to have a look at that first?---Sure.

PN1436

Just looking at the email which appears to be sent from Barry Dempsey to Nicole Dempsey and the text says:

PN1437

Nicole, could you please give this to Brian?

PN1438

Do you see that?---Yes.

PN1439

So that was an email - first of all, who is Robyn?---Robyn is the office manager.

PN1440

She was asking you to give this to Brian?---Yes.

PN1441

That's Mr Fitzsimons?---Yes.

PN1442

That email was sent on Tuesday, 4 December, apparently at 1.19 pm?---Yes.

PN1443

You obviously received it some time after that?---I received it, yes, at that time.

PN1444

Some time after 1.19 pm on 4 December?---Yes.

PN1445

Did you give Brian a hard copy?---Yes.

PN1446

That was the corrected agreement as you understand it in its final form?---Yes.

PN1447

That was the first time you had had the agreement in its final form?---Yes.

PN1448

Did you personally give a copy of the agreement to the employees or was that Mr Fitzsimons?---It was Brian.

**** NICOLE DEMPSEY XXN MS HOWELL
PN1449

Were you there at the time?---Yes. I was on site at the time.

PN1450

I see, but you weren't physically present when this occurred?---No.

PN1451

You've seen the various copies of the agreement that different divers have signed?---Yes.

PN1452

You've seen the version of the agreement which is signed by an employee called, I think it's Glen?---Glen Edwards.

PN1453

You're aware that the date on which Mr Edwards signed the agreement was 10 December?---Yes.

PN1454

And the other employees, the date of the agreement there was 13 December?
---That's correct.

PN1455

When the agreement was given to the divers for the first time in its final form - I withdraw that. The divers generally finish work at about 2.30?---On inclement weather days.

PN1456

That means when they're not doing overtime?---No, no, if it's bad weather in terms of the barge can't go out for reason of wind or such, if it's an inclement weather day and they will do a minimum of eight hours.

PN1457

And what time do they otherwise finish?---Whenever the barge comes in.

PN1458

What was the situation on the 4th? Can you remember?---I would say it was probably an inclement weather day because they had left early.

PN1459

Was the agreement given to them - what day was the agreement given to them?
---On the 5th.

PN1460

So Mr Edwards at least only had the agreement for five days before he signed it?
---I would assume so, yes.

PN1461

On the 5th when the divers were given a copy of the agreement which they signed, they were also given a document headed information statement for employees, collective agreement?---Yes.

**** NICOLE DEMPSEY XXN MS HOWELL
PN1462

Did you give that document to Brian to give to them?---That was emailed down first with MC4, but it was handed with the final MC5.

PN1463

Might I approach, Commissioner?

PN1464

THE COMMISSIONER: Yes.

PN1465

MS HOWELL: Ms Dempsey, I've shown you a document headed information statement?---Yes.

PN1466

That is a document produced by the company in response to a notice to produce by the MUA. I will just get you to have a look at it?---Yes.

PN1467

Did you give a document in that form to Mr Fitzsimons to give to the employees?
---He actually had that emailed through to him.

PN1468

By whom?---Robyn.

PN1469

So you didn't provide him with that?---She sends a copy to mine as well.

PN1470

But did you give one to Brian or not?---No.

PN1471

Do you see this one that's produced, it's got some hand-writing?---Yes.

PN1472

You've said:

PN1473

On this date, 3/12/07, Construction Diving Services Pty Ltd -

PN1474

And then it goes on to say what steps will be taken. Do you see that?---Yes.

PN1475

That's also your hand-writing?---That's my hand-writing.

PN1476

It says:

PN1477

Employees were asked to nominate one person to sign on their behalf. Glen Edwards was duly nominated.

PN1478

?---Yes.

**** NICOLE DEMPSEY XXN MS HOWELL
PN1479

You wrote that. When did you write it?---I wrote that on the 3rd, as it states.

PN1480

Why did you write it on there?---Because we received this one through and this is the one we were going to hand when we noticed the error. We then contacted Robyn and got this one sent through.

PN1481

But you say you didn't give this to anyone?---I didn't give this?

PN1482

Yes?---I had filled this out.

PN1483

But you didn't give it to anyone?---I didn't give it to them.

PN1484

So you accept that the employees - - -?---I didn't fill this out. I filled this top part out.

PN1485

You filled that out later, did you?---Yes, later.

PN1486

When did you fill that in?---Once Glen Edwards was authorised or nominated.

PN1487

To the best of your knowledge, a blank version of this form was given to the employees?---Yes.

PN1488

Can I just ask you to have another look at MC4?---Yes.

PN1489

That was the information which you had about the procedures which should be followed?---Brian had that.

PN1490

Did you have it?---I would have had a copy of it.

PN1491

So was it yourself or Brian who was responsible for ensuring that these requirements set out in this documentation were complied with?---Brian.

PN1492

I am just taking you to page 2 of the email which is MC4. Do you see there it says at the end of the last sentence in the first paragraph, it says:

PN1493

You are required to enter in the information statement at page 6 how and the date when the employees will approve the agreement.

PN1494

?---Yes.

**** NICOLE DEMPSEY XXN MS HOWELL
PN1495

Did you turn your mind to these requirements at all at the time?---No.

PN1496

Did you have any involvement in completing the declaration which is required to go to the workplace authority with the agreement?---I would have filled out from memory the information that would have gone in there. I probably wrote that out.

PN1497

Didn't you have to satisfy yourself - I withdraw that. Did you sign that document?
---I don't think so, no.

PN1498

Who signed it?---Brian would have.

PN1499

You didn't retain a copy of that document?---No.

PN1500

Who told you that Mr Edwards had been authorised to represent the other employees?---He was the only one there and he made a phone call to the other people. He nominated himself. I think he spoke to the other divers and said is it okay for him to do it. I don't know.

PN1501

You don't know?---No.

PN1502

You say that your understanding at least at the time was that Mr Edwards was authorised?---Yes.

PN1503

But you're not sure how you got that understanding?---No.

PN1504

If I could just show you exhibit MC2, Ms Dempsey. That's the agreement that was filed with the workplace authority, or the document I should say?---Yes.

PN1505

If I can just take you to the signature page, do you see that signed for and on behalf of the employees by Martin Loring - I am sorry, by ---Scott Bedford.

PN1506

By Scott Bedford and then there's a sentence below that saying or just above the signature, I'm sorry, saying:

PN1507

I am authorized by the employees to be bound by this agreement, to sign the agreement on their behalf.

PN1508

Well, on any view, you knew that that was incorrect, didn't you?---I didn't actually put them in the envelope to post them.

**** NICOLE DEMPSEY XXN MS HOWELL
PN1509

You didn't put them in an envelope? Can you tell me in that case, Ms Dempsey, how an agreement stating that Scott was authorized to sign on behalf of the employees came to be - - -

PN1510

MR MCARDLE: Objection, calling for legal knowledge.

PN1511

THE COMMISSIONER: I haven't heard the question yet. Would you finish the question?

PN1512

MR MCARDLE: Sorry.

PN1513

MS HOWELL: I am asking Ms Dempsey to explain as a matter of fact, not law, what her understanding is as to how the particular agreement signed by Scott Bedford came to be posted to the workplace authority along with the declaration?
---We got everyone to sign the workplace agreement.

PN1514

No, no, I am just asking you logistically, who was responsible for sending that agreement?---Brian.

PN1515

Did he physically send it?---No. I took it to the post office. He put it in the envelope and put it in my tray.

PN1516

THE COMMISSIONER: Any more questions?

PN1517

MS HOWELL: Sorry. I am just checking that, Commissioner. No further questions. Thank you.

PN1518

THE COMMISSIONER: Thank you. Mr McArdle.

PN1519

MR MCARDLE: No re-examination.

PN1520

THE COMMISSIONER: Mr Coleman.

PN1521

MR COLEMAN: Nothing, thank you.

PN1522

THE COMMISSIONER: Thank you for coming. You're excused now and you can go.

<THE WITNESS WITHDREW [11.45AM]

PN1523

THE COMMISSIONER: Any more witnesses, Ms Howell?

PN1524

MS HOWELL: No, Commissioner.

PN1525

THE COMMISSIONER: Mr McArdle, are you ready to proceed?

PN1526

MR MCARDLE: Yes, Commissioner.

PN1527

THE COMMISSIONER: Thank you.

PN1528

MR MCARDLE: Yesterday Mr Loring gave evidence that he was present at a meeting at the union office last Friday. There is no doubt Mr Loring said he was present at a meeting with the union last Friday in the company of 12 of his colleagues, him making up the 12. There were 14 divers. We know that Mr Harmse was in Mackay, that's 13 and Mr Bedford - there were 12 people at the meeting. Mr Harmse was in Mackay and Mr Bedford is absent on family leave - Edwards, sorry, I said the wrong word, Mr Edwards is absent on family leave, that's 14 people, so 12 people were at the meeting.

PN1529

All of the people available were at the meeting is Mr Loring's evidence. Two of them have given evidence. Both of them have agreed that the solution to this industrial dispute, the reason for the stoppage is that they want to get rid of this agreement and replace it with a union collective agreement. They've both said that and they've both agreed, I am going to read from section 420(1)(g) of the Workplace Relations Act 1996. They both agreed that two elements did not exist in this stoppage of work, element 1:

PN1530

The action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace that was safe and appropriate for the employee to perform.

PN1531

Now, if we look at the exhibits that have been tendered, the email from Mr Smith saying that you won't reach a union agreement with us, therefore we're going to throw a picket line across your works dated 7 February, if you look at the pamphlet that was either printed within 10 minutes or printed prior to the commencement of the stoppage on Monday morning, because it was available about 8 am, I'm not sure what particular unionised shop rigged its machines up to have a document printed and delivered to Botany by 8 am after a resolution was passed at 6 am or something.

PN1532

THE COMMISSIONER: A quarter to six.

PN1533

MR MCARDLE: A quarter to six. Well, there you go, an extra 15 minutes. Either the dispute was about what Mr Smith said it was going to be about and the dispute was going to be about what the pamphlet said it was about and what Mr Loring and Mr Harmse both said it was about, therefore it's illegal because an agreement exists, a workplace agreement comes into operation, 347(2), a workplace agreement comes into operation, even if the requirements in divisions 3 and 4 and section 342 have not been met in relation to the agreement. This is not the place for my friend to be bringing up this is wrong, you've got that form filled out wrong, et cetera. This Commission has now power to rule on that. It's not the place to be bringing it up and the agreement exists until a court says it doesn't, so the agreement exists notwithstanding errors of paperwork and I believe based on my knowledge of these things that a court would not find that it doesn't exist because of the sections that I've just read out.

PN1534

THE COMMISSIONER: That will be for a court to determine, because I won't be.

PN1535

MR MCARDLE: Absolutely not for this Commission to rule on, so there is an agreement in place, there's no doubt there's an agreement in place, because there is a receipt been issued by the Office of Workplace Services. There's no doubt that all five employees at the relevant time were party to the agreement. They agreed, they conferred on the agreement. They did whatever they did in private about the agreement. We do know they all signed the agreement. There's no doubt about that, so they can't come along here and say I didn't know about that. How could they not know about that? They signed it, so there's an agreement in place. We have here a stoppage of work pre-ordained by the union because this company would not enter it and would not set aside the agreement that exists pursuant to the receipt and enter into a collective agreement with them.

PN1536

Two, in accordance with the pamphlet, (3) in accordance with the evidence of Mr Loring and Mr Harmse and not four. Four would be if they could give evidence that they had said I am not doing job X because I fear that there's an imminent risk to my health or safety and I gave the employer an opportunity to get me to do something else while that was rectified. Mr Harmse said that would be correct procedure. I gave the example of naked live wires and the employer declined, so I had no choice, so we're here about a dispute and let's be honest.

PN1537

No amount of self righteousness is going to change this, let's be honest, that this is about the union wants this company to agree to set aside its agreement and have an agreement with them. It's not about anything else, because it can't be able anything else. The anything else was very clearly set out in the Act. Now, just a couple of assumptions here. We allege that Mr Smith said there was going to be a picket line about a union collective agreement. We allege that Mr Smith says, who is represented here today, that there was going to be - that it's about a union collective agreement in accordance with that pamphlet.

PN1538

The words Jones v Dunkel spring to mind. Where is Mr Smith? Mr Smith was in court at various times during the hearing. He was not called to give evidence. The assumption is his evidence would not have contradicted that. The assumption is his evidence would not have assisted the assertion that it was not about cancelling the agreement and replacing it with a union collective agreement and then we take the evidence of all 14 persons on strike. We've got two of them, both of them agreed with the contention that it was about replacing the non-union agreement with the union agreement, that's Mr Loring and Mr Harmse and both of them acknowledge that they did not do anything at all that comes under the heading of 420(1)(g).

PN1539

Jones v Dunkel applies to every witness that could have been called. In fact, I noticed that there were two more witnesses that we didn't see. We have to assume those two witnesses would not have assisted my friend's case, if she suggests that they would have given evidence in support of section 420(1)(g), but let's look at this word imminent. In order to withdraw your labour and it not be industrial action under the Act, it has to be this, based on a reasonable concern by the employee about an imminent risk to his or her health safety. It's not about a safety issue. It's about an imminent risk to health or safety. My first reference is this Commission, Qantas Airways Ltd v National Union of Workers, 5 March 2007, Commissioner Thatcher. I call the Commission's attention - - -

PN1540

THE COMMISSIONER: What page?

PN1541

MR MCARDLE: I am sorry, paragraph 27 on page 6:

PN1542

As already indicated, the NUW and ASU -

PN1543

Sorry, I said it was about Qantas Airways Ltd v National Union of Workers and the Administrative, Municipal and Clerical and Services Union:

PN1544

As already indicated, the NUW and ASU submitted that the stoppages on 24 January 07 came within an exclusion of the definition of industrial action.

PN1545

And what I've just been talking about is quoted. Paragraph 28:

PN1546

Subsection 4 prescribes burden of proof. Whenever a person seeks to rely on (g)(i) of the definition of industrial action, that person has the burden of proving that subparagraph (g)(i) applies.

PN1547

It's a burden of proof. You can't just show up and say it and it's not assumed:

PN1548

In considering whether the evidence supports a finding of the exemption contained in that paragraph is applicable to the stoppages, I have drawn guidance on the meaning of that provision in the pre-reform Act -

PN1549

A decision of Munro J which says:

PN1550

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

PN1551

Now, there's no evidence that that's ever happened:

PN1552

The questions posed by..... may be useful tools in determining the presence or absence of each of those elements.

PN1553

Then:

PN1554

Also I have taken -

PN1555

I was just coming to that:

PN1556

Also I have been guided by the reasoning of McCarthy DP imminent does not mean something that may happen in the future.

PN1557

You know this it may happen that the barge may sink. I'm not minimising these issues but I'm just talking about their imminence. It may happen in the future that the barge may sink. It may perish the horrible thought it may happen that a person is seriously injured whilst submerged. It may happen, but it doesn't mean that something that may happen in the future. If the risk is imminent then there must be a probability of injury or harm occurring. A probability not something that may happen in the future.

PN1558

In relation to the use of imminent in the Occupational and Health and Safety Act, Franklin J said:

PN1559

It is my opinion that for the formulation of a justifiable opinion -

PN1560

That's imminent:

PN1561

-that the relevant activity involved or would involve a risk of imminent and serious injury or harm. The evidence must show there exists something more than the bare possibility that injury or harm of that nature will occur from the activity in question.

PN1562

So the boat tossing in the swell, if someone's hurt, if someone has to be evacuated, if they can't be treated on board, if we can't get a helicopter in, if they have to be transferred to a boat, if the boat rocks, is not imminent, it's something that may happen in the future. It must be beyond something that may happen in the future. The question however, any action that can be reasonably taken to reduce risk or injury is a reminder of that. I'm looking at paragraph 31 if I've lost your place. Half way down:

PN1563

However the question the Commission must determine is not whether the new procedures are warranted or are connected to occupational health and safety considerations, the issue for the Commission occurred is whether the stoppage occurred is within the exemption contained in 420(1)(g). I am far from satisfied the exemption applies.

PN1564

Now what I'm about to read about applies so much here - well the first one's irrelevant and then the next one:

PN1565

There was no evidence of any risk that may have existed that was elevated to one of an imminent nature.

PN1566

Now what is the risk of an imminent nature, obviously there's areas of dissatisfaction been raised. There are things that could be better and I hope we all come - in the area of safety particularly in construction or any other dangerous industry, we must all come to work each day thinking how can we do better today. What can we look at today, how can we continue to monitor, so how can we keep incidents of injury in the workplace down. That's a duty that everybody has got, it's not looking at an imminent danger. You might say if the barge was leaking or something. It's nothing like that there's no imminent danger. Then there's much to do with the dispute in question and there's alternative to industrial action set there. Then the second last bullet point:

PN1567

Whilst the unions have expressed concern about a lack of consultation the closure of the tarmac rest area has been a matter on the agenda of SARG since August 2006. The committee had not indicated the closure of a rest area represented any risk to employees.

PN1568

So there has been no - the union had been campaigning since at least February, definitely since before they printed their pamphlet, hasn't been talking about zodiacs, or barges, or survey boats or winches, or HIABS, or gavits or davits , they've been talking about a union collective agreement, that's what this is about. Now the next one is Rheem Australia, Rydalmere Plant. It is the Automotive Food Metal Engineering Printing and Kindred Industries Union and another. Who could possibly be left out from that title. Rheem Rydalmere Industrial action order 2002 Justice Munro 9 April 2003.

PN1569

I call the Commission's attention in particular to paragraph 45. Obviously I call the Commission's attention to the whole document but I don't ever want - nothing is quoted out of context there, but by all means the whole document but I'm not going to read all that out to you. In particular I'm looking at paragraph 45 on page 19:

PN1570

Subject to that qualification the following observations about the general character of justified industrial action are within the meaning of section 125 of the 1988 Act, appear to me to be generally applicable to industrial action about imminent risk to safety. I have added my own emphasis to points that are most pertinent to the provision under consideration in this matter. I am inclined towards acceptance that is correct to adopt a similar approach to that outlined by Hancock DP to the following effect.

PN1571

It requires that:

PN1572

There be a concern that meets the test of (a), (b) and (c). It also requires that the action taken be justified by that concern.

PN1573

Also (a), (b) and (c) is reasonable about health and safety and arose in relation to matters within the reasonable responsibility of the employer concerned. So those are the issues, but it also requires that the action taken be justified by that concern:

PN1574

The latter requirement might not be met if for example alternative means of rectifying the health or safety problem had been ignored or the actions taken were disproportionate to the seriousness of the problem.

PN1575

Now Commissioner in that context if I refer you to MC2 - can I look at MC2 paragraph - clause 13 safety procedures. It goes for a page and a half, safety procedures, they were not followed it also requires action be taken:

PN1576

The latter requirement might not be met if for example alternative means of rectifying the health or safety problem had been ignored or the actions taken were disproportionate to the seriousness of the problem.

PN1577

So they didn't, they could have, they should have, they were legally bound to do so invoke if there was a safety issue, the procedures under clause 13 of MC2:

PN1578

The concept of justified action by employees acting in apparent breach of obligations under a contract of employment is relatively well known in the common law. Justification as a defence to an element -

PN1579

Et cetera, I might not read that out to you, but I commend it to you.

PN1580

THE COMMISSIONER: Yes, I've read this decision before.

PN1581

MR MCARDLE: Very well, then paragraph 46:

PN1582

As I have noted those general observations must be modified to the specified specific context of the division in clause 6. The last stated principle may be paraphrased 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 others. The action must be proportionate to the risk. Dispute settlement procedures relevant to safety disputes at the site must have been fully complied with.

PN1583

Dispute settlement procedures relevant to safety disputes at the site must have been fully complied with - this Commission holds that you can't say it's under 420(1)(g) unless dispute settlement procedures relevant to the safety disputes of the site must have been fully complied with and so on. Then I again refer you to paragraph 57:

PN1584

On 12 August 2002 at about 2 pm the company representatives attempted to resolve the tank trial stating safety issue - - -

PN1585

THE COMMISSIONER: I'm sorry I missed the paragraph number?

PN1586

MR MCARDLE: Sorry 57 page 24.

PN1587

THE COMMISSIONER: Thank you, yes carry on.

PN1588

MR MCARDLE: Yes:

PN1589

They agreed not to proceed with the trail until a risk assessment had been completed. Some work by fitters on the splash guards may also have been arranged before that time. in any even the refitting of splash guards was completed by 15 August 2002.

PN1590

Rheem refused outright to make a payment for the four hours or so for which
Mr Agis had lost pay when stood down on 9 August for refusing to undertake the tank stamping trial. The mass meeting was called almost immediately after that refusal:

PN1591

On the balance of probabilities and by inference from the surrounding events I am satisfied the meeting would not have been called if Rheem management had agreed to the claim by Mr Agis.

PN1592

Now that goes a little bit further than what has happened here, there was no claim by anyone in these proceedings. Mr Harmse didn't know anything about why they were on strike, other than he thought a fellow had been sacked last month until he got to Sydney. But he wasn't consulted about it. There's no evidence whatsoever been given by anybody that the employer was given any chance at all to prevent industrial action prior to it being taken. So 420(1)(g) if my friend wishes to advocate it, is just a dead duck as far as this matter is concerned.

PN1593

The next issue is from this Commission Deputy President McCarthy Firth 18 July 2003 the matter of Monadelphous, M-o-n-a-d-e-l-p-h-o-u-s Engineering Associates Pty Ltd and Australian Workers Union, Brambles Australia and the Australia Workers Union and so on. It's some 18 July 2003 Deputy President McCarthy. Again our usual submission we commend the judgment to you, but in particular we call your attention to paragraph 37 on page 8:

PN1594

Imminent does not mean something that may happen in the future -

PN1595

Now the barge may sink in the future, someone may break their leg in the future, that's not imminent. If the risk is imminent then there must be a probability of injury or harm occurring - probability. In relation to the use of imminent in the Occupational and Health Safety Act, the evidence - there's a quote the last two lines of which are:

PN1596

The evidence must show that there exists something more than the bare possibility that injury or harm of that nature will occur from activity in question.

PN1597

I think I'm repeating myself there. But it's just by way of illustrating those three authorities are very, very clear. Let's think about the evidence in these proceedings. One no doubt in spite of my learned friend's thorough, the unions and the employees concerned have been thoroughly represented in these proceedings and competently so if I may say so. These been thorough research work done. They've come up with a mistaken or incorrect ABN that doesn't mean you're not employed by somebody because they've quoted the wrong ABN.

PN1598

Mr Harmse has agreed he was employed by them. Mr Loring agreed he was employed by them. Mr Fitzsimons has insisted he was employed them. Ms Dempsey has made it very clear that these are employees. A time sheet has been tendered that says, CDS and an incorrect ABN number that's Mr Tucker's time sheet, so there's a third person who's no doubt employed by them.

PN1599

Employees no doubt that they are signatories to we say, parties to, we say covered by the MC2 which is subject to the receipt by the Workplace Authority. No doubt that these people are employed by this company, no doubt that that company is the company that's mentioned in the preamble to MC2 if I could have it back again. Just to quote from the relevant clause of MC2:

PN1600

This agreement applies to all employees of Construction Diving Services Pty Ltd.

PN1601

No one is saying they are not employed by Construction Diving Services Pty Ltd. There is no evidence that there isn't and that's because there couldn't be any because they simply are employed by Construction Diving Services Pty Ltd:

PN1602

-engaged in a classification set out in schedule -

PN1603

There is no doubt that the persons concerned being divers are a classification set out in schedule 1:

PN1604

-who are engaged by the company on the Blue Water Desalination Plant Project.

PN1605

There's no doubt that this is the Blue Water Desalination Plant project. So employees of the company have an agreement that covers the company, an agreement that refers to employees of the company, signatures by all persons who were employees of the company at the relevant time, got a receipt from the Workplace Authority. Whether or not it was on brown paper instead of blue paper, or whether or not commas were used instead of semicolons or whether or not, some other defect has been called into question has been called to the attention of this Commission here, has got nothing to do with anything.

PN1606

The only thing that this Commission needs to be satisfied of is that a receipt exists and the agreement applies, and that's as I said 347(2). So we've got an agreement that's in place. We've got a threat from Mr Smith emailed to Mr Fitzsimons there's going to be trouble because you won't agree to a union collective agreement. Then we've got Mr Loring, very strongly, very emotively, if I may say this is an emotional time for him, I understand that, very emotively saying he's not going back to work until the non union agreement is stead aside and a union agreement replaces it. He made that very clear, that's why he's on strike.

PN1607

That's why Mr Harmse is on strike there's no other reason. The only other possible reason could have been 420(1)(g) and according to the principles of this Commission 420(1)(g) doesn't apply. So these are people who have with all respect to them, because they are not lawyers, they are not responsible union officials. They probably don't know what a serious illegality they're perpetrating. They've been stirred up. They've been to a meeting in a pub. How professional is that? Convening a meeting about people's livelihoods in a pub.

PN1608

THE COMMISSIONER: I think we've both been in pubs at meetings.

PN1609

MR MCARDLE: Yes, but I've never convened one in a pub.

PN1610

THE COMMISSIONER: I'm not sure.

PN1611

MR MCARDLE: Mind you I've run out of a few. But how professional is that to have a meeting, whereby people are going to withdraw their labour and lose their livelihood in a pub. Now what are we coming to? Well I'm sure they weren't warned about the liability. I'm sure they weren't warned about a certain statement of claim from another party that's been served upon them I now understand. They weren't warned about these proceedings and they weren't warned about the seriousness of the illegality that they were entering into.

PN1612

Now unfortunately, or I believe socially fortunately, this Commission is very clearly bound and it has not been put in any of the evidence and I look forward to hearing the submissions that under section 496 if it appears to the Commission that industrial action by employee or employees that would not be protected action is happening, is threatened, pending now no one is seriously - Mr Smith did try to say that it wasn't a picket line, it was a community gathering. Perhaps he should have served scones to be more convincing but no one - - -

PN1613

THE COMMISSIONER: Mr Smith?

PN1614

MR MCARDLE: Mr Smith said it wasn't a picket line.

PN1615

THE COMMISSIONER: When did he say that?

PN1616

MR MCARDLE: He said it to me I'm giving evidence from the bar table.

PN1617

THE COMMISSIONER: I'm sorry there's evidence.

PN1618

MR MCARDLE: No, I shouldn't have said that. But obviously Mr Harmse has been advised to say it wasn't a picket.

PN1619

MS HOWELL: I object to that, there's been a lot of objectionable things said, but that was thoroughly objectionable.

PN1620

THE COMMISSIONER: Yes, Mr Harmse - - -

PN1621

MR MCARDLE: Mr Harmse did say it wasn't a picket line - - -

PN1622

THE COMMISSIONER: That's right.

PN1623

MR MCARDLE: But he did acknowledge that he had seen and he did agree that he went and joined the picket line in evidence, so when one suggests that someone has seen some legal relevance in saying it wasn't what it was, but there's no doubt that a group of employees had withdrawn their labour, done so collectively, had been seen standing at the gate in a public gathering in the company of banners and pamphlets and there's no doubt that's been happening. So this Commission cannot possibly come to the view that there isn't industrial action taking place, cannot possibly come to that view.

PN1624

This Commission because of the evidence of the only two witnesses called by my friend, because of their evidence cannot come to the view that the issue is other than they want the non union agreement set aside and a union agreement replacing it. That's what it's all about. If it was about anything else it would be about section 420(1)(g) and according to the principles of this Commission it isn't about 420(1)(g). Now that the Commission as it must be, be satisfied that industrial action is taking place it then has to convince itself that it is not protected action. Now protected action is only if I may paraphrase, only about action taken in support of reaching an agreement.

PN1625

The definition of protected action, I'll read that out as its relevant here. 435 protected action:

PN1626

The action is protected action under subsection 2 or 3. An employee organisations actions -

PN1627

This is protected action:

PN1628

During a bargaining period -

PN1629

There is no bargaining period - well do I have to read anything else?

PN1630

THE COMMISSIONER: No you don't have to read anything.

PN1631

MR MCARDLE: It is not protected action good, if it appears to the Commission that industrial action by employee, or employees is not or would not be protected action is happening - yes it is happening we don't have to look at threatened - on
5 February we should have looked at threatened perhaps, that's when Mr Smith threatened it, but is happening or is being organised, well it's being organised, someone bought the banners, someone printed the pamphlets. The Commission must - the word is must - I'll say it again - must make an order that the industrial action stop, not occur and not be organised.

PN1632

It must make it on the action of a person who is affected - that's the employer - likely to be affected - by the employer is enough - have to do it within 48 hours, so you must make an order. Now the order as we got the adjournment to prepare yesterday, or will be bound by Construction Diving Services that's the employer of these people, the evidence shows it's the evidence of these people. The Maritime Union of Australia, Mr Smith has authorised the pamphlets they can say they're not party to the industrial action they are officials or delegates, being all the relevant persons, and the employees of CDS - no one can suggest they're not party to it.

PN1633

Mr Loring's evidence indicates that 12 - all of those who were available - went to the meeting of the MUA last Friday. So the 12 and Mr Harmse the 13th is here to give evidence on their behalf, so 13 out of the 14 or perhaps all 13 because Mr Edwards is on family leave at the moment, so we don't know whether he's withdrawn his labour or not. But all of those who could have been at work today should be subject to the order, must be subject to the order. The persons and organisations must comply with the direction and industrial action must stop, not occur or be organised. Then there's various other things that we require.

PN1634

Now this is most urgent, this company is suffering loss and damage, and this company could suffer loss of it's - it could suffer loss of its contract because it can't deliver. What's more the employees are suffering loss and damage. They are on strike they should go back to work. Now if it's going to be anything like you know, if Work Cover, if someone wants to apply for Work Cover to come in and look at the place, of course they could have done that last week. They could have done that on Monday, no problem there. As I said, as the entire emphasis of this company and the acknowledgement of Mr Harmse to this effect is that safety is something we have to get up in the morning every morning to look at and monitor and change and improve and correct, that's a daily occurrence.

PN1635

No one is against safety. What has to be offensive is people who use safety as an excuse and it really is belittling the possibility of injury to other human beings for their own silly political ends, but that's not giving a submission about any political point. But no one should use safety when they mean something else, that is quite an offensive - it's not about safety it's about what everybody had said it's about until they looked up the book. It is about what they want, what they said they want, what they can't have, and what have caused them to be conducting themselves illegally and this Commission must make the order. If I can just have a moment please? Those are our submissions.

PN1636

THE COMMISSIONER: Thank you. Mr Coleman have you got any submissions to make?

PN1637

MR COLEMAN: Yes, just some brief submissions and my client is generally in support of the application Commissioner so I think it's appropriate that I go before the respondent. I have prepared a brief written submission it hasn't been circulated as yet because I prepared it this morning and the evidence hadn't been finished, but I give it to my learned friends and hand a copy up to the Commission together with a copy of a decision of the Commission that is referred to in the written submissions. I'm content Commissioner to rely on the written submissions and just speak to it very briefly in the circumstances.

PN1638

THE COMMISSIONER: Yes, thank you.

PN1639

MR COLEMAN: Commissioner in paragraph 1 I've addressed the issue of the right of intervention, that's been raised by my learned friend for the respondent. I'm not sure how far that issue is pressed and I'll address that in reply if it is pressed in their submissions. Under the heading, from paragraph 3 under the heading of the evidence, I have put together a brief review of the evidence. It generally follows the submission that you've just heard from Mr McArdle for the applicant. Without reading it our Commissioner I would ask you to - let me go back - there's clearly a stoppage of work. That's not in issue and it's in the evidence of Mr Fitzsimons clearly. There is an issue raised in the respondent's case as to the reasons for that stoppage. It's very important and useful to tribunals in my submission in circumstances where there is some conflicting evidence is to pay particular regard to contemporaneous documents.

PN1640

In this case the Commission has before it exhibit BF7 that's towards the end of the bundle attached to Mr Fitzsimons affidavit, MC1. The double sided flyer produced by the MUA sometime over the weekend or on Monday morning of this week and distributed by the workers who had stopped work and picketed the site and still are, handed out and the opening words of that flyer say it all. Under the heading, We Won't Take a Dive are the words a union collective agreement is all we want. In my submission of all the evidence before the Commission in this case, those words set out in that flyer are very important in sorting out the real reasons for the stoppage of work.

PN1641

There may well be safety issues on site on every construction site there always will be. Industrial occupational health and safety is a very important subject matter and as Mr McArdle has submitted should be constantly on the minds of all participants in the industry. But when the evidence is looked at the totality in my submission if a submission is made by the respondent that section 420(1)(g) comes into play in my submission on the totality of the evidence it simply can't and in my submission in that regard Commissioner I would ask you to pay particular attention to section 420(4) in relation to the burden of proof.

PN1642

The burden of proof lies with the respondent to make out that it is an exception from the meaning of industrial action and in my submission on the totality of the evidence they haven't come anywhere close. There is evidence from
Mr Fitzsimons that as to the impact of the stoppage of work and that is significant on a very important and public sector project. I've also made the point in paragraph 9 of the written submissions as to the unlawfulness of the activity of the conduct that is going on, not only in relation to the Workplace Relations Act but it would also be prima facie, and arguably at least, conduct in breach of section 38 of the Building and Construction Industry Improvement Act.

PN1643

Also if one goes to the collective agreement itself it arguably and very much so, is the - it's arguably in breach of the terms of the collective agreement which in its terms prohibits industrial action. Then on page 3 of the written submission under the heading section 496, Commissioner, I have briefly set out what I submit is the appropriate approach to the section and I have extracted there two paragraphs from the reasons for decision from Vice President Watson in the matter of Stolt NYK Australia print 973605 and without reading it and taking up the time to do that Commissioner, his Honour there sets out the correct approach and makes it clear that it's in contrast to the earlier or pre-Reform provisions of the previous section 127.

PN1644

Provided that Commissioner it appears to you as the tribunal member - this is going to the text of section 196 provided that it appears to you that - sorry section 496 subsection (1) provided that it appears to you sir, that any of the activity in (a), (b) or (c) is happening, is present then the making of orders is mandatory and the use of the word must in the section, make in my submission the making of orders mandatory and in view of all the evidence and the circumstances and the jurisdiction vested in the Commission in the section, in my submission the orders not only should be made, but must be made.

PN1645

THE COMMISSIONER: Yes, thank you Mr Coleman. Ms Howell?

PN1646

MS HOWELL: Thank you Commissioner. Could I first make some brief responses to Mr McArdle's submissions. In my respectful submission
Mr McArdle was somewhat casual in his approach to the evidence and I'll just make reference to one important example, which is the email of Mr Smith to Mr Fitzsimons of 5 February which is annexure BF5 to Mr Fitzsimons affidavit and it's said that here we're foreshadowing industrial action and picketing. What is actually said contrary to Mr McArdle's submission is:

PN1647

It is out view that you've hidden behind this disgraced anti union legislation to undermine the conditions of divers at the desal plant and this is clearly a point we will have to take up with the state government as well as in a community campaign that will be put into place to highlight your company's anti union position.

PN1648

Then it refers to demonstrations we are about to organise at the gate.

PN1649

MR MCARDLE: I take my friend's point.

PN1650

MS HOWELL: It's an important point Commissioner because it's said that right from the start this was just about a union campaigning for a collective agreement it was nothing to do with the issue of safety. Now both parties at the bar table then say well the Commission should accept the proposition that this is not a circumstance falling within section 420(1(g) which is the part of the definition of the industrial action and of course if it does fall within that section, the Commission is not able to make orders because no industrial action as defined is occurring. Now Mr McArdle gave us selective excursions through the evidence where he relied on the fact that both witnesses have said, well we won't go back to work, or we don't want to go back to work unless there's a collective agreement.

PN1651

Now that is the wrong approach to the section. The section focuses on what the reasons were for the stoppage, not what the solution is but what the reasons were and we had two witnesses who gave some detailed explanations as to why they had stopped work and I should also whilst I remember it refer to Mr McArdle's comments about the meeting of the Friday before and again I'll leave aside the colourful digressions about the meeting. But Mr Loring was very clear that that meeting was not discussing the stoppage and the union at no point at that meeting or otherwise recommended or advised the members to take such action.

PN1652

The decision on the stoppage was taken on the Monday morning and the leaflet I think which is heavily relied upon by the parties arrived at site some hours later, I think about 10.30 is what the evidence is. Now was the action of stopping work based on a reasonable concern by the employee about an imminent risk to his or her health or safety? Well first of all if the Commission was to find as urged by Mr McArdle and indeed Mr Coleman that the stoppage was not based on safety concerns, then the Commission would have to find that both Mr Loring and Mr Harmse had simply lied.

PN1653

THE COMMISSIONER: No, no that's not true Ms Howell. It's not just safety concerns, it's imminent. The word is will you address me on that.

PN1654

MS HOWELL: I understand that Commissioner, yes I'm coming to the imminence but both parties have urged you to find there was no safety issue motivating the witnesses at all and certainly that was Mr McArdle's submission he said nothing about safety, this safety issue has been abused, it was really about a collective agreement. Dealing with that first and then I'll deal with the question of imminence.

PN1655

THE COMMISSIONER: Thank you.

PN1656

MS HOWELL: So if the Commission was to accept Mr McArdle's submission it would find that when the two employees concerned said they stopped work because of their concerns about safety issues and particularly evacuation procedures, they were simply lying. We would - - -

PN1657

MR MCARDLE: I object to that, I never accused anyone of lying, I object to that.

PN1658

MS HOWELL: He didn't say it but it's implicit in his submissions.

PN1659

THE COMMISSIONER: I don't think it is Ms Howell.

PN1660

MR MCARDLE: I did not say that and don't misrepresent me.

PN1661

MS HOWELL: Commissioner the evidence given by both witnesses was we stopped work because of our concern about these safety issues. Now that withdrawing the word lying, Mr McArdle stated that no safety issues, they weren't the issues, the real issue was a collective agreement and its abuse to use safety. Now that's pretty clear that implicitly at least, he is saying that the witnesses were untruthful in that evidence there can't be any other conclusion. They said clearly, the reason they stopped work was because of their concerns about long standing safety issues which haven't been addressed and I will get to those issues in the question of imminence.

PN1662

We submit that the Commission would find that that evidence was truthful. As far as the evidence which Mr McArdle relied on which was about the importance of a collective agreement, we don't deny the employees regard that as important.
Mr Harmse explained the context of that desire for a solution to the problem being simply that these longstanding safety issues and serious issues have not been addressed by the company and the frustration of the employees that those issues have not been resolved through the numerous meetings and the numerous times they've been raised with management and their view that the only way that they can feel safety issues, these issues in particular can be dealt with effectively, is through that mechanism.

PN1663

The solution that the employees see as appropriate, is not the question, the question is why did they take the action in the first place? The evidence on that was unambiguous from both employees. Now we come to the question of imminence. First of all we'll look at the evidence of what the safety issues are. The safety issues are amongst others, there is no evacuation procedure in place as far as the employees are aware and they have never seen any evacuation procedure documents. Now Mr McArdle would have you conclude that that's not an imminent safety issue that there's no evacuation procedure.

PN1664

Perhaps a test of that is, is it appropriate to send divers out to dive in the absence of such a procedure? In our submission the answer to that is no, divers should not be sent out into a dangerous environment where they face these hazards in circumstances where they have no evacuation procedure. That is - gives rise to a risk which has a degree of imminence which employees should not be exposed to. It's not comparable to the examples that my friend has relied on in the authorities which discuss this issue, which are - perhaps a better analogy would be if you have a machine which has a loose guard and you say at some time that guard is going to come off - do we wait for the guard to come off? Do we leave the employees in danger until that occurs?

PN1665

Well effectively that's what Mr McArdle is saying should happen that what is being said is there is no imminent danger or no imminent risk or no reasonable apprehension of reasonable risk and therefore employees should continue to be required to work in circumstances where there is no evacuation procedure in place and the provision made for evacuation such as it is, is woefully inaccurate. I'll just remind the Commission of what those matters are. The lack of any means whatsoever to pull an injured diver out of the water. The Commission will remember that Mr McPherson said, we've got davits that solves the problem. Well there aren't any davits, we - Fitzsimons I'm sorry - two witnesses who said we've never seen davits and we certainly don't have any - there are certainly no davits on the barges to our knowledge.

PN1666

So here we have a company which says to the Commission there are structures in place and there's uncontradicted evidence of both witnesses that those structures were not in place. So again, on Mr McArdle's case there's no imminent risk and divers are to be sent down there in circumstances where if they do injure themselves there's nothing - no means by which they can be safely removed from the water. We say that's an imminent risk and again we've heard evidence about the unsuitability of the tugs to remove injured workers and again, we get a new story that the survey boat is available and we get uncontradicted from two witnesses that the survey boat is neither available nor suitable to the purpose.

PN1667

So no suitable craft and we have the evidence that these issues, and particularly the safe craft to remove people have been discussed with Mr Fitzsimons way back in I think it was October or November of last year and Mr Fitzsimons acknowledged the problem and it was agreed what would be a suitable solution. Three months later, no solution in place still waiting on the arrival of some inflatable boat which is going to arrive at some unknown time. So Mr McArdle is inviting you to order workers back to diving in circumstances where if there is an accident there's no craft to take them back to shore.

PN1668

THE COMMISSIONER: Ms Howell, you might also address me while you're on that point, why then didn't the workers as indicated in some of the precedence that's been sent to me complain to the employer about the lack of safety in the particular safety issues and then offer themselves for other work while the employer fixes that. I mean that has been raised and they are certainly principles that the Commission looks at. Nothing has been said about that.

PN1669

MS HOWELL: No Commissioner. As far as raising the issue I think there was, both witnesses gave evidence that the evacuation procedures had been raised on numerous occasions. The minutes of the most recent toolbox meeting that we referred to had reference to the evacuation procedures and we want answers. That was you know, some months after the issue had first been raised. Now true enough the procedures under the purported agreement were not used. We accept that, that's no case says that is determinative but the circumstances here are I think there was evidence of this and certainly my instructions are the employees didn't retain copies of the agreement they weren't even aware of such a provision.

PN1670

In any event when you've raised it week in, week out in toolbox meetings and prestart meetings why is it reasonable to think that the issue is going to be resolved through a safety committee meeting.

PN1671

THE COMMISSIONER: Surely there was a disputes committee meeting, a disputes procedure in the agreement which may or may not have led here?

PN1672

MS HOWELL: The same comments apply Commissioner the employees were unaware of what the contents of the agreement - they didn't retain copies. The other pressing safety issue was the fact that the tug was apparently to be used to remove injured workers, unsuitable as it was which left the remaining people on the barge at some risk if there was a contingency such as an anchor coming loose, in which case the tug wouldn't be there to perform it's safety function. So I'm sure there's no dispute that diving is inherently unsafe occupation and what this case is about is not the inherently unsafe nature of the work but the failure of the employer or the company to put in systems, which it's morally and legally obliged to put in place which provide for those things.

PN1673

Even here today the company has made no effort to satisfy the Commission that those matters have been addressed, other than what I mentioned which was the survey boat and the - so far as we're aware and so far as the evidence goes, the non existent davits. Now as far as subsection (g)(ii) goes the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work. There has to be a direction in the first place before that section is utilised and realistically these people are divers, if they can't go out and dive it's not suggested that - - -

PN1674

THE COMMISSIONER: But there may be others sitting in the shed. The employer might have chosen to pay them. It was never tested was it?

PN1675

MS HOWELL: No, and the employer has taken no steps to seek to do that Commissioner there is no suggestion by the employer that they would offer non diving work and pay them for it.

PN1676

THE COMMISSIONER: Thank you.

PN1677

MS HOWELL: Of course the company has always advanced the proposition that there is an evacuation procedure in place when in fact the uncontradicted evidence is there isn't a belief as far as the employees are concerned. Now there can be no doubt from the evidence of both the witnesses from the MUA that these issues have been raised again and again. Mr Harmse did accept that for a certain period of time, they have been working under unsafe conditions in this regard. He accepted that and he said, we were just waiting for things to be fixed. How long is it reasonable for employees to keep waiting for these fundamental safety issues to be addressed before they do something about it?

PN1678

We say that the length of time which they waited was more than reasonable in the circumstances and given the degree of risk that was involved. Now criticism was made of the witnesses in submissions because they didn't say to the employer we have a reasonable concern about an "imminent risk to our safety". Well I don't know about Mr McArdle but most people don't speak in statutory phrases, they use ordinary language. Certainly the concerns were clearly communicated to the employer including the minutes which I've referred to where they said we need answers. It couldn't be clearer, no answers were forthcoming and that's why we've ended up here.

PN1679

Now on the question of imminence our submission is simply this that if it is unsafe and inappropriate for workers to work in the prevailing conditions then that is sufficient to give rise to an imminent risk. The evidence of Mr Harmse in particular about the level of risk would be accepted in our submission and if the evidence of both of those witnesses, Mr Loring and Mr Harmse is accepted as to why they took action, then the test in section 420(1)(g)(i) is satisfied in our submission. I turn now to the question of the purported agreement and I've prepared a very brief outline on this issue to shorten - - -

PN1680

MR MCARDLE: Again I know my friend is about to turn to that, I repeat my objection to this Commission being invited to rule on the status of the agreement.

PN1681

THE COMMISSIONER: I've heard your objection.

PN1682

MS HOWELL: It's a rather peculiar objection if I may say so, because the Commission is routinely asked to form a view on questions of law. The respondent, the company I'm sorry, has squarely put to the Commission that this agreement applies and we differ from that proposition. In those circumstances the Commission in our submission would properly turn it's mind to the question and as we say in our opening submission it's trite law that the Commission does from time to time decide questions of law and we just refer and I apologise for not having copies of the authorities in this - that are referred to in this submission - to the decision of Australian Social Welfare Union and the Australian Workers Union and another, which is a decision which is often quoted in this Commission and it's questions of law often arising proceedings in the Commission and the resolution of them is within the jurisdiction of the Commission see eg the Crown and Crown ex parte Newcastle Wools et cetera, although that determination is not conclusive.

PN1683

Quite simply when the company advances the proposition that the agreement applies and not only that, the company advances orders the scope of which is determined by the operation of the agreement, then it's difficult to see how the Commission can avoid turning it's mind to the question because if the MUA is right and there's no valid agreement in place, then the orders have no operation. That may well be to our advantage but we don't want to be you know, concealing an argument and then running away and saying, but you know, they don't apply, because this argument which wasn't run in the Commission.

PN1684

Mr McArdle has tacitly accepted that there was some flaw in the process of seeking the agreement and has trivialised them by referring to the colour of the paper. Let's just turn briefly if I can to the requirements for an agreement. The proposition which the MUA puts is not that some formal requirements for the process of advancing a valid collective agreement have not been met. The proposition that the MUA puts is that at no stage was there an agreement as defined in the Act upon which section 347 could operate. Section 347 has the effect that if there are certain invalidities in an agreement then it doesn't affect the operation of the agreement. That's essentially as we understand Mr McArdle's arguments.

PN1685

The difficulty with that argument is that section 347 cannot rescue the situation where there is no agreement to be rescued and the starting point in consideration of that argument is section 327 which refers to the fact that an employer may make an agreement in writing with persons employed at the time in a single business. The requirement is an employer may make an agreement that is a single agreement with persons employed. So we just stress in that definition an agreement singular with persons plural, that being the nature of a collective agreement by definition. We refer to in the second page, we refer to two decisions on the nature of collective and collective agreements.

PN1686

In Formsby which is the first decision there is some discussions which we rely on as to the nature of a collective, and then collective is then the definition from the Macquarie Dictionary is then set out.

PN1687

Formed by collection, forming a collection or aggregate pertaining to a group of individuals taken together.

PN1688

So we say that informs what a collective agreement under section 327 is, it's an agreement between an employer and a group of employees. Now in short our first point is that what we have here is not a collective agreement but a series of individual agreements, signed at different times, by different people. Five different versions of an agreement individually signed and we say that doesn't constitute a collective agreement and then we rely for that purpose on the decision of Justice Ryan in Mariners Ships Supplies and his Honour says:

PN1689

I regard the phrase collective agreements as connoting an agreement made for regulating wages and conditions of employment by a collective or representative body on behalf of relatively large numbers of employees or workers not all of whom may have been identified et cetera.

PN1690

So his Honour is clearly identifying there the nature of a collective agreement, it's between an employer and a group of employees represented by either a body or in this case an individual. As we say if the employer had wanted to make individual agreements which had statutory recognition they could have used AWA's. But it didn't, it purported to use section an agreement as defined in section 327 and there is no such agreement in existence there is only five individual agreements. So the first point we raise is that at no point did such an agreement come into effect which could then be put before the Workplace Authority. Whatever was put before the workplace authority did not have the status of an agreement.

PN1691

The second point is that section 333 actually states when a workplace agreement is made. The relevant subsection is (b) that is the time when the agreement is approved in accordance with section 340. So the important point Commissioner is that unless an approval in accordance with section 340 is effected, no agreement has been made. Again if you don't reach that stage, whatever you put before the workplace authority is not a collective agreement because no collective agreement has been made. So you have to look at whether the requirements of section 340 have been complied with to determine whether a workplace agreement has been made.

PN1692

The relevant section of section 340 is section 342 which is an employee collective agreement is approved if an employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement and relevantly section (b), a majority of those persons decide they want to approve the agreement, not a majority of those persons signing the agreement but a majority of those persons decide they want to approve the agreement. At the very least there has to be some decision making process amongst the collective group of workers for the purpose of section 340(1)(b). I just refer the Commission to exhibit MC4 which includes the checklist provided by the Workplace Authority in this respect.

PN1693

The checklist which the employer is required to comply with relevantly includes at point one - I'm sorry page 1 and this is starting on page 4 of the bundle which is MC4, that you:

PN1694

Include in the information statement for employees' collective agreement the details of how and when you would seek approval of the collective agreement by the employees.

PN1695

So of course that information wasn't included in the documents so the effect of that was there was no such procedure. What happened was Mr Edwards apparently on the 10th and the other employees apparently on the 13th was simply told well here it is you need to sign this. A group of individuals separately being asked to sign an agreement is not sufficient in our submission clearly to meet the approval test in section 340. We simply rely on the material of the Workplace Authority to confirm that proposition. The documents which go to the employees have to identify an approval mechanism and that wasn't done, people were simply asked to sign the agreement. Not a valid approval process in our submission.

PN1696

Now if section 340 wasn't complied with, no agreement was made and whatever was filed with the Workplace Authority was not a collective agreement and section 347 has no work to do. The final submission in this respect is that even if we're wrong on those issues, what was actually filed with the Workplace Authority? What was filed with the Workplace Authority was exhibit MC2 which is a document signed by Mr Scott Bedford and wrongly stating that he was authorised by the employees to be bound by the agreement to sign the agreement on their behalf. So what was in fact filed with the Workplace Authority was not a collective agreement but an individual agreement signed by Mr Scott Bedford, purporting wrongly to be signed on behalf of the other employees.

PN1697

THE COMMISSIONER: Where is he now?

PN1698

MR MCARDLE: He was here yesterday, he was going to be called as a witness, but was not.

PN1699

THE COMMISSIONER: Was not called.

PN1700

MS HOWELL: Commissioner I should just say on that, the reason that we were proposing to call Mr Bedford was precisely to ask him whether he was ever authorised to act on behalf of other employees. As it was never suggested that he was by anyone, including Ms Dempsey it didn't seem necessary. The company's position has been that Mr Edwards was authorised for that purpose. We dispute that and say the evidence clearly shows he wasn't. But nonetheless that was the company's position. On the company's evidence Mr Edwards was authorised, the document which was submitted has the authorisation, has the signature of Mr Bedford.

PN1701

What MC2 is, is not a collective agreement but a document with no status signed by Mr Bedford as an individual on his own behalf and on no one else's behalf and in those circumstances there was no collective agreement submitted to the Workplace Authority in our submission. If the submissions which I've just outlined are correct, then it obviously has consequences for the relief sought by the company and the orders which are sought. Can I now say something briefly about picketing? Mr McArdle again has made great play on the use of the word picketing or otherwise and quite wrongly suggested that workers were encouraged to say something or other about whether picketing was occurring or not.

PN1702

Unfortunately I've left behind the case of David's Distribution and the NUW which I can provide the court with, but it's a Full Federal Court decision of a few years ago, where the issue of picketing and whether it constituted industrial action was extensively canvassed. The finding of the court relying in part on a previous Full Court decision was that picketing, peaceful picketing which does not obstruct people's passing in and out of a premises, is not industrial action for the purpose of the Workplace Relations Act. So unless there is evidence of access and egress being hindered then any demonstration outside of the premises is not industrial action and that also has some significance in terms of the orders which the respondent seeks, I'm sorry the company seeks.

PN1703

So as far as I'm aware, there's been no suggestion in the evidence that there was any hindering of people going backwards and forwards across the protest or through the protest. In fact, the evidence was to the contrary that no such obstruction had occurred or was occurring. So to the extent that the proposed order refers to picketing, then one it's unclear what it means and two, there's no evidence of any industrial action which could be characterised as falling within the definition of picketing or the meaning of picketing. There are two more matters I seek to address Commissioner and it will take me probably 10 or 15 minutes and there'll probably have some submissions in reply so I'm wondering if that might be a convenient time?

PN1704

MR MCARDLE: I'll be 10 or 15 minutes Commissioner.

PN1705

THE COMMISSIONER: I think we'll sit through and I'll give a decision on transcript after the luncheon adjournment.

PN1706

MS HOWELL: May it please the Commission. By addressing remarks briefly to the role of the MUA in respect of the stoppage, Mr McArdle incorrectly characterised the evidence of the meeting and he incorrectly characterised the evidence that is the Friday meeting and incorrectly characterised the email from Mr Smith of 5 February. Even the leaflet which is heavily relied on which appeared at the picket line.

PN1707

THE COMMISSIONER: It's not a picket line, are you saying Ms Howell?

PN1708

MS HOWELL: I'm saying that - - -

PN1709

THE COMMISSIONER: I'm getting confused on that.

PN1710

MS HOWELL: Sorry Commissioner, what I'm saying is the label doesn't matter, the questions which Mr McArdle was certainly very concerned about whether it was called a picket line, but what matters is whether there is - whether the conduct a the site, which hampers access in which case it may be characterised as industrial action if not, then it's irrelevant to the present proceedings. In the present circumstances there's no evidence that picketing or demonstration whichever label one uses, is hampering access and therefore shouldn't be the subject of any order.

PN1711

If the Commission was to prohibit picketing that would certainly be one, be inappropriate because it would appear to extend to peaceful and lawful activities of protest and two, be confusing because it would be difficult to know what was meant by the term. So I suppose that's the point we make. In any event the leaflet was at the site by about 10.30 on Monday morning and what this leaflet is urging people to do is not to continue strike action or to do anything to do with stopping work or otherwise. What this leaflet is clearly on its face doing is telling third parties what the MUA considers the issues to be and asking them to take action.

PN1712

The action which people are being asked to take in this leaflet is to help us win justice for divers. The project manager is Brian Fitzsimons, email him and politely ask him to negotiate a collective agreement for the MUA, with the MUA for the divers et cetera. Ring your local state MP and demand the New South Wales government direct their contractors to negotiate in good faith. There's no incitement, encouragement to industrial action in leaflet. There's no suggestion and in fact the evidence was to the contrary that there was any recommendation or advice to take industrial action from the MUA.

PN1713

So all we have as far as the MUA role is concerned is that they've provided a leaflet to be handed to interested persons at the site. It's clearly not a leaflet that is directed to the employees themselves. As far as the draft orders that we say should not be made some further observations have to be made about those. I've made the point that we make about the scope of the order set out in point 2.1 which is limited to regulated by an agreement which we say doesn't exist. It also extends in its present form to employees who are eligible to be members of the union which is subsection 3.1(c). What the orders, the operative orders in clause 4 purport to do is simply substantially reproduce the terms of the Act.

PN1714

There's no specificity in these orders at all and there's a lot of case law of the Federal Court that says that orders have to have a sufficient degree of specificity, and indeed of this Commission, that the orders have to be sufficiently specific in what they are directing people to do, there can be no ambiguity and misunderstanding and we do say the orders as framed basically are reproducing the terms of the Act, don't comply with those principles. Point 4.3 of the proposed order refers to acts by the union aid, abet, direct, cancel, procure, authorise or induce the employees to engage in industrial action, must stop, or must not be commenced or recommenced.

PN1715

There's no such conduct to stop and in those circumstances in our submission such an order should not be made. There is a standard direction to the union in 5.1 which directs the union to prepare a statement and the Commission will note that amongst other things the proposed statement says:

PN1716

The order requires there be no industrial action including but not limited to pickets of access points to the marine yards at Point Bottomly.

PN1717

That was really the point I was trying to make Commissioner about the difficulty of using the word pickets, and the potential for that to be read as extending to peaceful and lawful process. So we say as to the orders, the orders in their present form are too broad, lacking specificity, ambiguous in their reference to picketing, unjustified as far as they apply to the MUA, when the MUA has not been shown to in any respect have aided, abetted, directed, cancelled, procured, authorised or induced the action. Those are submissions on the orders Commissioner and those are our submissions generally.

PN1718

THE COMMISSIONER: Thank you, Mr McArdle?

PN1719

MR MCARDLE: Commissioner this pamphlet, help us fight for the basic right to collectively bargain and for a safe workplace. Our picket line is located - and
the address is given:

PN1720

We would love to see you there and assist us in fighting for our rights at work.

PN1721

Authorised by Warren Smith:

PN1722

Help us win justice, email Brian Fitzsimons politely asking to negotiate a collective agreement with the MUA for the divers. Join us on the picket line.

PN1723

Where else is picket line mentioned? No there's only two picket lines, there's join us on the picket line, our picket line is located. It's a picket line, I've never walked into my office, and I hope that I'm - it sort of I hope it never happens to anybody, I've never come into my workplace and someone has thrown a cup of coffee over me. That happened yesterday, on Monday that happened on Monday, sorry I stand corrected, I withdraw my submission that it happened yesterday, it happened Monday that Mr Fitzsimons had a - I withdrew that submission - on Tuesday on Tuesday I'm further corrected, Mr Fitzsimons came to work, could not get into his workplace without running the gauntlet of a cup of coffee being thrown over him. Lucky he had his window shut.

PN1724

Now that's obstructing egress and exit I would suggest. As for specificity in the order six - what do we actually want, we don't want - we say we refer to industrial action and what does industrial action mean? Failure or refusal by employees to attend for work, or a failure or refusal to perform any work at all by employees who attend for work et cetera, et cetera. It goes down the page, (a), (b), (c), (d), very, very specific, very comprehensive and very exclusive. Now the email BF5 to Mr Fitzsimons affidavit which is MC1:

PN1725

Your response -

PN1726

This is responding to Mr Fitzsimon's saying we've already got a collective agreement thank you, we don't want an agreement with you - I'm paraphrasing there, read it for yourself Commissioner:

PN1727

Your response is somewhat disappointing -

PN1728

This is what Mr Smith said, copied to all of the people in the - and he copied there Mick Dolan, Kevin Bracken, Ian Bay, Chris Cain, Glen Wood, Paul Garrett and Paul McAleer all have email addresses that are identified as being them part of the MUA email network, that's who those people are:

PN1729

Your response is somewhat disappointing and can only be interpreted as a rebuff to the union and your employees who are actively seeking a union collective agreement. Your employees have a different view with respect to the quality and fairness of their non union Work Choices agreement. If you think your company is best serviced by a continued utilisation of Work Choices, then all I can say is that life will demonstrate a different view.

PN1730

Life will demonstrate a different view, does he mean the fullness of revelation on judgment day or does he mean something he was intending to do. Life will demonstrate a different view:

PN1731

It is our view you have hidden behind this disgraced anti union legislation to undermine the conditions of divers at the desal plant and this is clearly a point we will have to take up with the state government as well as in the community campaign that will be put into place to highlight your company's anti union position.

PN1732

What union campaign, what community campaign we might ask:

PN1733

We will remain available to discuss the issues. If you wish otherwise we will see you at the series of demonstrations we are about to organise at your gate.

PN1734

Now it is submitted to this Commission that the MUA wasn't doing that, they simply said they were going to do that. Then the pamphlet, I've read the pamphlet, I'm not going to read the pamphlet again. Now the submission as to the validity of the agreement I think my friend was saying that division 4, sections 336 to 341 no - 336 - no she is saying.

PN1735

THE COMMISSIONER: 327?

PN1736

MR MCARDLE: 336, no she is saying its division 3 and 4 which is 334 about bargaining agents, so it's not really applicable to what we're talking about, that's division 3. And division 4, that's 336, 337, 338, 339, 340 and 341, that's division 4 have not been met. 347(2) says:

PN1737

A Workplace agreement comes into operation even if the requirements in divisions 3 and 4 and section 342 have not been met in relation to the agreement.

PN1738

Now 342 is errors with lodgement, 3 division 4 includes section 340 approval of a Workplace agreement so if it hasn't been complied with according to 347 it comes into operation even if 340 hasn't been complied, which we by no means accept. Now if I could turn in that context turn our attention to the information statement which is well known. It basically sets out colloquially and is aimed at persons who are not trained lawyers et cetera, step 3 on page 2:

PN1739

For a union collective agreement the agreement must first be signed by the employer and the relevant union or unions and the employer must give all employees a reasonable opportunity to sign -

PN1740

Et cetera:

PN1741

The agreement is approved when and detailed to the attached how and when form. Your employer conducts a vote and the majority of employees who make a valid vote decide -

PN1742

Sorry I've misread that, it's for both union and employee collective agreements, this is an employee collective agreement:

PN1743

The agreement is approved when as detailed in the attached how and when form your employer conducts a vote -

PN1744

Et cetera or:

PN1745

Another approach is used and a majority of employees decide they want to approve the agreement.

PN1746

Is an agreement one document, everybody gets a copy all five people and not - I think we could definitely say that a majority of employees decided that they wanted to approve it. But even if that's wrong, the submission before which it isn't, the submission is that 340 hasn't been complied with. So what is what one would say when reading the Act. 347(2):

PN1747

A Workplace agreement comes into operation even if the requirements in division 3 and 4 in section 342 have not been met in relation to the agreement -

PN1748

For the sake of context, 342 is employer must lodge certain Workplace agreements with the employment advocate, now known as Office of Workplace Services. I'm sorry no, then it's now named something else, it's now called the Workplace Authority. That's not suggested, 342 is - no breach of 342 is suggested. As for collective well it has to be a representative body a group of people, we can say that all of the workers, all of the people employed at the time, approved it because they all signed it. Then instead of - then the written submission :

PN1749

Instead our agreement purported to reach agreement with each individual on the terms of an agreement without any reference to a group or collective.

PN1750

That's not right, everybody was given five copies of - no one was isolated about it. It was a matter of some notoriety and a suggestion by - as valuable as it can be, was the suggestion by Ms Dempsey that she understood one of them to be talking to other persons about it. I suppose that is reasonable evidence that she noticed one of them discussing it with other persons and a majority of the persons decide they want to approve the agreement is in section 333. I think 100 per cent is not a bad majority. They all signed it. They all approved it, so it is - I don't know why we're really talking about this because the agreement applies.

PN1751

The agreement is in place, the agreement is an agreement covering employees employed by the employer doing work covered by the agreement and that agreement is subject to a receipt from the Workplace Authority, it applies according to section 347(2). Then about imminence, none of our - we put up a sheet of authorities there, none of them have been refuted, they are the principles that bind this Commission and we believe the Commission have been given no information whatsoever whereby it should depart from its principles and that is imminence is - imminence means afraid that it is about to happen. Not that it is an issue. Imminence goes beyond issue.

PN1752

Then 420(1)(g) a simple procedure would enlighten 420(1)(g), one is you'd tell your employer that you're not going to do a particular job because you feared for your health or safety if you did that particular job and that employer would then be given an opportunity to put you on to another job and you would then have an obligation - was it did I say 340(1)(g), 420(1)(g) - your employer would be given an opportunity to put you on to another job pending resolution of the matter you've raised. That's never happened that did not happen. Step one raise the issue, step two the employer won't give you other work that never happened. The onus is not on us to prove it didn't happen. The onus is on the person saying it that it didn't happen.

PN1753

Then there's evidence of toolbox meetings evidence of prestart meetings. There is nothing - Mr Harmse agreed that nothing ever - brought others - ever point blank refused by the employer. There were issues as there always will be with some - Ms Howell brought up a couple of things - there were no means whatsoever for retraction of an injured person - I'm using my words not hers but I think that's the correct meaning. Well Mr Harmse acknowledged that he attended a drill for that very purpose, then he described what would happen based on his knowledge. So there's two things there, there's a drill and there's a procedure well known in the workplace.

PN1754

Then the tugs are an unsuitable vessel and the survey vessel is an unsuitable vessel. What about the emergency contact details, there's no dispute that they are there. The HIABs albeit debated, there's no dispute they are there, the stretchers, there's no dispute they are there. The zodiac that's been advocated no dispute that it's been ordered. Radio contact no dispute about that and it was agreed that getting people off by helicopter - although Mr Harmse did it - call attention to difficulties there. The standby diver and the training in the bay that I've already referred to. Whether or not these are satisfactorily done is not got anything to do with 420(1)(g) that's really a red herring.

PN1755

The work is never ending when it comes to safety and will not end when the people go back to work. It's a daily, it's a daily responsibility that falls to all persons in the workplace. It was not said by anyone if there was so no evidence was called, so the assumption in Jones and Dunkel is there it was not said by anybody by way of discharging the burden of proof that they feared they had an imminent risk to their health or safety and would not do a particular job and then the employee did not unreasonably fail to comply with the direction. Now if I'd put formal words to the people in the witness box, they didn't say they didn't understand the question and they did not suggest under re-examination or otherwise that they ever did go there.

PN1756

The onus of proof must not be ignored. Mr Loring said then as to motivation, Mr Loring said he will continue the industrial action, again my words, not his until the MUA agreement replaces a non union agreement. Mr Harmse said words to the same effect. As to the reason for withdrawal of labour, 50 per cent of the witnesses Mr Harmse said he thought before talking to anybody, he thought the withdrawal of labour was because a delegate had been sacked. That's what he thought.

PN1757

MS HOWELL: He was told that.

PN1758

MR MCARDLE: Yes, that's his evidence. That's right, that's what he thought - that's a good point, he was told that, there was no suggestion that he didn't think it. There was no suggestion that there was some other reason that he was aware of, he went straight to the community gathering that was throwing the coffee, only once I admit. But he didn't, he certainly didn't go to his employer and bring up safety. So safety is not the issue that is a red herring because someone has looked up the book. The onus of proof is there, there's nothing in the book that will help here. The simple fact we have to confront, the fact is BF5, life will demonstrate:

PN1759

If you think your company is best serviced by a continued utilisation of Work Choices -

PN1760

I don't know where he gets that from, but anyway:

PN1761

Then all I can say is that life will demonstrate a different view.

PN1762

This is life demonstrating a different view. This is on the evidence of Loring, on the evidence of Harmse, on the facts of all of the documents this is an action organised by the MUA with the unwitting, perhaps, but nevertheless with the cooperation of the employees concerned to conduct industrial action to have an agreement of - an agreement pursuant to this Act cancelled and replaced with another agreement. The orders we seek are fully specific, exactly what we want and comprehensive if I may say so, if the Commission pleases.

PN1763

THE COMMISSIONER: Thank you Mr McArdle. Mr Coleman have you got anything to add?

PN1764

MR COLEMAN: Nothing to add thank you Commissioner.

PN1765

THE COMMISSIONER: The Commission will stand adjourned until 3 o'clock when I'll give my decision on transcript.

<SHORT ADJOURNMENT [1.31PM]
<RESUMED [3.05PM]

PN1766

THE COMMISSIONER: In relation to this matter I am satisfied from the material before me that there is a valid agreement within the meaning of the Act for me to deal with. I am also convinced that the union has failed the burden of proof which is relied upon in respect of occupational health and safety matters within the Commission. I am therefore convinced that an industrial dispute within the meaning of the Act has occurred between the Maritime Union of Australia and its members and the company. Therefore I propose to issue orders in the terms that the company has sought with the inclusion of a section, which the Commission normally adds to orders in respect of occupational health and safety. These orders will come into force from 7.30 tonight and remain in force until 5 pm on 22 March. The Commission stands adjourned.

<ADJOURNED ACCORDINGLY [3.06PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TERRENCE HARMSE, RECALLED AND RESWORN PN1101
EXAMINATION-IN-CHIEF BY MS HOWELL PN1101
EXHIBIT #H2 INFORMATION STATEMENT PN1118
CROSS-EXAMINATION BY MR MCARDLE PN1260
RE-EXAMINATION BY MS HOWELL PN1407
THE WITNESS WITHDREW PN1423
NICOLE DEMPSEY, ON FORMER OATH PN1431
CROSS-EXAMINATION BY MS HOWELL PN1432
THE WITNESS WITHDREW PN1522