RE2008/2293, Transcript of Proceedings [2008] AIRCTrans 566 (24 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19108-1

SENIOR DEPUTY PRESIDENT RICHARDS

RE2008/2293

s.771(4) - Application for order by Commission (unreasonable request)
Transport Workers’ Union of Australia
and
Virgin Blue Airlines Pty Ltd
(RE2008/2293)

BRISBANE

10.13AM, WEDNESDAY, 10 SEPTEMBER 2008

Continued from 9/9/2008

PN1177

THE SENIOR DEPUTY PRESIDENT: Appearances are unchanged and we're here for closing submissions. Is there anything else that needs to be added at this point?

PN1178

MR HORNEMAN-WREN: Your Honour, I should raise one matter and I haven't had the chance to raise it with Ms Bow because I raced down here quite late. I apologise, your Honour. As soon as your Honour rose yesterday afternoon, it occurred to me that the three photographs which were identified in the course of Mr Morgan's evidence, weren't actually tendered. In my submission they've been sufficiently identified and features have been pointed out and I would seek to tender them, although I've closed my evidentiary case.

PN1179

THE SENIOR DEPUTY PRESIDENT: We can do that. I don't think there's any great controversy over that, Ms Bow, is there, these three photographs? They're sufficiently alluded to in the evidence as to the positioning and location of the training rooms and in any event, the location of the training rooms are all known to me so it's a formality, I presume.

PN1180

MS BOW: Yes, just the same objection I had about them being introduced late yesterday.

PN1181

THE SENIOR DEPUTY PRESIDENT: That it was introduced late. I just need to identify them. If I recall we got up to VB6, I think, on the running order. Is that right? Yes.

EXHIBIT #VB6 BUNDLE OF PHOTOGRAPHS

PN1182

MR HORNEMAN-WREN: I' m grateful. Thank you, your Honour.

PN1183

THE SENIOR DEPUTY PRESIDENT: That said, nothing else?

PN1184

MR HORNEMAN-WREN: No, your Honour.

PN1185

THE SENIOR DEPUTY PRESIDENT: Ms Bow.

PN1186

MS BOW: Your Honour, this matter before the Commission today is about the allocation of rooms for the purposes of holding union meetings after a request has been made under section 760, with the appropriate right of entry notice being supplied to the company and the company allocating specific rooms to hold those meetings.

PN1187

There's no evidence before the Commission from any pit crew member that they object to having the meetings held in the muster room. In fact, it's just the opposite. The evidence given by the airport manager, Mr Morgan, is that there's never been a complaint made to management in relation to the meetings being held in the muster room.

PN1188

What is before the Commission is the evidence of one airside manager,
Mr Mathew Zuino, who stated that on four or maybe five occasions in the two years that he's been in his position, he's been rostered to work when there was a union meeting being held in the muster room, that on two out of those four or five occasions, he had a break at the same time that the meeting was going on, even though he has the ability to take his break whenever he wants. Mr Zuino also stated that on one of those two occasions when he was having his break, some 20 minutes into his break he was asked to leave the muster room by delegate Mathew Morgan, a statement that's emphatically disputed by Mr Morgan. In fact, his evidence was that he's never asked anyone to leave a union meeting.
Mr Zuino stated that he didn't make a complaint about the alleged incident, however, he did mention it to either Donna Garrett or Karen Crook as a passing comment, however, he can't remember which one or when it was.

PN1189

Donna Garrett gave evidence that she was the one that Mr Zuino spoke to but stated that she was told it was the organiser who had asked Mr Zuino to leave and that she had no idea what year that was, Ms Garrett did, however, confirm that it was not a complaint but a comment made in passing. In fact, Ms Garrett stated in her evidence she's never received a complaint from anyone in relation to the meetings being held in the muster room.

PN1190

The airport manager, Donna Garrett stated that the reason for deciding to stop the meetings from being held in the muster room was twofold, firstly, because she felt that anyone who didn't want to attend the meeting shouldn't have to and shouldn't have to leave the room, even though no one has ever made a complaint and secondly, because of changes made to security regulations regarding the assessment of risks.

PN1191

The security manager, Mr Bowden, stated that the changes came in in 2006 and that the airlines had until March 2008 to implement them. Mr Bowden gave evidence that the changes that were implemented were that in order to go airside photo ID must be shown by anyone who either has an aviation security identification card, an ASIC, or a visitor identification card, a VIC. When
Mr Bowden was asked when the decision was made that the TWU shouldn't be issued with a VIC, he said that he was asked for his opinion when he was asked to give a statement for these proceedings. Mr Bowden also gave evidence that he was unaware of any security problem that had ever been caused as a result of a TWU official being issued with a VIC and that although he was the national security manager he was unaware of what the practice was in other airports or with other airlines.

PN1192

The company would have us believe that it was only a coincidence that the security changes took place at the same time as this dispute, however, the people manager ground operations, Mr Nicol, gave evidence that the change was in fact triggered by the disputed right of entry which, if I remember correctly, was the very statement that brought all of the evidence back into the hearing that I was trying to strike out as irrelevant. Mr Nicol's statement was supported by Ms Garrett in her evidence.

PN1193

Ms Garrett also claimed that because during a meeting of 4 July 2008, which was arranged for the purposes of introducing Ms Brown as the new TWU organiser and the relevant official for the airport, that at that meeting there was a comment made by either Mr Connolly or Ms Brown, again she can't remember which one it was, that told her that they wanted to include the guest services employees in the meetings, even though in her evidence she stated traditionally the TWU have focused all their attention on the pit crew employees only.

PN1194

Both Ms Brown and Mr Connolly deny ever making a statement to that effect. In fact, they both say that all that was asked of Ms Garrett was if she would mind if they approached the guest services staff on that day at their workstations while they weren't busy and handed them an EBA survey. When questioned, Ms Garrett confirmed that she had been asked that question and had informed them that she would prefer if they didn't and a pile of surveys were given to Ms Garrett to hand out.

PN1195

It would appear as though Ms Garrett has used a simple request which was made out of courtesy, to make a decision that the TWU should represent their members differently than they have for the last eight years. The evidence before the Commission is that the TWU has never had any problems with access to its members or potential members in the guest services. There's no evidence before the Commission from any guest services staff that they have wanted to attend a meeting in the muster room and couldn't. In fact, the evidence from Ms Garrett is that there's never been any complaints from guest services staff at all.

PN1196

Mr Morgan stated in his evidence that on more than one occasion Ms Garrett has threatened that she could stop TWU meetings at any time she wanted to, a fact that remains undisputed by anyone, including Ms Garrett. It would appear that Ms Garrett has used the section 772 dispute in March 2008 over Mr Paulos not notifying her that he was onsite and the change in organisers as an opportunity to do just that. Not only that, but just three weeks after Ms Brown started, she made the unilateral decision that she would no longer allow the TWU to go airside and only one of the training rooms would be offered in the future.

PN1197

The evidence supports that there have never been any disruptions to the service in the eight years that the TWU has been holding its meetings in the muster room, nor has there ever been any industrial action in that time. The TWU claims that this is because of the effectiveness of the communication and the flow-on of information to members. The evidence shows that these changes that have been implemented in the allocation of the rooms has had a definite impact on the TWU's access to its members and potential members.

PN1198

Ms Brown gave evidence that she's never even been airside and that since she's been an organiser she's only had access to 20 members. Ms Garrett seemed quite pleased with that comment when she commented on the low numbers that have been attending the meetings in the training rooms.

PN1199

The respondent has tried to imply that there have been no unreasonable requests made by the company in relation to the rooms that have been allocated because the TWU has always been given a choice of rooms and therefore, there is no jurisdiction for the Commission to make an order under section 771 of the Act. The company has even gone as far as to say that the TWU has given their consent to the rooms that have been allocated.

PN1200

Ms Garrett stated that there was also a further discussion in the meeting on 4 July about the allocation of the Hendra room and that Mr Connolly was happy with that allocation. Mr Connolly has denied that conversation ever took place and one would have to believe that if the TWU was happy with the allocation of rooms, then we wouldn't be here now. Mr Nicol also made claim that the Hendra room was made available with the consent of the TWU but when he was cross-examined about what constituted consent and how that consent was given, he revealed that he didn't know, that he was only relying on what he had been told by Ms Garrett.

PN1201

Ms Brown gave evidence that she's never had a choice of rooms in which to hold a meeting. She stated that she notifies the company both by email and fax and that she is notified by email as to which room has been allocated by the company. Ms Garrett gave evidence that she made a unilateral decision that the meetings are to be held in the training rooms, whichever happens to be available at the time.

PN1202

The request by the company to use the training rooms is unreasonable because they're too far away from the members' area of work and the evidence shows that that had a huge impact on the access to union members and potential members. Section 771 of the Act provides that if the Commission is satisfied that an affected employer or occupier of the premises has made a request to the permit holder, as mentioned in section 751, 758 or 765 and the request is not reasonable, then the Commission may make whatever orders it considers appropriate in respect to the rights of the organisation or officials of the organisation to investigate breaches as mentioned in 747 to enter under an OH and S line in accordance with 756 or to hold discussions with employees as mentioned in 760 as the case requires.

PN1203

Without limiting section 1 the Commission may order that for a specified period, the permit holder who is exercising or who seeks to exercise rights under
sections 748 or 760 or under an OH and S line in accordance with section 756 or 757 is entitled to enter specified premises or a specified part of a specified premises for a specified period and exercise those rights.

PN1204

I won't go over the submissions that I put in in relation to the case law that I put in the outline of submissions as they're the same, unless the Commission would like me to do that.

PN1205

THE SENIOR DEPUTY PRESIDENT: No. My particular question to you is, section 771 of the Act anticipates three decisions being made by the Commission in normal circumstances. The first of those is the finding of fact and that is whether there has been a request of the particular type, of the requisite type that we've been discussing. Then there are subsequent two discretionary considerations as to whether or not that request was reasonable and then secondly, whether an order should be made subsequently.

PN1206

Dealing with the first finding of fact, and this is a matter I raised during the hearing, and that is which particular request is the request that you're asking me to turn my mind to.

PN1207

MS BOW: I was about to get to that. I was just going to skip over the decisions and what I was relying on from those decisions unless the Commission wanted to hear them.

PN1208

THE SENIOR DEPUTY PRESIDENT: You may have already implied from you've said, I suspect, but I'll let you proceed. Sorry.

PN1209

MS BOW: The applicant submits that it is a legitimate interest of the public to ensure that the requirement of reasonableness is given effect and this is done by ensuring that the rights of entry of union officials is effective, providing that it is undertaken in a lawful and non-disruptive manner. The applicant submits that in this case the request from the company to use the training rooms to hold all future meetings was not a reasonable request as that decision is a unilateral decision that was made prior to any request being made and each request should be considered on its own merits. The applicant submits that the request by the company to use the room known as the space on 24 July 2008 was an unreasonable request as it contained computers and a picture is attached to Ms Brown's statement as attachment AB3.

PN1210

THE SENIOR DEPUTY PRESIDENT: Are you saying the space was not an open space?

PN1211

MS BOW: It's now an open space.

PN1212

THE SENIOR DEPUTY PRESIDENT: You say that that's the one with all the computers on the desks and it's not one that's conducive to holding a hearing or otherwise. Is that right?

PN1213

MS BOW: That's correct, also that the request to use the training rooms for the holding of the future meetings is not a reasonable request as the access by the employees is they're too far away, which showed a definite impact on our ability to access our membership. It has denied the new organiser from actually even seeing the worksite or attending the worksite as she's not allowed airside.

PN1214

We believe that this is really an issue about airside and non-airside and has nothing to do with which room is being allocated, as long as it's non-airside. That's been a threat of the company and that was put forward in evidence by
Mr Morgan and not disputed by Ms Garret at all, that she's made those threats on numerous occasions that at any time she could stop the meetings of the TWU.
Effectively, with the attendance that's been in the Hendra room and the training rooms, that's been happening.

PN1215

THE SENIOR DEPUTY PRESIDENT: Just coming back, I should ask you, are you going to take me to the various training rooms and tell me the particular problems in relation to the various training rooms?

PN1216

MS BOW: I did that in the outline. I'm happy to do it again, however, I've already put that evidence before the Commission but I'm happy to do that.

PN1217

THE SENIOR DEPUTY PRESIDENT: I think it came through Mr Hall's evidence, if I remember. I shouldn't test my memory like that but I think it was Mr Hall's evidence that puts the position in relation to the various training rooms and that's the evidence that you're relying on, is it?

PN1218

MS BOW: Yes, it is.

PN1219

THE SENIOR DEPUTY PRESIDENT: Other than that, there's submission, but that's the evidence.

PN1220

MS BOW: And the fact that it's had that impact on the access to membership. The applicant submits that none of the rooms that were viewed during the site inspection on Monday, 14 April are suitable as alternative to the muster room which has been used without incident in the past and with the consent of the company. The applicant further submits that the Commission has the discretion under 771 to make an order pertaining to the location of the meetings in the future.

PN1221

THE SENIOR DEPUTY PRESIDENT: Can I just ask you, just in relation to the arrivals room and the Hendra room, but for your claims in relation to the monitoring of access and the movement time, what's the problem with the arrivals room and the Hendra room?

PN1222

MS BOW: It has impacted on the ability of members to attend. That's proven in the numbers that are - - -

PN1223

THE SENIOR DEPUTY PRESIDENT: That's common across all the training rooms is your argument. There's a nexus between that claim about reduced activity in the meetings and the designation of the training rooms.

PN1224

MS BOW: That's right, but it has impeded directly on our access to our membership.

PN1225

THE SENIOR DEPUTY PRESIDENT: Why is that the case? Why do you think that is the case?

PN1226

MS BOW: Because the employees just don't seem to want to leave their work area. That's where they spend most of their time. They have for eight years spent their time in there. They have whatever they do, their routines, it is close to the poolroom, the computers, the smoking area, all of those things. The training room is away from all of the lunch facilities, it's away from the activities that they normally do in their downtime. They feel that they can't monitor the aircraft. That came through quite clearly in the evidence that they can't see the aircraft and they can't react. They are concerned about what an impact it will have.

PN1227

As far as the company saying they won't discipline the employees for being late, if they are having a cigarette and they're late, they're disciplined so it's not as if the company won't discipline them for not being there on time. The evidence before the Commission was that it is an on-time service and that it is crucial that they get out there and do the turnarounds. They just feel that there's an impact to have to leave the area.

PN1228

THE SENIOR DEPUTY PRESIDENT: Why shouldn't I accept Ms Garrett's evidence that the company is prepared to undertake to manage its risk in relation to the designation of the training rooms as they may impact the responsiveness to your members, to employees to unscheduled arrivals? I think Ms Garrett's evidence was that anyone in that situation who had not been advised of an unscheduled arrival or a demand for their services would not be subject to a disciplinary sanction. Why shouldn't I accept that evidence?

PN1229

MS BOW: I believe Ms Garrett also said that it would be handled exactly - they deal with it all the time and that it would be handled the same way as they deal with someone who is out having a cigarette or out getting a coffee or has the left the area when an aircraft arrives and we know that's through discipline. It opens these employees up to discipline and they don't want to subject themselves to that.

PN1230

In relation to what the Commission takes into account from the BGC (Australia) Pty Ltd v Construction Forestry Mining and Energy Union, it says that - sorry, the Australian Services Union v Australian Tax Office, where the Full Bench states that:

PN1231

In considering whether an employer's request is reasonable for the purposes of section 513, the Commission is required ...(reads)... industrial law is also a relevant consideration.

PN1232

It goes on to explain in relation to the legitimate interests of the employer or occupier. The applicant submits that there have never been any interruptions or disruptions to the work. In fact, it has been a very smooth operation because the members are always informed. They're continually kept up to date. There's continual contact. It's on an ongoing basis where they feel free to come and go as they please and they can still get their questions answered and they still get all their information. That ability to come and go as they please isn't there when they're in the training rooms.

PN1233

The TWU has never acted unlawfully. No employees have been harassed during the meetings. No employees are excluded during the meetings. No employees are forced to attend against their will. There are other areas they can go. They can close doors to other rooms. If they were really concerned then in eight years there would have been some complaints. There has never been any formal complaints by anyone in relation to these meetings. The sole purpose of changing the place for these meetings is to try and disrupt the connection between the union and its members.

PN1234

In relation to the legitimate interest of the employees, the applicant submits that the room needs to provide easy access to all employees; be in close proximity to the employees' work area. The majority of employees are in the pit and they work outside on the tarmac. That is the area that we can actually access them; be of sufficient size to accommodate the number of employees; allow the employees who wish to attend the opportunity to attend; allow for monitoring of aircraft activity, which it doesn't do and not allow for monitoring of attendance. I know that they said that they wouldn't make any reports in relation to the swiping of the access cards, but you can still see who's leaving and who's coming and going to those meetings. There's windows. You can monitor people going through the airport, leaving their area of work to go up.

PN1235

THE SENIOR DEPUTY PRESIDENT: There are windows also in relation to the muster room, aren't there, in it's positioning next to the ASMs?

PN1236

MS BOW: They're not accessed by the public or other staff members. It's down to the right of the building and totally away from where anyone else has activity, other than the employees concerned.

PN1237

In relation to the legitimate interests of the TWU, we've never acted unlawfully or disrupted in the past. We have a right to hold the discussions with any employees who wish to be involved in those discussions and some of these employees can't access those meetings. They just don't leave the muster room. Some of them never leave the muster room during their shift, other than to attend to the aircraft. They are on the computers, they play pool, they have their lunch. One of the submissions put by the respondent in the problem with the muster room is other people want to be able to access the fridges and have their lunch in the lunchroom, not at their desk, not in another area, but at the lunchroom. The same goes for these employees, they want to have their lunch in the lunchroom and have their lunch while they're listening and talking to the union, just as they have for eight years.

PN1238

The applicant submits that it's the legitimate interests of the public to ensure that the requirement of reasonableness is given effect and that this is done by ensuring that the right of entry of union officials is effective, providing that it is undertaken in a lawful and non-disruptive manner. In this case it is not effective to put them up into the training room because the members aren't coming. There was a lot of involvement, it kept it running very smoothly. That's not going to happen any more. We have concerns that it's going to actually cause more disruptions to the operation having them moved away from where they were because of the inability to monitor the aircraft. The concern, if there is a meeting where there is a real issue that people want to be involved in, that they might be late for an aircraft. We believe that it's had a huge impact on our access to our membership.

PN1239

The orders that we're seeking are that the Commission - sorry, Virgin Blue Airlines Pty Ltd at level 7, 131 Berry Parade, Fortitude Valley, Queensland 4006 is to allow Mr Hughie Williams, Mr Scott Connolly and any other authorised official of the Transport Workers Union of Australia entry to the premises at the Brisbane airport controlled by Virgin for the purposes of holding discussions with members and employees eligible to become members of the TWU. In particular, Virgin shall grant the abovenamed officials access to the part of the premises known as the muster room. Virgin is to post a copy of these orders on staff noticeboards at the Brisbane airport and the parties have the liberty to apply to have these orders varied or set aside.

PN1240

That's the conclusion of my submission.

PN1241

MR HORNEMAN-WREN: Your Honour, can I first take you to some statutory context in relation to the setting of these proceedings. This is a bit trite, I apologise, your Honour, but I first ask your consideration of section 736 and the objects that are set out there, particularly, your Honour, in 736(a)(ii). Subsection (a) deals with establishing a framework that provides balance and the balance is under subparagraph (i), the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches, et cetera, and the rights of occupiers of premises and employers to conduct their businesses without undue interference or harassment.

PN1242

With respect, in relation to that latter aspect, there's some resonance in an issue which you've already raised with my friend about who assumes the risk of disruption to the business of my client in circumstances where the meetings are held in the training room. The TWU's submission is that they have concerns that there will be more disruption to the operations because of the matters that were set out in their material. With respect, that's a question of my client saying, "Thank you for your concern" but assuming - and I'll come to the evidence in relation to that in due course.

PN1243

Your Honour, can I ask you to note that in 737 which provides particular definitions at part 15, there's no separate definition of premises. There is a definition in the general definition section in section 4 of the Act. Can I then ask your Honour to go to section 760 and note that the primary work done by section 760 is to allow certain things to happen, that is a permit holder for an organisation may enter premises for the purpose of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose eligible employees means any employee who on the premises carries out work that is covered by an award or collective agreement that's binding on the permit holder's organisation.

PN1244

There's no controversy that the relevant instrument that is affecting these premises is the Virgin Blue Ground Crew Agreement 2005 and your Honour will note that in the definitions and interpretation section of that agreement - I apologise my print is not very clear on numbering, but there is a definition of ground crew and it's defined to mean an employee working as pit crew, guest services or in guest contract services. Then in respect to the parties bound and its application, the agreement applies to all ground crew. When one goes to the eligible employees, one these goes back to the agreement to find the extent of that coverage.

PN1245

I'd ask your Honour to particularly note that section 760 is directed towards entering premises and that has some significance, in my submission, in relation to the way in which the TWU, at least more recently, has sought to define the premises to which they seek to access rights of entry, particularly on behalf of Ms Brown. In my submission, the premises that are concerned are the broader definition of the premises that is reflected in the orders which Ms Bow has just sought on behalf of the TWU, that is, the Brisbane airport or that part of the Brisbane airport controlled by Virgin Blue. It's not, in my submission, that further aspect which they seek by way of further order, that is particularly the muster room that's sought by way of a particular order. Yet in the process of exercising or purporting to exercise the right of entry, the premises have in more recent times been more narrowly defined than what truly are the premises in this case.

PN1246

Your Honour has already raised with my friend the steps which the Commission needs to go through before it will exercise jurisdiction. With respect, your Honour, and I'll turn briefly to the evidence in a moment, insofar as a request has been made. The nub of the issue before you, in my submission, is the request that is now evident in the evidence of Ms Garrett that meetings will be held in one of the training rooms.

PN1247

Your Honour, my friend, and she's entitled to do so, seeks to fragment the case more than that and to say we'll look at each of the particular requests that have been held on earlier occasions. For reasons which are reflected in the evidence I say two things in relation to that, first, in respect of earlier requests that are said to have been made, your Honour would, in my submission, have difficulty in finding that it was a request such as to satisfy section 777(1)(a). For example, the
so-called request of 14 March, which has featured in evidence on both sides of the record, your Honour will recall that there's a suggestion in the TWU material that there was a request made on that date, or indeed a requirement imposed, to hold the meeting in the AMCO room.

PN1248

The evidence on my side of the record is that there was an offer made of three places within which to hold the meeting, one of which was the AMCO room, it being the only airside location suggested, and two others and that there was an election made by Mr Paulos, the union organiser, to access the AMCO room on that occasion. That's a matter of choice and election.

PN1249

Your Honour has no difficulty in accepting the evidence on my side of the record in that regard because it's in fact confirmed by the only TWU witness called who was privy to the conversation to which Mr Nicol deposes in my case on the day. Mr Hall, you will recall, gave evidence that he was the TWU delegate who was in attendance with Mr Paulos on that occasion. He confirmed under cross-examination yesterday afternoon that in fact there was the provision of a choice of three locations provided by Mr Nicol, as Mr Nicol had deposed to, and that Mr Paulos selected from those the AMCO room. Mr Paulos hasn't been called in the applicant's case so your Honour has no difficulty at all in accepting that such was the offer made.

PN1250

In those circumstances, to use that by way of an example, your Honour would have difficulty in finding that there was a request that it be held in a particular part of the premises as contemplated by the Act. But for all of that, your Honour, it really comes for a consideration in the second of the discretionary considerations that your Honour has raised with my friend, that is to say even if you were satisfied there had been a request and even if you were satisfied that it was an unreasonable request, which I'd obviously submit your Honour would not be, but even if you were satisfied of those two elements, your Honour wouldn't, on the evidence now, make any order in respect of such earlier requests or to address the situation reflected in earlier requests because of what the state of the evidence is before you as to what the future holds.

PN1251

Can I then turn to some of the evidence that I'd particularly direct your Honour to in that regard and in some others and, your Honour, it's perhaps convenient to just take you to some aspects of the evidence of Ms Garrett and the evidence of Mr Nicol and I'll take you through those aspects of their affidavit seriatim, as it were, rather than trying to go back and forward on particular issues because it's not one of those cases which is so voluminous in evidentiary content that fracturing it in this way hopefully won't cause - - -

PN1252

THE SENIOR DEPUTY PRESIDENT: Just come to that issue of the request and whether multiple requests can constitute the request. Am I right in presuming that both parties would share the view that the proper construction of the request in these circumstances is that Virgin Blue, irrespective of chronology but generally speaking, Virgin Blue has requested of the TWU that it no longer meet in the muster room but it meet in alternative settings and that those alternative settings are now taken to be all non-airside.

PN1253

MR HORNEMAN-WREN: I'd go so far as to say and particularly level 1 training rooms.

PN1254

THE SENIOR DEPUTY PRESIDENT: That's right because you've now written out the boardroom, I understand.

PN1255

MR HORNEMAN-WREN: That's so.

PN1256

THE SENIOR DEPUTY PRESIDENT: That's not on the menu any longer as a possibility fot election or for designation rather.

PN1257

MR HORNEMAN-WREN: Effectively, all the rooms with which contest has been taken that have otherwise been earlier offered have been removed from the bundle by my client and it advances only now the level 1 training rooms which, I would submit on the evidence, are the most appropriate of the rooms in any event.

PN1258

THE SENIOR DEPUTY PRESIDENT: The request is now a request that the TWU meet with its members and employees who are eligible to be its members in a training room, in a non-airside training room instead of the muster room as has been the case. Is that the request for your purposes?

PN1259

MR HORNEMAN-WREN: Yes. It's really captured in paragraph 38 of Ms Garrett's statement, which is VB5.

PN1260

THE SENIOR DEPUTY PRESIDENT: I'll ask Ms Bow to come back to this. Ms Bow, are you in a position to comment on that issue now about the nature of the request? Is that a proper construction of the request as has been put or do you have a different construction of the request?

PN1261

MS BOW: No, I believe that's the request. The request is that we've been asked to move our meetings from the room that we've held them in all of this time.

PN1262

THE SENIOR DEPUTY PRESIDENT: To cease the conventional, what has been the customary practice of meeting in the muster room and to conduct all your meetings in the non-airside training rooms.

PN1263

MS BOW: That's right.

PN1264

THE SENIOR DEPUTY PRESIDENT: You agree that that's a proper construction of the request for the purposes of satisfying - - -

PN1265

MS BOW: That there has been a request.

PN1266

THE SENIOR DEPUTY PRESIDENT: Yes, I shouldn't be distracted by particular requests and responses at particular times between 14 March and onwards.

PN1267

MS BOW: No, only from the point where the decision has been made that it's always going to be in the training room. In an industry that has high risk, that it always going to be in a training room on level 1, we believe that that's also an unreasonable request.

PN1268

THE SENIOR DEPUTY PRESIDENT: I understand that, but we're really - is there a date? Are we looking at 4 July or are we looking at - - -

PN1269

MS BOW: No, we're looking at 12 March when we were in here for the dispute under 772 and that was the very first time that it was raised that we sorted out all the procedures that would be entrenched in relation to right of entry and that was the very first time that it was ever raised, "And by the way, it will no longer be in the muster room." That's the point the request was made.

PN1270

THE SENIOR DEPUTY PRESIDENT: That's where the muster room was denied and on that occasion you had an opportunity for an airside meeting which was the AMCO room but be that as it may in terms of its functionality for the purposes of the meeting, that's different from what it has morphed over time to become by July, sometime in July which I think is a decision which has some crystallised shape in early July, probably after 4 July.

PN1271

MS BOW: Around the 24th, I believe, in Ms Garrett's statement. She said that she - in relation to the meeting of the 24th she in fact made a decision that all meetings would be held in the training rooms from that point on.

PN1272

THE SENIOR DEPUTY PRESIDENT: Are both sides agreed that that's the request that I should focus on for finding the essential fact to generate the jurisdiction.

PN1273

MS BOW: That's right, a unilateral decision made that that's where the meetings will be held, not on each individual application for a meeting, so to speak, under the Act, but a unilateral decision based on no other circumstances that that's where the meetings will be held are in the training room. That would be the mid July decision.

PN1274

MR HORNEMAN-WREN: Crystallised is a very good word for it, with respect, your Honour, and it's captured as I say - can I take your Honour to paragraph 38 of Ms Garrett and if your Honour can also have TWU7, which was Mr Connolly's affidavit and I take you also to paragraph 10 of that document.

PN1275

MS BOW: Sorry, which number of Ms Garrett, was it?

PN1276

MR HORNEMAN-WREN: Paragraph 38.

PN1277

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph? 10 of Mr Connolly, was it?

PN1278

MR HORNEMAN-WREN: 10 of Mr Connolly where he responds to this paragraph.

PN1279

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1280

MR HORNEMAN-WREN: And this really is the crystallisation of the dispute or the request I should say:

PN1281

On receiving a notice of entry of 24 July, Mr Connolly subsequently contacted Ms Crook and requested access to the air-side barbecue area or Amco meeting room instead of the training rooms on level 1. After discussing this with me, I decided that for all future visits only a meeting room on level 1 would be made available. I told Ms Crook about this decision and asked her to contact Mr Connolly by phone to which she confirmed that she had.

PN1282

So that, with respect, is the crystallisation of the request on the company's part and it is responded to by Mr Connolly who says in relation to paragraph 38:

PN1283

My request was for the use of an air-side room which is consistent with our right of entry notices requesting access to the ramp area to hold meetings.

PN1284

Now, I pause and make one observation there, your Honour. In my friend's submissions she says, well, really, this is just something which is about air-side and non-air-side on the part of the company. Well, to the extent that it can be categorised as such, it's equally categorised as such in the TWUs case and, in fact, the TWUs case is one of considerably shifting ground in relation to this matter because in the paragraph that I have taken your Honour to, Mr Connolly says himself it was a matter of us requesting air-side which is consistent with our access of the ramp area which I will take you to shortly, but you will recall is reflected in the entry notices, but, of course, what is now submitted to you in the conclusion of the proceedings and it's reflected in the submissions written which I will take you to is that it's all about the muster room from the TWUs point of view.

PN1285

It's air-side and the muster room in particular, but, your Honour, I think that with respect those two paragraphs do crystallise the request and it removes - in fairness to my client, it removes arguments to say, well, was there a request when three are offered and things of that kind. I really ask your Honour to put those to one side. That's not a point which with respect might have been a cute point to take in respect of earlier meetings, but once one gets to 24 July, there is a crystallised request and that's where your Honour's attention should focus, because particularly the focus should be upon that because of the ultimate discretionary consideration that your Honour has to come to consider.

PN1286

That is to say whether an order ought be made and the order ought be made only in circumstances where your Honour was satisfied that not only was there a request and that it was unreasonable, but that that ought be addressed by some order in futuro and with respect, that's where I route the submissions for the respondent. Does that satisfy your Honour's - - -

PN1287

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1288

MR HORNEMAN-WREN: Whilst I have you with Ms Garrett's statement nearby, can I just draw attention to some other aspects of that evidence? My friend's submission is in part that there have been no complaints. No-one has been requested to leave the room and there is effectively no evidence of anyone - there's no complaints from any pit crew. With respect, there is evidence of that, Mr Zuino's evidence in relation to his position as ASM, but also in respect of what he said of the other four people that spoke to him.

PN1289

Now, any concern about the hearsay nature of that was really overcome because my learned friend asked him about that in cross-examination and actually asked him for what it was that others had said and they had said that they were not comfortable being in there and that evidence is also reflected in Ms Garrett's statement and particularly can I ask you to note paragraph 30 because it does in some respects capture the issue.

PN1290

Ms Garrett admittedly voices an opinion, but she says that it means that the pit crew must choose to leave the room if they don't want to participate in a meeting as opposed to go to a particular room if they do wish to participate and, with respect, that is not at all an unreasonable position for the employer to adopt and it brings one to the consideration of what is the evidence about attendance at meetings before and subsequent?

PN1291

In addressing that, I would also make this submission in response to my friend's submission that the sole purpose of all of this was to disrupt the connection between the unions and its membership. That's the submissions put to you. It's a pretty bold submission with respect and it's one that one would have expected was reflected in a question to either or perhaps both Mr Nicol and Ms Garrett. One would suggest that if that is what is being alleged by the TWU, the airport manager would have been squarely asked that question or have it put to her and she simply wasn't.

PN1292

As to the evidence as to attendance at meetings, this is really what your Honour can draw from the evidence rather than what my friend would submit is the evidence, the evidence, with respect, that she has purported to give in her submissions this morning as to why people don't go, they just don't leave the muster rooms. Your Honour, I should say even if that was correct, even if it was that they were simply not motivated enough to go from the muster room because that's where they like to spend their day to a training room to meet with the TWU, well, so be it.

PN1293

If they're so unmoved to be attending a meeting with the union that they would rather just stay in the muster room because it's their comfort zone, well, so be it, but, with respect, the evidence of attendance at meetings is this. First, there's no evidence as to what the level of attendance used to be previously, other than that it was people who were in the muster room at the time. No-one has put that evidence on before you.

PN1294

Secondly, the evidence is and it's sought to be characterised or coloured in the union's submissions and in the evidence of Ms Brown as we have only had access to 20 of our members. No, the evidence is simply that 20 of their members have attended meetings, not that they have only had access to them. The evidence is that all of their members would have been notified by way of personal email of each of the meetings and all that can be drawn from the fact that she deposes to the numbers that have attended on particular occasions is that is the number that attended, not that they haven't had access to them.

PN1295

This is with respect resonant in paragraph 30 of Ms Garrett's affidavit in respect to the issue of choice. If only 20 people have chosen to go to the meetings, so be it. That is not to say that they have been unreasonably requested to hold their meetings in some place and what's more, there is evidence and the evidence of this is all somewhat confusing, the union doesn't claim, Mr Connolly confirmed it yesterday and each of the two delegates, Mr Hall and Mr Morgan confirmed it, they don't seek to exclude guest services staff.

PN1296

That's not their intention and one can readily understand why they would suggest or accept that that wasn't their intention when the rights they seek to exercise are rights to enter, have discussions with all eligible employees, so they don't seek to exclude them, even though they seek by more recent right of entry notices to hold the meetings in a particular area or part of the premises rather than the premises in general. Mr Morgan said, well, there was one occasion when two attended, two guest services staff and another occasion when another attended and that was over an eight month period that he had that position.

PN1297

Mr Hall said a few attended, so the evidence isn't to the effect that prior to there was no interest in guest services staff attending such meetings. The evidence is that on occasions guest services staff did attend. Mr Morgan frankly conceded that going to the training room is less inconvenient to pit crew staff than going to the muster room, the air-side muster room, is for guest services staff and then there's the evidence of Ms Brown as to who has attended since the change and, in fact, as Mr Morgan frankly conceded, it's doubt as far as guest services are concerned since these changes have been put in place.

PN1298

I said to him, well, what would you say if the evidence was that there have been two who have attended on two occasions since July and you will recall, your Honour, his response was, well, they would double it. Now, he might be surprised to note that is a fact, but a fact it is, so with respect, when one looks at the issue of attendance, there is not one piece of evidence that the union has sought to lead in these proceedings that is I am a pit crew member and I have not been able to attend a meeting that has been held in any of the rooms other than the muster room because it is inconvenient to me, I've not been able to go and I felt, for example, under threat of dismissal if I was late.

PN1299

There is no evidence that the union has chosen to call in the proceedings by anyone to say I have not been able to attend. They all have notice. Your Honour has evidence of that. They all have notice. They all have the opportunity to attend and no evidence by anyone to say I didn't because I couldn't, so, with respect, there might be - I withdraw that. The issue becomes then in looking at the numbers of attendance that it is equally open to your Honour to infer that in fact the numbers that attend now are reflective of the fact that it's not being held in the muster room where there is so to speak a captive audience.

PN1300

No-one can ever give the evidence and no-one has attempted to do so even in relation to what raw number used to be in attendance, but no-one can give the evidence as to even if 20, 30, five, 10 were said to have attended earlier meetings that all those people there were there because of choice or which were there because they just happened to be there when the meeting was being carried out and that is all your Honour can make of the evidence concerning attendance.

PN1301

There is nothing to be drawn from the fact that there is now low attendance, because there's simply no evidence to say there is a connection between it in any direct sense, I couldn't go to the meeting because. Your Honour, while I have you in Ms Garrett's affidavit, can I ask you just to note and your Honour did yesterday in the course of her evidence and raised it this morning the issues that are addressed at paragraph 43, the ultimate paragraph of her affidavit which concerns the operational issues.

PN1302

Ultimately those are matters for the company, your Honour. If the union is concerned about disruption, well, my client is concerned, but they assume the risk of that and the burden of that in paragraph 43 and what's more, your Honour, when properly analysed, this comes to effectively the three substantive grounds that are advanced in the union's case as to why the training rooms or others, but to concentrate on the training rooms, are inappropriate and I will say something about that test shortly, one of them being the absence of FIDS display screens and the evidence on the other hand is that supervisors have two-way radios and management can go and alert people of things of which they need to be alerted and the ultimate issue is addressed in paragraph 43 as to what the company view of that is if such communications don't carry out and people are late for those purposes.

PN1303

Can I also just say this in relation to that lack of communication of FIDS screens, for example? The answer the union has to people who don't want to attend the union meeting in the muster room if it's held in the muster room, the answer to that is, well, they can go into the adjoining room where the pool table is located and the computer terminal is located, but the evidence is also this, that what is not located in there is a FIDS screen, so the answer to, well, if you don't want to be in a union meeting where our members want to be because they want to be able to monitor these things is take yourself to a place where you can't monitor those things.

PN1304

It's just simply a non-secitur. There is also the evidence concerning the access of the ASMs. You will recall that there was some dispute as to - or Mr Morgan when I put it to him as to about whether or not the ASMs could in fact both access and exit through the two doors. The evidence is in Mr Zuino's statement at paragraph 3, Mr Zuino's statement being VB1 that one door can be used for exit only so that means that as far as access is concerned, the ASMs' access to their room must be through the muster room where the meeting is being conducted if they wish to enter into their area.

PN1305

THE SENIOR DEPUTY PRESIDENT: Just on one matter, I am not sure where it arose in the evidence, if it did, but Ms Bow has mentioned that there's been a custom of meeting - sorry, that meetings have been held in the muster room for an eight year period.

PN1306

MS BOW: That's correct, your Honour.

PN1307

THE SENIOR DEPUTY PRESIDENT: Is that a matter of evidence?

PN1308

MS BOW: Yes. I believe it was given by Mr Connolly in his evidence that as we have for the last eight years. It would be on transcript because it was in his evidence on the telephone that it's been for the last eight years, when he was questioned about it on the phone yesterday.

PN1309

THE SENIOR DEPUTY PRESIDENT: So it's in the oral evidence?

PN1310

MS BOW: It's in the oral evidence, your Honour.

PN1311

THE SENIOR DEPUTY PRESIDENT: All right. Sorry, go ahead.

PN1312

MR HORNEMAN-WREN: Not at all. I would remind your Honour also that no contest was taken by Mr Connolly with paragraph 24 of Ms Garrett's affidavit as to the lack of frequency of meetings previously, but that in more recent times they were more regular. I can't recall Mr Connolly's evidence in that regard. It's perhaps in answer to the question that I ultimately took some objection to. Your Honour, can I ask you to also have particular consideration to these aspects of VB2, Mr Nicol's statement, particularly paragraph 2, because there your Honour will actually find the numbers of the break-up of the 292 ground crew employees and you will see that 134 are engaged as guest service agents and 150 are engaged as pit crew.

PN1313

That is quite significant for reasons to which I will come shortly which are related to how the union seems to view the issue of eligible membership. Can I ask you to note the reference to the 50 per cent down time at paragraph 5 and you will recall that Mr Hall really didn't draw any contest with that. At paragraph 9 Mr Nicol makes reference to the fact that the supervisors have the two-way radios and at paragraph 14 he has something to say which with respect would be taken into your Honour's consideration in relation to the issue of air-side/land-side in relation to guest services staff getting access to the air-side area for such meetings.

PN1314

He makes the point that yes they are ASIC holders, they have the relevant clearance for that, but he makes the point that in order to go airside they have to go and get their high visibility vests from their lockers and then proceed to the security doors and checking screen, they have to go through the screening process and then gain access by way of the pass cards. That really comes to another of the issues which is advanced, another of the three issues which is advanced by the union concerning why it is inappropriate to be requested to meet in the training rooms, or indeed perhaps any area other than muster room and that’s the one of identification of who can go there.

PN1315

Now your Honour has touched upon the submission I was obviously going to make in any event, which is that the muster room is a high visibility area for the very reasons that the union points to in terms of one needs to be able to look out to see the plans arrive just as one can look in to see who’s attending. Compared that with training rooms they are all closed and as Ms Brown readily conceded provide necessary privacy within which to hold meetings of people to the exclusion of people who might otherwise not want to participate or perhaps in the view of the union ought not participate.

PN1316

The evidence in relation to that aspect is really quite unsatisfactory on the union’s part in terms of well it’s implicit that there are non members who are there, but the evidence from Mr Hall and Mr Smorgon is that it is really all one happy family and people you know are eager to participate. Well with respect Mr Smorgon wasn’t prepared to grasp the nettle on whether or not our yard meetings means a TWU meeting but with respect Mr Hall did grasp that nettle and he said effectively of course it does. That’s what it means there are a union meeting votes are taken by people who are members of the union.

PN1317

I should have drawn your attention also to paragraph 22 in Mr Nichol in relation to that issue of the need to swipe. Mr Nichol deals with the circumstances of the facilities and the capacity of each of the arrivals rooms and the Hendra room where the focus of proceedings now is in my submission and that’s at paragraph 30 and 31 of his evidence. He provides the evidence concerning having taken approximately measurement and timing of the time and distance to get from the muster room to the training rooms at paragraph 49 of his evidence and that’s where the 200 metres two to three minutes to which I referred in cross-examining witnesses for the TWU.

PN1318

THE SENIOR DEPUTY PRESIDENT: Mr Nichol doesn’t go to all the training rooms or the space does he if I recall? He goes to the arrival rooms and the Hendra?

PN1319

MR HORNEMAN-WREN: Hendra room which are the adjacent rooms in that area above and with respect as far as the evidence that’s contained in paragraph 38 of Ms Garrett’s statement is concerned, as far as the training room is concerned I understand that to be those that are being referred to.

PN1320

THE SENIOR DEPUTY PRESIDENT: Sorry so Ms Garrett’s evidence is narrowed to the arrivals room and Hendra room only, so the space will no longer be an option?

PN1321

MR HORNEMAN-WREN: Excuse me, I apologise the space is also adjacent to the arrivals room so it is in that area, so it’s not the arrivals, the Hendra would include the space also.

PN1322

THE SENIOR DEPUTY PRESIDENT: So it’s the arrivals room, the Hendra room and the space?

PN1323

MR HORNEMAN-WREN: That’s as I understand it.

PN1324

THE SENIOR DEPUTY PRESIDENT: There’s no evidence from Mr Nichol about the space though in respect of - - -

PN1325

MR HORNEMAN-WREN: I beg your pardon your Honour.

PN1326

THE SENIOR DEPUTY PRESIDENT: Is there evidence from Mr Nichol in relation to the space?

PN1327

MR HORNEMAN-WREN: There is concerning it’s distance and time.

PN1328

THE SENIOR DEPUTY PRESIDENT: There were issues about the space from the other side in relation to the - - -

PN1329

MR HORNEMAN-WREN: The space is not directed is not the subject of a discussions in his affidavit concerning the facilities.

PN1330

THE SENIOR DEPUTY PRESIDENT: It’s not so much where it is, I know where it is. The problem is the prevalence of the terminals on the sorry – the computer screens on all of the seating arrangements which may be a different function as a meeting room but rather a computer based training room, that was the argument on the other side.

PN1331

MS BOW: Yes, that’s correct but I believe the evidence is any of the training rooms.

PN1332

THE SENIOR DEPUTY PRESIDENT: Yes, I understand you have a position about all of the training rooms but you had some, you had drilled into some of them, some of them were too small, some were too encumbered by other apparatus such as the space as well, which was an enhancement of your general submission in relation to all training rooms.

PN1333

MS BOW: That’s correct and we haven’t made an application each time we’ve been given an inappropriate room, and because of the timeframes for the evidence there was no discussion about the other rooms that have been allocated in this period that are training rooms, so there are other rooms up there as well that are being allocated.

PN1334

THE SENIOR DEPUTY PRESIDENT: I think you protested against the Balmoral room as well as being too small.

PN1335

MS BOW: That’s right, the whole string of rooms that is along the training room the level one training rooms.

PN1336

THE SENIOR DEPUTY PRESIDENT: Yes. So the evidence I have before me through Mr Nichol is in respect of the Hendra room and the arrivals room.

PN1337

MS BOW: That’s right.

PN1338

MR HORNEMAN-WREN: I can’t take it any further than what 38 narrows it too and I don’t wish to narrow it any further than that.

PN1339

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1340

MR HORNEMAN-WREN: But I should say this in relation to the objection taken to the space on the basis that it has computer terminals on it. It seems as though with respect that the objection is no more than the presence of the terminals. There doesn’t – there’s no evidence to suggest that the presence of the terminals means that there is a requirement that people can’t for example eat their lunch, there are desks with terminals on them as opposed to desks without terminals on them. Of itself with respect a test of unreasonableness one wouldn’t really be satisfied that such was an unreasonable request.

PN1341

Your Honour can I turn then to some evidence concerning this issue of what the premises are? You’ll find it your Honour in the reply affidavit of Ms Brown which is TWU1 it is her affidavit not a statement it was made in reply but there wasn’t an earlier one. In the notices which are contained in AB1 you’ll see that the notices that are contained there are first relating to the entry to be gained on 11 July, a notice that was sent on 9 July. The premises to which access was sought, or entry was sought was Virgin Blue, which in my submission more accurately describes the premises for the purposes of section 770, 760. You’ll see then in subsequent and one can understand why as the issue was crystallising in subsequent notices the premises are defined narrowly as effectively a place, the ramp, Virgin terminal.

PN1342

Now somewhat surprisingly with respect the person who issued this notice whose authority was asserted for the right of entry was unable to help the Commission at all, first as to why the ramp was nominated, secondly as to what the ramp even was, other than an area where work was performed or why any change in focus. Other than with respect for your Honour to draw the inference that the fact from the union’s point of view this is all about air side and gaining access air side and thus it’s been in relation tot he subsequent notices that were provided. Now if your Honour will just bear with me for a moment I wish to put my finger on a piece of evidence which I haven’t located in that context, but I wish to take your Honour to.

PN1343

It’s where in the evidence one of the TWU witnesses equates the ramp with the muster room. I’m embarrassed your Honour I can’t put my finger and I’m perhaps going to have to locate it for your Honour in a moment. I don’t wish to overstate the evidence without being able to take your Honour to it with precision. I’ll come back to it, I apologise. Just returning then your Honour to the issue of access to the area and it being able to be traced, the evidence is obvious as to if management had any desire to know who was at union meetings, then its more able to do so in respect of where the union wants to meetings to be held than any other location. There is no substance at all to the suggestion that there can be tracking that will be carried out, first because there is you would clearly accept no inclination on the part of the company to do so. There is no evidence of it having exercised its already existent ability to work out who is there.

PN1344

There is the evidence of the security manager who says well it doesn’t even end with the airport manager making a request for me, unless I can be satisfied that it is a request fro a proper purpose which simply tracking who was there for the union members, a union meeting would not be but it wouldn’t be issued and I’m the only person or my office is the only are that can generate those reports. But what’s more as a matter of actual practicality all that’s required is the swipe of a card to open a door and allow access through the door of those who are authorised to pass through it and that doesn’t require each person at all to swipe their card.

PN1345

In fact Ms Brown’s quite frank evidence was that given what she was seen and the way she gained access, if anyone was in company with one another she would not expect them to close the door, and open it, and close the door, and open it on an individual basis. With respect that really puts paid to this notion that there is some surveillance aspect that leads to this being some sort of an unreasonable request. So your Honour in summary each of the three advanced reasons why this particularly the training rooms would be inappropriate, or more to the point unreasonable, ought be dismissed, that is that the distance is too great and the time taken too great particularly when one takes into account the guest services staff who have access on the evidence the opportunity to go to those meetings since they’ve been held land side.

PN1346

The evidence of Mr Morgan that it’s more convenient, it’s more inconvenient for them to go the muster room than it is for the pick crew to go to the training rooms. The evidence concerning the surveillance issues and the evidence concerning the lack of ability to monitor the movements of the air transport ought be rejected. Your Honour can I then turn to some fundamental misconceptions that are reflected in the applicant’s case in that regard. Can I take you to the R45, the form R45? Your Honour will see that the applicant’s list of performance on behalf of the union, the performance day of 29 April, and you’ll see that at the foot of the formal form he says, a summary of grounds for the order is sought and draft order attached.

PN1347

Can I take you then to the summary of grounds? You’ll see at paragraph 4 the employees he has given a definition and correctly so, in my respectful submission:

PN1348

A number of eligible employees within the meaning of section 760 of the Act, that is employees who are members or eligible to be members of the TWU work at the premises.

PN1349

Can I ask you to note that the premises is then defined in paragraph 3 above:

PN1350

The company operates and controls premises at the Brisbane airport, the premises.

PN1351

As they do, and that’s correctly defined in my submission but it’s defined by way of the total of the operation and the area controlled by it, evidence of which is contained in Mr Nichol’s affidavit and in Ms Garrett’s. Having correctly identified the premises and the employees the summary of grounds then ventures into error. At paragraph 7 your Honour will see that the – that perhaps at that stage perhaps not quite crystallised scope of the request is set out:

PN1352

The company’s request that the TWU meet with employees in rooms other than the muster room previously employed for that purpose.

PN1353

Then at paragraph 8 one finds the company’s request that any discussions be conducted in any of the rooms suggested other than the muster room is not reasonable for the reasons that – then we see a number of them set out there under. When one reads paragraph 8 however it seems that really properly characterised the TWU’s position is that the muster room is really the only appropriate room for the conduct of their meetings. Paragraph 8.1 though is simply misconceived:

PN1354

A number of the rooms suggested by the company are located outside the baggage handling area where the employees –

PN1355

Not the capital E, employees your Honour:

PN1356

-work and are instead located in the terminal area.

PN1357

Well the employees having correctly been defined as being eligible employees working at the premises, it is just simply inaccurate to say that they are not suited, that the rooms suggested are not suited because they are located outside the baggage handling area, where the employees work. Employees do not work in the baggage handling area, the employees work in the premises. So too is paragraph 8.2 misconceived:

PN1358

Such of the proposed rooms are located within the employees areas of work are inappropriate for the purposes of holding discussions in particular because they are –

PN1359

And then matters are thereafter set out. Now 8.2.1 and 8.2.2 are perhaps respectfully overcome by the matter having crystallised further in July and then 8.2.3 does continue to have application though:

PN1360

Located some distance from the employees work locations this means that employee’s access to them during break times is problematic and creates difficulties for TWU officials in alerting members to their presence.

PN1361

With respect there is no evidence, none whatsoever that the TWU has any difficulty in alerting members to their presence. Quite the contrary, in Ms Brown’s affidavit she sets out a series of emails which can only be considered to be cooperative in their tone, whereby arrangements are being made for the notification of every employee of the attendance of the TWU officials on the nominated date. You’ll find that in AB2 to Ms Brown’s affidavit and indeed she frankly conceded when I asked her yesterday that Ms Garrett was completely cooperative in relation to those matters. So 8.2.3 is misconceived and also just can’t be made out.

PN1362

8.3 is also misconceived:

PN1363

Each of the proposed rooms requires swipe card access.

PN1364

Well the evidence is to the contrary the training rooms don’t require swipe card access at all. Access to the area requires access – requires swipe card access as your Honour put it yesterday ubiquitously to a generalised area and that’s as far as it can go, just as access is required by individual swipe card more so to go to air side than it is to go to land side because each of the people going air side must swipe and in respect of the guest services and indeed everyone else there is a public face to photo identification process that must be gone through as well. Ms Bow in her submissions this morning says you know people can see them walking across the public area of the airport if they have to go the training rooms.

PN1365

Well with respect Ms Bow’s proposition on behalf of the TWU is that the guest service staff line up and have themselves photographically identified in order to attend the meetings. Your Honour much of the tenor of the grounds are directed towards issues of appropriateness now whilst appropriateness is a consideration in reasonableness, it’s not of itself the same test and one should not equate the two matters. Can I then ask your Honour to turn to paragraph 11 of the applicant’s outline where the misconception continues? The applicant submits the muster room is the most appropriate room to hold the meetings and that during the meetings held, in the muster room it is not a lunch room, it is a common room used by all pit crew between aircraft activity.

PN1366

It allows for the monitoring of aircrafts activity, it allows all employees to listen in on meetings. Well first, it seeks to say it’s appropriate, or the most appropriate because all pit crew are there. Well the evidence is that that is about 50 per cent of the eligible employees and then it goes on to say at (c):

PN1367

It allows all employees to listen in on meetings.

PN1368

Well quite clearly it doesn’t it doesn’t allow the guest services staff who are otherwise not going to be there. It allows employees to eat their lunch, well there’s no suggestion that they can’t do that elsewhere. And you would be satisfied that (f) and (g) really have no basis of being made out in the sense of what is now being offered is of adequate size to accommodate everyone’s wishes to attend and their identification issues that I’ve already addressed. In that regard your Honour the right of entry notices issued by the union that it sought to narrowly confine the premises to be a part thereof, is itself a misconception as to what the power being exercised is.

PN1369

That what is intended to be addressed is the overall premises is quite clear from provisions of the Act that fall within part 15 itself. Particularly can I ask you to note the example that’s most evident which is in section 764 where it expressly refers – and this is the – it’s not applicable here because there’s no residential premises concerned but the division does not authorise a person to enter any part or premises that is used for residential purposes. Now your Honour the issue of what were or what are premises received some consideration by a Full Bench of the Commission under the old regime, if I might refer to it as that. In Moranbah and North Coal and the CFMEU it’s at 103 Industrial Reports 267. I can provide your Honour with a copy of that.

PN1370

MS BOW: I object your Honour shouldn’t this have been submitted in the evidence as was done by the applicant. I mean I thought everything had to be included in the submissions that were put in by both the applicant and respondent in accordance with directions.

PN1371

THE SENIOR DEPUTY PRESIDENT: I think it’s entitled in closing submissions to refer to cases through exploring issues of construction, it is acceptable on those grounds.

PN1372

MR HORNEMAN-WREN: Your Honour much of the decision is not material at all to the consideration the actual dispute, part of the case is whether or not there was a dispute so defined, concerned access – well the appeal concerned orders made by Commissioner Hodder concerning or conferring a right for the CFMEU to hold meetings with members in the crib room underground at Moranbah North and there was an appeal against that on a number of jurisdictional bases, one of which was that in terms of 285G as it then was, it conferred rights beyond those that the Act allowed et cetera.

PN1373

But your Honour the issue that is relevant for present purposes appears on page 279 of the report. If I can ask you to note from paragraph 41 onwards that is whether – the issue is whether it was an industrial dispute about the operation of division 11(a) and then at 42 the next issue is whether contrary to 85G the order made by Commissioner Hodder conferred powers additional to the powers exercisable under division 11(a). But what is said and I wish to draw your attention to is that at 45:

PN1374

It appears to us that Moranbah North is premises within the meaning of 285C that is premises in which work of a type described is carried on and in which employs the type described work. If this is so 285C entitles an official of the CFMEU who holds a permit in force under division 11(a) to enter those premises –

PN1375

Subject to the exceptions:

PN1376

-for the purposes of holding discussions with any employees et cetera who wish to participate.

PN1377

Now one has to be mindful of the statutory context in which this decision was made compared to the issue that is before your Honour. Of course under the older provisions there was not a provision such as that for your Honour’s consideration here as to the right having the limitation of reasonable request to be held in a particular room or area as is contained in section 765 subsection (3). So there is no question in this case that goes to reasonableness et cetera, now I should perhaps provide your Honour just for completeness, a copy of the decision below which was Commissioner Hodder’s decision, simply because it recites the relevant factual considerations which are of course very different to the case that one has here.

PN1378

You’ll see that in that case for a start they are talking about a meeting being held underground and very limited areas in an underground coal mine where one could otherwise have such meetings. You’ll see at paragraphs 5 and 6 there’s some record – and I take you to this your Honour only because it will provide some factual background to the facts that aren’t disclosed in the appeal report. You’ll see that there was a concession made that the officer could go underground but could not go to the crib room and he was to be provided with a suitable out by area to talk to the employees who wished to. You’ll see then it goes on at (6):

PN1379

Later it became a proposal to drive a four wheel drive motor vehicle used for personal transport of a table and chairs and additional cap lights for visual purposes but only in the out by area et cetera.

PN1380

Now with respect in terms of a reasonableness issue if it emerged in this case, then it’s very – the Moranbah case it’s very different to the provision of an adequate training room with tea and coffee making facilities et cetera as is being proposed here. So I take your Honour to that because I don’t wish your Honour to be distracted by the ultimate conclusion of the Full Bench which was that the order made by Commissioner Hodder was within power under the old regime, in that it didn’t grant access rights beyond those the Act otherwise conveyed. It’s not a simple answer of saying well it’s authority for saying the crib room is somewhere that can be accessed, and by analogy the muster room here.

PN1381

In fact your Honour those sorts of particular factual considerations are very important both under the old provisions and indeed under the current provisions. No clearer example of that with respect could be evident than in the BGC case to which or upon which the union seeks to rely. The facts of the BGC case are with respect completely at odds with those that pertain in a case such as this. Particularly your Honour will be mindful of the location beside the containers out in the open, in the weather et cetera, which was proposed area for the meeting. But what that Moranbah case is authority for in my submission is the premises are to be the premises broadly defined where the work goes on.

PN1382

Beyond that you get into parts of the premises and here the union really seeks to by its right of entry notice define away the premises to say no, we want access to a particular place. Not premises as contemplated by the provisions, we don’t want access to your premises, we want access to your particular room within your premises and with respect that’s to invert the process. Now with respect in questions asked yesterday by Ms Bow, it became evident as to what really what the union’s attitude was to that. She was saying well that’s you telling us where to go, not us making a request to go to a particular place. There’s no right - - -

PN1383

THE SENIOR DEPUTY PRESIDENT: Well 771(4) addresses a part of that issue, potentially a part of that issue doesn’t it?

PN1384

MR HORNEMAN-WREN: In respect of - - -

PN1385

THE SENIOR DEPUTY PRESIDENT: It’s a convenience argument in 771(4) I think if I recall – am I right for memory?

PN1386

MR HORNEMAN-WREN: Maybe under - - -

PN1387

THE SENIOR DEPUTY PRESIDENT: It’s a qualification on unreasonable definition, on reasonableness.

PN1388

MR HORNEMAN-WREN: It’s not unreasonable simply because it’s where the other party would prefer to go, yes that’s quite right. I’m just 765(4).

PN1389

THE SENIOR DEPUTY PRESIDENT: 765(4), sorry I apologise.

PN1390

MR HORNEMAN-WREN: Yes, Your Honour no not at all. Yes for the purposes of subsection (3):

PN1391

If an effective employer occupier requests the permit holder hold discussions in a particular room or area the request is not unreasonable only because it’s not the room the permit holder would have chosen.

PN1392

With respect that’s really what gets asserted by the TWU here. We want to go to this part of your premises, that’s in fact so much so that we descend into defining the premises as that in our notice.

PN1393

THE SENIOR DEPUTY PRESIDENT: Well to give Ms Bow her due, I presume Ms Bow your argument in response to that is no, it’s a necessary location for the purposes of fulfilling your function and that the alternatives are a limitation on that function?

PN1394

MS BOW: That’s correct.

PN1395

THE SENIOR DEPUTY PRESIDENT: That’s your argument is it?

PN1396

MS BOW: Yes, it is.

PN1397

MR HORNEMAN-WREN: I can appreciate that but it’s important to bear in mind the way in which it’s reflected both in terms of the fact of the entry notice and the way in which those grounds are cast. One feature that is also absent in this case which is present in others as a consideration which may arise, is that there is some need on the part of the union to observe the work that is being performed. Now that’s not asserted, its a convenience argument as to them being there and convenient that they might be able to – the members might be able to come and go but there’s no evidence to suggest that they need to be there to observe the work that is being performed.

PN1398

I make that submissions because in the submissions this morning Ms Bow has said well Ms Brown as the organiser has even been denied the right to see the area, but with respect Ms Brown hasn’t offered any evidence to say that she has been denied that and that has confined her in the discharge of her duties. She in fact doesn’t know what goes on there other than in the broadest of terms.

PN1399

THE SENIOR DEPUTY PRESIDENT: Well can I just raise two questions then. If Ms Brown made such a request to observe the work that was being carried out would that request be accepted and secondly, if an application came forward that dealt with circumstances which required the work to be observed such as for example, there was an issue over some particular handling technique or something, how would they be dealt with under the approach you’re taking?

PN1400

MR HORNEMAN-WREN: I can’t obviously say it will be dealt with in this way, because that’s a matter I need to take some instructions on, I’m quite happy to do so but can I deal with it in a general way?

PN1401

THE SENIOR DEPUTY PRESIDENT: But can you – don’t forget my first question though if Ms Brown sought to observe the work - - -

PN1402

MR HORNEMAN-WREN: I’m endeavouring to deal with each of those.

PN1403

THE SENIOR DEPUTY PRESIDENT: All right, good.

PN1404

MR HORNEMAN-WREN: If Ms Brown sought to do it for the purpose of informing herself as to what goes on, which is effectively as I understand the first part of your proposition, first that is not a request in accordance with section 760, it’s not a request to hold discussions with members. That’s the point that I make. I without taking instructions on the matter, and I will do so in a moment, I would be very surprised if Ms Brown made a request to observe the operation so that she had an understanding of that for her duties would be refused.

PN1405

THE SENIOR DEPUTY PRESIDENT: It’s possible, it’s not germane for these proceedings but an issue did come up in Ms Brown’s evidence as to – well perhaps directly or by implication that is a new official of the TWU with limited experience in a particular environment, there may be some common sense requirement to observe the work, that’s being performed by the members that she is seeking to represent. So that’s a matter I think that should be dealt with by the parties, outside of this context.

PN1406

MR HORNEMAN-WREN: Indeed.

PN1407

THE SENIOR DEPUTY PRESIDENT: But I think it should be dealt with.

PN1408

MR HORNEMAN-WREN: Indeed and your Honour might I just say this, it’s a valid observation both in terms of its reasonableness of a request and indeed what a response might be. But it is outside the context of this.

PN1409

THE SENIOR DEPUTY PRESIDENT: Yes, I agree.

PN1410

MR HORNEMAN-WREN: Can I answer the second question, which was to observe a particular baggage handling procedure or something of that kind. Again it would be one presumes a right of entry access under different provisions of part 15 because it would fall within the OH&S.

PN1411

THE SENIOR DEPUTY PRESIDENT: Yes, it wouldn’t be for discussions as such it would be for other purposes and it may well warrant, it may well attract a different approach and if denied could quite well give rise to another application.

PN1412

MR HORNEMAN-WREN: Does that deal with each part?

PN1413

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, I just think it’s worth us all having a clear understanding of how those issues sits quite separately from one another.

PN1414

MR HORNEMAN-WREN: Your Honour for all those reasons you would be satisfied that there has been a request. That’s the concession I effectively made at the outset because of what’s crystallised at paragraph 48 of Ms Garrett’s statement, you would not in any way be satisfied on the union’s case that that was an unreasonable request. You would certainly be mindful of section 765(4) which says it’s not unreasonable just because they would prefer it otherwise. You would find positively that the request was reasonable and for those reasons you would decline to exercise any discretion. Well, your discretion wouldn’t arise further for the making of any orders. Can I assist your Honour in any other way?

PN1415

THE SENIOR DEPUTY PRESIDENT: No. Thanks very much.

PN1416

MS BOW: Thank you, your Honour. The first thing I’d like to point out is that all of the submissions were put in following the inspection by the Commission, at which time we were dealing with a totally different set of circumstances. This was about access to the employees of the ramp. It was a dispute that erupted about that access and that the only time – the first time that guest services ever came into the equation was in the submissions that were put in by the respondent following the submissions of the applicant.

PN1417

So the fact that in our grounds we didn’t address the guest services employees, this dispute originated or the dispute that was the catalyst for this, originated over access to the pit crew. It wasn’t about access to the entire workplace because we never had any problem accessing the guest services staff. We serviced them for eight years, just like we serviced the pit crew, only in another manner and there’s never been an issue arisen in relation to that. It’s not uncommon for a union to meet with different sections of employees at different times. The work performed by the guest services staff is totally different to the work performed by the pit crew.

PN1418

We’re now entering into enterprise bargaining and negotiations, an issue that was raised when we requested to hand out the surveys in July. That became very obvious. There needs to be ongoing meetings with different sections of employees in order to compensate or in order to address their specific concerns. I’m sure the guest services staff don’t want to hear what the problems are in the ramp area. Neither do the ramp staff want to be listening to what the problems are in the guest services area. That’s been the custom and practice - - -

PN1419

MR HORNEMAN-WREN: Your Honour, with respect, I’m loathed to do it but I’d rather my friend doesn’t use a reply to not only address matters of fact but to in fact give evidence.

PN1420

MS BOW: I’m not giving evidence. It’s not uncommon for that to happen. The only time the guest services ever came into this equation was when they submitted their evidence, after ours was in. It was never raised initially. It’s only become a part of it since that time. Since the meeting of 4 July, I believe, where it’s assumed or alleged that there was a request made to meet with them – the guest services employees to, I think, now include the guest services employees.

PN1421

In relation to Matt Morgan’s comments about the doubling of the attendance of the guest services, my understanding is and my recollection was that Mr Morgan stated that there was one guest services staff attended during his eight months as delegate. However, he was aware that another two had attended at another time, and I think that will be apparent in the oral evidence. When he was asked specifically about the two that have attended the meeting in the training room, he then said that it had doubled. Now, of course, it’s double since the one attended when he was delegate for eight months because two attended the meeting in the training room.

PN1422

In relation to the FIDS and not being able to access those in the computer and pool room in the muster room, if we can recall from the inspection, there’s a wall of windows that goes along the pool room and the muster room, and then up in the left hand corner is where the FIDS are located. You can look through the windows and see the FIDS at any time. So to say that that’s not appropriate to be in that room when you want to not listen to the meeting or attend the meeting, the FIDS are there that you can access them. There aren’t any, at all, in the training rooms.

PN1423

In relation to employees could be monitored just as easily in the muster room as they could in any other room, there is absolutely no way to identify who is a union member and who isn’t if you look in the window of the muster room. No one’s ever been excluded from a meeting, no one’s ever been excluded from participation whether or not they’re a union member or not, and there is absolutely no way you could tell who is a union member and who isn’t.

PN1424

In relation to people that might go up to the muster room – or might go up to the rooms up the top, then you could definitely tell who is a union member and who isn’t and in order to – for access to those areas to be in accordance with how it was described by the respondent, one would imagine that there would be a group of employees that would walk through the public area to the door and the door would be held open for all of those employees to enter at once.

PN1425

We’ve already explained over and over that people come and go to these meetings constantly, so there isn’t that bulk access to the meeting all at once where they’re all going to walk in and the door is held over for everyone to go in. There will be a spattering of attendance both ways. The difference between the guest services staff if that was is issue was, they’re already on that side of the airport. They don’t walk through the public and through the people that are lining up.

PN1426

The evidence shows that there is no choice in relation to the rooms. That’s already been established. As far as Mr Zuino goes, he couldn’t remember the four people that allegedly made a complaint to him or made comment or left the room. However, he’s in charge of those people. He’s in a supervisory position. You would think that four people, you could identity who they were. He said he couldn’t remember who they were. It just happened.

PN1427

In relation to the objects under 736 and the balance, I don’t believe you can get much more balance in a workplace. There’s been no disruptions in the time that these meetings have been held the way they have been held. There’s been no industrial action. There’s been no complaints made, no formal complaints, for eight years. That’s pretty balanced if you ask me.

PN1428

Now, in relation to the two groups of employees, perhaps the most effective outcome would be to have two separate meetings and that the training rooms be acceptable for the meetings of the guest services staff and that we continue to meet the employees in the ramp area - - -

PN1429

MR HORNEMAN-WREN: If this is an application to amend, I oppose it, your Honour.

PN1430

MS BOW: It’s not an application to amend.

PN1431

MR HORNEMAN-WREN: With respect, I’ve allowed my friend to go on and basically make a reply on matters of fact and continually to do so, but with respect, to invite your Honour to make separate orders now is just beyond what should be tolerated.

PN1432

MS BOW: I withdraw that. I believe that once there is a request that is deemed to be not a reasonable request, then under this section the Commission is free to make whatever orders that it deems appropriate in the circumstances anyway so I don’t really have to go into that.

PN1433

THE SENIOR DEPUTY PRESIDENT: Is the request the request to meet in the designated areas, that being the training rooms and the test of unreasonableness is applied to that request, or is the test of not being reasonable applied to the request to not meet in the muster room? Do you see what I mean? There’s a distinction.

PN1434

MS BOW: I would say that they’re both unreasonable, your Honour. With all due respect, it’s about meeting with these employees in their work area.

PN1435

THE SENIOR DEPUTY PRESIDENT: It’s just an issue of construction of the Act, and that is, is the Act inviting me, that is, the Commission, to evaluate the reasonableness of the request insofar as it denies a course of action or so far as it invites a particular course of alternate action, and in this case, is it a case of – is the unreasonableness the test of refusing access to the muster room or is it to the invitation to meet only in the designated training rooms? Take your time. If you’d like to discuss that you can.

PN1436

MS BOW: Thank you.

PN1437

MR HORNEMAN-WREN: Can I perhaps respond?

PN1438

THE SENIOR DEPUTY PRESIDENT: No. I might just allow everyone an opportunity. I might, just to get our sequence working, there’s a question I ought to pose to both of you but I ought to have asked it first to Mr Horneman-Wren.

PN1439

MS BOW: Very well.

PN1440

THE SENIOR DEPUTY PRESIDENT: So we’ll keep – we’ll get our sequence in order, I think.

PN1441

MR HORNEMAN-WREN: Your Honour, it is in my submission, certainly the, as I recall, the latter proposition put by your Honour. That is that the request must be one to meet in a particular room. So here by way of example, the training room, rather than the request not to meet in the muster room. That, in my submission, is evident simply from the language of 765(3). That is, to do either or both of the following:

PN1442

To hold discussions in a particular room or area of the premises.

PN1443

To the extent that it’s expanded upon, one finds in the explanatory memorandum to the bill that introduced what was, I think, section 221 as originally introduced. In the summary section, in the regulation impact statement at the front of the explanatory memorandum, which was the explanatory memorandum to the Workplaces Relations Amendment (Work Choices) Bill 2005. I don’t have the EM number, I’m sorry your Honour, but I can provide the relevant pages to your associate.

PN1444

It starts at page 26 of the explanatory memorandum under the heading “Expand and Improve the Federal Union Right of Entry Regime” and it says:

PN1445

Right of entry provisions will be changed so as to –

PN1446

and then on page 27, the second dot point is:

PN1447

require a union official to comply with a reasonable request by an employer that the meeting or interview should be conducted in a particular room or areas of the premises and that a specified route should be taken to the venue.

PN1448

So with respect, it’s clear both on the face of the document and supported in the explanatory memorandum and, of course, one can go to the EM to find support that it is the request to hold it in a particular place or area, and area would be broad enough to take into contemplation the training rooms located landside but it’s not the latter – the former. That is to say, it’s not an unreasonable request not to hold it in the muster room.

PN1449

THE SENIOR DEPUTY PRESIDENT: So in your argument then, the question of the appropriateness of the muster room would arise in respect of – it would only arise in respect of the order, should one be made, having got it – and it’s assumed you got over the first hurdle of the unreasonableness of the request to meet in a training room. It would only be then thereafter that the status of the muster room would come into play in respect of the order.

PN1450

MR HORNEMAN-WREN: I think that might be gilding it a little bit on my side, with respect. I think that the appropriateness of the muster room, I don’t think I could characterise as being not a relevant consideration to the reasonableness of the request, to go to a particular place. So for example, because if I was to say that, I’d really be arguing that one could not consider the fact, for example, that the muster room is a place where they commonly are but that’s as high as it rises. It cannot be the focus of the - - -

PN1451

THE SENIOR DEPUTY PRESIDENT: Because what’s in my mind is that the prevailing authority in respect of consideration of all the circumstances for reasons that – in testing the definition of reasonableness is a global test and the statutory one supports a somewhat narrower – or appears on the surface to attract a somewhat narrower view of what ought to be contemplated.

PN1452

MR HORNEMAN-WREN: Yes. As I say, I don’t think I could stretch it to say that it becomes an irrelevant consideration.

PN1453

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Bow.

PN1454

MS BOW: From our view, your Honour, the request was made to meet with particular bunch of employees, the ramp employees, in their area of work and we believe that it was unreasonable to allocate the training room to accommodate that meeting.

PN1455

MR HORNEMAN-WREN: Your Honour, I’m loathed to have a second bite of the cherry, but what I should have said in conclusion is it cannot be categorised as – the focus of the inquiry is not the reasonableness of the refusal of a request to meet in a particular place. That’s not what’s contemplated by section 765.

PN1456

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you want to reply to that at all?

PN1457

MS BOW: That it’s unreasonable to – when we request to meet with a certain group of employees in one area and location of the area to then allocate a room that is in another area of the airport far away from where they work, we’re still standing that the unreasonableness is that it is in relation to this group of employees and that that room is an unreasonable request by the employer for us to hold our meeting with the pit crew in that area.

PN1458

THE SENIOR DEPUTY PRESIDENT: All right. Good. Thank you everyone. I think we’ve exhausted the opportunity for closing submissions. Mr Horneman-Wren and Ms Bow, can I both thank you for your assisting in adducing the evidence in these matters. I’ll reserve the decision, of course, and we’re adjourned for current purposes. Thank you.

<ADJOURNED INDEFINITELY [12.31PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VB6 BUNDLE OF PHOTOGRAPHS PN1181