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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1048827-1
DEPUTY PRESIDENT BOOTH
C2012/1405
s.739 - Application to deal with a dispute
Maritime Union of Australia, The
and
DP World Brisbane Pty Ltd; DP World (Fremantle) Limited; DP World Melbourne Limited; DP World Sydney Limited
(C2012/1405)
Sydney
10.08AM, MONDAY, 9 SEPTEMBER 2013
Continued from 07/05/2013
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN SYDNEY
PN232
THE DEPUTY PRESIDENT: Appearances, thank you, Mr Burns.
PN233
MR M. BURNS: M. Burns, yes, continuing for the MUA. Behind me I have MR W. SMITH, assistant national secretary.
PN234
THE DEPUTY PRESIDENT: Thank you, Mr Burns and you seek permission.
PN235
MR BURNS: I seek permission. Thank you very much.
PN236
MR C. O’CALLAGHAN: O’Callaghan, C., appearing as an employee of the Transport Workers Union. No need for permission, your Honour.
PN237
THE DEPUTY PRESIDENT: No need for permission, Mr O’Callaghan.
PN238
MR O’CALLAGHAN: Beside me is MR T. WARNE also from the Transport Workers Union.
PN239
THE DEPUTY PRESIDENT: And leave has already been granted to you by way of decision so won’t need to deal with that.
PN240
MR O’CALLAGHAN: Yes, your Honour.
PN241
MR D. PERRY: If it please the commission, Perry, initial D. I seek to - - -
PN242
THE DEPUTY PRESIDENT: Did you say Perry?
PN243
MR PERRY: Perry, Perry, initial D.
PN244
THE DEPUTY PRESIDENT: Thank you.
PN245
MR PERRY: I seek permission to appear for the respondent with MR LAMBERT and MS BLOMFIELD.
PN246
THE DEPUTY PRESIDENT: Yes, thank you, Mr Perry. So Mr Perry and Mr Burns, do you have a view about each other’s permission to appear?
PN247
MR PERRY: Consent, yes, it’s not opposed.
PN248
MR BURNS: That’s fine, no.
PN249
THE DEPUTY PRESIDENT: Very good, well, look, I still need to apply my mind as you know to section 596 of the Act and I have given this some thought already. I do think this matter is attended with some complexity, certainly of a scientific nature, potentially of a legal nature as well. I think there are some matters that are going to be raised by the respondent that still go to the jurisdiction of the commission, notwithstanding that there’s already been one decision in regards to that in this matter. So on that basis, permission is granted.
PN250
Now, I wonder whether we may commence by firstly talking about the conduct of the case and the flow that firstly, the applicant would see and then the respondent would see and then any differences we can deal with so that we can agree on that. Then I’d like to, before we begin, I’d like to just articulate my own understanding of the differences between the parties to you and have you tell me whether in your view I have that right and if I don’t then we need to just adjust that so I begin the case with a clear appreciation of where the parties are apart so I can apply my mind as the case unfolds to that part of the evidence and submissions that goes to those points. So maybe, Mr Burns, on the flow of the matter, to start off with.
PN251
MR BURNS: Deputy President, regarding the flow, the parties have had some discussion over the last week or so, two weeks. Today we’ll start by with the MUA’s evidence being brought. I have just the two witnesses, Mr Smith and Dr Robertson.
PN252
THE DEPUTY PRESIDENT: Yes.
PN253
MR BURNS: Dr Robertson is actually today in the County Court in Melbourne.
PN254
THE DEPUTY PRESIDENT: Yes.
PN255
MR BURNS: When I initially arranged with (indistinct) we sought to have that via video. There was no video and there will be no video so we’re going via telephone.
PN256
THE DEPUTY PRESIDENT: Yes.
PN257
MR BURNS: Which was locked in but as it turns out because we’ve relied on telephone, Dr Robertson has ended not thinking it would be an inconvenience to be in another trial at the same time. But he’s going to be made to call on at midday today. So I need to put him on first to get him.
PN258
THE DEPUTY PRESIDENT: Yes.
PN259
MR BURNS: He’s also I think in the courtroom now so I need to – it will take me a little bit of communication just to get him ready.
PN260
THE DEPUTY PRESIDENT: To get him brought in.
PN261
MR BURNS: So that if we grab him and deal with him - - -
PN262
THE DEPUTY PRESIDENT: Yes.
PN263
MR BURNS: - - -and then I bring on Mr Smith after that.
PN264
THE DEPUTY PRESIDENT: But just bear with me for one moment on that. You said that he’ll be available at noon.
PN265
MR BURNS: No, until noon.
PN266
THE DEPUTY PRESIDENT: Until noon, I beg your pardon. So we can have him am.
PN267
MR BURNS: I told him that if we’ve got him before that that he’s ours.
PN268
THE DEPUTY PRESIDENT: Okay, that’s all right.
PN269
MR BURNS: He understands - - -
PN270
THE DEPUTY PRESIDENT: And would you envisage much time being taken in submissions prior to us hearing from him? Are you going to make any overview?
PN271
MR BURNS: I don’t really think there’s much room today for submissions.
PN272
THE DEPUTY PRESIDENT: I just thought you might want to make some overview submissions.
PN273
MR BURNS: Not really, I think, Commissioner, pretty much you’ve had the handle on this case for a lot of time to know what the deal is.
PN274
THE DEPUTY PRESIDENT: Well, let’s hope – you’ll know that in a minute when I make my understanding.
PN275
MR BURNS: There might be a few odd points but I’m not sure how long Mr Perry wants to go. But I do caveat that if we go too long this morning we’ll run out of time for my witnesses.
PN276
THE DEPUTY PRESIDENT: Yes.
PN277
MR BURNS: And then I’ll end up having to bring Dr Robertson on tomorrow and I don’t want to do that.
PN278
THE DEPUTY PRESIDENT: Yes, no, no, I think it would be ideal if we can get Dr Robertson first up this morning. That’s good. Okay, and then following your witnesses obviously we will have the respondent’s witnesses?
PN279
MR BURNS: No.
PN280
THE DEPUTY PRESIDENT: No, okay.
PN281
MR BURNS: I think the respondent’s position – I’ll leave that up to the two other parties - - -
PN282
THE DEPUTY PRESIDENT: I beg your pardon, the intervener.
PN283
MR BURNS: I think I’ll sit down at the moment and my two friends can discuss the way that the rest of the matter is to be disposed, yes.
PN284
THE DEPUTY PRESIDENT: Yes, so maybe I’ll hear from the TWU.
PN285
MR O’CALLAGHAN: Your Honour, we don’t have any opening submissions to make at this stage. As regards to the flow of the proceedings we agree with the MUA that it would be prudent to get Dr Robertson on first and then Mr Smith thereafter. I have one of our witnesses, Michael Aird on standby in the city today and he can come up at short notice so we would think that would probably be the best course of action for today.
PN286
THE DEPUTY PRESIDENT: Yes.
PN287
MR O’CALLAGHAN: And then we have the rest of our witnesses coming in tomorrow.
PN288
THE DEPUTY PRESIDENT: Okay.
PN289
MR O’CALLAGHAN: Two of our witnesses, your Honour, are employed or rather employed and engaged. They’re having to take time off work. One of them is a contract carrier which will mean there’s no pay while he’s attending the tribunal.
PN290
THE DEPUTY PRESIDENT: Okay, so what is his name?
PN291
MR O’CALLAGHAN: Keith Stone, and there’s another employer driver, Mark Dixon.
PN292
THE DEPUTY PRESIDENT: Dixon, all right, okay. So we try to deal with Mr Aird today if we can?
PN293
MR O’CALLAGHAN: That’s right, your Honour.
PN294
THE DEPUTY PRESIDENT: Yes.
PN295
MR O’CALLAGHAN: Unfortunately, we don’t know how long cross-examination of Mr Smith is going to be today.
PN296
THE DEPUTY PRESIDENT: No.
PN297
MR O’CALLAGHAN: It may be that we can get the second of our official witnesses on, Mr Robert Pirc, this afternoon but I really don’t know at this stage.
PN298
THE DEPUTY PRESIDENT: So just to be clear, because the time – the little time I’ve had, I had to say, to attack the volumes of material that have been presented to me so far is I’ve just focused on submissions. So I apologise. But you’ve got Mr Aird, Mr Pirc, Mr Stone.
PN299
MR O’CALLAGHAN: Yes, Mr Nightingale in between.
PN300
THE DEPUTY PRESIDENT: Okay.
PN301
MR O’CALLAGHAN: So we plan to do, your Honour, is have the assistant state secretary give an overview of the TWU’s position generally. Then we have the officials who are involved in the case, which is Mr Glen Nightingale. And we would like to finish on the two drivers to give a view as it were from the ground.
PN302
THE DEPUTY PRESIDENT: Right.
PN303
MR O’CALLAGHAN: And we think, well we would certainly hope that should be completed by the end of tomorrow, maybe well before then. We just don’t know.
PN304
THE DEPUTY PRESIDENT: And that’s the order that you’d seek to bring those witnesses?
PN305
MR O’CALLAGHAN: Yes, yes, please, your Honour.
PN306
THE DEPUTY PRESIDENT: Aird, Pirc, Nightingale, Stone, Dixon.
PN307
MR O’CALLAGHAN: - - -because as indicated to the commissioner last week there are a number of logistical problems, shall we say, but we’ve worked around them with the parties and hopefully we should get – that should be able to meet their demands on us.
PN308
THE DEPUTY PRESIDENT: Okay, right, thanks, Mr O’Callaghan. And Mr Perry.
PN309
MR PERRY: Thank you, your Honour. We’re content with that sequence of events. We do have some cross-examination for Dr Robertson and Mr Smith that will take some time today. I do think we’ll get to Mr Aird but that’s probably as far as we will get today.
PN310
THE DEPUTY PRESIDENT: Okay.
PN311
MR PERRY: The other TWU witnesses tomorrow we don’t anticipate will take very long. We do require them for cross-examination but we don’t expect that to be as lengthy as the initial witnesses.
PN312
THE DEPUTY PRESIDENT: So all of the five TWU witnesses you will require for cross-examination?
PN313
MR PERRY: Yes, your Honour.
PN314
THE DEPUTY PRESIDENT: And if Mr O’Callaghan, it transpires that we’re looking like Mr Stone and Mr Dixon might be in difficulty for Tuesday would you then be willing to reverse the order so that you can convenience Mr Stone and Mr Dixon in terms of their employment and bring them on first? It’s something we can talk about towards the end of the day.
PN315
MR O’CALLAGHAN: I have their contact details, yes, your Honour. I don’t think it’s going to be so much of a problem with Mr Dixon as we can access – I’m pretty sure we can – access that it’s leave to attend and give evidence. But in the case of Mr Stone, he is a contractor so that’s going to create some difficulties for his income.
PN316
THE DEPUTY PRESIDENT: So just tell me what you’ve advised him about the time that he should seek to have off?
PN317
MR O’CALLAGHAN: To come in first thing tomorrow morning.
PN318
THE DEPUTY PRESIDENT: First thing, first thing.
PN319
MR O’CALLAGHAN: And I think they’re both willing to hang around for some time, your Honour. But what we’re trying to avoid is him spending the whole day here.
PN320
THE DEPUTY PRESIDENT: Yes, well, let’s review it at the end of the day but I certainly wouldn’t want to put him in any jeopardy so if needs be it might be that you need to run with your drivers first and then your officials second, if that won’t damage your case in any way, I’m sure.
PN321
MR O’CALLAGHAN: Thank you, your Honour.
PN322
THE DEPUTY PRESIDENT: Sorry, again, Mr Perry, then your own witnesses?
PN323
MR PERRY: Yes, your Honour. A couple of points to raise there. One is Ms Blomfield will be called as a witness in our case and she’s also my instructor.
PN324
THE DEPUTY PRESIDENT: Yes.
PN325
MR PERRY: So I’d be asking that she remain in the courtroom at the evidence.
PN326
THE DEPUTY PRESIDENT: Okay, let’s deal with that quickly now. Mr Burns and Mr O’Callaghan, any view about that?
PN327
MR BURNS: I don’t object, Commissioner.
PN328
THE DEPUTY PRESIDENT: Okay, Mr O’Callaghan?
PN329
MR O’CALLAGHAN: I don’t object.
PN330
THE DEPUTY PRESIDENT: Thank you, well, in that case, regard that as permission having been given.
PN331
MR O’CALLAGHAN: I’m sorry, can the same courtesy be extended to the officials who are instructing me?
PN332
THE DEPUTY PRESIDENT: Would you like me to take instructions on that, Mr Perry?
PN333
MR PERRY: Well, perhaps if I could just reflect on that, your Honour. Obviously the advocates require instructors but whether more than one is necessary remains to be seen. If I could just reflect on that.
PN334
THE DEPUTY PRESIDENT: Certainly.
PN335
MR PERRY: But I will call Ms Blomfield first in our case to minimise that issue. We then have three witnesses who are based outside of Sydney, your Honour who and we’ve had some communication with your chambers, I think, your Honour, about the possibility of a video link. What we had proposed was once the TWU closes its case we would be in a position to start to call our witnesses immediately. But what we would seek to do, your Honour, is to have video available for Mr Jena who is in Melbourne and I think that has been arranged already for 10 o’clock on Wednesday. We then have Mr Hume in Brisbane and Mr Holland in Perth.
PN336
What I had suggested to my learned friends was that we do Mr Jena at 10 o’clock and then we do Mr Hume at say 11.30 and then Mr Holland after the lunch adjournment, just so that we can minimise the disruption to the flow of the proceedings and we respectfully request that those arrangements be made and if it’s necessary, to interpose those witnesses in to the Sydney-based witnesses that can be done. But we’re optimistic that that can be done in a way which is as smooth as possible. So they are the logistical issues, your Honour.
PN337
THE DEPUTY PRESIDENT: And just spell that third name for me, if you would, Mr Perry?
PN338
MR PERRY: Mr Jena, J-e-n-a.
PN339
THE DEPUTY PRESIDENT: So I thought he was 10am on - - -
PN340
MR PERRY: He’s 10am from Melbourne.
PN341
THE DEPUTY PRESIDENT: And then 11.30 Mr Hume?
PN342
MR PERRY: Mr Hume from Brisbane.
PN343
THE DEPUTY PRESIDENT: And the third person for after lunch?
PN344
MR PERRY: And Mr Holland.
PN345
THE DEPUTY PRESIDENT: H-o-l-l-a-n-d.
PN346
MR PERRY: Yes.
PN347
THE DEPUTY PRESIDENT: Wonderful, okay. Ideally that would be - - -
PN348
MR PERRY: And then the final topic there has been some communication between the advocates about, your Honour, is how submissions are to be received. Obviously that’s entirely a matter for the commission but at this stage we don’t have one view or view one way or the other as to whether it’s best to do those orally or put in a written submission about that.
PN349
THE DEPUTY PRESIDENT: Yes.
PN350
MR PERRY: Certainly from the respondent’s perspective we’d like to see how we go getting through the evidence and if Thursday is clear then we might as well use the day.
PN351
THE DEPUTY PRESIDENT: Yes.
PN352
MR PERRY: But I think there’s an agreement between the advocates that we’ll just see how we go on that issue, your Honour, subject of course to any preference you may have as to how you wish the parties to put argument forward.
PN353
THE DEPUTY PRESIDENT: So I think that makes perfect sense that we need, to use the vernacular, suck it and see.
PN354
MR PERRY: Yes, your Honour.
PN355
THE DEPUTY PRESIDENT: In terms of submissions, if they’re oral, they’re oral. If they’re written then I prefer them to be written and exhaustive and not require another hearing date for them to be enhanced or amended or so it’s sort of one or the other. But if we can fit everything in so be it because I’ve already got of course quite a lot of material, the initial submissions that both parties have prepared, all of the witness statements which will obviously be augmented by their oral evidence and naturally I understand that final submissions would need to take into account the matters that have arisen but certainly I wouldn’t want you to repeat the whole set of submissions.
PN356
MR PERRY: If it please the commission.
PN357
THE DEPUTY PRESIDENT: But we will deal with that as time unfolds. In terms of just the timetabling for the day I mean ideally we will be beginning at 10 at tomorrow. I was envisaging because we’d allocated four days for the matter finishing at 4, because I’ve actually had to schedule some other matters in the afternoon of each day and in terms of the luncheon adjournment, 45 minutes seems appropriate for matters of this nature.
PN358
However, on Thursday I’m going to need an hour and 15 minutes to have an appointment that I couldn’t avoid. So it may be on Thursday we may have caught up some time anyway and that might not be too much of an inconvenience for the parties. But I’d envisage breaking for lunch at about 5 to 1 or 1 o’clock each day, if that suits you and I wasn’t planning on having a morning or afternoon adjournment. That seems to have gone by the way. When I was a young advocate in my early 1980s we enjoyed morning tea and afternoon tea but that doesn’t happen anymore. So I just thought I’d mention that as well.
PN359
MR BURNS: (Indistinct) the awards and that, you know for the, to comply with the award, Commissioner, for the court staff so I think Work Choices, that’s all seemed to just - - -
PN360
THE DEPUTY PRESIDENT: We run them into the ground. Well, since I was the advocate in the 1980s who won afternoon tea for textile, clothing and footwear workers I’ve always taken the afternoon tea quite seriously. But we won’t do it in these proceedings. Yes, Mr Burns.
PN361
MR BURNS: I just might say this. Mr Smith will be in court for Dr Robertson’s evidence so again, if I might just have leave for him to be here and instruct and I think if that’s all right, that just leaves us with the next issue of what the case is about.
PN362
THE DEPUTY PRESIDENT: It does, except we also need to get, I think, Mr Perry’s view of that and also finalise that question of Mr O’Callaghan’s instructing officials. So are you happy for Mr Smith to stay?
PN363
MR PERRY: I have no objection to that, your Honour.
PN364
THE DEPUTY PRESIDENT: That’s good. And what about, does that also go for Mr O’Callaghan’s question?
PN365
MR PERRY: I have no objection to an official being available to Mr O’Callaghan to instruct him.
PN366
THE DEPUTY PRESIDENT: An official or – it would appear that he seems to have two.
PN367
MR PERRY: Well, it would seem to me that to the extent that the number of people could be limited that’s preferable but I don’t have a strong view about that.
PN368
THE DEPUTY PRESIDENT: Mr O’Callaghan, do they each play different roles?
PN369
MR O’CALLAGHAN: Yes, and here is the person who is responsible for the patch at Port Botany. Michael Aird is a witness. He is a senior official. He is only coming in to give evidence and then will be leaving straightaway. He won’t be staying for the rest of the hearing.
PN370
THE DEPUTY PRESIDENT: Well, that seems to meet that test then, Mr Perry, if that’s all right?
PN371
MR O’CALLAGHAN: And Michael Aird is the first witness as well, your Honour.
PN372
THE DEPUTY PRESIDENT: Yes, very good, all right. Well, on that basis, I’ll take Mr Perry as not pressing an objection in relation to Mr Aird.
PN373
MR PERRY: No, your Honour.
PN374
THE DEPUTY PRESIDENT: Very good. Well, look, let me just articulate in a general sense where I think the parties are wanting me to focus but if I’ve got it wrong I’d rather you tell me now rather than get halfway through the case and infer that I have misjudged the situation.
PN375
So I’ve broken this up in my own way into sort of three categories of: there’s the substance of the policy which is of course meant to guide the practice at each of the ports in relation to the implementation of the Alcohol and Other Drugs Policy; the practice obviously being the most important aspect. Secondly, there’s the process of introducing the new policy and thirdly, there’s the jurisdiction of the commission to make determinations in relation to matters falling under either of those two headings.
PN376
In relation to the substance, the MUA have in presenting an amended application focused on the points that they’ve focused on and I don’t feel the need to reiterate those because they’re obvious from the face of the application. So the MUA’s contention was that the substance of the policy and the practice should reflect their amended application.
PN377
To the contrary DP World says in relation to each of those points, “No, that’s not right” and obviously that will be both scientific and other submissions that are made in relation to that. In relation to the process of introducing the new policy the MUA maintains that there was insufficient consultation and that further consultation should occur. DP World says and intends to lead quite a lot of evidence from the overview of the witness statements that I have been able to undertake to the point that a lot of consultation has occurred at each of the ports and the witness statements go to really a chronology of engagement with employees, including union delegates and officials.
PN378
Thirdly, in relation to jurisdiction the MUA says that the commission has jurisdiction to make determinations in relation to both substance and process and in particular has jurisdiction in relation to the points that they raise. And DP World says no, that in relation to substance this is a policy, that notwithstanding the reference to the policy in the agreement that does not give the commission if you like, an open chequebook to determine matters that are contained within the policy and that at the very least, I must take into account the principles enunciated in the XPT case but that in any event, it’s not just a question of what’s fair and reasonable. DP World says that this is a policy and the commission doesn’t have the power to determine what’s in a corporate policy that does not form part of the agreement.
PN379
Also DP World says in relation to consultation that the provisions of the agreement in respect to major change don’t apply to the implementation of this policy and so the consultation that is asserted as being required by the agreement in relation to the implementation of this policy is not the kind of consultation that would be required. So that’s as I’ve broadly understood it. If you need a moment to sit back and reflect on that I’d be very happy for you to take it, because I really want you to tell me, first of all, Mr Burns, and then Mr O’Callaghan and then Mr Perry if you think I’ve misjudged any of that.
PN380
MR BURNS: In relation to the MUA’s position, no, the points are set out in the amended application as articulated by Mr Smith in his statements as to where we’ve ended up and that’s consistent, your Honour, with we’re we’ve ended up in the consultation processes that have been in front of you. So that really is in relation to the process issue as well. Sure, there’s a state issue but the issue here is this is a national issue and again in the procedures before you this dispute arose as soon as this policy became live because of the lack of consultation bringing it back at a national level and all the branches dispute it anyway. So yes, but we have to deal with that.
PN381
But finally, jurisdiction, I don’t want this trial to turn into a groundhog day issue. I think we’ve already got a decision on those points and I don’t want to have to rerun that. There was commentary during the initial – when the TWU initially attempted to intervene as well about appeals. There has been time for appealing of the jurisdictional hearing. It did. That hasn’t been done so I think that and I have a concern today that we spend too much time dealing with this particular issue because this is the particular issue which I think will knock out my witnesses today.
PN382
THE DEPUTY PRESIDENT: Yes, I certainly want to run the argument today. I see it being infused but certainly upon a reading of the submissions of the respondent and an overview of some of the witness statements it does still seem to be a live issue at least in respect to the elements of the policy that are disputed by the MUA.
PN383
MR BURNS: Again, I think it should be dealt with at the end and not now - - -
PN384
THE DEPUTY PRESIDENT: Yes, certainly.
PN385
MR BURNS: - - -because we’ve already dealt with this and it’s a matter for us to consider in putting the submissions at the end.
PN386
THE DEPUTY PRESIDENT: Yes.
PN387
MR BURNS: But not have another preliminary argument now.
PN388
THE DEPUTY PRESIDENT: No, no question of that. Without even hearing from the respondent, I indicate I have no intention of inviting that. I just want to make sure that I’m on the right track as to what - - -
PN389
MR BURNS: Naturally, your Honour.
PN390
THE DEPUTY PRESIDENT: - - - separates the parties.
PN391
MR BURNS: Naturally the respondent has raised it so we’ll deal with it but my concern was that we had to deal with it now.
PN392
THE DEPUTY PRESIDENT: Yes, certainly, thanks, that’s good, Mr Burns. Mr O’Callaghan, my summary hasn’t explicitly mentioned you and I have to be whacked a couple of times, I think, for forgetting that you’re there at the bar table, but in general does that encapsulate the TWU’s approach to the matter as well or are there some refinements you’d like to add?
PN393
MR O’CALLAGHAN: Well, your Honour, I think one has to look at the involvement of the Transport Workers Union from the position that they’re in a different industry.
PN394
THE DEPUTY PRESIDENT: Yes.
PN395
MR O’CALLAGHAN: And therefore there are different, if you like, regulations, laws and procedures in place with regard to doing alcohol testing and there is also a difference in relationship between actual drivers and DP World.
PN396
THE DEPUTY PRESIDENT: Yes.
PN397
MR O’CALLAGHAN: So yes, we clearly have an interest in the content of the policy and we take issue with its implementation for sure. But I think that in applying the tests prepared to be applicable, it’s whether or not it is – when all the circumstances are fair – to apply a policy or impose a policy onto a separate industry without having any consultation at all. I mean that’s the essence of our argument.
PN398
THE DEPUTY PRESIDENT: Yes, because your submissions, if I read them rightly, really went to that question of consultation much more strongly than they did to particular points of the substance of the policy?
PN399
MR O’CALLAGHAN: Yes, your Honour. We’ve endeavoured to tie it in there by addressing the jurisdiction of the commission. We say that the MUA have an expectation, legitimate expectation, that all third parties who are attending the site should be to some degree consulted. And this is based on the premise of what’s in the Work, Health and Safety Act, the Code of Practice and just generally, just settled industrial principles when it comes to health and safety consultation. The idea that if you’re consulting with those who have the facts it’s more likely to be more effective in achieving its aim for a safer workplace.
PN400
Now, at DP World site here in Sydney, your Honour, you will hear evidence that the transport workers play a huge role. It’s a significant role. It’s an integral role of the operation there and thereby by imposing the policy on them has caused resentment and a lack of cooperation and has led to industrial dispute, we say. That’s not going to achieve the aims of providing a safe working environment for the MUA.
PN401
THE DEPUTY PRESIDENT: Okay, you’ll say more about that. Just again, for my clarity, Mr O’Callaghan, and I apologise that I have to ask this question but I’d rather ask it than not ask it, your concern, is it confined to the Port of Botany or is it in relation to the other ports as well?
PN402
MR O’CALLAGHAN: We intervene in this matter because of the dispute
that - - -
PN403
THE DEPUTY PRESIDENT: At the Port of Botany.
PN404
MR O’CALLAGHAN: - - -we see has threatened DP World, Sydney.
PN405
THE DEPUTY PRESIDENT: Right.
PN406
MR O’CALLAGHAN: However, the policy does have national application.
PN407
THE DEPUTY PRESIDENT: It does.
PN408
MR O’CALLAGHAN: So it will affect our branches in the other states.
PN409
THE DEPUTY PRESIDENT: And just to remind me, you’re appearing for the New South Wales branch of the TWU or for the national office?
PN410
MR O’CALLAGHAN: For Transport Workers of Australia.
PN411
THE DEPUTY PRESIDENT: Of Australia, well, that’s important for me to know that. I should have known it from the reading of the material so thank you for telling me.
PN412
MR O’CALLAGHAN: And in terms – can I just say this one last thing on jurisdiction, your Honour? As far as the TWU is concerned, and I understand the MUA, this matter has already been decided.
PN413
THE DEPUTY PRESIDENT: Yes.
PN414
MR O’CALLAGHAN: Your Honour gave the matter some consideration when we made the application which was 21 February and then you gave your decision on 7 May. When we made the application there was to use the colloquial term a veiled threat of an appeal. After you gave your decision that appeal was never forthcoming. It’s been some 17 weeks ago. And as far as we’re concerned the jurisdiction issue is settled and although surely I have perfectly every entitlement to make submissions on that jurisdiction issue and the powers of the commission, so be it. But it is certainly an issue as far as we are concerned and that shouldn’t concern the commission moving forward.
PN415
THE DEPUTY PRESIDENT: Thanks, Mr O’Callaghan. Mr Perry, just without necessarily responding, I really want you to respond to me and tell me whether you think I’ve captured the areas of difference between the parties and if not where I’ve got it wrong.
PN416
MR PERRY: Yes, I think you have captured the key areas, your Honour. Perhaps there are just two things I could raise while I’m on my feet. Your Honour, as my learned friends have pointed out, has made a ruling on jurisdiction. However, even with the resolution of that question then there’s a separate question about the commission has power to do the certain granular things it’s been asked to do and my recollection is your Honour pointed that out in the decision that you gave on 10 May so I just make that clear that - - -
PN417
THE DEPUTY PRESIDENT: Yes, yes.
PN418
MR PERRY: - - -we obviously have to for the conduct of this hearing this week live with that ruling but it does leave that question open.
PN419
THE DEPUTY PRESIDENT: Yes, I understand that.
PN420
MR PERRY: And in fairness to my friends I point that out at the outset. The second matter concerns the role of the TWU as an intervener and I’ll deal with that more fulsomely when the TWU opens its case. But we have a significant concern that what the TWU does is comes to the commission which is acting as a private arbitrator between the Maritime Union and DP World under a private arbitration clause in an enterprise agreement between those parties and it comes along as an intervener. What it seeks to do is put a very different and separate case to that which is put by the MUA. And if your Honour has had the opportunity to consider the written submissions and in particular the written submissions in reply of the TWU - - -
PN421
THE DEPUTY PRESIDENT: No, I haven’t. I’d best be honest, I have not.
PN422
MR PERRY: When your Honour gets time to look at them you will see that the contention which is put is fundamentally that DP World is in contravention of safety laws and that in some way enlivens an opportunity for them to seek orders in this commission. Your Honour, they’ve been to WorkCover about this issue. They’ve been to the state commission about this issue.
PN423
We have some real reservations about the relevance of all of that material to what is a dispute under an enterprise agreement and I’ll take your Honour to some decisions of Ives DP that have considered this issue in the context of the ABCC intervening in private arbitrations between parties and the reservations that his Honour expressed in those cases about the role of an intervener. But just in fairness to my friend, Mr O’Callaghan, I wanted to put that up in green lights at the start, seeing as we’re talking about the framework.
PN424
THE DEPUTY PRESIDENT: That’s really helpful, thank you. And just one matter: on the occasion, Mr O’Callaghan, that you sought leave to intervene there was a decision before the New South Wales Industrial Commission that was reserved. Is that decision still reserved?
PN425
MR O’CALLAGHAN: No, that’s been handed down, your Honour.
PN426
THE DEPUTY PRESIDENT: That’s been handed down.
PN427
MR O’CALLAGHAN: It’s quite a complicated decision to go through the detail.
PN428
THE DEPUTY PRESIDENT: So you might say I’d be better off not troubling myself with that one but if you do have it to hand up I’d like to a have a look at the picture before me.
PN429
MR O’CALLAGHAN: I could certainly give you – I haven’t got the full decision but I can certainly give you the citation.
PN430
THE DEPUTY PRESIDENT: Okay, well, I’ll let that unfold as you give your submissions. All right, anything further, Mr Perry?
PN431
MR PERRY: My recollection is that decision is actually an attachment to one of the respondent’s witness statements so we can take your Honour to that in due course.
PN432
THE DEPUTY PRESIDENT: All right.
PN433
MR PERRY: Suffice to say the outcome was that leave was granted to DP World to be removed as a respondent to that proceeding.
PN434
THE DEPUTY PRESIDENT: So when I take three weeks’ leave that I’ll be required to take in order to absorb all of this mass of material and prepare my judgment I’ll have a look at that as well.
PN435
MR PERRY: I don’t think it will trouble you for too long, your Honour, other than just to see what the outcome of it was.
PN436
THE DEPUTY PRESIDENT: All right, good, thanks, Mr Perry. All right, so with no further ado, should we commence? Mr O’Callaghan, did you want to say something?
PN437
MR O’CALLAGHAN: Yes, your Honour, sorry to trouble you. I’m just concerned about what Mr Perry says. Just to clarify whether or not he’s seeking to limit the scope of our intervention because - - -
PN438
THE DEPUTY PRESIDENT: Well, let me tell you what I think he’s saying.
PN439
MR O’CALLAGHAN: It was what he dealt with in his submissions.
PN440
THE DEPUTY PRESIDENT: I think he’s going to tell me in submissions that there are certain things I can’t determine and I don’t think he’s going to say you can’t say this or that, simply that I shouldn’t put weight on that and I shouldn’t make a decision in relation to it because it’s outside of the jurisdiction of the commission to do so. Is that fair?
PN441
MR PERRY: It is, your Honour, and there will also be some evidentiary objections taken on relevance grounds.
PN442
THE DEPUTY PRESIDENT: All right, well that will be interesting.
PN443
MR PERRY: But the light of country is the same.
PN444
THE DEPUTY PRESIDENT: We’ll cross those bridges when we come to them then.
PN445
MR PERRY: That’s why I haven’t sought to deal with them now.
PN446
THE DEPUTY PRESIDENT: Yes, good, thanks, Mr Perry. All right, so Mr Burns, shall we see if we can dial up your first witness?
PN447
MR BURNS: I’ll just go and get him. I need to get him out of court.
PN448
THE DEPUTY PRESIDENT: Of course.
PN449
MR BURNS: 10 minutes, please.
PN450
THE DEPUTY PRESIDENT: Look, we might just take then a short adjournment just so the parties can feel comfortable off the record conversing with themselves.
PN451
MR BURNS: Thank you.
PN452
THE DEPUTY PRESIDENT: We’ll take two or three minutes and I won’t go away so my associate will come and get me as soon as you’re ready.
PN453
MR BURNS: All right, thank you.
PN454
THE DEPUTY PRESIDENT: The commission is adjourned momentarily.
<SHORT ADJOURNMENT [10.43AM]
<RESUMED [10.51AM]
PN455
THE DEPUTY PRESIDENT: Dr Robertson, this is Deputy President Anna Booth of the Fair Work Commission. Do we have you on the line? He hasn’t been called yet. I beg your pardon. So Mr Burns, we’re going to ring him?
PN456
MR BURNS: He’s on his - - -
PN457
THE DEPUTY PRESIDENT: Are you ready?
PN458
MR BURNS: Yes.
PN459
THE ASSOCIATE: Dr Robertson?
DR ROBERTSON: Yes.
<MICHAEL DAVID ROBERTSON, AFFIRMED [10.52AM]
THE DEPUTY PRESIDENT: Thanks, Mr Burns. Before Mr Burns asks you some questions, Dr Robertson, let me thank you for breaking your court appearance to join us here in the Fair Work Commission, today?---Not a problem at all.
Mr Burns.
<EXAMINATION-IN-CHIEF BY MR BURNS [10.52AM]
MR BURNS: Thank you, Dr Robertson, thank you for coming here today or being on the phone here today. You have provided a report, dated 25 June 2013 that’s addressed to me?---That’s correct, yes.
PN464
In that report you outline that you attached a curriculum vitae outlining your experience as a forensic consultant experienced in matters including drug and alcohol science?---That’s correct, yes.
PN465
And the nature of the report is that you’ve essentially commented on a number of issues that have been put to you in a report request letter from me. Is that correct?---That is correct, yes.
PN466
And the issues that you were asked to addressed are outlined clearly in your report?---They are, yes, they are.
PN467
And your responses to those are there?---That is correct.
PN468
Listen, that’s all I have to ask you at the moment. I’ll hand you over to my friend, Mr Perry and I thank you for appearing, thank you?---Thank you.
PN469
And I tender the report, your Honour.
THE DEPUTY PRESIDENT: Yes, that’s contained in a document headed IFC, Independent Forensic Consulting, dated 25 June 2013 and that will be marked MUA1.
**** MICHAEL DAVID ROBERTSON XN MR BURNS
EXHIBIT #MUA1 REPORT BY DR ROBERTSON CONTAINED IN A DOCUMENT HEADED "INDEPENDENT FORENSIC CONSULTING," DATED 25/6/13
MR BURNS: Thank you.
PN472
THE DEPUTY PRESIDENT: Thanks, Mr Perry.
MR PERRY: Thank you, your Honour.
<CROSS-EXAMINATION BY MR PERRY [10.55AM]
MR PERRY: Can you hear me well, Dr Robertson?---I can, thank you, Mr Perry.
PN475
Okay, if at any stage there’s an issue with the quality of the sound just please let me know?---I shall.
PN476
Dr Robertson, you’re familiar with the term pharmacology?---Yes, I am.
PN477
And that’s a branch of medicine and biology that involves the study of drugs and drug actions?---That’s correct.
PN478
One of the divisions of pharmacology is toxicology?---In effect it’s a little bit of an extension, I guess. Pharmacology is, I guess, the study of drugs and how drugs affect the body and the way the body affects drugs. Toxicology is then an extension of that which is then looking at I guess the negative or the toxic effects of drugs on the body.
PN479
And you describe yourself as a toxicologist?---That’s correct, yes.
PN480
And someone who is an expert in the study of drugs?---Yes, I do.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN481
In particular you describe yourself as a forensic toxicologist?---Both forensic and clinical, correct.
PN482
As a forensic toxicologist that involves using toxicology to aid medical or legal investigations in death, poisoning and drug use?---That’s right, really anything to do with the forensic aspect is really anything to do with the legal system.
PN483
As a forensic toxicologist you are expert in identifying substances in samples of blood, for example?---Yes, that’s part of it, exactly. So both for testing, how to test for drugs in various biological fluids, including blood, as you state, as well as interpreting those results through a court of law.
PN484
One of the things that you are doing in particular is identifying what substances are in that sample?---That is correct. I don’t do it anymore as far as the actual hands-on work, but these days I’m given reports and the results and I generally interpret those for the various interested parties.
PN485
In your report, Dr Robertson, you set out a range of publications that you have contributed to?---Yes, in my curriculum vitae, I did, yes.
PN486
They include publications about drugs found in people killed in motor vehicle accidents?---Yes.
PN487
Detection of substances in hair samples in sexual assault cases?---Yes, correct.
PN488
And the detection of date rape compounds?---Correct.
PN489
And that is something that you’re highly skilled in doing?---Yes, my colleagues tell me I am but yes.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN490
In the publications you mention you’ve not written publications about the prevalence of illicit drug use in society?---No, I have not. I’m aware of them. I obviously follow those publications. I haven’t published anything specific myself, no.
PN491
You haven’t published anything about the prevalence of illicit drugs in workplaces?---No, I haven’t.
PN492
You haven’t published articles on the duration of impairment when certain drugs are taken?---No, again, I haven’t published. It’s obviously something that I need to be aware of but I haven’t published in that specific arena, no.
PN493
And you haven’t published in the area of the hangover effects of illicit drugs?
---No, I have not published in that arena either.
PN494
You haven’t published in the area of the statistical reliability of oral fluid testing?
---I haven’t published in that arena, no. I have reviewed material but no, I haven’t published.
PN495
You haven’t published in the area of the statistical reliability of urine testing?
---No, I have not.
PN496
You haven’t published in the area of the incidence of false positive or false negative results in oral fluid testing?---No, I haven’t.
PN497
You haven’t published in the area of the impact of drug impairment in workplace health and safety matters?---No, I have not.
PN498
It’s fair to say, Dr Robertson, that the focus of your work has been on the application of toxicology in the legal system, I think you’ve said?---Just to clarify, about 50 percent of my current workload as opposed to, I guess, perhaps historic workload, is currently in the drug and alcohol testing workplace drug testing. So I travel the country, testifying where required. I travel the country giving education and awareness sessions to various management and union organisations on the Australian standard compliances and I’m also a certified trainer. And indeed, tomorrow, I’m heading off to a training organisation on how to perform urine and oral fluid testing in accordance with the Australian standard. So it’s not the majority, but a large proportion of my current workload is involved in Australian standards compliance testing, workplace drug testing using oral fluids and urine testing together with alcohol testing.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN499
But that’s not a matter which you have written published articles about, is it?
---No, I haven’t written published articles about it.
PN500
Thank you?---Most of those get published by colleagues of mine. So I either don’t have time or it’s already been published before.
PN501
By others?---By others, correct.
PN502
In your report, Dr Robertson, and I think the report itself is just one and a half pages long. It starts at about page 4, I wanted to ask you some questions about your answer to the first question - - -?---Sure.
PN503
- - - you were asked by Mr Burns in your report? And I think what you’re saying there is that the presence of a drug in an oral fluid sample is consistent with evidence of recent use of that drug, is that right?---That’s correct.
PN504
Whereas the presence of a drug in a urine sample is perhaps consistent with evidence of its use over a longer period?---Well, that’s right. It may be recent use but it may also be use that it has occurred a day or days prior to. Whereas with oral fluid there is, I guess a higher level of confidence with respect to the timeframe around which the drug or drugs have been used.
PN505
Yes, that’s your opinion?---Correct.
PN506
Are you aware, Dr Robertson, that an oral fluid test is unlikely to detect cannabis which has been smoked unless it’s been smoked quite recently?---There are lots of things that that statement depends upon but in a general sense cannabis in particular is one of those compounds that is generally only detected for a few hours as opposed to some of the other drug classes, which may be able to be detected for more than a few hours.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN507
So it could be detected say for one to two hours after it’s smoked?---It may well be detected for one to two. Again, depending on the amount used and the way it was used and all sorts of variables it may be detected for a few hours longer than that. But it’s in the order of a few hours rather than a day or more.
PN508
An oral fluid test will not detect cannabis at all where the cannabis has been eaten, that’s right, isn’t it?---Well, there has been a study that has suggested that. It again depends how it’s eaten. There is still some conjecture with respect to how oral fluid devices detect cannabis. What I mean by that is whether or not it is detected as a residual drug in the mouth or whether it is detected or drug in coming back across from the bloodstream which is the theoretical process with oral fluid testing. That is, drugs in the oral fluid are currently residing in the bloodstream and they’ve come across from the blood into the oral fluid. It is still somewhat unclear whether it is one or other or both but there is certainly some good evidence to suggest that if cannabis resides in the mouth following recent smoking or some form of ingestion that it will be detected by an oral fluid device. There is also some recent evidence to suggest that if it swallowed and therefore there is no residual drug in the mouth that it becomes difficult to detect.
PN509
Would it be fair to say then that the reliability of an oral fluid test for ingested cannabis is questionable?---Well, as long as you understand what you’re looking for, it’s not so much the reliability but the ability to test ingested or swallowed cannabis. You may not be able to detect it.
PN510
And a urine test in comparison is far more likely to detect cannabis in a user who has ingested it, that’s right, isn’t it?---That may be the case, correct. Where it was not able to be detected by oral fluid or enter the bloodstream still following absorption and then into the urine stream at which point it will be detectable in the urine.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN511
Where a person smokes cannabis and then washes out their mouth with mouthwash - - -?---Yes.
PN512
- - - that can result in the cannabis not being detected in an oral fluid test, can’t it?---That may be the case. There are a couple of techniques – like urine – there are a couple of techniques to attempt to modify or adulterate the oral fluid sample.
PN513
A person who takes mouthwash after they smoke cannabis would still have the cannabis detected in a urine test, wouldn’t they?---That is correct, assuming they’ve absorbed it. That’s correct.
PN514
And are you aware, Dr Robertson, that the period of impairment for a person who smokes a normal dose of cannabis is about six hours?---If we want to be very general, yes, four to six hours you may be impaired following the use of cannabis.
PN515
That period is of course, longer than the one to two hour period that I think you accepted oral fluid testing will detect cannabis?---It may be. It may be that someone might be impaired for a little bit longer than the detectable time period in oral fluid. Whether that’s an hour or two hours, again there are lots of variables but I accept that that is a possibility.
PN516
You’re familiar with benzodiazepines?---Yes, I am.
PN517
They include sedative and anti-anxiety drugs, is that right?---That’s correct. They are a family of drugs that are used for a range of clinical applications. They are by and large sedative, hypnotic drugs and they are used extensively for things like social anxiety and those sorts of things, correct.
PN518
So they include drugs like Valium?---They do, yes, exactly.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN519
And Xanax?---Correct.
PN520
And if those drugs are abused they can result in severe impairment, can’t they?
---They are impairing drugs. If someone uses them and has taken them recently at a dose that’s obviously impairing them,
correct. Long-term use of these drugs is generally not regarded as impairing. However, if someone is abusing, taking a high dose,
they may indeed be impaired.
PN521
They can be addictive drugs?---They are regarded as addictive, yes.
PN522
And if they’re heavily used over a long period can create what you may call hangover effects?---I guess. I’m not a big fan of the term “hangover effect” insofar as it’s often the residual effect of the drug itself. I understand the concept of the term “hangover effect.” Often in these cases it’s depending on which drug is used they can last, they can cause I guess what is often described as hangover effects, when in fact it’s actually just the residual effect of the drug the day after use of the drug.
PN523
That residual effect that you describe could be a cause of impairment?---I guess. It depends on, again, what the impairment is. If it’s fatigue or sleepiness, drowsiness then obviously that might have some impairing aspects to it, correct.
PN524
You’re aware, are you not, Dr Robertson, that oral fluid testing does not detect benzodiazepines at all?---I don’t agree with that statement insofar as it’s not currently part of the Australian standard. There are many devices that do detect benzodiazepines. It is just not currently part of the standard therefore if you are doing oral fluid testing in accordance with the standard you are not required to look for benzodiazepines necessarily unless you choose to. But there are many devices out there that look for benzodiazepines.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN525
But a urine test would be able to detect benzodiazepines, that’s right, isn’t it?---In a general sense I would agree with that statement. There are drugs like that (indistinct) and Rohypnol which present at low concentrations which are still difficult to detect in urine even when used in therapeutic doses.
PN526
And Dr Robertson, are you familiar with the study done by Drummer and others in Victoria of motorists in 2007?---I believe I was probably an author in that paper if it’s the paper listed, yes.
PN527
I don’t know that it’s listed in your report but if you’re familiar with the study?
---No, that’s correct. I am familiar with the study, that’s right. I was one of the – I started that study so
I am familiar with the study.
PN528
It involved approximately 13,000 drug screens of motorists in Victoria?---Yes, I believe it did.
PN529
About 3.4 percent of those drivers had tested positive for methamphetamine?---I don’t have the paper in front of me but that may indeed be the case, yes. That sounds about right.
PN530
And would it also sound about right to say that about 0.66 percent of those drivers had tested positive for cannabis?---I believe that was THC, so that would be active and keeping in mind that we’re talking blood, but that would be active drug, not so much the metabolites but the active part of cannabis.
PN531
Of the drivers who had tested positive for cannabis in about half of those cases the presence of THC was not detected until a second confirmatory test was done in a laboratory?---I’m sorry, are you referring to that paper again or just in general?
PN532
No, you say in the Drummer paper?---That may be the case but again I’m not too familiar with the details. I don’t have the paper right now in front of me but that would be generally correct that wouldn’t be regarded as positive until confirmation testing was performed by a laboratory.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN533
But what had happened is as there had been drivers who had been subjected to an oral fluid test which was positive for methamphetamine but negative for cannabis?---Yes.
PN534
Or sorry, THC, I should say?---Yes.
PN535
And then when a confirmatory test was done in the laboratory the cannabis was later detected, or THC was later detected?---That is certainly possible and if you put that in front of me then I wouldn’t disagree with that.
PN536
I think I mentioned to you earlier, about 3.4 percent of drivers were positive for methamphetamine and only 0.66 for cannabis in the initial tests?---Yes.
PN537
That is not reflective of the prevalence of use of those two drugs in the community, is it?---No, that would not be. That’s a fairly low number, correct.
PN538
Dr Robertson, are you aware of the Druid study which I think was done by the European Commission in 2010?---Yes, I am.
PN539
And you’re aware that it found that on average 38 percent of oral fluid tests were false negatives for THC?---Yes, that’s correct.
PN540
So more than a third of those tests were negative when the person did in fact have the substance in their system?---That’s right. I think the point to make though is that that was an extended study many years ago. These, particularly oral fluid devices, urine devices to an extent, but certainly oral fluid devices have been improving rapidly in the recent years because of exactly the discussion we’re having today and that is that there is a desire in some instances to use them more widely in the workplace and therefore they have been improving rapidly over those years as the need arises.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN541
Dr Robertson, are you familiar with the National Association of Testing Authorities?---I am, yes.
PN542
Let’s call it NATA, if that’s okay?---That will be fine, yes.
PN543
And NATA provides assessment, accreditation and training services to laboratories and technical facilities throughout Australia?---Certainly accreditation and inspection. Look, I’m not too sure if they provide training but certainly assessment and accreditation.
PN544
Through accreditation their role is to ensure that member facilities comply with the relevant Australian and other standards?---That is correct, yes.
PN545
That is to ensure that those facilities consistently providing reliable testing?
---That’s a reasonable summary, yes.
PN546
One of the things some bodies have done is sought accreditation from NATA for onsite oral drug testing?---That is correct, yes.
PN547
In July of this year, NATA has actually withdrawn the provision of accreditation for onsite initial drug testing of oral fluid, hasn’t it?---For the devices themselves, not for the provision of the testing. They are still accrediting organisations to perform oral fluid testing. It is simply for the devices. That is that there are some organisations that were trying to get their devices accredited and because of some, I guess some dispute amongst the quote, unquote “experts” with respect to how to apply the standard to those devices, because the devices, as I’ve just said, have evolved to the point where they’ve in effect outgrown the standard. And there is – I’m now presuming or assuming this – there was some difficulty within NATA in applying the standard fairly across all of the devices such that they could accredit one and perhaps not accredit another. Therefore they withdrew their accreditation process or their certification process of fluid devices. My understanding is that it has nothing to do with the onsite testing or onsite testing facilities or organisations that choose to perform onsite testing. They can still be either accredited or certified. As I said, it’s simply the devices.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN548
So NATA has not accredited oral fluid testing devices?---They have deemed, I believe, one fit for purpose but they have not given any formal accreditation to an oral fluid device to date, correct.
PN549
What they have said to their members in July of this year is that they will not be entertaining that issue? They’ll not - - -?---That’s right, until such time as they sort out some of those differences of opinion and the way things should be interpreted I believe they’re not going to revisit that in the short-term.
PN550
So even if you’re a NATA-accredited tester, you won’t have a NATA-accredited device to use for oral fluid testing. That’s right, isn’t it?---Well, no devices are necessarily NATA accredited. They show some level of compliance. It’s about compliance. There are urine testing devices that are compliant to the standard. The oral fluid standard does not have in it a requirement for a similar verification or in effect compliance aspects to it, again, because in 2006 when the standard was created the devices just were not consistent enough across the board to be able to implement that as a requirement of the standard. So in effect there is no requirement for that currently in the standard.
PN551
But it’s fair to say, isn’t it, that NATA currently has concerns about the reliability of oral fluid testing devices?---Look, I’m not too sure. I can’t speak on behalf of NATA. They have concerns with respect to how the standard is applied to the devices and the requirement that they shall make upon users of devices and that is have a user to demonstrate to NATA that they have a device that is able to collect oral fluid, is able to then transport it to the laboratory and get an accurate result. There are differences of opinion within NATA on how that process should be assessed. It’s not so much that devices can’t do it. It’s more to do with how they should assess the devices and getting some form of consistency across NATA within the organisation and also within their consulting technical advisers that get involved with respect to oral fluid, I guess, certification.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN552
So it’s fair to say that there’s a difference of opinion about oral fluid testing at the moment?---With respect to how devices should be certified. That is, the urine standard quite clearly outlines a protocol by which you can take some devices, send them to a laboratory, the laboratory tests them and if the results are acceptable the device can be deemed fit for purpose or can be in effect certified to Australian standards. There is no similar protocol or requirement in the oral fluid standard that was never introduced or incorporated into the standard. Therefore there are some experts that think you should follow the urine standard when doing oral fluid devices. There are others that are saying that’s inappropriate and then also the mechanism of performing those studies is unclear. So it’s not necessarily a lack of confidence in the devices or the technology. It is simply an inability or a lack of current acceptance or generally accepted techniques and protocols to actually perform the studies.
PN553
But there’s no comparable difficulty with urine testing, is there?---The Australian standard, if we’re referring to the standard, tells you how to do it. The oral fluid standard does not. I’ve been involved with a few of these where I’ve been asked to give some technical advice where we have in effect or I have recommended that they follow something similar to the urine protocol in the absence of anything else and that was simply because there is nothing outlined in the Australian standard to date, all oral fluid devices that tell you how to do it. And that’s where the confusion, if I can use that term, or disagreement – I’m not sure that it’s disagreement necessarily – but there’s a lack of consensus within NATA and their technical advisers on how to apply a protocol again because the standard was created in the absence of that protocol back, I guess seven or eight years ago and those provisions weren’t included.
PN554
But the fact is, Dr Robertson, that NATA has issued a document to its members which says that there are a number of significant technical issues that are unable to be resolved with oral fluid testing. That’s right, isn’t it?---Yes, that sounds like the wording of the letter. I don’t have it in front of me. I’ve seen the letter. That sounds about right, yes.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN555
And they’ve said:
PN556
PN557
?---That is correct, yes.
PN558
That is the peak regulator in this country saying they’re not comfortable giving accreditation for oral fluid testing at this time. That’s right, isn’t it?---Well, that’s right because of the issues that I’ve just described.
PN559
Yes, they can’t be confident that in accrediting people to do this testing that there will be reliable testing results. That’s right, isn’t it?---That may be one outcome, correct, but as I said there are multiple issues that are going on but that certainly might be one concern.
PN560
Currently, NATA is very happy to provide accreditation for urine testing, aren’t they?---That’s right, urine testing has been around for a lot longer. It is a more mature document, the Australian standard document for urine testing and just by nature of the technique it is easier to verify and that verification protocol is included within the Australian standards. It’s very straightforward. You perform these tests, you get suitable results, in effect we’ll give you a stamp. With oral fluids they didn’t give that guidance and so now they’re struggling to come to some consensus on how to do that.
PN561
And that’s because oral fluid testing is a newer technology, isn’t it?---The devices are a newer technology. The actual immunoassay technology that is used in both oral fluid and urine is in effect equivalent. So it’s been around for about the same amount of time. It is just that in urine you generally have higher concentrations of drug and the immunoassay technology and the way urine devices work has been around longer. Oral fluid testing, as we’ve previously discussed, the amounts of drug in your oral fluid are generally lower than in urine and therefore even though it’s the same technology the actual devices themselves are a bit challenged. It’s a bit harder to find those drugs.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN562
But the current position, Dr Robertson, is NATA, as the custodian of the standards is providing accreditation for urine testing. That’s right, isn’t it?---That is correct.
PN563
And it is currently not providing accreditation for oral testing because of the significant technical issues which are unresolved
with it. That’s right, isn’t it?
---Of the devices, not the actual testing itself. So they are still able to go out and accredit collecting agencies and laboratories
and those people that are doing the testing in oral fluid. It’s the devices that NATA have or the ability to verify the suitable
performance of the devices that NATA is still trying to resolve. It’s not so much the testing. It’s the devices.
PN564
Well, there’s not much point testing someone if the device isn’t accredited, is there?---Well, it gets done widely. As long as you’re happy, you’ve satisfied yourself with the technical capabilities of the devices yourself and I guess that’s encouraged of any employer of whom there are many that use oral fluid devices. And it’s one of the things I tell them, “Just make sure you satisfy yourself that your device works as you intend it to work.” However, as we come back to NATA, there is however no requirement to perform that testing for any NATA requirement. It is always good practice, however, for any management requirement that if you are doing that testing you understand how the devices work.
PN565
Your Honour, at this point, if the witness had been here there was a document I wanted to show him but if I could just hand that document up? It’s the July 2013 NATA document I was reading from which I’d like to tender.
PN566
THE DEPUTY PRESIDENT: Yes, Mr Burns, Mr O’Callaghan, your view on the tendering of it?
PN567
MR BURNS: No objection, your Honour.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN568
MR O’CALLAGHAN: No.
THE DEPUTY PRESIDENT: All right, thanks, Mr O’Callaghan. We’ll mark that as DPW1.
EXHIBIT #DPW1 NATA DOCUMENT, DATED JULY 2013
MR PERRY: Thank you, your Honour. It’s true, is it not, Dr Robertson, that oral fluid testing has a higher incidence of false negatives than urine testing?---I would agree with that statement based on the studies that have been published.
PN571
It’s also fair to say, isn’t it, that oral testing has a higher incidence of false positives than urine testing?---It depends how you count the false positives. That is, in my experience I see more false positives in the workplace but following urine testing than I do oral fluid testing. The publications, again, the information that is being published, again many years ago now however or at least a few years ago now would be consistent with that conclusion. And what that tells us is that oral fluid testing is not as reliable as urine testing. That’s right, isn’t it?---Well, reliability is a difficult question. False negatives, perhaps. False positives, just tells you that the device is perhaps more aggressive than it needs to be and that is it’s finding things, be they drugs or other drugs or the same drug but below cut-offs that in effect didn’t need to be found. So I’m not sure if it’s a question of reliability as such. It’s a question of how aggressive the devices are.
PN572
Well, you’re more likely to get an incorrect result with an oral testing device than with a urine test, aren’t you?---With respect to a false negative. So incorrectly not finding something when something might be there, correct. There are lots of reasons why a false positive might occur and it’s not necessarily because it’s incorrect. It just may not be the drug that’s listed in the Australian standard necessarily.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN573
I’ve asked you some questions now, Dr Robertson, about the second question you were asked - - -?---Sure.
PN574
- - - by Mr Burns in your report?---Yes.
PN575
And I think it’s fair to say that your preference is to have a confirmatory test being the same test as the initial screen. Is that right?---It’s not necessarily a personal preference. It’s a standard requirement currently that if you were following an oral fluid standard or a urine standard that you perform a screen in one matrix or fluid and you confirm it in the same fluid. That’s just part of the way the standard is written.
PN576
What you would need to do to have the confirmatory test done is you would need to put the fluid in a tube and have it sent to a laboratory.
That’s right, isn’t it?
---That’s correct if it was performed onsite. If it was done at the laboratory obviously laboratories have the ability to
do the screening confirmation. But certainly if it was done onsite you would then need to get a reference sample and two samples,
in effect, to the laboratory, correct, for confirmation.
PN577
One limitation with that is sometimes it’s hard to get enough fluid to have both of those samples, isn’t it?---It can be. Again, depending on which device is used and how the collection techniques are employed. That is one possibility.
PN578
And one other limitation is that THC is readily absorbed into the glass and plastic collection tubes, isn’t it?---That can occur, yes.
PN579
Where that did occur the confirmatory test could be a false negative?---I guess that’s a scenario that could occur. That is, if there was an amount present that was close to a cut-off and it’s now, I guess, for using a scientific term, stuck to the side of the vessel and therefore not available for testing and it drops below the cut-off you might have a positive or an unconfirmed result onsite and a negative result upon confirmation.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN580
That is one of the reasons which NATA in their July 2013 document have said is a reason for them withdrawing accreditation, isn’t it?---Look, I’m not sure. Again, I’m not – and I don’t recall it being outlined in the letter but – and again, I’m not privy to the discussions that occurred behind the scenes. A lot of devices, a lot of collection devices for oral fluid testing are actually certified or accredited separately to the collection device. So you’ve got the collection device, which is the bit that gets put in your mouth and then you have your storage or your transfer device which is what the bit that’s put in your mouth subsequently gets put into and there’s actually a separate process for that. I’m not sure specifically what that letter related to or the specific technical concerns that NATA had as it relates to that letter.
PN581
Well, if I suggest to you that NATA had said there was a concern as to the stability of some drug classes during the testing process, especially THC, would you accept that the letter said something like that?---I would. If you’ve got the letter in front of you – I don’t – so if you’ve got the letter in front of you and it says that I would certainly accept that that’s what it says.
PN582
Thank you. And that potential for contamination of the THC sample doesn’t happen with a urine sample, does it?---Sorry, did you say contamination?
PN583
Well, the absorption of the THC into the tube?---Okay.
PN584
Yes?---Yes, look, it’s yes and no and what I mean by that is it still happens with urine. If urine, which typically users collect it in your own plastic container, it still occurs with urine. It is simply that because the levels of drug are significantly higher to some extent that it’s often of no consequence to the ultimate result.
PN585
So it’s less of a problem with a urine sample?---It is less of a problem for urine samples, correct.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN586
So it’s possible that if I could just give you a scenario, where you have a person who does an initial oral test which is positive
for THC is then found to be negative on the confirmatory test because the THC is absorbed into the tube. Is that right?
---That is a possibility if that’s around the cut-off. That is a possibility.
PN587
That could mean that the person was impaired having used cannabis but passes the drug test on the confirmatory test?---That would be the case, keeping in mind however that the confirmatory test is occurring two or three days later. So obviously the person would not be impaired based on that initial test any further but that is a possibility they were impaired onsite. Positive result onsite sent to the lab comes back negative. It’s certainly possible but again, the person would no longer be impaired from that use of drug.
PN588
No, but they would have been impaired when they gave the sample. That’s right, isn’t it?---They may have been. You can’t say they were. Again, neither of these devices detect impairment but they may have been impaired.
PN589
I’ll just ask you to assume for a moment the person was impaired?---Yes.
PN590
That the chances of a confirmatory urine test confirming the presence of the THC is far greater than the chances of the oral fluid test detecting it?---Yes, that’s right. In general that would be correct. It is certainly possible. Again, but if you have a urine concentration around the cut-off that exactly the same scenario could occur. However, if someone has used the drug a couple of hours prior to their – there’s probably enough drug in the urine for that not to be an issue.
PN591
And if a confirmatory test is a urine test - - -?---Yes.
PN592
- - - it’s possible that that confirmatory test could detect the presence of drugs which the initial swab test did not detect. That’s right, isn’t it?---That is certainly a possibility, that is, that’s correct. Because the swab test and the urine tests are looking at two different, what we refer to as windows of detection – so swab tests are looking at those things that may have been consumed in the recent hours whereas the urine test is looking for things that may have been used in recent hours, days or in some cases weeks. If an oral fluid device finds one drug it may be that someone used a different drug two or three days earlier and now that’s been detected in the urine.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN593
But it’s also possible, is it not, that the drug which is not detected in the oral test but which is detected in the urine sample, could have been the source of impairment for the employee when they gave the sample?---Again, it depends which drug. Really it’s only THC and I guess if we talk benzodiazepines – if they were not looked for using oral fluid device – they would be the two in the Australian standard. There are obviously many other drugs but it’s difficult – there are many, many variables around that statement but it’s certainly possible. And the one that would come to mind might be THC but really if cocaine or stimulants or anything else were present then I would have expected them to have also been detected by the oral fluid device because that device is quite capable of detecting levels of drug that are circulating in the bloodstream and impairing someone or potentially impairing someone.
PN594
Yes. I asked you some questions a little while ago, Dr Robertson, about the Victorian roads study?---Yes.
PN595
And one of its findings was there were about half of the drivers who tested positive for THC on the confirmatory test in fact tested
positive for another drug on the initial test but not for THC on the initial test. Do you recall that finding?
---I don’t recall that finding but that’s not overly surprising necessarily.
PN596
So what a confirmatory test may do is identify drugs which can be a source of impairment that the initial oral fluid test might not. That’s right, isn’t it?---That’s not why the confirmatory test is designed but it’s certainly possible depending on how the testing is done to find additional test. The confirmation test is really there to take what is in effect a cheap and nasty screen – I don’t say that necessarily in a derogatory sense but it applies to both urine and oral fluid – that is it is an inexpensive way of assessing if there’s something there that should be of a concern and “Let’s go and look further.” And that part is the confirmation. The primary purpose of the confirmation is firstly to confirm that what was suspected to have been there is indeed there. And where you’ve got classes of drugs like opiates and stimulants and benzodiazepines it’s actually then identifying or specifying which of those classes of drugs are present. Is it morphine or codeine or is it Valium or whatever else it might be. That’s really the primary purpose of the confirmation is to determine what drug has given that screen result.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN597
And you’d be aware, Dr Robertson, that there are obviously people who use more than one illicit drug?---Absolutely, yes.
PN598
And if you use more than one illicit drug you could be impaired in a number of different ways?---It’s certainly a possibility if someone were to use multiple drugs.
PN599
The more drugs you’re using the greater the chance of you being impaired?
---Well, possibly. I guess if you use two different drugs that act in a similar way you might enhance impairment of one or other.
If you use two different types of drugs, a stimulant and depressant, you’ve taken them just before your oral fluid test or
urine test you may be impaired by both of them in different ways. Look, there’s a whole range of different reasons why someone
could be impaired by all sorts of things.
PN600
A person who is a user of multiple drugs, you’d accept, is a greater safety risk in the workplace. That’s right, isn’t it?---Just because they’re a multiple drug user?
PN601
If they’re using multiple drugs - - -?---Yes.
PN602
- - - then they are a greater safety risk?---I guess that’s a philosophical question insofar as if what you’re implying is they have recently used multiple drugs therefore they might be impaired by multiple drugs, I would agree with that statement. If you’re saying just because someone uses multiple drugs in their – I guess as a lifestyle choice – doesn’t necessarily make them higher risk. It might be that that represents a higher risk individual. That is, someone that’s willing to take risks but doesn’t necessarily imply that they’re a higher risk in the workplace.
PN603
Where a person is impaired at work would not a prudent employer want to know what the source of that impairment was?---That’s generally how most of the policies work and I would argue that if I were an employer I would probably want to know what the source of the impairment was myself be it drugs or be it anything else that may be impairing the person.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN604
If an employer knows what the source of the impairment is they can try and address and control the risks that that creates?---That is correct, yes.
PN605
For example, where multiple drugs are a problem there may be a need for different rehabilitation options to be put in place?---Possibly. I mean I guess it’s – if the person is an addict and they’re an addict of multiple drugs they might get – I don’t know how those processes work to know whether or not they approach them differently for different drugs or whether they just approach them for drug abuse per se. So I guess I can’t really comment on if it’s one drug or multiple drugs whether that would be a significant difference in the approach of any employer assistance program or counselling program.
PN606
What I’m putting to you, Dr Robertson, is if the confirmatory test is a urine test it gives you a better picture of the overall drug use of the person than - - -?---That’s correct. If that’s the intent of a policy to determine if someone uses drugs then certainly the urine test is more likely to determine if an individual is an user of a drug or drugs.
PN607
I’m not - - -?---Keeping in mind, sorry, keeping in mind as well that it’s really only the drugs listed in the Australian standard that we’re referring to. There are many other drugs that may be abused that are not looked for in urine, that are detectable in urine as they are in oral fluid but they’re generally not looked for if you’re doing testing in accordance with Australian standards.
PN608
I’ve asked you some questions, Dr Robertson, about THC?---Yes.
PN609
Are you aware that approximately 35 percent of Australians have used cannabis at least once?---That’s not inconsistent with some of the statistics I see. I see all sorts of statistics and that sounds reasonable.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN610
And of those people who have used cannabis about 10 percent of them use it very regularly. Is that right?---Again, that might be fine, yes. I don’t have anything to contradict that so I’m happy to agree. That sounds reasonable.
PN611
Now, the incidence of cannabis use is higher in men than it is in women. Is that right?---Yes, that’s my understanding, yes.
PN612
And the demographic of stevedoring workers is very substantially more men than women. That’s right, isn’t it?---Look, I can’t comment but I think in a general sense I wouldn’t disagree with you based on my understanding of the industry.
PN613
Therefore effective testing for cannabis is very important to a company like DP World?---It may well be together with all of the other aspects of drug and alcohol education and awareness and everything else that might be put in place. But that would be a question for the organisation.
PN614
I asked you some questions earlier, Dr Robertson, about what I called a hangover period and I think you preferred to refer to the
residual effects of some drugs?
---Yes.
PN615
I just wanted to ask you about those residual effects. So with psychostimulants, would those effects include fatigue?---Yes, and they’re indirect effects of using the stimulants. That is the stimulants themselves don’t cause those effects but the stimulants if you use them it may cause you to work longer hours, if that’s why you’re using the drug or it may be that it interferes with your evening sleep and therefore you turn up to work having only slept two or three or four hours and therefore you might be fatigued the following day. So that’s an indirect effect of those types of drugs, yes.
PN616
They could also cause anxiety?---They can do if you’re a chronic user and you’ve now stopped using it, you’re going through what might be some level of withdrawal or potential toxicity. Anxiety and those sorts of things may be prevalent.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN617
Those residual effects could be impairing?---I guess they could. If someone is experiencing significant effects like that then I would agree that fatigue and those sorts of things can be impairing, whether they’re caused by drugs or other things or indirectly caused by drugs or other things, fatigue can be a problem on the worksite.
PN618
And you’re aware that a person who in the evening takes benzodiazepines the morning after would have the equivalent impairment of a 0.05 blood alcohol reading?---No, I wouldn’t agree with that statement.
PN619
Are you familiar with the study done by Kunzman and others in 1992?---Not necessarily, not specifically. Is that outlined in – can I ask is that outlined in the report of Professor Christie?
PN620
Yes, it is?---Do you know what page that is if you’ve got that there? I’ll have a quick look.
PN621
Page 19?---19, the only reason I say I disagree is because there are many people that use benzodiazepines therapeutically and I’m not clear on how these drugs are necessarily used. I’m just reading that section now here so they’ve looked at one of the benzodiazepines, Temazepam, and they’ve talked about severe impairment for four to six hours. Again, it depends on the dose and how that was used. Long-term users of these medications, a level of tolerance is created and they for all intents and purposes are generally not regarded as impaired. And certainly just because you’ve taken one the night before you’re not going to wake up the following morning with impairment equivalent to 0.05. So without digging further into that study I would disagree with the general conclusion that the use of benzodiazepines leaves you with a residual effect or a hangover effect or whatever term you’d like to use equivalent to 0.05. In someone that has never used the drug before and again that might be the case in this situation, if someone that’s not used the drug before and they’re given a moderate therapeutic dose then yes, I would agree that they may be impaired and if that impairment is correlated somehow to blood alcohol concentrations during that time of impairment it might be equivalent to 0.05. But that’s under a specific set of circumstances.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN622
And you yourself haven’t done any studies in this area, though, have you?---No, I haven’t. I’ve reviewed the literature and I understand benzodiazepines. I spent six years studying them for my PhD. So I’ve spent a lot of time in the benzodiazepine world specifically but certainly understanding the pharmacology of the drugs and the toxicology of the drugs allows me to make some what I presume to be reasonably educated statements, such that just because you take a benzodiazepine doesn’t imply that you’re going to have an impairment equivalent to 0.05.
PN623
Well, I don’t think that’s what Professor Christie is actually saying if you – what he says is that benzodiazepines have been reported to produce impairment roughly equivalent to about 0.05 percent alcohol on the morning after use for induction of sleep and he refers to the Kunzman study?---Correct, that’s right and that’s why I’m saying you know the broad statements - I’m not sure he’s making that necessarily – that broad statement. He’s saying they have reported to. That doesn’t necessarily mean that they all do I guess is the point I’m trying to make.
PN624
And you’re aware, Dr Robertson, that chronic users of cannabis can have protracted periods of impairment of their cognitive functions, whether they’re presently intoxicated or not?---I am. I’m aware of those studies, yes.
PN625
You’re aware that chronic users of opioids cycle between periods of intoxication and withdrawal?---If you’re talking chronic abusers of the drug then possibly. If you’re simply a user of codeine and you use it daily for back pain I would argue they’re not necessarily cycling between sort of impairment and withdrawal.
PN626
I asked about the chronic users?---Well, certainly chronic users, just implying that you know again, coming back to something like codeine that I might use because of chronic pain or any of the other opiates that I might use for chronic pain, I’m not necessarily cycling between impairment and withdrawal. And if I’m using it as prescribed and I’ve established a level of tolerance to that drug that occurs over a period of days and a week or so, then I will simply be taking the drug to manage my pain and I will generally not experience too many other effects of that drug.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN627
One thing which chronic users of opioids will do is use drugs such as psychostimulants to pick themselves up when they come down. That’s right, isn’t it?---If we’re now talking again of users, pattern of abuse is for those types of drugs – if I was a heroin user I might use something like a stimulant or a benzodiazepine to manage my side effects. If I was a stimulant user I might use an opiate to manage the withdrawal effects from the stimulant use. So there are different combinations for different reasons but I concur that there reasons why drug abusers may use one or more drugs for different reasons.
PN628
And all of those you describe are a potential source of impairment at work, aren’t they?---Well, any drug use, if it’s done at an appropriate time and in an appropriate dose in an appropriate person et cetera, et cetera can be a source of impairment. Simply because someone is using two different drugs doesn’t by definition mean they’re impaired. Again, it comes to time of dose, the amount taken, the type of activities that they’re performing and all those sorts of things when I guess a conclusion of impairment is drawn.
PN629
The residual effect of some of these drugs you describe for a chronic user - - -?
---Yes.
PN630
- - - very recent use of the drugs may not necessarily be a good guide to their impairment. That’s right, isn’t it?---You’re more likely to be impaired following recent use of a drug or at least acutely impaired. That is if I’ve started using a drug or if I alter my dose, any of those sorts of things, I’m more likely to be impaired at that point than I am if following the long-term use of the drugs.
PN631
But if you’re a heavy user suffering withdrawal symptoms - - -?---Yes.
PN632
- - - you may be impaired even though you haven’t used recently. That’s right, isn’t it?---Well, if we use the example, I guess of a stimulant or methamphetamine or something like that, I might be going through some anxiety and as you’ve described earlier, anxiety and withdrawal effects that might make me distracted. I guess it depends on the job function that I’m performing as to whether I’m defined as impaired doing that job function but it certainly might have some effects on me as an individual and make me not perform at 100 percent of my I guess non-drug-present ability.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN633
It could affect your concentration, for example?---Again, if I was fatigued or those sorts of things my concentration may be affected, yes, but that’s again a fatigue issue.
PN634
And a person who is having problems with their concentration who is driving a 60 tonne straddle might be a serious risk to their workmates.
That’s right, isn’t it?
---Yes, I wouldn’t disagree with you, yes.
PN635
Having regard to the residual effect of drugs in heavy users, urine testing is more likely to identify use, is it not?---As I said, earlier that’s correct. Urine testing is more likely to identify if an individual has used a drug than perhaps oral fluid testing.
PN636
Dr Robertson, you’re obviously quite an experienced expert witness?---I have testified many times, yes.
PN637
And you’ve testified in this commission before?---I have.
PN638
You’re aware your role is to be an independent expert?---Yes, it is.
PN639
And to assist the commission rather than the parties?---Yes, correct.
PN640
When you’re retained as an expert witness it’s normal for a party to remind you of those obligations, isn’t it?---It is, yes.
PN641
And when you were retained you received a letter from McNally Jones staff?---I did, yes.
PN642
That retainer letter said nothing about your independence, did it?---I don’t have the letter in front of me. I remember having a conversation about it. I don’t specifically remember whether that was outlined in the letter.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN643
Well, it would be normal for that to be included in the retainer letter for an expert, wouldn’t it?---I will often receive some reference to Expert Code of Conduct or those sorts of things in the letters that I’m provided.
PN644
I’ll just tender the letter, your Honour.
PN645
THE DEPUTY PRESIDENT: Mr Burns, Mr O’Callaghan, any issues?
PN646
MR O’CALLAGHAN: Yes.
PN647
MR BURNS: No objection.
THE DEPUTY PRESIDENT: Thank you. I’ll mark that as DPW2.
EXHIBIT #DPW2 LETTER FROM MCNALLY JONES TO DR ROBERTSON
MR PERRY: And perhaps if you don’t have the letter it’s easier if I take you to your report?---Yes.
PN650
On page 2?---Yes.
PN651
And they were the questions that you were asked to comment on?---That’s correct, yes.
PN652
What the Maritime Union was doing was telling you what its opinion was, wasn’t it?---No. They were just simply asking me some questions in which I was to reply in an objective and neutral sense which I believe I did.
PN653
Well, if I could just get you to look at the first question. It says:
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN654
An oral fluid swab test is the appropriate test to determine impairment in the workplace and that urine testing should not be used to test for impairment?
PN655
?---That’s a question that was asked and I disagreed with the way that question was asked. I - - -
PN656
It’s not a question. It’s a conclusion, isn’t it?---Well, you might describe that question as a conclusion, yes. I think it was more to make reference to not so much questions, perhaps, but these were statements and they were asking me to reply to the statements.
PN657
But when you were retained you were aware of the opinion that the union had about that matter?---We had a discussion about what was believed to be the current state of the union agreement, correct. That doesn’t necessarily dictate what I put in my report obviously. But I was familiar with the position of the union when writing my report.
PN658
And would it not be more normal for a party to ask you an open-ended question about the matter in respect of which your expert opinion was sought?---I would agree that if I was to evaluate every report I’d done I’m more often asked a question to respond to or I’m asked my opinion. However, I am often asked to determine or “Is this consistent with impairment?” These sorts of questions which I guess are less open-ended and that’s a fairly common question. I have simply responded and I don’t necessarily take objection to the way I was given the letter. These are simply statements that I responded to.
PN659
The answers you give to the questions are at page 4 and 5 so about one and a half pages of text?---That is correct, yes.
PN660
In that text you don’t refer to any academic literature?---No, I don’t because it was simply a statement that I was responding to.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN661
You don’t refer to any studies?---No, I didn’t necessarily see the requirement for that. They’re pretty straightforward. They’re not necessarily statements or questions that require a response based on extensive literature studies.
PN662
Well, don’t you think if the literature in the studies supported your opinions it would have assisted her Honour if you pointed out the relevant studies?---Well, I think if we look at the – if one talks about how testing gets done, I think, in pathology labs, one talks about the financial costs of testing. These aren’t necessarily questions that come with any literature as such. It’s just mere comments based on the current status of the industry. Again, question 2 isn’t necessarily one based on literature. That is simply a statement that I have responded to. So they’re not necessarily, the way these were put to me, were not necessarily the sorts of responses that I would fill a report full of literature references.
PN663
The responses you’ve given are rather brief, aren’t they?---That’s right. They only had to be brief. The way the question was asked it only required a brief response in my opinion, I should add.
PN664
Even though the matters which you were asked to opine on have been considered in a vast number of academic and other studies?---Well, I wasn’t asked to go into the pros and cons of urine testing versus oral fluid testing and issues of false positives and false negatives and all those sorts of things. I think they have been adequately covered, as it turns out, in the report of the Professor. However, I was simply asked to respond to these statements and in my opinion they only required a clarification for the commission and that is: “Can these things be done? Are these things generally more expensive than other things? Is it possible that you might find more drugs in urine than oral fluid?” And as you have pointed out and I think you’ve concurred with it, I agree that might be the case in various situations. So it’s not so much something that really needed a whole lot of additional referencing.
**** MICHAEL DAVID ROBERTSON XXN MR PERRY
PN665
I’ve got nothing further, your Honour.
PN666
THE DEPUTY PRESIDENT: I wonder if it would be a convenient moment for me to ask Dr Robertson a couple of questions, so that you can then follow-up, Mr Perry, if needs be and in re-examination – I beg your pardon, yes, thank you. I tell you, I’m going to do this a lot. Mr O’Callaghan, do you have some questions of Mr Robertson?
PN667
MR O’CALLAGHAN: Do you want me to ask them now, your Honour, or after your questions?
PN668
THE DEPUTY PRESIDENT: Well, in fact, they’re in the vein of cross-examination, aren’t they? So I think perhaps you ask them and then in re-examination Mr Burns can follow up and you can follow up for that matter anything that you want to after I’ve asked my questions.
PN669
MR O’CALLAGHAN: My questions are brief.
PN670
THE DEPUTY PRESIDENT: You might ask my questions anyway, Mr O’Callaghan. But yes, you go ahead.
MR O’CALLAGHAN: I don’t think I’m - - -
<CROSS-EXAMINATION BY MR O'CALLAGHAN [12.03PM]
MR O'CALLAGHAN: Dr Robertson, my name is Christian O’Callaghan. I’m here for the Transport Workers Union. Can you just confirm whether or not mistakes have been made during the urine collection process?---Mistakes?
PN673
Yes, mistakes that would render the tests invalid, for instance?---I guess mistakes, either incorrect or – it is a common cause of an invalid result should an invalid result occur. When it comes to the donor doing things like substituting samples and adulterating samples that’s well-documented to be a fairly frequent occurrence. I do a lot of training of workplace drug testers together with pre-employment drug testing agencies which are at the forefront of this type of manipulation and they relate to me very frequent situations where people have tried to avoid a correct urine result.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN674
That experience is far less likely with saliva testing, isn’t it?---Not necessarily. They are both subject to different forms of manipulation. I think I alluded to a little bit earlier about mouthwash. That’s certainly a possibility. And a lot of this comes down to not so much the donor but the expertise of the collector and the collecting agency. So there are techniques to both manipulate urine testing and manipulate oral fluid testing. Some are easier than others and I don’t mean that by urine is easier than oral fluid or vice versa. There are some techniques that are easier than others. Keeping in mind this whole area at the deterrence stage not necessarily the detection stage, so people do their best and again, it comes down to the proficiency of the collector and their ability to suspect or detect manipulation of any sample.
PN675
But I take it from your answer then that there is a variation in error? It depends on the training of the collector, I guess?---In my view that’s one of the most important aspects to minimise errors as you describe them, would be the training of the collector. That’s right. Any drug user will attempt to not be caught, I would daresay and as I said they will all be well-educated on techniques to avoid being detected with either oral fluid or urine testing and it’s really up to the collector to prevent that occurring.
PN676
Another thing I wanted to ask you about, Doctor, is the idea of transposing general household studies on drug use into workplaces. Professor Christie talks about 35 percent of Australians – I presume he means Australian population rather than Australians – as having tried cannabis at least once. Presumably this would include the very youngest in our society up to the very, very oldest in our society and therefore it’s not strictly confined to those of working age, is it?---Not necessarily and as I alluded to just a moment ago drug testing in the workplace is there as a deterrent and therefore if someone suspects they might be tested for a certain drug they might be less inclined to use that drug, in particular something like cannabis, which they are well aware particularly if urine testing is performed may be detected for an extended period of time. So like all statistics – and this is again why I don’t necessarily just on face value take conclusions that are written in reports and from certain individuals – like all statistics you’ll take from them what you’d like to take from them and it all comes down to how those statistics were gained and the population that they were sourced from and all those sorts of things. I don’t have up-to-date statistics on the number of people that take drugs in the workplace. We simply don’t have that information because those studies don’t get done because they can’t be done in effect. So I think it’s reasonable to suspect, however, that if you’re a drug user in the workplace I would like to think that any drug testing regime, be it oral fluid or urine, would be a deterrent such that the workplace probably doesn’t well represent the average or in effect, as you’ve described, the household drug-taking patterns, where most of those people assume they won’t be tested following the use of the drug.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN677
Thank you. What I’m getting at is that there seems to be a presumption that if someone admits that they use drugs whether it be on one occasion or numerous occasions then somehow there’s an inference that they would also do so during working hours and that doesn’t seem to be supported by the evidence, does it?---I would agree. I haven’t, as I said, I haven’t sort of dug down through that evidence necessarily in any great detail but again, simply the use of a drug doesn’t necessarily mean that they will use it in the workplace and use in the workplace to the point that they would be impaired.
PN678
For instance, if someone was to smoke cannabis recreationally, and by that I mean at the weekend or at parties or whatever the case may be - - -?---Yes.
PN679
- - - there’s sort of no inevitable connection between that activity and then engaging in the same activity at work, is there?---No, correct.
PN680
So similarly, say I put an example to you, if two blokes go down to the pub and drink eight schooners one of them decides to get a cab home and one of them may decide to drive home, that’s got nothing to do with the alcohol necessarily. It could be just that the decision-making is different in those two individuals?---It could be, that’s correct.
PN681
So it’s not the drink per se, that the presence of the drink in itself leads to a complete disregard for the law?---Not necessarily, it may do, but not necessarily.
PN682
So it could be the drink, it could be drugs, it could be a disrespect for the law. It could be a whole range of issues that the one
person decides, “To hell with it, I’m going to drive.” And the other person says, “No, I’m going to
act responsibly”?
---Yes, that’s not an unreasonable explanation or conclusion.
PN683
So if we then apply that rationale to the workplace it would seem that those who engage in drugs in their spare time may not necessarily go work in the same state?---Correct, that’s right.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN684
Would you accept – even though you’ve stated that there’s little research done on drug and alcohol abuse in the workplace – would you accept that drug and alcohol abuse is likely to vary from industry to industry?---Yes, and I am familiar with – in discussions with different industries I am familiar with different problems that those industries have with different drugs. So yes, I am aware of that.
PN685
So for example, if we were to look at the legal profession as an example, and drug-taking there you might get very significant results to say, people who work in the nightclub sector or the hotels and that sort of thing. Would you expect to see different patterns there?---Every lawyer I speak to tells me they don’t use drugs so they would be an unusual population, perhaps but no, I agree with you. On a serious note, I certainly agree with different professions have a tendency to perhaps use different drugs based on their social inclination, their situation, that is, their work situation and all sorts of different reasons. People use drugs for all sorts of different reasons. But I would concur that there are some general trends within various industries.
PN686
I’m sure you’ll have some lawyers volunteering to be drug-tested to see if that’s true or not. In terms of people
with high levels of dependency and chronic
users - - -?---Yes.
PN687
- - - would you agree that on the whole those at the sort of sharp end of drug use are less likely to be employed?---If employment is related to drug use, that is, a chronic user is likely to eventually be caught, I would suggest, and that is simply by if they use drugs on multiple occasions and they’re tested on multiple occasions at some point in time they’re likely to be detected. If we start getting into discussions about personalities and those sorts of things that’s beyond me to comment on necessarily. But certainly heavy drug users may be more likely to be detected and therefore the detection leads to their unemployment, that’s a reasonable conclusion.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN688
Professor Christie comments on the reasonableness of testing methods?---Yes.
PN689
But would you agree that testing methods would have to be seen in the light of the environment in which testing is conducted?---Absolutely, yes.
PN690
So for instance, can I just – sorry, I didn’t mean to stop your answer there – so for instance, a compulsory testing regime in a prison for example, the reasonableness of that compared with a situation where third parties are being tested. It would be quite different?---Look, if I understand your question, certainly in something like Corrections where they’re looking for any drug use it comes down to, I guess, the intent of the employer and the employees and in this case, I guess the union, with respect to what’s the agreed intent. Is it to detect individuals who use drugs or is it necessarily an impairment or a fit-for-work type policy? All these sorts of things have different implications in how drug testing may be performed. Again, I go and do some training in areas where urine testing is just not able to be performed so by default oral fluid testing is used, regardless of what they may desire to use. So there are all sorts of different combinations and reasons why one organisation might choose urine and another might choose oral fluid.
PN691
So consent is a critical issue in an environment where testing is not compulsory?
---Where testing is not – sorry, I missed that last word?
PN692
Consent is critical. It’s a critical issue?---Consent?
PN693
Yes, consent?---Yes.
PN694
From the donor consenting to the test?---That’s correct. That’s a requirement of the standard.
PN695
That consent would have to be freely given?---Well, yes, I mean if they are employed and they’ve signed an employment agreement and at that point they’ve agreed to do certain testing then at the point of collection there’s generally a consent to say, “Look, we’re doing the testing and do you consent to give me a sample?”
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN696
Okay, that consent process or consent-giving process, that would normally involve reading and signing a form of some description?---It may do. That’s commonly what I observe, yes.
PN697
Because you are in effect by participating in a test handing over confidential information about yourself in the form of a sample, for instance?---Yes, I guess you are, yes.
PN698
Your DNA, for instance, details about your lifestyle for instance?---Yes.
PN699
So it’s important that the people who are engaging in these procedures fully understand what their rights and obligations are?---I would suggest that would be the case, yes, or that should be the case.
PN700
One final question, in terms of the Australian standard on urine collection are there any special arrangements need to be made for
the collection from men and women and also can you also answer that with respect to people with disabilities?
---There’s really nothing specified in the standard. The standard infers what we refer to as level 3 testing which is simply
cubicle door closed. It doesn’t infer that males should test males and females should test females and it certainly doesn’t
go into the discussion, as far as I’m aware, on issues of people with disability. That’s really an organisational or
a collection facility process or scenario.
PN701
Thank you.
PN702
THE DEPUTY PRESIDENT: Thanks, Mr O’Callaghan. Well, they weren’t my questions. Mine are, I think, actually probably simple questions?---Sure.
PN703
Yours were good but complicated questions. Dr Robertson, Deputy President Anna Booth here. If I might just ask you a few questions?---Sure.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN704
And then both Mr Perry and Mr O’Callaghan and ultimately Mr Burns, who is yet to re-examine you will be able to take anything up that they are concerned about. So commencing with your expertise in the Australian standards for testing and also this is really the question, they go also not just to the process of testing but to the threshold concentrations, do they not?---They do, exactly, yes.
PN705
And are those threshold concentrations determined based on the anticipated level of impairment of a person with that threshold or
more in their relevant fluid?
---No, they’re not. They really go to the industry’s ability level for the drugs at those levels as well as I guess a
desire to make sure that you’re not finding the sorts of drug that may have been used many weeks ago and now you set the threshold
so low that you’re dealing with the irrelevant presence of some of these drugs and issues of passive exposure and all those
sorts of things. So they’re really set at a level that are reasonable, logical, applicable, but really don’t have any
– and certainly, if we talk urine for a moment, it’s simply looking for the presence of the drug. There is obviously
no inferring of impairment. It’s similar to oral fluid. There shouldn’t be any inferring of impairment other than the
fact that again if the drug is detected then they’ve probably used it recently and therefore may be impaired. So they’re
really not there as impairment guidelines. They’re really there as a compromise in what we’re able to find.
PN706
So is there any scientific literature that you’re aware of that does draw the parallel between the level of concentration and likely impairment?---That would be defined in our world as the holy grail. There are lots of studies that have attempted to do that but because there are so many variables with any individual the concentration of drug present, really, unless it’s extraordinarily high, the level of drug present can’t be used in isolation to determine impairment just because there are so many variables, the size of the individual, how regularly they’ve used the drug, how did they take the drug, did they take it intravenously or did they take it orally? All of these sorts of things you can’t determine from a drug test result go to levels of impairments which is why it’s regardless, I guess, urine or oral fluid testing, some form of impairment assessment needs to be performed in order to determine if someone is impaired. And often most people are just at home, offsite if they’re positive just because it’s easier.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN707
Thanks. Excuse me if I sneeze. I’ve got a bit of hayfever. For the comfort of the bar table, let me assure you I have taken no hayfever medication. I may be impaired but not by hayfever medication. My next question goes to the so-called confirmatory test that you’ve been discussing with - - -?---Yes.
PN708
- - - the bar table. In that a confirmatory test is presumably done in order to detect whether or not a false negative or a false positive has been given, does the actual fluid that the confirmatory test is done on have to have been collected in the same issue, if you like, as the original test or can it be a confirmatory test notwithstanding that it’s a different swab or a different issue of urine?---Sorry, is that relating to the screening of one solution and the confirmation in the alternate solution or are you saying - - -
PN709
So I’m just wondering, maybe I could give a better scenario and make sense to it?---Sure.
PN710
So if it’s an oral fluid test and you use a swab - - -?---Yes.
PN711
Do you use the fluid on the one swab to do the two tests or do you take a second swab and if you take a second swab is there an issue about how long after you’ve taken the first swab?---Look, that’s not really outlined in the Australian standard. The Australian standard says you need to send two samples to the laboratory. Again, because there are so many different oral fluid devices available as there are many urine devices available, but because there are so many different oral fluid devices, some of them collect – there are (indistinct) that collects a large amount. There are some that you may have seen the police use which are simply just a scrape down the tongue so there’s no fluid, residual fluid available for retesting. In those instances you’ve then got to expel leak fluid into a collection container. So it depends on the device to answer your question. If however two devices were used and is a scenario that I have seen implemented, where two devices are used, then I think the terminology “as quickly as practicable.” Given that often you’ve used all the saliva in your mouth to produce the first result sometimes it takes a little bit of time to get that second result and that’s then collected and sent off to the laboratory for further testing.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN712
If the two tests were one oral and one urine - - -?---Yes.
PN713
- - - could be they be described as confirmatory in the sense that the second test confirms the accuracy of the first or are they just different tests for different purposes?---They’re just different tests. You wouldn’t be necessarily confirming the presence of something in the oral fluid by using urine. If again, to be compliant with the standard, if you collected urine for that confirmation test you’d again have to do a screen and confirmation whether you looked for that specific drug or not. That’s, I guess, a company policy question but you would then have to do the screening confirmation in the urine and the conclusion is in that the drug is in the urine. An interpretation of that is the drug was probably also in the oral fluid but you haven’t confirmed that result so you can’t necessarily take that leap of faith in a technical sense.
PN714
In terms of the two tests and what they’re detecting in that window of detection that you described which I understand to be a period of time - - -?---Yes.
PN715
- - - when you do the urine test even assuming that you’re doing it on the exact same drug as you’ve done for the oral test - - -?---Yes.
PN716
- - - and you get a concentration level, can you determine from the urine test what juncture in the window of time the drug has been ingested or do you just have a bigger window of time to consider?---Yes, in general the answer is no. You can’t determine when a drug was used. You might say that if the drug levels were low then it might have been used days before and if they were high they might have been used recently but there are all sorts of counterarguments to those generalisations. So in effect if it’s present in the urine it’s just representative of some use in the days earlier.
PN717
Thanks, Dr Robertson. That was very helpful. Perhaps first of all, Mr Perry, if you’ve got any questions arising from that.
**** MICHAEL DAVID ROBERTSON XXN MR O'CALLAGHAN
PN718
MR PERRY: Just some very brief matters, your Honour.
<FURTHER CROSS-EXAMINATION BY MR PERRY [12.26PM]
MR PERRY: I just wanted to go back, Dr Robertson, to the answers you gave her Honour about cut-off levels or threshold levels in
the Australian standards?
---Yes.
PN720
It’s fair to say, is it not, that a positive reading for a drug under the Australian standard is not simply a reading that there is any level at all of the relevant drug in the sample, is it?---Sorry, could you rephrase that?
PN721
So the Australian standard has various thresholds for different substances, that’s right, isn’t it?---That’s correct, yes.
PN722
And those thresholds are not as close as possible to zero as one can detect?---Not necessarily, that’s right. They haven’t necessarily been set that way.
PN723
So for blood alcohol, for example, the threshold is 0.05 percent, that’s right, isn’t it?---For perhaps you and I driving with an open licence. Perhaps it varies in workplaces but I know the intent of the question so yes, it might be 0.05 percent.
PN724
Yes, but for people who are operating a heavy vehicle in the workplace. That’s right, isn’t it?---Not necessarily. Again, different companies will have different policies. More often than not it’s zero.
PN725
And I withdraw that. It may in fact be 0.02 in that case?---Again, if it’s in the workplace, different workplace policies will dictate the acceptable alcohol level and my experience currently is the vast majority of organisations that have high-risk activities being performed are zero. But again, I see 02 and I see 05, so it really varies from organisation to organisation.
**** MICHAEL DAVID ROBERTSON FXXN MR PERRY
PN726
But the threshold for drugs in the Australian standard is not zero, is it?---No, it’s not zero, that’s right.
PN727
And nor is it the tiniest possible reading you could have above zero?---No, that is correct.
PN728
It’s a level which is higher than that. That’s right, isn’t it?---Yes, that’s right. As I alluded to, it’s a compromise of the various inputs, certainly the ability of the lab to constantly identify the drug or drugs is an important factor in that coming up with a threshold level. But as I said there are various other aspects as well but it’s certainly not necessarily for most drugs at the bottom end.
PN729
I think you said in your answer to her Honour’s question that the threshold for union testing was simply to detect whether or not the drug was present. What I think you meant to say was that it was to detect whether the drug was or was not present at or above the relevant threshold. That’s right, isn’t it?---Absolutely, yes. That’s a more accurate statement.
PN730
Thank you. The second matter I wanted to raise with you, Dr Robertson, was her Honour asked some questions about the point at which or the ability to detect the point at which the drug was taken by a person?---Yes.
PN731
And I think in the context of a urine test you answered that it wasn’t possible to know that?---Correct.
PN732
And I take it that the same would apply to an oral fluid test as well. That’s right, isn’t it?---That is correct with I guess the only qualifier on there is that if it’s present in the oral fluid it has been used in recent hours but I couldn’t tell you if that was 10 minutes or two or three or four hours ago. It is unlikely that it was taken a day or two ago however. Whereas with urine testing it may have been taken 30 minutes ago, it may have been taken three days ago, it may have been taken two weeks ago depending on the drugs that we’re talking about.
**** MICHAEL DAVID ROBERTSON FXXN MR PERRY
PN733
The amount of the drug which is taken may also be a factor which bears upon - - -?---That is true, absolutely, and that’s why, as I’ve alluded to, we are talking quite generally. There are all sorts of more specific reasons why you might not detect something or you might detect something or you cannot determine when a drug might have been used.
PN734
Yes, thank you. Nothing further, your Honour.
PN735
THE DEPUTY PRESIDENT: Thanks, Mr Perry. Mr O’Callaghan.
MR O’CALLAGHAN: Two brief questions.
<FURTHER CROSS-EXAMINATION BY MR O'CALLAGHAN [12.31PM]
MR O'CALLAGHAN: You’ve given a lot of evidence about swab testing as opposed to urine testing. In your experience is swab testing generally considered less intrusive?---Look, that’s a terminology that I guess doesn’t get promoted necessarily by myself. I talk of intrusiveness necessarily as having to go and provide a sample of urine in front of someone versus an oral fluid sample in front of someone. I understand the concept as you perhaps suggested and that is looking back in time, looking further back in time and if that is a definition of intrusiveness then I would agree that urine is more intrusive insofar as it looks further back in time at various drug-taking patterns than oral fluid might.
PN738
What I was getting at in addition to that was the actual act of providing a sample?
---Okay, correct, yes, and that’s the first point that I made. The actual act of providing a sample is generally regarded
as less intrusive for oral fluid testing than it might be for urine testing.
PN739
You said before about various studies and you weren’t aware of various studies being done regarding the workplace. It is the case, is it not, that there was a very important study done of the transport industry by Professor Quinlan?---Look, that might be the case. I’m not specifically familiar with that and I would have to have reviewed, I guess, how that study was done in the transport industry. And most of the transport industry studies that I’ve reviewed are questionnaire-based and so again, you need to put various – the interpretation of a lot of these conclusions need to be formed in light of the way the data was collected. I’m not specifically familiar with the study you’re referring to.
**** MICHAEL DAVID ROBERTSON FXXN MR O'CALLAGHAN
PN740
Thank you.
THE DEPUTY PRESIDENT: Mr Burns, re-examination.
<RE-EXAMINATION BY MR BURNS [12.33PM]
MR BURNS: Thank you, Mr Robertson. Listen, you’ve seen a copy of the drug and alcohol policy which is at issue in this dispute?---I have, yes. I was given that. I don’t have it right in front of me. I can access it on my computer.
PN743
This is Michael Burns again, asking you these questions. And you’re aware that in relation to that policy that the screening test was oral fluid testing?---That’s correct, yes.
PN744
Now, there’s talk here about the standard for oral fluid testing and for urine testing. Is oral fluid testing standard still valid?---Yes, it is.
PN745
And is oral fluid testing in your experience as a professional in this area, is oral fluid testing a good and developing science?---It’s a generally accepted technique and it is certainly still developing, yes.
PN746
Can you explain to her Honour or just confirm to her Honour what the standard says about the appropriate testing method for confirmatory testing when oral fluid is used for (indistinct) test?---It would be using a second oral fluid sample and it would have been performed by various techniques. I’m not sure if you’re asking me the specific techniques that are being used in a lab that but it would be using a second oral fluid sample for that confirmation.
PN747
And you’ve given evidence before, I mean you’ve said, you’ve given evidence before in legal proceedings?---Yes, many times before.
**** MICHAEL DAVID ROBERTSON RXN MR BURNS
PN748
Including proceedings in the Industrial Commission?---Yes, I have.
PN749
And are you able to – well, in your experience have you had experience where oral fluid testing has been accepted in the cases that you’ve been involved in as valid science and?---Yes, I have.
PN750
I’ll just leave it at that. Thank you very much?---Thank you.
PN751
THE DEPUTY PRESIDENT: Thanks, Mr Burns. Dr Robertson, thank you very much for your evidence. You’re excused?---Thank you very much, lovely, thank you.
And we will hang up now, thank you.
<THE WITNESS WITHDREW [12.36PM]
THE DEPUTY PRESIDENT: Mr Burns, if you’d like to call your next witness. I know we only have half an hour but we will still commence.
MR BURNS: The next witness is Warren Smith, your Honour.
<WARREN SMITH, AFFIRMED [12.37PM]
<EXAMINATION-IN-CHIEF BY MR BURNS [12.37PM]
MR BURNS: Now, Mr Smith, you’ve made two statements, an initial statement, dated 1 July 2013. Do you have that with you?---I do.
PN756
It’s the one that says “Statement of Warren Smith”?---Yes.
PN757
Yes, and also you’ve made a supplementary statement, dated 23 July 2013 but I think it’s actually 23 July – I’m not sure actually.
**** WARREN SMITH XN MR BURNS
PN758
THE DEPUTY PRESIDENT: The statement I have was dated and signed 23 July 2013, the supplementary statement.
PN759
MR BURNS: Yes. I think that’s the wrong – incorrectly dated. I think that’s more 23 August 2013, your Honour, that should be dated.
PN760
THE DEPUTY PRESIDENT: All right.
PN761
MR BURNS: Or about.
PN762
THE DEPUTY PRESIDENT: Is that an acceptable correction other than by evidence, Mr Perry?
PN763
MR PERRY: There’s no difficulty with that.
PN764
THE DEPUTY PRESIDENT: Very good.
PN765
MR BURNS: I’m not sure that the date of the statement is entirely reliable. If we could just perhaps remove the date and just say it’s an undated supplementary statement of Warren Smith.
PN766
THE DEPUTY PRESIDENT: Yes.
PN767
MR BURNS: Now, I tender those two statements.
PN768
THE DEPUTY PRESIDENT: Yes, thank you. Any difficulty, Mr Perry? Mr O’Callaghan, any difficulty with the statements of Mr Smith being tendered?
PN769
MR O’CALLAGHAN: Sorry, your Honour.
**** WARREN SMITH XN MR BURNS
PN770
THE DEPUTY PRESIDENT: No difficulty with the statements of Mr Smith being tendered?
PN771
MR O’CALLAGHAN: No, your Honour.
PN772
MR PERRY: No, your Honour. Just one observation that the witness does at a couple of junctures express opinions about certain things. For example, paragraph 17 of the first statement. We don’t object to that material. It’s the witness’ view but in argument we may wish to say something - - -
PN773
THE DEPUTY PRESIDENT: You’ll have a different view.
PN774
MR PERRY: - - - about the weight that should be given to that and I just raise that at this stage.
THE DEPUTY PRESIDENT: Yes, certainly, obviously opinions of experts have different weight than opinions of others and perhaps this opinion is in relation to Mr Smith’s expertise but I’ll certainly bear that in mind when we come to it. So let’s mark the statement of Warren Smith of 1 July 2013 as MUA2 and the statement of Warren Smith that is undated and is titled “Supplementary Statement” as MUA3.
EXHIBIT #MUA2 STATEMENT OF WARREN SMITH, DATED 1/7/13
EXHIBIT #MUA3 UNDATED STATEMENT OF WARREN SMITH, TITLED "SUPPLEMENTARY STATEMENT"
THE DEPUTY PRESIDENT: Okay, go ahead, Mr Burns.
PN777
MR BURNS: I’ll just – just go straight into cross.
**** WARREN SMITH XN MR BURNS
PN778
THE DEPUTY PRESIDENT: No further questions? Thank you.
PN779
MR BURNS: No further questions.
PN780
THE DEPUTY PRESIDENT: All right, Mr Perry.
MR PERRY: Thank you, your Honour.
<CROSS-EXAMINATION BY MR PERRY [12.40PM]
MR PERRY: Mr Smith, you’re the assistant national secretary of the Maritime Union of Australia?---That’s correct.
PN783
And you were involved in 2011 and 2012 in enterprise agreement negotiations for the five DP World terminals?---Yes.
PN784
At that time, I think you say in your statement the negotiations were broken into what were called Part A negotiations and Part B negotiations?---Yes, they were.
PN785
And the Part A matters were national issues which were to be common across all five agreements?---Yes, they were.
PN786
The Part B issues were what one might call local matters?---Generally yes.
PN787
You were the lead MUA negotiator in those enterprise agreement discussions?
---Yes.
PN788
You were aware that at the time the negotiations were occurring each of the five DP World terminals had their own drug and alcohol policy?---Yes, there were varying applications of Drug and Alcohol Policy in some of the ports.
**** WARREN SMITH XXN MR PERRY
PN789
The testing under those policies was what one might describe as cause-based testing?---Yes, that’s correct. It wasn’t random at that time.
PN790
No, so not random testing. So it was where there was an incident in the workplace, someone could be tested?---Yes, an incident and there was also scope for management discretion, I suppose, if there was suspicious-type behaviour or you know - - -
PN791
Yes?---- - -someone had acted in a way that it was thought by management that they may be under the influence of drug and alcohol.
PN792
Yes, so there were those two things where there was an incident or where there was a reasonable suspicion which the company had?---Yes.
PN793
As to the method of testing which was used that was different in each terminal?
---There was generally urine testing and saliva-based testing was used in Fremantle.
PN794
Yes, so in Fremantle there was initial oral fluid testing followed by a confirmatory urine test?---I understand that’s correct, yes.
PN795
That was also the case in Adelaide and Melbourne?---Saliva testing or just - - -
PN796
Saliva followed by urine?---I’m not certain that they had saliva testing in the other ports.
PN797
Okay, but certainly in Brisbane and Sydney there was urine testing only at the time?---Yes.
PN798
Now, prior to commencing the enterprise agreement negotiations, Mr Smith, you consulted with your members?---That’s correct.
**** WARREN SMITH XXN MR PERRY
PN799
And there was a log of claims which was developed?---Yes, a substantial one.
PN800
Yes, a log of claims which I think we’ve all seen a number of times now. And one of the claims in the original log of claims was that there be drug and alcohol testing as per the Fremantle system?---There was the general claim however. And there was a view put from Fremantle that – and that was, that particular claim was about not random swab testing but the specifics was a swab testing without a random element and that was the basis behind that particular claim.
PN801
So the claim was for for-cause swab testing as per Fremantle system?---Yes, particularly in relation to the rejection of a random approach in some areas of the industry.
PN802
Yes, yes, so that was the union’s position at the beginning of the bargaining, that there be cause-based testing as per the Fremantle system?---Yes, but could I say though the position that was generally articulated and was put was that it be a swab-based testing regime and an impairment testing regime. The emphasis of the members was on an impairment-based regime with which they believed a swab-testing reflected more accurately.
PN803
But your log of claims didn’t say that though, did it?---No, the log of claims doesn’t. Generally written in dot point or typed forms that are then elaborated on in a process of negotiation.
PN804
Yes, so the log of claims just said for-cause swab testing as per Fremantle system? Yes?---Yes, there are probably a number of different manifestations of that log of claims I want to suggest too.
PN805
And following the receipt of the log of claims there were some meetings between the union and the company’s negotiators?---There were many meetings, yes.
**** WARREN SMITH XXN MR PERRY
PN806
The company, in the course of those meetings, provided its response to the matters in the log of claims?---Yes.
PN807
And following those discussions the union revised its log of claims?---Yes, there was movement from both sides during the process of negotiation as is normal.
PN808
On 8 June 2011 the MUA issued a further or revised log of claims?---Yes, various logs of claims were altered and on the basis of the outcomes of the negotiation to reflect the movement of both parties and a development of an attempt to reach consensus.
PN809
Yes, if I could just show the witness a document?
PN810
THE DEPUTY PRESIDENT: Certainly.
PN811
MR PERRY: The document is actually page 39 in the statement of Ms Blomfield. Are you familiar with that document, Mr Smith?---Yes, and that claim is about the emphasis being in that particular thing about the for-cause testing. Like I said there was a view about rejection of a random position from a number of ports.
PN812
Yes, and the document refers again to the Fremantle system?---Yes, particularly the for-cause swab testing as per the Fremantle system as it says specifically - - -
PN813
Yes?---- - -in the claim.
PN814
Then the comments on the right-hand side of the page suggest that the company’s position was the Drug and Alcohol Policy should not be included in the agreement?---Yes, that was a position around a range of policy questions that we sought inclusion into the agreement.
**** WARREN SMITH XXN MR PERRY
PN815
And the company’s preference was to treat the Drug and Alcohol Policy as a safety issue outside of the enterprise agreement. That’s right, isn’t it?---Well, I’m not necessarily certain it was the company’s intent to deal with it as a safety issue per se but certainly as a policy outside of the agreement.
PN816
Yes, well, if you look at the document I’ve just handed you there’s a column headed “DP World Position 7 June”?---Yes.
PN817
It says:
PN818
Not an EA issue. The enterprise agreement and negotiations are not the forum for addressing safety issues. Such issues are not negotiable. DP World has invited the national MUA officials to meet with the company’s senior -
PN819
and I think it goes over the page - - - ?---Yes.
PN820
- - - to suggest a meeting with the safety team?---Yes.
PN821
So that was the company’s position and in fact there were subsequently some meetings with safety employees of the company and the MUA?---No.
PN822
Well, certainly the company was suggesting that those meetings would occur?
---They did suggest that but they did not occur and I think we had invited representatives of DP World’s safety department to
come along to enterprise agreement negotiations and they rejected that offer.
PN823
Yes?---And no further meetings took place with any DP World safety representatives around that time.
PN824
And that is because the company was saying to you that the policy was not an enterprise agreement issue?---Yes, that was the company’s view but not ours.
**** WARREN SMITH XXN MR PERRY
PN825
And that it should be dealt with outside of that process?---That was their view but we’re saying we had a different position.
PN826
So what the company was wanting to do was to treat the Drug and Alcohol Policy as a management issue, not an enterprise agreement issue?---Yes.
PN827
It didn’t want the policy hardwired into the enterprise agreement?---That’s correct. I believe that’s correct. I mean their position is articulated in the response on the same date.
PN828
Yes, if I could just ask you to return that document, Mr Smith. I’ll just hand you a further document?
PN829
THE DEPUTY PRESIDENT: Yes.
PN830
MR PERRY: And your Honour, again, this is found at pages 57 and 58 of Ms Blomfield’s statement. Are you familiar with that
document, Mr Smith?
---This is one of the various forms of marked-up safety clauses in the current EBA and in the last EBA. We had sought to actually
have a different clause around the question of safety and the final outcome was that the current existing safety clause would be
altered to capture some of the more important – some of the issues that we thought were more important and most important to
deal with in the current set of negotiations.
PN831
So that document I’ve just handed to you, Mr Smith, which is again, your Honour, page 57 and 58 of Ms Blomfield’s statement - - -
PN832
THE DEPUTY PRESIDENT: Yes.
PN833
MR PERRY: - - -just down the bottom you’ll see it’s dated 28 July 2011?---Yes.
**** WARREN SMITH XXN MR PERRY
PN834
And what it is is a copy of the existing safety clause which has been marked up to show the changes which the company was proposing be made to it, yes?---Yes, absolutely and consistent with the agreed document in the end, in the certified document.
PN835
That’s right. So if you look on the second page, Mr Smith, on page 58, you’ll see clause 17.8?---That’s correct. That’s the clause consistent with the registered document.
PN836
Yes, and so that is the clause in its final form as it were?---That’s correct.
PN837
And that was as a result of discussions which had occurred in June and July 2011?---Yes, that’s a result of the overall ultimately concession on the union’s part from its original claim when it became clear that the company was not prepared to put the entire policy into the enterprise agreement that captured what was seen as the major points of compromise around the Drug and Alcohol Policy which was that we conceded random as per – which there was considerable opposition from as you can see from the original log of claims we’ve just discussed and it also deals with the question of the testing will utilise swab testing.
PN838
Yes, so there were compromises made by both parties. From the union’s side there was a compromise to accept random testing and from the company’s side there was a compromise to accept the Fremantle system which the union had claimed?---No, the Fremantle system was for-cause testing.
PN839
Yes but at - - -?---It wasn’t just swab testing. It was about for-cause testing and that was the major emphasis at Fremantle at that time because it was a rejection of the randomness.
PN840
Yes?---That was a compromise from the Fremantle, the West Australian branch that they would in the end accept a random testing process.
**** WARREN SMITH XXN MR PERRY
PN841
But if they - - -?---They always wanted to have a – the swab testing was a primary thing across all the branches and consistent but there was opposition around going to a random approach.
PN842
Yes, but if I can put the random testing to one side which was a point of compromise on the union’s side, what the company was saying is that the MUA has made a claim based on the Fremantle testing regime, as it were, putting to one side random, and the company was accepting that part of the claim?---No, no, as is reflected in the clause in the union which is the agreed clause, that we accepted random and the company accepted that we will use swab testing.
PN843
Yes, which was what had been happening in Fremantle?---In a for-cause sense, yes, but not randomly.
PN844
And the Fremantle system was the system which you have referred to in your log of claims?---It was referred to and again I re-emphasise that that was mainly on the basis of opposition to random.
PN845
Well, what I’m putting to you, Mr Smith, is that in each of the five ports, the company did not do random testing before this enterprise agreement, did it?---No.
PN846
No, so it wasn’t necessary for you to refer to the Fremantle system to indicate your opposition to random testing?---The emphasis probably becomes one of those political questions where if you have a specific opposition from a particular branch.
PN847
But the reason you had referred to the Fremantle system was because of the feature it had of a oral fluid test?---Partly, but also because specifically there was an opposition to going to random from that area.
PN848
Are you saying that there was no opposition to random elsewhere in the country?
---Not as strongly.
**** WARREN SMITH XXN MR PERRY
PN849
Right, but there was opposition?---In some areas, yes, and a divided opposition and workforces are complex places and some of these workforces are big workplaces. For example, there are 600-odd people at Port Botany alone and I would suggest there wouldn’t be one question in the world where you would get unanimity of views.
PN850
But to signify your rejection of random testing you didn’t have to refer to the Fremantle system, did you?---Well, the logs of claims are typed in by various different people. A view was put that that was the way that it would be worded. Not the greatest degree of attention goes into how one words a one-liner in a log of claims. It’s about the sitting down and having the discussion at the end of the day and determining what the position is so that the important components and the words that come out in the agreement in the end that reflect that discussion and outcome.
PN851
I’m not sure you answered my question, Mr Smith. My question was it wasn’t necessary for you to refer to the Fremantle system to indicate the union’s opposition to random testing?---No, you’re right. We could have just said “for-cause testing.” It wasn’t absolutely necessary to articulate it in that exact form, no.
PN852
That’s right, but you did add in “as per the Fremantle system” and you were aware that the Fremantle system had a component of oral fluid testing?---Yes.
PN853
I think you told her Honour a moment ago, Mr Smith, that the clause that I’ve just handed you, clause 17.8 was at that time, that was the final form of the clause? That was the agreed form of the clause?---That’s the clause that - - -
PN854
THE DEPUTY PRESIDENT: Mr Perry, I was conscious of not wanting to break your flow there when you were interrogating in relation to the intention that Mr Smith had in the negotiations, but given the time would this be a convenient moment to break if you’re going to go to the portion of the agreement?
**** WARREN SMITH XXN MR PERRY
PN855
MR PERRY: Yes, I’m moving on in a slightly different tack now, your Honour.
PN856
THE DEPUTY PRESIDENT: Yes.
PN857
MR PERRY: So I’m happy to break at this time.
PN858
THE DEPUTY PRESIDENT: All right, okay, well, Mr Smith, you will remain affirmed and the usual constraints apply to you. Lunchtime conversation is to include all manner of sporting events no doubt and other such matters but not your evidence?---Absolutely.
And we’ll resume at 1.45, a quarter to 2.
<THE WITNESS WITHDREW [12.59PM]
<LUNCHEON ADJOURNMENT [12.59PM]
<RESUMED [1.50PM]
PN860
THE DEPUTY PRESIDENT: Mr Perry, you were about to go to the agreement, I believe.
MR PERRY: I'm heading in that direction, your Honour.
<WARREN SMITH, RECALLED ON FORMER AFFIRMATION [1.50PM]
<CROSS-EXAMINATION BY MR PERRY, Continuing [1.50PM]
PN862
MR PERRY: Just before the adjournment, Mr Smith, I was asking you some questions about the 28 July 2011 draft safety clause. I think you can hand that document back now. I've finished with that for the moment. I think your evidence was as at 28 July the Drug and Alcohol Clause, which became clause 17.8 was in its final form?---Yes.
PN863
But there were, at that stage, still a quite large number of other matters which were not the subject of agreement such as wages and the like?---Yes, that's - in all likelihood, yes, and I'd have to look at the ongoing drafts of the log of claims to tell which one, but, yes, that's most likely.
PN864
And the parties, that is from the end of July, for the rest of 2011, continued to have negotiations about those other matters?---Yes.
PN865
And there was a point of impasse that was reached in December 2011?---Well, yes, I suppose that's correct. There's a point of impasse on a number of occasions throughout the process.
PN866
But it was at that point in December 2011 where the union sought protected action ballot orders?---Yes.
PN867
Yes?---I don't recall the exact date but it would be on record, no doubt.
PN868
And if I were to suggest to you that that was around December 2011, that would be about right?---Yes, yes.
PN869
So - and then following that there was protected industrial action which occurred?---Yes. Not everywhere.
**** WARREN SMITH XN MR PERRY
PN870
No?---But in some areas, yes.
PN871
I think in Adelaide, there was some protected action?---There was.
PN872
And, possibly, Freemantle as well?---Yes, and I think Sydney possibly, yes.
PN873
Yes. And so that industrial action was occurring about six months after the clause in the - the safety clause, I should say, was in its final form?---What turned out to be its final form.
PN874
Yes?---I don't necessarily think that on the basis of that draft, anything in particular was locked in, because it's always negotiated on the philosophy that nothing's agreed until everything is agreed.
PN875
Yes. And that was the philosophy both parties were adopting?---Yes.
PN876
But, certainly, in relation to clause 17.8, it did not change?---Correct.
PN877
And the focus of the negotiations after it was drafted was very much on other things?---I think that's right.
PN878
Then following industrial action, the - what I think the parties call the Part A negotiations, resumed in January 2012?---They did and there was a high level meeting that had less representatives involved in it.
PN879
Yes. And those discussions eventually resulted in an agreement being reached, and that agreement didn't involve any change to clause 17.8?---That's right.
PN880
The agreements at each port were then voted on at slightly different times, weren't they?---Yes.
**** WARREN SMITH XN MR PERRY
PN881
That was because there were Part B issues, which needed to be resolved for each of them?---Largely, yes. Some would have to do with availability, but that was generally the position.
PN882
And the agreements were approved at different times in May and June 2012 and I think the Freemantle agreement was the last agreement to be approved and that was in early June?---That's sounds right.
PN883
And what happened following the approval of the enterprise agreements was that the company started to speak to its employees about the new drug and alcohol policy?---Well, I'm uncertain about that. It's conceivable that part of the agreement provides for monthly meetings of local site committees. What's discussed in each of those different ports in local site committee meetings I'm not privy to, to be quite honest, because they're usually - deal with a range of local issues. But there wasn't a specific consultation around the drug and alcohol for some time, I believe.
PN884
Well, if I was to suggest to you that the drug and alcohol policy was discussed at site committee meetings at each terminal in the middle of 2012, would you accept that?---I would accept that, yes, that is likely to be the case and the process, as I understood it, to be was initially I was given a policy and there was a general acceptance that it should go and be floated, so to speak, in the different areas to see if there were any particular issues with that from the four branches, at that stage, because I think Adelaide had potentially moved on by then. But it could have been five. It could have been Adelaide as well. But Adelaide ceased to become part of the mix because they left the DP World Business, became a Flinders Ports operation. But, yes, there was a general agreement that would go and have a preliminary discussion. And a lot of that's got to do with the fact that when you talk about rehabilitation and so on and so forth, these things occur, obviously, you're going to have one rehabilitation provider, there's different people in different states, there are a range of different other issues that - in terms of application, that can occur locally.
**** WARREN SMITH XN MR PERRY
PN885
Yes?---The intent always was to bring that back into a national forum and pull together a national view on the drug and alcohol policy, and that did not occur until after a recommendation was given by her Honour.
PN886
Yes. Well, that was certainly your intention that the matter be dealt with at a national level, wasn't it?---Absolutely.
PN887
Yes?---And there's always a process. We have vigorous branches who have very close connections to workforces and vigorous rank and file representation in all the ports, and it's always best that policies of this particular kind go through a process where branches can have an understanding and then generally speaking these things are pulled back into a national framework and the views reconciled to the best that they can be and an acceptable outcome generally across all the ports and then arrived at.
PN888
And that was your view as to how the matter should be dealt with?---Well, it's the only real practical view because otherwise you end up with four completely - - -
PN889
I'm just asking you your view, Mr Smith?---Of course, it is was my view - - -
PN890
Mr Burns is here to make the arguments, just answer my question, please? That was your view?---Yes, it was my view for those reasons.
PN891
Thank you. So what the MUA was seeking, in effect, was a right of veto over the policy?---Absolutely not. We were seeking a national engagement across a national workforce for a national policy.
PN892
I see. So you accept that the company could determine the content of the policy without the agreement of the MUA?---Well, the company did determine the content of the agreement without the involvement of the MUA, and that was half the problem.
**** WARREN SMITH XN MR PERRY
PN893
But you weren't - you're not suggesting to her Honour that the MUA insisted on its agreement to the policy?---We insisted upon a proper engagement and a proper consultative fashion that could properly reconcile various different views across States to have a national policy position.
PN894
You haven't answered my question. You weren't insisting that the policy be the subject of MUA agreement, were you?---No.
PN895
No?---No, but we were seeking to - to the best of our ability, as is, obviously, best practice in any sort of industrial environment to try and reach a consensus around that and reconcile the views of different branches.
PN896
When you say a consensus, you mean a consensus as between the different branches of the union?---No, absolutely not. We try and reach consensus with the company, trying to reach agreement. It's best to have a position where the union, at a national level, and at a branch level, is - and has reached agreement around any particular facet of the operation - - -
PN897
Yes. So - - - ?--- - - - because things work smoothly and it avoids industrial conflict.
PN898
So your preference was that the matter be agreed between the union and the company?---Of course it's our preference that we get an agreement on all issues if that's at all possible.
PN899
Yes?---Absolutely.
PN900
But you weren't saying to the company that the policy cannot be implemented until the union has agreed to it?---Well, there's no capacity to be able to do that.
**** WARREN SMITH XN MR PERRY
PN901
Yes. That's right. And that's because it's a policy?---It is a policy that has very specific effects upon the workforce and our members.
PN902
Yes?---And, again, for the reasons outlined that's why we try and seek to reach a consensus and agreed position.
PN903
Yes. And there was nothing in the enterprise agreement which required the company to seek the union's agreement about the policy, was there?---No, there was nothing in the agreement. We put in the agreement some of the overriding parameters and the main issues of the contention during negotiations was the company's claim to go to random which was, as I previously stated, was rejected in a number of areas and our view that we needed to move to a swab testing arrangement.
PN904
Yes?---So those particular points, the main points, were captured and there was a recognition that putting many of the policy documents that we sought to put into the enterprise agreement was not a practical proposition otherwise we'd need a wheelbarrow to carry it around.
PN905
Yes. And you'd accept, Mr Smith, that the company can change its policies from time to time?---Yes, they can, as long as they're not inconsistent with the agreement. There's a range of consultative mechanisms contained within the agreement with respect to change of policy.
PN906
And none of those mechanisms require the company to obtain the agreement of the MUA to the change, do they?---Unfortunately, not.
PN907
No. And it's necessary for the company, from time to time, to make changes to its policies, isn't it?---Well, yes, circumstances change.
**** WARREN SMITH XN MR PERRY
PN908
Yes?---So, yes.
PN909
And that is something which is important to the company's ability to operate and manage its business?---That would be a question you'd have to ask the company.
PN910
And it was never the position of the company that implementation of a new or varied drug and alcohol policy would be subject to MUA sign off, was it?---Well, that's hard to say. And, again, you might be best off asking the company what their ultimate intent was, but there's been a long history of engagement around a range of different policies between P&O Ports, which became DP World around policy questions, because they have a significant impact upon the workforce and they're often the source of considerable disgruntlement if they're not implemented in a manner that's in an open and engaging way.
PN911
But the implementation did not require agreement from the MUA?---I've already made that point and none of the policies, as far as I'm aware, unless they're inconsistent with the agreement, which then they don't apply, require our agreement per se.
PN912
Thank you. If I could just take you back to a moment ago, Mr Smith, we were talking about the site committees at each of the terminals, and what I'm suggesting to you is that the company raised the new policy at site committees at each of the four terminals in the middle of 2012. Do you accept that?---I accept that there was an agreed process between myself and the senior management at that time, that the policy would be floated for consideration to see if there were any particular issues.
PN913
And the MUA is represented on those site committees?---Well, our members are on those site committees, and in terms of those site committees being part of our structures, in some respects, I presume, yes, but whether or not officials attended at each and every site committee meeting where the matter was discussed, I couldn't say.
**** WARREN SMITH XN MR PERRY
PN914
So the fact is you're not familiar with the discussions that occurred at those site committee meetings?---I'm not intricately familiar with all of the discussions, but I was aware that some discussions had taken place, because we'd agree to sent it to the various branches to float the position and see whether or not the policy that was put forward from management, drafted by management, was acceptable, and it turned out that in the four branches there was a rejection of the policy.
PN915
Well, I'll come to that in a moment, Mr Smith. You're also aware that the company discussed the new policy at the safety committee at each of the terminals?---It's likely that they discussed it, yes.
PN916
But you're not familiar with the details of those discussions?---No, I'm not familiar with the details of the goings on on every single site committee across the country, not only at DP World but, I'm suggesting, all the other many hundreds of work places that we have and represent people.
PN917
But you're aware that there were discussions at the site committees and at the safety committees?---My understanding was the predominant discussions which take place with the site committees, but I don't doubt that the issue was raised by management in one form or another. Now, the nature of how that was raised, whether or not was put on the table and said, "This is our policy" or not, I'm not entirely familiar, although that did seem to occur in some branches from the reports I received from the officials.
PN918
And at those site committee meetings there were attendees who are elected by their co-workers?---Yes.
PN919
Including site delegates?---Yes.
PN920
And at those committee meetings those persons were able to raise any concerns that they had?---Yes.
**** WARREN SMITH XN MR PERRY
PN921
And the company could become aware of the view of employees?---Yes, the company could become aware of the views.
PN922
And being so aware the company could consider those views?---Yes, it would seem that they could do that, yes.
PN923
And the fact is, Mr Smith, is it not, is that at none of those site committee meetings were any issues of major concern raised with the company?---That's incorrect.
PN924
Well, I think you just her Honour a moment ago that you weren't familiar with the details of what was discussed at those meetings - - - ?---The four branches - - -
PN925
- - - you weren't there, were you?---Four branches placed them into dispute on the basis of the outcomes of the discussions so I think that it's reasonably - or not unreasonable to believe that there was some differences otherwise it wouldn't have ended in dispute - - -
PN926
You're just guessing about that - - - ?--- - - - from every single branch and workplace. No, I’m not, because it was dispute by every branch.
PN927
Yes. But the fact it was put into dispute doesn't mean that the employees at those meetings raised any concerns with the company, does it?---Well, yes, it does, because, believe me, we don't look for disputes. If a policy gets up and it's done on the basis of a proper engagement and there's agreement with the site committees, I can assure the branches aren't going to go out of their way and have a dispute when there is agreement in the workplaces. There wasn't agreement in the workplaces, hence the branches all put them in dispute.
PN928
Well, the branches - when you say, put them in dispute, none of the branches under their site specific enterprise agreement lodged or made a dispute under the dispute resolution procedure in the agreement, did they?---No, they escalated it to the national office because there was a view from the branches also that it was a national process.
**** WARREN SMITH XN MR PERRY
PN929
Yes. But would not the first step in the dispute resolution procedure be to raise the issues at a local level management?---Well, I think it was raised at a local level with the level management - - -
PN930
Yes?--- - - - and, hence, the branches then reported to me, as the national official responsible, that there was significant differences in all the areas and there needed to be a national reconciliation around the questions, which was always the intent, from my perspective, of the way that it would do. I would be hopeful that the branches would say, yes, we could agree, and then we could nationally meet and say, "Okay, well, let's get the document about there and rolling," but it didn't work out that way because all the branches had a different view than the company.
PN931
Well, what I'm putting to you, Mr Smith, is that the branches did not put the matter in dispute at any time prior to the end of October 2012?---All of the branches disputed the policy. Whether or not they formally put into dispute in accordance with the dispute resolution procedure, they may not have. They didn't see that as necessary because they seen it as a national process and it was a discussion in the branches to identify if there were any issues. They identified the issues, let me know that there were issues, and it went from there.
PN932
So you accept that they certainly didn't formally raise it under the disputes procedure?---They didn't formally raise it under the disputes procedure, but all of them disagreed with the policy.
PN933
Well, whether they disagreed with it or not, Mr Smith, what I'm putting to you is that they didn't raise a dispute under the disputes procedure?---No, they didn't, but that's why we ended up in the Commission in November, as a reflection of the disputed position from all the branches. It wasn't a question of all the branches agreed then the national office decided to have a dispute about it.
**** WARREN SMITH XN MR PERRY
PN934
Now, you're aware, Mr Smith, that each of the terminals there were a series of short PowerPoint presentations which were displayed about the impending changes?---I understand there was a PowerPoint presentation, yes. I'm not certain it was the same in every location. I did see one from Sydney.
PN935
Yes?---And I think even the company may have sent me a PowerPoint presentation at one stage.
PN936
And you're aware that in the middle of 2012 all employees were provided with a copy of the proposed policy?---I wasn't aware that every employees was, but I don't dispute that if that's the - what the company have said they've done. I think that the policy had to be available for people to understand that they had a difference of opinion with it and disagreed with it.
PN937
Now, if I can ask you to have a look at paragraph 12 of your statement, Mr Smith?---Sure.
PN938
You say, "After the agreements were certified there was a period of silence regarding the drug and alcohol which had been discussed"?---Yes.
PN939
Well, that's just not true, is it?---Well, that's written from my perspective, in my statement - - -
PN940
Yes?--- - - - and there was a period whereby I was not engaged in a discussion around the drug and alcohol policy because the branches were reviewing it, and as I've said all the branches came back and disputed the contents.
PN941
Yes. So you accept that, in fact, rather than there being a period of silence there was, in fact, a large amount of discussion going on at the local level?---Well, I wouldn't suggest there was a large amount of discussion because the reports that came to me was at a very much - what was dished up was a take or leave scenario, and I think that the reflection of that is in the fact that the policy did not change one word through any of the discussions that took place in any of the branches or workplaces.
**** WARREN SMITH XN MR PERRY
PN942
Well, that's a topic I'll come back to, Mr Smith. And you personally received a copy of the policy in late June 2012?---That's correct. And it was at that time that we agreed that we would float the document amongst branches to receive views, because this was a fairly big change. We'd never had random testing before, and some of the sites had not had a swap testing arrangement before, and it was necessary to, you know, get people familiar with it and get the local branches familiar with it and understand what the contents were and, hence, that's where the disagreements arose.
PN943
Yes. And if I can ask you to look at paragraph 14 of your statement, Mr Smith? You refer there to an email from Mr Hume?---Yes.
PN944
And who is Mr Hume?---Mr Hume is the Brisbane manager of the DP World site.
PN945
And in that email Mr Hume advised you that the amendments to the policy would commence on 1 July?---I think I was copied into that. It was probably sent to Queensland officials, but, yes.
PN946
Yes. But that the move to the random testing would not come until a little bit later, until internal briefings had been finalised and the police distributed to all employees?---There were likely some logistical changes required and organisation to bring about that change in the various different work places.
PN947
Yes. Well, when Mr Hume refers to internal briefings, what he means there is briefings of employees, doesn't he?---Bitter experience would indicate possibly otherwise in Brisbane, and you'd have to ask Mr Hume what he exactly meant but experience was that consultation is not the greatest from time to time in some sites.
PN948
But what Mr Hume was telling the recipients about email was that the revived policy would commence on 1 July but that the random testing would follow the further internal briefings?---Yes, he may have been indicating that.
**** WARREN SMITH XN MR PERRY
PN949
Yes. In paragraph 15 of your statement, Mr Smith, you refer to an email you sent to Andrew Adam, and if you could just tell her Honour
who Mr Adam is?
---Mr Adam was the operations manager at the time.
PN950
And if I could just take you now to attachment WS7?---I'm not sure I have that, but anyway. I may have it. Yes.
PN951
That's about a three page long chain of emails and about halfway down the second page of it is the email you're referring to there, the 19 July email you're referring to?---Yes.
PN952
That's the email?---Yes.
PN953
It's attached to your statement?---Yes.
PN954
In that email, Mr Smith, you deal with a number of things?---Mm.
PN955
You deal with supplementary back pay?---Yes.
PN956
You deal with paying sick leave at eight hours?---Yes.
PN957
You refer to the principles of a productivity scheme?---Mm.
PN958
And then you go on and you say, "I'd also appreciate receiving any documentation you have sent or plan on sending to the workforce on D and A testing"?---Mm.
PN959
So by this stage, Mr Smith, you had had a copy of the policy for about a month?
---Yes.
PN960
And what you were asking Mr Adam to do was to provide copies of any further documents that were provided to employees?---Yes. And any information in relation to that roll out process and, particularly, in my mind, the reconvening of a forum where we could bring together the views of the branches.
**** WARREN SMITH XN MR PERRY
PN961
Well, you didn't say that in your email, Mr Smith, did you?---No.
PN962
No. All you asked for - - - ?---I didn't say a lot of things in the email.
PN963
And you didn't raise any concerns with the policy in the email, did you?---Not in that email, no.
PN964
No. Even though you'd had the policy for a month? So you didn't raise any concerns?---Not at that time, no.
PN965
No?---There was still an ongoing process occurring within branches.
PN966
You don't say that in your email either, do you?---I'm sure that Mr Adam knew that.
PN967
He just knew that, did he?---I presume he knew that. He talked about it.
PN968
Mr Adam then responds to your email a little later on the same day and, if I can then go now to the first page of WS7 which is a further email that you sent to him on 1 August, dealing again with a number of things. But at point 4 you refer to the drug and alcohol testing rollout information and you say you committed to role out at a site level prior to the implementation of random testing and then you asked Mr Adam whether the rollout meetings and consultation processes have been undertaken. So you were aware that the company was implementing the new policy?---By rollout do we mean the process of working through? The process that I've previous described. The engagement with the workforce and with the committees. Obviously that hit some hiccups along the way, which was then subsequently reported back and placed in dispute by every branch.
PN969
You don't say, in this email, do you Mr Smith, that consultation or negotiation is occurring at the site level, do you? You talk about implementation?---Yes, I probably used the word implementation. I did.
**** WARREN SMITH XN MR PERRY
PN970
Again, in this email you raise no concerns about the policy, do you?---That's because it was still subject to the ongoing process that's taking place in branches,
PN971
Again, it's not what your email says, does it?---No, it doesn't say that but again Mr Adam knew that there was a process being undertaken in the branches.
PN972
If you genuinely believe, Mr Smith, that there was going to be a national process following the site rollout process, if the company was telling you it was implementing the policy don't you think you should have said something at that point? Don't you think you should have asked them to stop?---Not necessarily. I mean, there was - a process is being undertaken. It's a process and the process resulted in the fact that all the branches disagreed with the policy because there was no movement from the company to any of the concerns that they raised.
PN973
The process that you and Mr Adam were talking about in these emails was the process of the implementation of the policy, wasn't it?---The implementation - and I think this needs - the point of clarity here is that the big change for us was to move to the swab testing arrangement. There is still a urine arrangement in place here. So it was a question of whether or not there was that particular change to the element that was most dear to us. The policy obviously is much broader than just the question of the swab testing. A range of issues cropped up, all were disputed by branches, and that's where we ended up in this particular forum - and to work through those things.
PN974
Given that discussions at the site level had commenced in about May 2012 - - -?
---May?
PN975
May of June, I think you said. If issues of concern had been raised by your branches - what I'm putting to you is that they should have been raised by you in the communications you were having with Mr Adam in July and August 2012?---Why? These processes were still ongoing and this is one month after that process, where the committees only meet once a month. There's a considerable amount of items on agendas that carry over to the next time. There's research. There's a whole range of other things that need to be done and looked into with respect to how something is rolled out or how it's undertaken, and how a policy is put into place. You could have three meetings in three months, and that's not a particularly large amount of meetings to get through a document of the type of a drug and alcohol policy and something that's as heavy as that.
**** WARREN SMITH XN MR PERRY
PN976
If I can take you the next document in your statement, Mr Smith, which is an email from Mr Adam to yourself of 6 August, which is WS8. In this email, Mr Adam responds to what you say in your email of 1 August about two thirds of the way down the page. Can you see that?---Mm'hm.
PN977
It says, "Drug and Alcohol Policy Rollout - All site committees and local MUA branch officials have been given a copy of the policy. The implementation of the policy is being managed locally. Please find attached a copy of the pocket guide that will be distributed to all employees." So what Mr Adam was doing there was giving you an update.?---Was that a question?
PN978
Yes?---I suppose he's giving a response to the email. If that's an update, a three-line update, it's not exactly comprehesive.
PN979
He says, "The implementation of the policy is being managed locally"?---Managed, yes, managed locally in terms of the discussion with the various different workforces. Again, and I take that as part of the process of the discussions with the branches in the initial phase.
PN980
I put to you, Mr Smith, that you never responded to that part of Mr Adam's email, did you?---Not immediately.
PN981
No. You didn't say to him that you expected the process to be escalated to a national level following the local discussions?---There has never been really a policy position that is just specifically rolled out across a national workforce in isolation in different branches. DP World doesn't have a different policy for Brisbane and Sydney, generally speaking. They have the same policy. They might apply it differently and inconsistently, but there's generally a single policy and those policy positions are almost always dealt with on a national level - as was the expectation with the drug and alcohol policy.
**** WARREN SMITH XN MR PERRY
PN982
It may have been your expectation, Mr Smith, but you never articulated that expectation to the company, did you?---I think it was articulated in further correspondence to the company at a later date.
PN983
Yes?---So, yes, I did articulate that to the company.
PN984
At this point in time in August 2012, you've still not raised any issues of concern with the policy, have you?---Not in writing, no.
PN985
Not at all?---No.
PN986
I'm putting to you, you hadn't at all raised any concern about the policy with the company?---I'm not overly certain that that's correct, and a range of discussions take place via telephone calls and various different other means of comunication. There was quite clearly opposition from all the branches - all of them. There wasn't one branch that said, "Yes, let's go ahead with this, it's all good." Not one.
PN987
I'll put the question more specifically because I'd like you to answer it. You, Warren Smith, did not raise any objections to the policy before this time, did you?---No. Not in writing.
PN988
You didn't at all, did you, to the company?---I think there was discussions that indicated there were obvious difficulties and concerns in branches. It's always helpful and useful if these things can be worked out at a local level. It makes life a lot easier than having one or two issues and having 20 different issues.
PN989
What I'm putting to you, Mr Smith, is that you did not at this time tell the company that you had concerns with the policy?---I did not write to the company until, I think, 7 November to put in the question in dispute (indistinct) - - -
**** WARREN SMITH XN MR PERRY
PN990
We'll come to that letter in a minute, Mr Smith. You, as at August 2012, you had not advised the company that you had any concerns with the policy - - -
PN991
MR BURNS: I object. He's asked this question about four times.
PN992
MR PERRY: He hasn't answered it, with respect.
PN993
THE DEPUTY PRESIDENT: I think that's the first time you've put the month in, so let's - yes?---When was the, what was the month?
PN994
MR PERRY: As at August 2012?---No.
PN995
You'd not objected to the management of the policy implementation locally?---It clearly was not to be implemented locally. It was a national policy. It couldn't be implemented - all the different branches had different views. It was not a possibility to implement it locally. There was never going to be agreement - there was no agreement at any of the branches.
PN996
Mr Smith, if I can ask you to have a look at WS8 again, what Mr Adam is saying to you very clearly is that the implementation of the policy is being managed locally. That's what his email said, didn't it?---Yes, it's being managed locally which clearly wasn't acceptable.
PN997
But you didn't say it wasn't acceptable, did you?---I've written back on 7 November and after collating the various different views of the branches, which only get a chance to meet with me on a monthly basis.
PN998
Yes - three months later. You were aware that between August and your letter of 7 November, the company was continuing to implement the policy locally?---No. They were having discussions locally to reach agreement to the extent possible to avoid as much difficulty and disputation as possible. That form of engagement is incredibly valuable and removes barriers to an implementation of what is ultimately in any workplace a very important policy.
**** WARREN SMITH XN MR PERRY
PN999
Mr Smith, you just saw earlier Mr Hume's email of late June in which he said the new policy would be effective on 1 July?---That's not unusual for the company just to give a date and stamp on the table that that's the particular day we're going to do this, that and the other. It doesn't mean we necessarily agree with that position.
PN1000
No. You then had subsequent communications with Mr Adam in which he referred to the implementation of the policy locally?---How do you - it's impossible to rollout a national policy locally. All the different branches that come from different forms of testing - - -
PN1001
Mr Smith, the company had a policy and it went to its employees at each site and said it was wanting to implement that policy. What is so impossible about that?---Nothing is - - -
PN1002
Is it that really - - -?---- - - Nothing is impossible about DP World unilaterally implementing a policy that hasn't got agreement. I mean, we're used to that. So there's no - that's par for the course in many respects. But these things often, you know, need to be brought back into the national framework with which they were meant to occur in the first place.
PN1003
When you say they were meant to occur in the first place, Mr Smith, can I ask you this - there is nothing in the enterprise agreement that requires the drug and alcohol policy to be dealt with nationally, is there?---It's in the Part A Nationally Negotiated Framework Agreement across every site with exactly the same words across every branch.
PN1004
That's clause 17.8. That's not the policy, Mr Smith?---No.
PN1005
You accepted in your evidence earlier that the agreement of the MUA to the policy was not required?---Yes.
**** WARREN SMITH XN MR PERRY
PN1006
That being the case, what I'm putting to you is that implementing the policy at the local level was in fact possible?---Anything's possible.
PN1007
Yes?---Clearly, the sites previously had different policy settings and applications. But it was always our intent to move to a single systems and hence that's why there had to be a move from Fremantle towards the random particularly - which they had particular opposition - and from others to move from urine testing to swab based testing. There was meant to be a singular policy, not four different policies in four different states. That's why it was one national DP World policy, not four different ones in separate areas.
PN1008
During the period from Mr Adam's email of 6 August until late October 2012, you've had no further discussions with Mr Adam about the policy, did you?---Not in any detailed manner. I presumed that he - there would have been discussions prior to me sending this particular email on the 7th. But I would have said, got a problem with it and I'll send your correspondence accordingly.
PN1009
Yes. But from 6 August until shortly before you sent that later of 7 November, you've had no further discussions with Mr Adam about the drug and alcohol policy, did you?---Not - certainly no detailed discussions with Mr Adam about the drug and policy.
PN1010
You had no email communications with him?---No.
PN1011
You had no conversations with him about it?---I may have had brief conversations passing over a range of different issues because as you can see in some of the other emails there was a multitutde of different problems in different areas.
PN1012
I'm putting to you you didn't.?---I'm not certain that that's correct.
**** WARREN SMITH XN MR PERRY
PN1013
Do you accept that or not?---I'm not certain that that's correct.
PN1014
You don't sound like you're certain it is either?---We did not have a detailed discussion.
PN1015
No?---I recall we spoke on a range of different issues because there were a number of different problems in different areas, and to say that, "We've got a problem with the drug and alcohol policy," prior to sending that letter - - -
PN1016
In that period from 6 August until shortly before you sent your 7 November letter, the company had continued to implement the policy?---The company had - well, possibly and likely that they had just ploughed ahead regardless of the views of the branches. Like I said, it was always and always has been a process - that you have that discussion in the branches, identify what the issues are and bring them back into a national framework, get an agreement so you get the least amount of disputation and difficulty across the national office and all the different branches.
PN1017
By October 2012, the company was in fact testing under the new policy,w asn't it?---I'm not certain. Certainly not in every area and it doesn't mean that there was agreement or that we believed that the process was a sound one and the implementation of it was in accordance with any of the discussions that had taken place lately.
PN1018
Mr Smith, it would be a lot easier for us both if you just answer my questions. My question was, you were aware that by October 2012 the company had started to test under the new policy?---Yes, they did start to test - - -
PN1019
Yes, thank you?---- - - under the new policy, signalling that the process of listening to the views of the branches had ceased - and that there was clearly not going to be a national position to pull together a singularity of views across the branches and try and reach some consensus about how the thing would be (indistinct) - - -
**** WARREN SMITH XN MR PERRY
PN1020
Mr Smith, you've already accepted that there was no agreement between the company and the union in the enterprise agreement to have a national agreement about the drug and alcohol policy. You've accepted that?---I accept that and I'd hate to see the size of the next enterprise agreement.
PN1021
You have accepted that the agreement of the union to the policy was not required?---Yes. It's not required. That's just a fact.
PN1022
So when you are talking about the matter being brought back for discussion at a national level, that is what you wanted to see to happen, isn't it?---Sometimes goodwill is not requirede but it's desirous.
PN1023
Yes. It was your desire that that happen?---I think it's probably - one would think it's probably in everyone's interest to have that sort of engagement.
PN1024
What the company, through Mr Adam, was telling was that it in fact intended to implement the policy locally?---Yes.
PN1025
That's what it said?---Inconsistent with the views of all the branches who objected to the policy.
PN1026
But you didn't at any time before November raise that concern with Mr Adam, did you?---The view was clearly articulated from every branch in the country.
PN1027
I'm not asking what the branches said to you, I'm asking what you said to Mr Adam?---No, but the union - - -
PN1028
You didn't raise any concern - - -?---I did not, but the union did.
PN1029
With Mr Adam?---If Mr Adam was at those meetings. Certainly to his managers.
**** WARREN SMITH XN MR PERRY
PN1030
Yes, but you don't know because you weren't at those meetings, were you?---I know what the branches are telling me and they said they all objected to the rollout and implementation of the policy in the form that it was in.
PN1031
That being the case, Mr Smith, if such objections were being taken by the branch, shouldn't you have got involved a little bit earlier and raised those objections with Mr Adam?---It wasn't - Mr Adam would have been thoroughly aware because unless every single manager of his doesn't report to him. Certainly the branches were reporting to me that there was a problem with it - and if you say that it comes to the stage where the company makes the decision in October that they're going to implement and not continue on with a process that we thought would end up into a national framework then hence that's why it turns into a dispute in November.
PN1032
The problem was you never told the company that the process would end up in a national framework, did you, until November?---No. It was always understood that we would go back.
PN1033
When Mr Adam told you on a number of occasions in July and August that it would be managed locally, why didn't you point that out to him, Mr Smith?---It's been a consistent process whereby when policies of this particular nature or the implementation of these things are done, they're discussed nationally.
PN1034
So you made an assumption - - -?---With our branches involved.
PN1035
You made an assumption about that, did you?---No. It was when, if we go back to June when I was given the policy, it would go to the branches and then would come back and we would finalise it nationally.
PN1036
I won't labour the point. The fact is you didn't say that to Mr Adam?---I did.
**** WARREN SMITH XN MR PERRY
PN1037
Mr Smith, are you aware that on 25 October 2012 an employee in Melbourne failed a breath test?---I am indeed.
PN1038
That employee was tested two hours into his shift?---Yes, I believe that's correct.
PN1039
His blood alcohol concentration was .168 per cent?---Yes, it was unacceptably high and it was a completely stupid and reckless act. He wasn't supported by the union and nor was any defense put up with respect to running an unfair dismissal for that member.
PN1040
No. So there was no dispute raised about that and I think, in fact, when he was tested a second time his reading had gone up to .185. Is that right?---I don't know.
PN1041
The employee was, at the time, operating a 60 tonne straddle. Are you aware of that?---Yes, I'm aware of that.
PN1042
I think you just said there was no issue taken by the union with the dismissal of that employee?---There was no decision by the national office to pursue an unfair dismissal, but I think you'll find that there was an engagement at a branch level and pretty much as is standard practice around the place. I mean, we rarely just accept anyone getting sacked probably for anything. There's always a recognition that that was a stupid and irresponsible thing to do and I think you'll find the branch tried to run a position whereby a suspension would be given or alternate forms of discipline would be implemented as opposed to a sacking. But there was no agreement reached in Melbourne for any alternate form of discipline to occur.
PN1043
So the union accepted the outcome in that case?---The union tried to have a suspension or alternate forms of discipline put into place. I said we didn't run an unfair dismissal, and largely we didn't run an unfair dismissal because it would have been a complete waste of time and money - and we would have lost, inevitably. Again, that's not in any way supporting what is a very stupid and reckless act. But again, the branch, as always we try and do what we can to assist people and there's always some circumstance or often some circumstance, some personal circumstance or some personal trauma that drives people to act in a particular manner.
**** WARREN SMITH XN MR PERRY
PN1044
Then on 7 November you did write to Mr Adam, as you said a few moments ago, and that is the document at WS9 to your statement. Is that right?---Yes.
PN1045
In that letter you are notifying Mr Adam that the union and the company are in dispute?---Yes.
PN1046
That you're in dispute about the content of the policy, the process of consultation and the implementation of the policy?---Yes.
PN1047
You then go on and you refer to the relevant clauses in the enterprise agreement about halfway down the first page?---Mm'hm.
PN1048
Then in the letter you go on to raise some concerns about the policy?---Yes.
PN1049
One of those is the discipline process?---Yes.
PN1050
One of those is the non-impairment screening of urine tests - see on the second page?---Yes.
PN1051
One is personal intrusion into members's lives?---Yes.
PN1052
One is the exclusion of the union from the process?---Yes.
PN1053
One is rehabilitation?---Yes.
PN1054
One is the methodology of randomisation?---Yes.
PN1055
This was the first time, was it not Mr Smith, that you had raised any of these issues with Mr Adam?---This was the first formal correspondence that went back after combining and consolidating the views of the branches about what the issues were in their dealing with (indistinct) process.
**** WARREN SMITH XN MR PERRY
PN1056
If I could just ask you the question again, because I don't think you've answered it. This was the first time that you had raised these concerns with Mr Adam?---In this form, yes, this is a specific - all these specific particular issues because they were the culmination of the various different items that were disputed by the branches.
PN1057
By this time, Mr Smith, you had had a copy of the policy for about five months, I think?---Mm'hm.
PN1058
You were aware that over that five month period the company was implementing the policy locally?---Not until October they were implementing it. They didn't say they were implementing it until October. There was a process of discussion leading up to then, which again, from our perspective, should have come back into a national position to avoid being here.
PN1059
I'll take you back to the earlier emails between Mr Hume and Mr Adam and yourself, Mr Smith, but what I'm putting to you is that by July in August you were aware that the company was implementing the policy?---The company will say they're going to implement a policy and, I mean, industrial relations can be a pretty fluid thing. We say things from time to time and we move. The company says things from time to time, they move. There's nothing new in that so the cut and thrust of the waterfront in many respects - the company made the claim that there was a drop-dead date on it and this was it, there was no more discussion around the particular policy, end of the story, it wasn't coming back into a national framework position to be able to get a single position across the country and bring all the branches along - which is incredibly important in big workforces.
PN1060
You never told Mr Adam that that should be the process, did you?---That's because my understanding was Mr Adam, from the beginning, was of the view also that it should have come back. Maybe he wasn't of the view but it was certainly put - and it was consistent with the way things had always been done previously - that it would go out, be discussed locally and come back and finalised nationally.
**** WARREN SMITH XN MR PERRY
PN1061
What I'm putting to you is by the time you sent this letter on 7 November, Mr Smith, you had known for about a year and a half that the company was wanting to introduce a new policy?---They had claimed random during the process of the enterprise agreement and we had claimed oral fluid testing.
PN1062
Yes, and you - - -?---So there was always going to be, in some form or another, a policy that reflected those changes that were agreed upon industrially.
PN1063
Yes. By this time you had had a copy of the policy since 21 June. Yes?---That's already been indicated previously.
PN1064
You knew that the company was implementing that policy?---That's what they say they're going to implement. I mean, they didn't in the end, I suppose, in some respects. It was always going to be whatever happened in the branches. If every branch had come back and ticked off and said, "We don't have a problem with this," it would have a been a different position. But every single branch came back with a dispute around the particular issues that were raised.
PN1065
In discussions at a local level, there was an opportunity for employees to express their views about the policies?---They did.
PN1066
They did. You're aware that in Brisbane, for example, the on-site independent testers had come on-site four times since September 2012?---Brisbane was a particularly difficult workplace in the midst of - - -
PN1067
I'm not asking you to opine about whether a workplace is difficult?---No.
PN1068
I'm asking whether you were aware - - -?---No, I wasn't - - -
PN1069
- - - that the independent testers had been on-site four times?---Because of the difficult nature of the Brisbane workforce and the fact that the place was being automated, it was the least thing on anyone's mind in Brisbane what had happened. Now, yes, probably they could have. But it was certainly not at the forefront of anyone's mind when there was a massive change of automation of the terminal.
**** WARREN SMITH XN MR PERRY
PN1070
You were aware that by this time the company had devoted a large amount of resources to implementing the new policy?---No.
PN1071
It had provided information to employees?---I was not aware that - yes, it seemed that there was an indication of a couple of flow-charts and a leaflet.
PN1072
It had provided training?---I'm not certain how much training was rolled out and I think you could still talk to people today in the terminals and some would say they hadn't been trained.
PN1073
The fact is you're not sure because you don't know, do you?---I've been told that - I was told prior to putting in this in dispute that people had not been trained as well. It was just neither here nor there at the end of the day because there were bigger issues. But I don't think training was a priority and I don't think they rolled out a considerable amount of resources. I would question that.
PN1074
The company had made a significant investment in moving to the new testing regime?---I'm not sure what investment they made.
PN1075
It had implemented, in some sites which had purely had urine testing, the Freemantle system of the initial swab test, hadn't it?---Possibly, yes.
PN1076
That would have involved acquiring new testing equipment?---I would have thought it would be question of a new contractor more than buying new equipment but maybe - - -
PN1077
Yes. There would be a cost associated with that?---I'm not sure how much the different contractors engage - how much they pay for them.
PN1078
What the company had done by November was it had gone down the path of fully implementing the policy and in fact was operationally utilising it?---Which is half the reason why we're in dispute becase we were - - -
**** WARREN SMITH XN MR PERRY
PN1079
You waited, Mr Smith, until the company had reached that position before, for the very first time, on 7 November, you raised your concerns. That's right, isn't it?---when it became clear that the company had ended the process of discussing the particular changes to the drug and alcohol policy and had implemneted the document that was originally put forward in June with no change or no consideration of the view of the employees it went into dispute.
PN1080
So it's your practice, Mr Smith, is it to not raise your concerns with the company. Is that what you're saying?---No, I raise concerns with the company all the time (indistinct) proabably attest to that.
PN1081
Yes, and on this occasion you didn't raise concerns with the company until 7 November did you?---No, there was an ongoing process in branches at that time. It wasn't until - - -
PN1082
At that time - - -?--- - - - the company ended it without bringing it back into a national position and it became quite clear that the policy that was put on the table by the company without any consideration of - the views of the four branches who had all disputed various aspects of it had been ignored.
PN1083
The views of employees were sought by the company at site committee meetings, were they not?---The views were sought but they weren’t listened to and they weren’t taken into account.
PN1084
They were sought. They were also sought in safety committee meetings, weren’t they?---Well, possibly, yes, they were. They weren’t - - -
PN1085
You didn’t attend any site committee or safety committee meetings, did you?
---No.
PN1086
So you couldn’t sit here and truthfully tell her Honour whether they were considered or not?---I can truthfully tell your Honour that they weren’t because every single branch reported back that they put the concerns on the table and they were ignored.
PN1087
Well, that is just what you’re saying you were told by the branches, isn’t it, Mr Smith?---Okay. If you want to run the line that the four branches are all lying to me, then, you know, what can I say?
PN1088
Well, you weren’t there, were you?---But I doubt they were and I don’t think they do that.
PN1089
**** WARREN SMITH XXN MR PERRY
The fact, Mr Smith, is that the concerns you raised about this policy were an afterthought, weren’t they?---No. They were an outcome of a process that was curtailed by the company.
PN1090
What had happened is in July and August, you were communicating with Mr Adam about a range of issues and the drug and alcohol issue was only a minor issue in your eyes at that point, wasn’t it?---It wasn’t a minor issue. There were many other issues, absolutely, including some of the other things that I mentioned that were majorly significant issues such as automation, which shapes the whole future of the industry. Now, that doesn’t mean that the drug and alcohol policy is unimportant.
PN1091
But the other issues - - -?---And it was undergoing a process in the branches, which again - - -
PN1092
The other issues you were communicating with Mr Adam about in the emails I have just taken you to weren’t automation, were they?---No, not on this occasion.
PN1093
There was an issue about a gentleman called Rick Blake, for example?---Yes.
PN1094
And there was an issue about - - -?---And Rick Blake’s issue related to automation.
PN1095
That was a specific issue you were raising but in the context of all of those issues, you raised no concerns about the drug and alcohol testing, did you?---Again I reiterate there was a process. Branches look at the policy, go through the policy, work through it with the company. They did so. The company made a determination to end the process, implement the policy and not take into account the views of the branches which would be formulated into a single, integrated view nationally.
**** WARREN SMITH XXN MR PERRY
PN1096
You keep talking about this process, Mr Smith, but the fact is there was no process. There was no agreed process?---Well, clearly not when the company went and - - -
PN1097
No?---Clearly. That’s why we’re having a dispute, I would suggest.
PN1098
Well, that may well be right, Mr Smith. The process you talk about was the process that you desired the company to follow. That’s right, isn’t it?---Yes (indistinct)
PN1099
It was never a process which the company had agreed to follow, was it?---It was - my view was it was recognised by the company that the policy would come back nationally and in the end, it did.
PN1100
There’s nothing in the communications you had with Mr Adam that referred to that being the process, is there?---No.
PN1101
And there’s nothing in - - -?---There was a discussion in June that when the policy was given, we would go and we would talk across the various different branches and, like we do on every other occasion, we would bring things back into a national framework and discuss them.
PN1102
That was something the company never agreed to do?---We always agree to do it. They do it on every issue. They do it all over the place and there are examples of it, and I would suggest there’s examples of it this week - - -
PN1103
If this was the way you do things - - -?--- - - - with the national office involved in branches - - -
PN1104
**** WARREN SMITH XXN MR PERRY
THE DEPUTY PRESIDENT: Hang on. One at a time?---In disputes and issues within branches. They escalated through branches. Now, we like to see branches being able to resolve the issues with the company. That’s the best thing. In fact, we like to see the issues resolved with the workforce and not even the branch. We desire that.
PN1105
MR PERRY: Now, in November 2012, Mr Smith, you instructed your members to refuse drug and alcohol testing, didn’t you?---I possibly may have done so. I can’t see the correspondence, but yes.
PN1106
I’m putting to you that you did?---Yes. Yes, we did, and at the same time as we met here in November - I think it was November, if I recall, in front of her Honour - there was another hearing scheduled for about an hour after to try and seek orders around that particular issue and we were able to work through that and subsequently have a national meeting and discuss some of the concerns that we had on a national level with representation of all the branches. That took place in December.
PN1107
When you instructed your members to refuse testing, the company sought orders from the commission under section 418, didn’t it?---I didn’t instruct them to refuse testing. We did not ever reject the old system of testing. We rejected the new rolled-out policy which we did not agree, and we never told anyone not to take a test. Now, we said the old policy, which had been implemented for a considerable period of time, would continue to operate.
PN1108
If I can ask you to look at the bottom of page 2 of your letter of 7 November, Mr Smith, which is WS9, you will see there that you say, “Accordingly, I have told our members the policy is in dispute and that there is no need to participate in the current random testing regime on the basis of the policy being in breach of the agreement and relevant WHS Acts”?---Well, I just said that. I said this particular policy we rejected and we subsequently said to work under the old policy. As it says in the letter also, which you didn’t read, we’re happy to continue to operate under the DNA policies that existed prior to the implementation of this particular policy.
**** WARREN SMITH XXN MR PERRY
PN1109
Yes, despite the fact that the enterprise agreement said that there would be random testing, and those policies didn’t provide
for random testing, did they, Mr Smith?
---That’s why we ended up in the commission at that stage, and that has already been dealt with.
PN1110
An outcome of the conference was that the company discontinued its section 418 application, didn’t it?---It did so and we met in - I think it was 6 December, from memory. It probably would be in one of these documents here.
PN1111
It withdrew the application on the basis that the MUA committed to communicate to all members that the new drug and alcohol policy
is to be complied with?
---Yes. That doesn’t mean we agreed with it. It means that the process - we compromised to do that on the basis of - you know,
it was quite clear that we had a framework in place that took us back to have the national discussions with the branches there to
genuinely deal with the issues, of which there was some movement.
PN1112
You then mention that there was a meeting on 6 December?---Mm’hm.
PN1113
In that meeting, the concerns which you had raised in November and in conference with the commission were discussed?---Yes. There was around nine issues, of which approximately half - four of the nine - we were able to get general agreement around.
PN1114
Yes, and the consequence of that was that the company agreed to some changes to what it had been doing to date, to that point in time?---Yes.
PN1115
The position of the company following those discussions was set out by Mr Adam in a letter he sent you on 14 December, which is WS13 to your statement?
**** WARREN SMITH XXN MR PERRY
---That’s when we went to - okay.
PN1116
And following that correspondence, the union sought arbitration. That’s right, isn’t it?---Following that and a previous letter that dealt with the question of blanket pre-shift alcohol testing sent on the same day.
PN1117
You’re familiar with how a stevedoring worker works, Mr Smith?---Yes.
PN1118
And the equipment that he or she operates?---Yes.
PN1119
And that the straddle cranes, for example, weigh about 60 tonnes?---Yes.
PN1120
And there are larger cranes on the quayside as well?---Yes.
PN1121
And there are movements of containers which have goods in them which can weigh up to 30 tonnes?---Sometimes more.
PN1122
And there are workers who go on board vessels to lash and unlash containers?
---Yes.
PN1123
There’s a capacity for serious injury in that work environment if employees don’t work safely, isn’t there?---Absolutely, or, for that matter, there are not safe systems of work in place.
PN1124
Safety is therefore an issue of great concern for the union?---It is.
PN1125
In fact you were quoted in an article in The Australian on 11 January 2012 about that, do you recall?---Possibly. Was that when DP World had rejected a national stevedoring code of practice?
PN1126
**** WARREN SMITH XXN MR PERRY
No. I will just see if you can remember what you said, “Wharfies have lost colleagues because of negligent safety systems of work. There is no excuse in the 21st century for workers to die on the job because employers refuse to adopt the higher safety standards.” Do you recall saying that?---Yes. There has been a longstanding campaign for the attainment of a national stevedoring code of practice.
PN1127
From your perspective, it’s important to that end that employees not be impaired by drugs or alcohol when they’re at work?---That’s why we agreed to random testing.
PN1128
And it’s important that best practice is adopted?---Well, “best practice” is a bit of a subjective term, I have learnt over a period of time.
PN1129
Well, you want to see the very, very best practices adopted by DP World to minimise the risk of illness and injury for your members?---That would be desirable.
PN1130
And you want to ensure that the standards of testing adopted are consistent with what experts consider are appropriate?---Well, which experts? I mean, again very subjective.
PN1131
Yes, but the approach to drug and alcohol testing should be informed by the best available expert opinion?---Well, pick which one. Yes. Ultimately we want the best practice in all forms of safety; absolutely.
PN1132
Safety is something that the company and its employees should be very careful about?---Yes.
PN1133
And the company should ensure that people who are impaired by drugs or alcohol at work are dealt with?---Well, they have been and have had a policy for a considerable period of time.
**** WARREN SMITH XXN MR PERRY
PN1134
Yes, and because of that, the union did not take any steps to dispute the dismissal of the employee in Melbourne who tested positive for high range blood alcohol in late October 2012?---No. There was a national decision not to prosecute an unfair dismissal.
PN1135
That was because, I think you said a moment ago, you thought you would have no chance of winning it?---And I reckon I was right.
PN1136
I think that’s one thing we will agree about, Mr Smith. That particular employee had not previously failed a drug or alcohol test, had he?---I don’t know.
PN1137
I’m suggesting to you that he hadn’t?---Well, thank you for suggesting that.
PN1138
But you don’t know?---I don’t know.
PN1139
Can I ask you now about - one of the concerns you have with the company’s policy is how disciplinary matters are dealt with. Is that right?---Yes.
PN1140
Do you accept that one matter the company should take into account is the severity of the breach?---Look, I think in the scope of disciplinary action, there’s no doubt that the severity - it’s like any crime, isn’t it?
PN1141
Yes?---The severity of crime usually ends up with a different form of punishment. It’s - one of the things though that we don’t believe is that you should necessarily be sacked for a first offence. There are often social reasons and good reasons why people have a bit of a brain-snap and end up in a particular situation when they are genuinely good people, well-meaning, and for one reason or another do the wrong thing, for whatever social or family pressure that happens to them. That’s why I think it’s important to have rehabilitation processes, agreed ones, that we can have faith and confidence in, that if people, you know, have done the wrong thing - and there’s, you know, always hope that people can see the error of their ways or, if they have got a problem, overcome their problem as opposed to just being sacked and potentially leading to much more serious outcomes in their life, and for people generally.
**** WARREN SMITH XXN MR PERRY
PN1142
So that what the company should do is take into account the particular circumstances in which the positive test occurs?---I think yes; to some extent, yes, but the three-strike policy - - -
PN1143
I’m not asking you about the three-strike policy, Mr Smith?---Well, you might not be but I’m talking about it (indistinct)
PN1144
I’m the one asking the questions. I would appreciate it if you answer my questions.
PN1145
THE DEPUTY PRESIDENT: Mr Burns will undoubtedly ask you about it now in re-examination, Mr Smith. I can see his pen working overtime there?---Would you ask that again?
PN1146
MR PERRY: Yes. In determining an appropriate disciplinary outcome, the company should take into account all of the circumstances in which the positive test occurred. That’s right, isn’t it?---I think that there’s a responsibility to take into - all the circumstances in making any judgment.
PN1147
Yes, and that how the company deals with a positive test is a complicated issue?
---Well, possibly. I wouldn’t think it was, you know - - -
PN1148
Taking disciplinary action - - -?---It’s not exactly brain surgery, I wouldn’t have thought.
PN1149
Taking disciplinary action - - -?---But, you know, there’s some complexities from time to time.
PN1150
Yes, and there’s a need to balance the interests of the employee against the employer’s obligations to ensure safety?---Yes, but one would suspect that you get to the stage of someone being caught, then it’s a question of dealing with that prospectively because you can’t do much about the retrospective action, can you?
**** WARREN SMITH XXN MR PERRY
PN1151
I’m not here to answer your question but what I put to you is that if an employee tests positive, then there is a risk that they may be impaired at work again in the future, isn’t there?---I think if someone tests negative, there’s a risk that they may be positive into the future. I don’t see necessarily a correlation between that and I don’t necessarily agree with that. People can make flawed decisions or people can be in a position where they unknowingly get a positive test and I don’t necessarily think, depending on the form of testing, that it reflects an impairment. You can be positive and not necessarily be impaired.
PN1152
I’m not asking you about the form of testing. You have accepted that the company needs to consider the circumstances in which
the positive test arises?
---In determining a disciplinary outcome?
PN1153
Yes?---I think that, yes, you do need to consider that, but in our view, that shouldn’t include sacking people.
PN1154
And therefore you need to look at each case on a case-by-case basis. That’s right, isn’t it?---Yes.
PN1155
So that you can’t have hard and fast rules about discipline, can you?---I think you can have an overarching set of principles where people are given a go and are given a fair opportunity and not necessarily sacked on the basis of one offence that’s particularly out of character with their normal behaviour.
PN1156
So do you think there should be a three-strikes approach, do you, Mr Smith?
---Absolutely.
PN1157
So in relation to the employee in Melbourne who blew .18, you think he should have been able to do that three times before he was sacked, do you?---No. See, that’s just a very negative view of people. I always like to think a bit more positive about people and maybe, you know, if you were an expert on the gentleman, you might be able to tell us what his personal circumstances were and whether or not that’s - you know, you seem to know. I don’t know that and from what I can - you know, I do understand that people have certain social and family and personal pressures that can drive them to behaviour that’s not necessarily based upon a pattern of behaviour or an ongoing likelihood that they’re going to do the same thing.
**** WARREN SMITH XXN MR PERRY
PN1158
In relation to that employee, are you then telling her Honour that a three-strikes rule should have been followed in relation to him?---Yes.
PN1159
You are?---A three-strike rule should have - and that could have been fairly severe forms of suspension over a long period of time, rehabilitation and a range of other measures to ensure that that didn’t happen again.
PN1160
The fact is you accepted a moment ago that he would have had no chance of winning an unfair dismissal case?---Well, that’s just reflective of the - you know, in my view, not necessarily - - -
PN1161
What you’re really saying is you think that - - -?--- - - - the best form of getting your job back.
PN1162
MR BURNS: I object. The two propositions are not inconsistent, your Honour. My friend - - -
PN1163
THE DEPUTY PRESIDENT: I accept that the two propositions are not inconsistent that I think that Mr Perry is entitled to interrogate on the basis of the practicability of the three-strikes policy in the context of things that have actually happened because then you really can test the hypothetical against something that occurred. I’m happy for him to continue the questioning.
PN1164
MR PERRY: The fact in that case was, Mr Smith, you did not pursue the claim on behalf of that worker, did you?---Only because of the nature of the particular system with which we would try and seek redress.
PN1165
Yes, but nonetheless, you would seek a policy which would have prevented the company from dismissing that worker until he had done three positive tests?
**** WARREN SMITH XXN MR PERRY
---Yes, because that did not reflect necessarily an ongoing pattern of behaviour, and again, you’re the one who has made it quite clear that the company should take into account circumstances, and I think that personal circumstances of an individual need to be taken into account, and from what I understand, there are certain personal pressures and family pressures, social pressures, that can drive people to act in a way that’s unacceptable. I think there’s a general understanding of that in society and I don’t see that as being unreasonable. There are various forms of discipline that can be applied besides sacking someone.
PN1166
You accepted earlier, Mr Smith, that the severity of the offence should also be a relevant consideration, didn’t you?---Yes. It should be relevant in the harshness of the disciplinary action. I’m not saying that no disciplinary action should occur. Three strikes is three strikes and you’re out, not three strikes and you don’t get disciplined; two different things.
PN1167
So if the severity of the offence is a relevant consideration, that would be ignored by a three strikes and you’re out policy, wouldn’t it?---No, absolutely not.
PN1168
Well, it wouldn’t be possible to dismiss a worker for his first or second positive test. Even if it was the highest possible positive test a person could even have, you couldn’t sack them, could you?---With one form of discipline. There are a multitude of forms of discipline. And then I don't think we take into account the fact that drugs and alcohol are not just a DP World waterfront issue, but a general social issue and we need to have a socially - not only responsible - but a caring approach to people and the pressures they come under. And you can have any - - -
PN1169
Mr Smith, what you're asking - - - ?--- - - - number of different forms of discipline that don't necessarily have to be sacking someone.
PN1170
Mr Smith, what you're asking her Honour to do is to arbitrate a policy which would not have permitted the company to dismiss the worker who blew 0.18 in Melbourne for his first offence or for a second offence; the company would be required, if the orders that you seek from this commission were made, to continue to employ that person. What I'm saying to you is that that's completely unacceptable?---And on the same token, someone who stubs their toe three times and does something that's on the basis of having three strikes because they've taken medication for a cold, getting the sack, and that's the way it will be applied because the instances of someone doing what happened, and your example in Melbourne, I've never, ever seen before.
PN1171
Yes?---Once, only once.
PN1172
Yes?---But the other forms happen all the time.
PN1173
And isn't that - - - ?---And what you do is put that into a position where people can arbitrarily be sacked for the most minor offences. That's what it comes down to.
PN1174
Yes, but isn't that the problem with your three strikes policy, Mr Smith?---No.
PN1175
**** WARREN SMITH XXN MR PERRY
Is that there may be employees with very, very high impairment who can't be sacked, but perhaps also an employee who has three very modest infractions who can be sacked?---Well, obviously if it comes - you know, if the company are prepared to sit down with some talk about alternate forms of discipline and not sacking people, we're all ears.
PN1176
Mr Smith, the company has sat down with you and had that conversation, hasn't it?---And said - well, basically put the position you're putting.
PN1177
Yes. The fact is your grievance is they haven't agreed with your point of view?
---Well, we wouldn't be here if they had.
PN1178
No. Now, one of the other things you asked her Honour to do, Mr Smith, is it increase the cut-off for a positive test of THC?---No, I don't think we asked to increase the cut-off, we asked to maintain the cut-off.
PN1179
No, the company policy has a threshold of 25 - - - ?---50.
PN1180
No, for saliva it's 25 and for urine it's 50. Perhaps if I can assist this way. If you go to the document which is WS11, on page 2 of that document - - - ?---Mm'hm.
PN1181
- - - you can see there, "Screening levels for cannabis metabolites: saliva 25, urine 50"?---Mm'hm.
PN1182
And that is in fact the threshold in the Australian Standard, is it not?---Yes.
PN1183
And what you seek is a higher threshold than what is in the current Australian Standard. That's right, isn't it?---We seek to have what was a previously applied position for urine of 100 ug/L for cannabis metabolites maintained.
**** WARREN SMITH XXN MR PERRY
PN1184
Yes?---And the company had agreed to that for a very long period of time.
PN1185
Even though that is not the current threshold recommended by the appropriate regulators?---We just sought to maintain what was an agreed position.
PN1186
And in maintaining that position, Mr Smith, you didn't consider any scientific studies, did you?---We considered that the company, obviously taking into account it's duty of care when it agreed to it in the first place, agreed to that higher level, and all we sought was for that to be maintained.
PN1187
And do accept, Mr Smith, that cannabis can be a source of impairment for an employee ta work?---Of course it can.
PN1188
And so that in the company adopting the most recent expert opinion of the appropriate regulator, what you're asking the company to do is to ignore that, are you?---We had a position previously where it was 100 in that particular instance, and I don't know how that - obviously the - you concede that the saliva testing alters the type of reading, so we'd be happy to take that into account with respect to the saliva reading, but we sought to maintain a previously agreed position, that's all.
PN1189
Despite the expert opinion of the people who regulate the Australian Standards?
---Yes, and my understanding was that when there was an agreement and it was across the industry, those matters were taken into account
by a range of experts at the time.
PN1190
What the company has done here, Mr Smith, is take current best practice and applied it. Do you accept that?---Well, I'm not an expert on these questions, but I know that there's significant degrees of debate and different experts will give you a different view in terms of the measurement of impairment.
**** WARREN SMITH XXN MR PERRY
PN1191
So your preference was to retain an industrial standard which had been agreed between the parties rather than a standard informed by the Australian Standards. Is that right?---That particular standard, we had it - I can't say any more simply, there was an agreement previously at what the cut-off level was and we sought to maintain it.
PN1192
And you took that position notwithstanding what you've just told her Honour about the importance of safety in this workplace?---Yes, because it was arrived at at that time that it wasn't necessarily that the particular cut-off level that had previously been determined and operated at DP World and P and O reflected a state of impairment because of the particular nature - and again, you have to seek some expert evidence around this because I'm not an expert, I only get told these things - that because of the nature of cannabis metabolites maintaining themselves in fatty tissues, it was a question of them being detected but not reflecting impairment.
PN1193
Yes, I think you've accepted you're not an expert about that, Mr Smith, so
really - - -?---I told you what I was told about it when we asked people who were, and obviously - - -
PN1194
Yes, what I'm putting to you is that the - - -?--- - - - it was good enough for the company at that time.
PN1195
What I'm putting to you is as at today, rather than some years ago, the position of the regulators who put together the Australian Standards is that the level proposed by the company is the appropriate level?---Yes, and it was the same level - - -
PN1196
And you - - -?---It was the same level when that was agreed previously as well.
**** WARREN SMITH XXN MR PERRY
PN1197
And what you simply suggest is that the company should ignore that because of some prior agreement with the MUA. Is that what you're saying?---It wasn't - yes, we sought to maintain a previously agreed position - - -
PN1198
Yes?--- - - - that was put to us that did not reflect impairment.
PN1199
Yes, but is inconsistent with the most up-to-date expert standards published by the regulators?---And it was inconsistent with the standard when it was agreed by the company for many years.
PN1200
I'm not asking you, Mr Smith, to sit there making submissions, as you have been all afternoon. We probably would have been finished now if you hadn't. What I'm asking you - - -?---I don't think so.
PN1201
- - - is that the company is proposing a standard which reflects the best practice recommended by regulators at this time?---Well,
I've answered you three
times - - -
PN1202
Yes or no, Mr Smith - - -?---I've answered you three times.
PN1203
- - - answer the question, yes or no?---Is proposing a standard - if you're asking whether or not the company is proposing the current Australian Standards, yes, they are.
PN1204
Thank you.
PN1205
THE DEPUTY PRESIDENT: I'm just going to interrupt, only because it is pertinent. I'm looking at the document WS11 and listening to Mr Smith's evidence in relation to the prior operation of the 100 standard, but under the heading Pre-AOD Policy in relation to four of the ports, the number is 50. What should I draw from that?---I can probably answer that in that allegedly the level was dropped and we were not told about it. So prior to the policy being put into place, we were told later on that unilaterally it had been changed and no one had been told.
**** WARREN SMITH XXN MR PERRY
PN1206
That's Mr Smith's answer. You may have a different answer after taking instructions, Mr Perry.
PN1207
MR PERRY: My instructions, your Honour, are that the document is accurate in what it indicates was the previous policy, but there had, before 2007, been a higher threshold for - - -
PN1208
THE DEPUTY PRESIDENT: Right.
PN1209
MR PERRY: Yes, and only in relation to Port Botany.
PN1210
THE DEPUTY PRESIDENT: So before 2007 it was 100 in Port Botany but 50 elsewhere, or something else?---I understood it was 100 everywhere, in all ports.
PN1211
MR PERRY: Perhaps I will just put those propositions to Mr Smith and - - -
PN1212
THE DEPUTY PRESIDENT: Take it on notice.
PN1213
MR PERRY: - - - and we can deal with them in our case.
PN1214
THE DEPUTY PRESIDENT: Yes.
PN1215
MR PERRY: Mr Smith, after 2007 the relevant threshold at all ports was 50?
---Yes. I am told that it was 50 by the company and accept that they make that change.
PN1216
Yes. And there had only been a different threshold before 2007 at Port Botany?
**** WARREN SMITH XXN MR PERRY
---That may be the case. I thought it was - I thought it was all ports but if you tell me something different, that may well be correct.
PN1217
Okay. You're not sure?---No.
PN1218
Can I ask you now, Mr Smith, about a further different question. So are you aware that oral fluid testing is not a - or has a - I withdraw that. That oral fluid testing only detects THC where the employee has smoked cannabis in the last one or two hours? Do you accept that?---No, I'm not aware that it's one or two hours and I heard some evidence given this morning. I was always under the impression that it was a much longer period of time from - I thought it could have been 12 to 24 hours, was always the view that I'd held.
PN1219
Right. You don't really know, was that your evidence?---I always went - well, I'm saying I told you what - - -
PN1220
Well, what I'm putting to you is that oral fluid testing will not generally detect THC an hour or two after it has been smoked?---Well, evidence given this morning would indicate that that could be up to 4 hours, but I thought it was longer.
PN1221
I think that the transcript will tell her Honour what the evidence was, so I needn't dwell on that. But would you accept that urine testing is more likely to detect the presence of THC than oral fluid testing?---Yes, up to - again, my understanding, up to potentially months.
PN1222
And so that where an employee is subjected to an oral fluid screen which is not positive for THC, they may nonetheless be positive for THC in a confirmatory urine test. That's right, isn't it?---Can you put that again, sorry.
PN1223
**** WARREN SMITH XXN MR PERRY
I apologise, it was a long question. Where an employee tests negative for THC in the initial fluid test, it may be that in a confirmatory urine test, they test positive for THC?---Absolutely, because my understanding of that is that the urine test measures over a period of latency of substance within your fatty tissues, and I suppose that is down to what is loosely described as detection testing or impairment testing. So you can detect with urine, no doubt about it, but the problem is that you're detecting potentially not a level of impairment, but social behaviour, ultimately.
PN1224
If I can ask you the question slightly differently: a person may be impaired by cannabis but pass an oral fluid test. That's right, isn't it?---I'm not sure about that and I wouldn't think so.
PN1225
Well, I'm putting to you that a person would generally be impaired by cannabis for six hours, but an oral fluid test would only detect the substance in the first two hours?---Well, that was never our understanding of the particular position, and if DP World had had such a high level of a desire around best practice workplace health and safety, I would suggest they probably wouldn't have agreed to it otherwise.
PN1226
You don't have that knowledge, do you?---Again, I'm not an expert. But we ask experts, who tell us that 12 hours was always the view. Now, I would think that if you were impaired under cannabis and you were tested, you would be in a bit of trouble.
PN1227
Yes. And you're more likely to be - if you are impaired by cannabis you're more likely to test positive to a urine test than an oral fluid test, aren't you?---You are more likely to test - - -
PN1228
MR BURNS: Listen, your Honour - - -?---No.
**** WARREN SMITH XXN MR PERRY
PN1229
- - - I need to interrupt because this is actually wrong. Okay? On the science I would say the question just shouldn't be asked. Okay?
PN1230
THE DEPUTY PRESIDENT: It's clearly not probative of the science. It is perhaps probative of Mr Smith's state of mind and the reason for the MUA's position on matters.
PN1231
MR BURNS: He has been asked questions on science and he's not an expert.
PN1232
THE DEPUTY PRESIDENT: No.
PN1233
MR BURNS: We know very well that if someone took a - had some marijuana right now and they were both swab tested and urine tested,
it wouldn't show up in the urine but they would be - the test is not informative on this question and
so - - -
PN1234
THE DEPUTY PRESIDENT: And, Mr Burns, I will - - -
PN1235
MR BURNS: - - - can we just leave this to the scientists, I think would be better.
PN1236
THE DEPUTY PRESIDENT: Definitely. I will be paying attention to the science. My only willingness, if you like, to let questioning go on, but not for too much longer, is just to allow Mr Perry to establish what the thinking of the MUA is in regard - what motivates or frames the MUA's stance on the matter. Mr Smith's beliefs may be - - -
PN1237
MR BURNS: That's fine, that's the - - -
**** WARREN SMITH XXN MR PERRY
PN1238
THE DEPUTY PRESIDENT: - - - ignorant and yet nevertheless - - -
PN1239
MR BURNS: - - - that's not a (indistinct) science.
PN1240
THE DEPUTY PRESIDENT: - - - they may be framing of the MUA policy, which has some interest - not a huge amount, I have to admit.
PN1241
MR O'CALLAGHAN: Your Honour, may I just make one observation? It may be impertinent of me, but it just seems to me that the witness
is not a scientist
and - - -
PN1242
THE DEPUTY PRESIDENT: Yes.
PN1243
MR O'CALLAGHAN: - - - neither is, with the greatest of respect, Mr Perry.
PN1244
THE DEPUTY PRESIDENT: Nor Mr Burns.
PN1245
MR O'CALLAGHAN: So entering into sort of scientific debate where both parties don't know what - a clue what they're talking about.
PN1246
THE DEPUTY PRESIDENT: Yes. No, as I said to you, I absolutely will not be taking Mr Smith as a - - -
PN1247
MR BURNS: Your Honour, I am a scientist if it makes any difference.
PN1248
THE DEPUTY PRESIDENT: I apologise to you, Mr Burns, for the offence. I was not aware of that. In any event, you're not giving expert evidence in this matter as a scientist.
**** WARREN SMITH XXN MR PERRY
PN1249
MR BURNS: I understand there are mostly artists in here.
PN1250
THE DEPUTY PRESIDENT: Where do you stand, Mr Perry? Do you wish to pursue this line of questioning?
PN1251
MR PERRY: Your Honour, I don't need to. The witness has accepted, I think, that he's no expert in these matters and that's probably enough.
PN1252
THE DEPUTY PRESIDENT: Yes.
PN1253
MR PERRY: That's probably what I was seeking to achieve.
PN1254
THE DEPUTY PRESIDENT: You flushed out some people who believe they are experts. All right.
PN1255
MR PERRY: Yes, but there is an important question, your Honour, and it has arisen out of the earlier witness today, as to the ability to detect impairment. I don't need to say anything more about that now.
PN1256
THE DEPUTY PRESIDENT: Yes, I will certainly be paying attention to the expert in relation to that.
PN1257
MR PERRY: The expert has given his evidence and Prof Christie will also give his evidence on that matter later in the week.
PN1258
Mr Smith, one of the concerns you raised in your letter of 7 November was how random selection of employees for testing was to be done, as in how you would work out who would be tested?---Yes.
PN1259
**** WARREN SMITH XXN MR PERRY
And one thing that the union was saying is wanted delegates to observe the testing. Is that right?---Yes, and that's been the practice, and as I understand, still is, contrary to the position of the company, because I checked this morning, certainly in Sydney. But yes, it is - but not through the whole testing process; it was a question of participation and engagement in the transparency of testing.
PN1260
Yes. And subsequent to you raising those concerns in November the company has developed a hand-held application to select for testing, has it not?---There was agreement on the form of the machine be used to determine a randomness - I think it was called the Randomiser.
PN1261
Yes?---And I think it comes in the form of a phone ap.
\
Yes, that's right. And the independent third-party being Work Safe SA who come onto site. They use that ap to select employees for
testing, but they?---Work Safe SA?
PN1262
Well, the independent party who comes on site to do the testing uses that application?---I'm not certain they use in every location. Maybe Jess would know that. But there was certainly an agreement that was acceptable to everybody who had a problem. Because I think there was one site where they, you know, picked balls out of a hat or something - and it was an acceptable random process. Where there was a concern about the nature of the random process there was an agreement to utilise that particular form of technology.
PN1263
Yes. And in fact the technology is not utilised by the company, it is utilised by the person who comes on site to do the testing?---Well, potentially yes, but there's always been concerns about the way randomness is determined by the workforce and there's always been a long-standing position of the delegate being part of that transparency for determination of randomness.
**** WARREN SMITH XXN MR PERRY
PN1264
Yes, but with the introduction of the hand-held device, or the application on the hand-held device, that concern has now been resolved, has it not?---I don't think so.
PN1265
I see. So - - -?---Clearly not in the eyes of the workforce and the delegates and, you know, I - - -
PN1266
So that what you are - - -?--- - - - people will be involved in the process.
PN1267
What you're suggesting is that an agreed form of technology be used for selecting, but that the independent third-party who does that should be watched by a delegate. Is that what you're saying?---Yes.
PN1268
And at the time testing occurs the delegate could be in a crane?---I think you'll find that there's - we're not short of delegates and I think you'll find there is a considerably flexible approach to where the delicate comes from. So if you're saying that we're stopping the operations of the delicate can participate in the transparency of drug and alcohol testing, you are wrong because that's not what we do.
PN1269
Mr Smith, the company doesn't do the testing, does it?---Well, that's a technicality in some respects. I suppose the company does in many ways do the testing through hiring a contractor.
PN1270
A contractor who is professionally accredited by the national testing authorities for doing testing?---I know what you're saying and I know where you're going. We want the delegate involved to make sure that the process is as transparent as possible, and that's not an unreasonable position, and it's been the position on the waterfront forever. When there's been random testing (indistinct) the industry - - -
**** WARREN SMITH XXN MR PERRY
PN1271
We will let her Honour decide what's reasonable and what's reasonable, Mr Smith?---Well - - -
PN1272
But what you're saying is that although an independent person is doing the testing, you require them to be observed by a delegate?---Yes.
PN1273
I see. And on 14 December Mr Adam wrote to you - and the letter is at WS13. You will see on the second page that Mr Adam said that the arrangement for a delegate to be present would cease on 28 February 2013, and that was what the company had proposed?---Yes.
PN1274
And that is what in fact has happened, is it not?---No.
PN1275
You don't accept that?---No, because I checked this morning and the delegate is still involved.
PN1276
THE DEPUTY PRESIDENT: And may I ask is that using the Randomiser and implementing the June 2012 policy?---The company, as far as I'm aware, have implemented the policy but we are in dispute around that.
PN1277
Yes?---Yes, using the Randomiser, and my understanding is it one of the first things to have happened, certainly in the site that I checked this morning, was the delegate's approach to the process of transparency.
PN1278
MR PERRY: Yes, and that being the delegate's approach, it's perhaps understanding, Mr Smith, because that in fact is the approach that you are encouraging them to take, is it not?---I understand the company call the delegate first in when the process occurs. It's not an authorised action by the delegate, if that's what you're inferring. I think that you haven't put one thing on paper, but the practical reality is I think there's such a feeling about it on the workforce that - and it doesn't cause any disruption, it's not a problem at all, and the company continues to do it.
**** WARREN SMITH XXN MR PERRY
PN1279
Mr Smith, the company has never suggested, has it, that an employee not be able to seek assistance or representation of the union in relation to a drug and alcohol matter, have they?---Only in the sense that you wrote - I was written to on 14 December that you've just pointed out to me - - -
PN1280
But all Mr Adams - - -?--- - - - denying the right of the delegate to be involved in the process.
PN1281
All Mr Adam is talking about there, Mr Smith, is the random selection process, is he not?---And the random selection process is the only part that we sought the involvement of the delegate. Under the agreement members have the right to have a representative.
PN1282
Yes, if there is a disciplinary matter, for example, they would be able to seek the assistance?---Yes, they would.
PN1283
But all that is happening here is a computer application is being used by an independent third person to select a list of names. That's right, isn't it?---I don't think they select - ultimately it selects names.
PN1284
Yes?---But the application doesn't select names. And whether or not the names accord to the numbers, I'm not sure, and I think that there's a concern over things like that, and there's a concern over exclusion of people; and there's always been a view from the entire workforces that the delegates should be able to be involved in that process. It's never been a problem. It doesn't stop productivity and it creates a level of transparency.
PN1285
What I'm suggesting to you, Mr Smith, is it's just completely unnecessary?---I disagree.
**** WARREN SMITH XXN MR PERRY
PN1286
You disagree, okay. And it's completely unnecessary because it's a computer program being used by an independent person. That's why it - do you accept that?---No. That's why I disagreed with you in the first place.
PN1287
So you don't suggest it's a computer program?---It's a computer ap. But, I mean, you know, any computer program, you input data. You put in information.
PN1288
And what the company has done until 28 February is allowed delegates to observe that process occurring. That's right, isn't it?---Certainly in the site that I checked this morning.
PN1289
And so do you - so the computer - - - ?---Possibly not in some.
PN1290
The computer application is being used by an independent person, and what I'm putting to you is that having the delegate observe is just simply a waste of everyone's time?---Well, I've already disagreed with you twice. I mean, I'm not going to agree with you the third time.
PN1291
Are you disagreeing, though, on the basis that the person using it is not independent? Is that what you're saying?---I'm disagreeing on the process - on the basis that we - - -
PN1292
I'm just breaking the question down for you - - - ?---Yes, and I'm just - - -
PN1293
- - - do you agree that the person using the Randomiser - - - ?---If you let me answer it we might get there.
PN1294
Well, yes or no?---We are seeking, and have sought, and always had the representation of the delegate to ensure the transparency of the process.
**** WARREN SMITH XXN MR PERRY
PN1295
Mr Smith, that was not the question I asked you. I asked you whether you assert that the person using the application is independent or not?---I don't know - - -
PN1296
You don't know?--- - - - maybe they aren't. Maybe they aren't independent. They're employed by the company. Possibly they're not independent.
PN1297
THE DEPUTY PRESIDENT: I think you can make submissions about that, Mr Perry.
PN1298
MR PERRY: Yes.
PN1299
THE DEPUTY PRESIDENT: But there is one question that I would like to follow up because I don't think this is completely clear.
The observation is of the execution of a predictable action that is taken on a hand-held device, is it not?
---Yes. And my understanding, your Honour, is then that's correlated into names that are reflective of the numbers.
PN1300
Yes. So the observation then is of the next step, which is the generation of numbers - - - ?---In practice it's not just the - it's the application - - -
PN1301
- - - and the correlation of names?--- - - - of numbers to names.
PN1302
And what about the front end? Is there any observation of the process of creating the pool? Because presumably the pool is not static, it must change as employees are hired and dismissed?---Well, I think it would apply to numbers of employees engaged at a particular time.
PN1303
**** WARREN SMITH XXN MR PERRY
Right?---From a one to however many on site.
PN1304
But there's no - - - ?---There could be 50 on site, there could be 200 on site, so it would flow - - -
PN1305
But someone has to give the machine those numbers on the occasion - - - ?
---Exactly.
PN1306
- - - so that they're the relevant numbers?---Yes.
PN1307
And is there any concern about that front-end process and wanting to observe that as well?---Yes. It's the process to ensure that there's a transparency and there's no capacity to just target specific people.
PN1308
MR PERRY: And what I'm putting to you as well, Mr Smith, is that it's completely impossible to target specific people using a randomised computer program, is it not?---No.
PN1309
You think it's possible that the computer program could be prejudiced like a human being, do you?---Well, maybe you would like to get the ap out and show us how it works and when you come out with a whole group of numbers, how you correlate that to a list of names, or whether you sit there and type in 250 people into the ap and then run the Randomiser.
PN1310
So is your suggestion that there is room for error, as it were, in correlating the number to the names?---There's always room for error in these processes and that's why we seek, for the sake of fairness and transparency, to have the delegate involved, who's always been involved.
PN1311
THE DEPUTY PRESIDENT: Mr Perry, I can sense you're going to move on to a different subject. It would probably be helpful if some of the respondent's witnesses were to explain from end to end what that process is, just so that - - -
**** WARREN SMITH XXN MR PERRY
PN1312
MR PERRY: I will certainly ensure that they do that, your Honour. It's actually a very simple process which has been over-complicated, in our respectful submission, but we can deal with that submission - - -
PN1313
MR BURNS: I would submit that it has been a complicated by my friend and not by the witness, your Honour, so - - -
PN1314
THE DEPUTY PRESIDENT: No derogatory implication is taken by that, Mr Smith.
PN1315
MR BURNS: I just think that they're at odds with what the question and the answer is. I don't think there's a connect there - - -
PN1316
THE DEPUTY PRESIDENT: That's why I would quite like to - in a straightforward way to have the end to end process explained.
PN1317
MR PERRY: Yes. We can attend to that, your Honour. I actually wasn't moving to a new topic, I was going to sit down, so I didn't have a new topic.
PN1318
THE DEPUTY PRESIDENT: Even better. Very good. Now, Mr O Callaghan, how much time would you be expecting to take, because unfortunately I have another group of parties - - -
PN1319
MR O'CALLAGHAN: I will endeavour to be done by 4.00 (indistinct) a few minutes after.
PN1320
THE DEPUTY PRESIDENT: And then Mr Burns, your re-examination?
PN1321
MR BURNS: I never take long.
**** WARREN SMITH XXN MR PERRY
PN1322
THE DEPUTY PRESIDENT: Except that you may not be done by 4.00 and unfortunately I have these parties arriving.
PN1323
MR BURNS: I won't be done by 4.00, no.
PN1324
THE DEPUTY PRESIDENT: No. So I'm just wondering whether it might not be - given that it's about, what, 7 minutes to 4.00, rather than have you start, Mr O'Callaghan, and unexpectedly have to stop you, it might be better from your point of view to get a full flow tomorrow morning. Now, does that inconvenience you, Mr Smith, coming back tomorrow?---No, that's fine.
PN1325
And how will that affect, Mr O'Callaghan, your witnesses, the ones who are drivers?
PN1326
MR O'CALLAGHAN: Well, they're still due to - - -
PN1327
THE DEPUTY PRESIDENT: Is Mr Stone.
PN1328
MR O'CALLAGHAN: Yes, they're still attending. I mean, Michael Aird, who we thought might be going on this afternoon, has now departed.
PN1329
THE DEPUTY PRESIDENT: Very good, yes.
PN1330
MR O'CALLAGHAN: And Mr Pirc, he will be here as well, Mr Nightingale.
PN1331
THE DEPUTY PRESIDENT: Yes.
PN1332
MR O'CALLAGHAN: I mean, the order now, unfortunately, is not what we would like at all.
**** WARREN SMITH XXN MR PERRY
PN1333
THE DEPUTY PRESIDENT: No.
PN1334
MR O'CALLAGHAN: And we ask that Michael Aird gives his evidence on Wednesday, your Honour, because he now unfortunately can't attend tomorrow.
PN1335
THE DEPUTY PRESIDENT: Okay. As much as I know parties have a particular idea of the flow of evidence and how that correlates to submissions; believe me, I don't think that your case will be unduly prejudiced by the order. So can we assume that after Mr Smith is concluded tomorrow morning as quickly as possible, that we will go to Mr Stone?
PN1336
MR O'CALLAGHAN: I would like to take instructions, if you don't mind, ma'am.
PN1337
THE DEPUTY PRESIDENT: Okay. I guess it's not for me to transplant myself into the TWU's concerns, but I am just concerned that a working person who has taken leave to attend is not overly inconvenienced.
PN1338
MR O'CALLAGHAN: We share your concerns.
THE DEPUTY PRESIDENT: All right. We will adjourn now until 10 am in the morning. Mr Smith, you're going to have to again concern yourself with other matters tonight. If not sport, then maybe politics, given the matters that have transpired over the weekend, and not discuss your evidence with anybody. And we will resume at 10 am tomorrow morning.
<THE WITNESS WITHDREW [3.55PM]
<ADJOURNED UNTIL TUESDAY, 10 SEPTEMBER 2013 [3.55PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MICHAEL DAVID ROBERTSON, AFFIRMED PN460
EXAMINATION-IN-CHIEF BY MR BURNS PN462
EXHIBIT #MUA1 REPORT BY DR ROBERTSON CONTAINED IN A DOCUMENT HEADED "INDEPENDENT FORENSIC CONSULTING," DATED 25/6/13 PN470
CROSS-EXAMINATION BY MR PERRY PN473
EXHIBIT #DPW1 NATA DOCUMENT, DATED JULY 2013 PN569
EXHIBIT #DPW2 LETTER FROM MCNALLY JONES TO DR ROBERTSON PN648
CROSS-EXAMINATION BY MR O'CALLAGHAN PN671
FURTHER CROSS-EXAMINATION BY MR PERRY PN718
FURTHER CROSS-EXAMINATION BY MR O'CALLAGHAN PN736
RE-EXAMINATION BY MR BURNS PN741
THE WITNESS WITHDREW PN752
WARREN SMITH, AFFIRMED PN754
EXAMINATION-IN-CHIEF BY MR BURNS PN754
EXHIBIT #MUA2 STATEMENT OF WARREN SMITH, DATED 1/7/13 PN775
EXHIBIT #MUA3 UNDATED STATEMENT OF WARREN SMITH, TITLED "SUPPLEMENTARY STATEMENT" PN775
CROSS-EXAMINATION BY MR PERRY PN781
THE WITNESS WITHDREW PN859
WARREN SMITH, RECALLED ON FORMER AFFIRMATION PN861
CROSS-EXAMINATION BY MR PERRY, CONTINUING PN861
THE WITNESS WITHDREW PN1339
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