C2013/1694, Transcript of Proceedings [2014] FWCTrans 171 (1 April 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1049719-1

SENIOR DEPUTY PRESIDENT RICHARDS

C2013/1694

s.739 - Application to deal with a dispute

Mark Payne and ors
and
Monadelphous Engineering Pty Ltd
(C2013/1694)
Monadelphous Engineering Pty Ltd Wiggins Island Coal Export Terminal Construction Union Greenfield Agreement 2012

(ODN AG2012/6969)
[AE895239 Print PR526074]]




Brisbane

10.16AM, FRIDAY, 21 MARCH 2014

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning everyone, please take a seat. Appearances thanks.

PN2

MR T. O'BRIEN: Good morning, your Honour, my name is Mr T. O'Brien and I appear on behalf of the applicant.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you Mr O'Brien.

PN4

MR C. MURDOCH: May it please the Commission, my name is Mr C. J. Murdoch, I'm a barrister, I seek leave to appear on behalf of the respondent, instructed by Norton Rose Fulbright Australia.

PN5

THE SENIOR DEPUTY PRESIDENT: Good, thanks, Mr Murdoch. Mr O'Brien, on the issue of permission.

PN6

MR O'BRIEN: No, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Murdoch, permission is granted.

PN8

MR MURDOCH: Thank you.

PN9

THE SENIOR DEPUTY PRESIDENT: It's a matter of construction in any event and such issues are usually facilitated by those with some legal experience. We'll proceed from that basis.

PN10

MR MURDOCH: Thank you.

PN11

THE SENIOR DEPUTY PRESIDENT: Mr O'Brien, your application, I've read your submissions. Do you have any witnesses at all in this matter?

PN12

MR O'BRIEN: A slightly unusual circumstance, your Honour, the only material that we would seek to rely on is a statement of my own hand. I've been advised by my learned friend that thankfully I will not be required for cross-examination so perhaps I could seek leave to tender the statutory declaration under my own hand.

PN13

MR MURDOCH: Before Mr O'Brien does that, I confirm that he's not required for cross-examination but I do have an objection in respect of one paragraph, your Honour. I object to paragraph 4 in its entirety. I object on it firstly on the basis of it being a classic example of hearsay and not only is it hearsay it's also hearsay in the context of Mr O'Brien being advised of something without describing who it is that provided the advice. But more importantly than hearsay it also refers to matters that in my submission are quite irrelevant to the matter before the Commission. Irrelevant for two reasons. Irrelevant firstly because it refers to arrangements that are in place at other projects. Whatever arrangements might be in place at other projects aren't relevant to the matter your Honour has to decide, and secondly I infer that it might be suggested that the arrangements of those other projects are somehow relevant to the interpretation of this agreement because of similarity because of provisions of agreements. Your Honour hasn't been provided with any details to the other agreement and in any event even if your Honour had been without a detailed explanation from those responsible for the other projects as to why the relevant conditions are provided, again its quite unhelpful and in my submission for your Honour to rely upon that paragraph in any way would be to rely upon matters that are irrelevant and could lead your Honour's ultimate disposition in the matter into error. So whilst I accept that ordinarily given the rules that apply matters can go in and little weight can be given to it, et cetera. In my submission this is well beyond that, it is something that simply has no relevance and should be removed.

PN14

MR O'BRIEN: Your Honour, I accept that it is hearsay evidence and as my learned friend rightly points out the rules of evidence do not strictly apply in the Commission. What I would say is that the relevance of the contents of paragraph 4 goes to the intent of the parties at the time of making the agreement. I would submit that the appropriate course here, your Honour, would be for paragraph 4 to be admitted into evidence and then it can be given whatever weight your Honour deems to be appropriate.

PN15

THE SENIOR DEPUTY PRESIDENT: I think both your points are compatible. I think what you're saying, Mr Murdoch, in effect is that well it's not capable of being given anything but the slimmest of weight. Mr O'Brien says you should give it the weight that's appropriate. I think it basically sounds like the parties are leaving it to me to attribute it the appropriate weight as I deem it to be and then of course if it's a degree of weight - a quantum of weight that is impermissible for purposes of constructing agreements I'll probably know about it at a subsequent time.

PN16

MR MURDOCH: That is so, but in my submission your Honour the degree of weight that could be given to it is so small as it would be almost incapable of proper description.

PN17

THE SENIOR DEPUTY PRESIDENT: I take your point but I think I'll leave it in, the notion of excising provisions is not one that comes naturally to the Commission but the notion of attributing to matters such as this appropriate weight upon the exercise of the relevant discretion or on this case the construction process is one that I want to complete.

PN18

MR MURDOCH: As the Commission pleases.

PN19

MR O'BRIEN: In that event, Commissioner, I seek to tender the statement under my own name.

EXHIBIT #CFMEU1 WITNESS STATEMENT OF TRAVIS O'BRIEN

PN20

MR O'BRIEN: The applicants have no further evidence, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, just on your submission, Mr O'Brien, just to complete something that was in my mind, at paragraph 12 there is a sentence there that reads, "Further, the agreement provides at clause 10.4F," then it quotes the clause. I'm just wondering was that a complete thought, a complete submission, was there meant to be some additional context to that statement for the purposes of either what preceded it or what followed?

PN22

MR O'BRIEN: If you're concerned the prefacing word first - - -

PN23

THE SENIOR DEPUTY PRESIDENT: I'm just not sure I understood what the submission was there, it just seemed to be an introductory clause, then a quote and I was just trying to gauge was there intended to be some further explanation or interpretation to follow?

PN24

MR O'BRIEN: I believe, your Honour, the intention is simply to take you to the relevant clauses of the agreement at that point and then the following submissions rely upon the clauses there as cited. I don't think I can take it much further than that.

PN25

THE SENIOR DEPUTY PRESIDENT: That's all right, I was just wondering whether it was a complete thought, but as you say you are just stepping out the provisions as you see them but I shouldn't try to read more into it than what's there, that's your point I think isn't it?

PN26

MR O'BRIEN: I think that's right.

PN27

THE SENIOR DEPUTY PRESIDENT: As long as I'm not missing something was really my ultimate concern. Mr Murdoch, I've read the respondent's submissions and of course Mr Rooke's witness statement. What is the position in relation to Mr Rooke, Mr O'Brien, are you seeking to call him?

PN28

MR O'BRIEN: We'll seek to cross-examine him.

PN29

THE SENIOR DEPUTY PRESIDENT: Do you want to add anything at all at this juncture, Mr Murdoch - - -

PN30

MR MURDOCH: No.

PN31

THE SENIOR DEPUTY PRESIDENT: - - - (indistinct) the submission will go straight to Mr Rooke.

PN32

MR MURDOCH: I'm content with that, your Honour, I'll just formally read the outline of submissions and then call Mr Rooke. Before I do, your Honour, just by way of clarification does your Honour have a full copy of the agreement?

PN33

THE SENIOR DEPUTY PRESIDENT: Not before me - - -

PN34

MR MURDOCH: Would you be assisted by the provision of one.

PN35

THE SENIOR DEPUTY PRESIDENT: If you have one to give me that would be helpful, I've been staring at that PDF version as you're all probably familiar with.

PN36

MR MURDOCH: Your Honour, I call Steven Walter Rooke.

<STEVEN WALTER ROOKE, AFFIRMED [10.26AM]
<EXAMINATION-IN-CHIEF BY MR MURDOCH [10.26AM]

PN37

MR MURODCH: Could you give your full name to the Commission please, Mr Rooke?---Steven Walter Rooke.

PN38

What is your current occupation, Mr Rooke?---Employee relations, industrial relations manager for Monadelphous on the Wicket Project.

PN39

Have you provided a statement for use in this proceeding?---I have.

PN40

That's a statement signed by you on 7 March 2014 at Gladstone?---That's correct.

PN41

Are the contents of that statement true and correct to the best of your knowledge and belief?---They are.

PN42

I tender Mr Rooke's statement, your Honour.

EXHIBIT #M1 WITNESS STATEMENT OF STEVEN ROOKE

**** STEVEN WALTER ROOKE XN MR MURDOCH

<CROSS-EXAMINATION BY MR O'BRIEN [10.27AM]

PN43

MR O'BRIEN: Mr Rooke, do you have a copy of your statement in front of you?---I do.

PN44

Can I take you to paragraph 19. You have given evidence that the arrangements that your employer has in place are seen by workers as more than fair. Why do you say that?---Because the workers have signed onto agreements which set out the usual travel arrangements but having looked at the various factors including the fatigue factor, we came to the conclusion that we ought to make this change, a change which was more than fair in the sense that it goes beyond what people were nettled to and what they accepted when they accepted employment with the organisation.

PN45

Your evidence is that you believe that the employees including the applicants considered the arrangements to be fair because they have signed onto letters of offer or such things, is that right?---I can't say what was in the minds of particular individuals, all I can say is that looked at objectively what we were proposing was more than fair in the sense that I just explained.

PN46

In your statement you annex current Wicket project rosters, do you agree with that?---That's in the annexure SR3?

PN47

I'm looking at page 5 of 7 of SR1?---I think you're looking at SR3.

PN48

I am indeed, sorry, thank you for that. What is SR3?---It's the template letter of offer that is provided to and signed by the employees or prospective employees who are non-local.

PN49

You say by signing this employees agree that rostering arrangements such that they may be required to travel on their first day of R&R are fair, that's your evidence is it?---They're accepting employment on that basis, so how could that not be fair?

**** STEVEN WALTER ROOKE XXN MR O'BRIEN
PN50

So you say that by signing this they are accepting employment on the basis that they may be required to travel on their first day of R&R that's your view is it?
---They're accepting employment on the basis that they will commence travel on the last day before R&R commence.

PN51

But you agree with me don't you that there are employees including some of the applicants who are required to travel on the first day of R&R, you agree with that?---Yes.

PN52

Can I take you to page 5 of 7 of SR3, can you show me where in that roster an employee would be given a clear indication that they may be required to travel on their first day of R&R please?---Well it doesn't say there.

PN53

No, it doesn't does it, Mr Rooke, would you agree - - - ?---What it says there is they commenced their travel on the last day before R&R.

**** XXN MR O'BRIEN XXN MR O'BRIEN
PN54

Do you agree with me, Mr Rooke, that the first day of R&R in both roster A and roster B, the first day of R&R this being Wednesday of week 4 is designated as R&R in its entirety and there are no notations to suggest that there would be any time spent other than by taking a rest and recreation on those days, do you agree with that?---It's a table that sets out an arrangement, but the table in itself can't explain the whole arrangement.

PN55

You say that this table sets out the arrangement do you? That's your evidence Mr Rooke?---It says the employee will be allocated to one of those rosters.

PN56

Yes, thank you for that, Mr Rooke. Mr Rooke, do you agree with me that in compiling, in creating the arrangements for working hours and travel on the last day of a swing, that the respondent Monadelphous, your employer, has balanced the two competing interests of productivity and fatigue management, would you agree with that?---I'm not sure that I understand the question.

**** STEVEN WALTER ROOKE XXN MR O'BRIEN
PN57

Perhaps I can take you to the evidence you've already given, Mr Rooke. Can I take you to paragraph 25. Can I take you to the last sentence of paragraph 25. Do you agree with me that you have concerns that if workers were permitted to leave the worksite earlier on the last day of their swing that that would see the respondent would lose the productivity of those individuals for that additional time, do you agree that's the evidence you've given?---Well, that's obvious, yes.

PN58

That's a concern isn't it, you obviously want to see maximum productivity from your entire workforce, don't you?---Within reason.

PN59

Do you have any non-local employees on the Wicket project whose usual place of residence is Darwin?---I know we have had, I'm not sure whether we do presently.

PN60

So whilst you've had a non-local employee whose usual place of residence was Darwin you'd say that they would undertake less than two hours work on the last working day of the project; do you agree with that?---Sorry, can you point me
to - - -

PN61

Paragraph 34, final sentence of your statement?---Yes, that's what I say there.

PN62

Mr Rooke, if that was what it took to comply with the agreement what would be the problem with it?---Well, firstly the agreement doesn't require us to do that.

PN63

Yes, in your view, Mr Rooke but my question to you is what would be your concern if Monadelphous in order to comply with the agreement was only able to obtain two hours of productive work from an employee on the last day of their swing. What's the concern with that, is that a difficulty?---Well, it could be a major difficulty. If that individual for example were a crane driver and then that crane would be left idle for that additional period and some employees would be less than effectively employed.

**** STEVEN WALTER ROOKE XXN MR O'BRIEN
PN64

Mr Rooke you would have known that this employee lived in Darwin when you hired him, wouldn't you? You would have known that?---The organisation would have known, yes.

PN65

So they knew that going in when they signed up to employ this individual, that's fair isn't it?---They would have known what?

PN66

They would have known that he lived in Darwin when they signed him up, wouldn't they?---Yes.

PN67

Do you have any non-local employees who live in Birdsville?---No.

PN68

Have you ever?---Not that I'm aware of.

PN69

Can you explain to me then why your evidence at paragraph 35 is relevant to the question that's before us?---It is conceivable that we could employ someone who's normal place of residence was Birdsville.

PN70

This is entirely hypothetical is it?---Yes, it is, yes, and I think that's clear from my statement.

PN71

If you did employ someone who lived in Birdsville what time would they be getting home to their residence after completing their final day of work on the project?---I'm sorry, I don't know but it would be - if they left - - -

PN72

It would be the following day, wouldn't' it?---It may even be later than that, depending upon the flights to Birdsville.

PN73

Do you have any non-local employees who live in Exmouth?---Not that I know of.

**** STEVEN WALTER ROOKE XXN MR O'BRIEN
PN74

Have you ever?---Not that I know of.

PN75

I see, so that's another hypothetical example is it?---That's correct.

PN76

Do you have any non-local employees who live in Kununurra, Western Australia?---Kununurra, no not that I'm aware of.

PN77

Have you ever at any point in time employed a non-local employee who lives in Kununurra?---Not that I'm aware of.

PN78

So again that's entirely hypothetical?---Yes.

PN79

Would you agree with me, Mr Rooke, that if you were contemplating employing someone who lived in Kununurra, before you decided to employ them you would ensure that you would take appropriate steps to comply with your obligations under the enterprise agreement, would you agree with that?---Well, yes.

PN80

Mr Rooke, have you personally ever been in attendance at an internal recruitment officer meeting with prospective employees?---Not actually with them in the room but I have seen present in the recruiters office when they were conducting telephone interviews.

PN81

So you've never been able to hear both sides of the conversation?---That's correct.

PN82

So really you can't give any evidence about what has in fact occurred during these conversations and during these meetings, can you?---The evidence would be hearsay but it would be evidence from the employment of the recruitment officers as to what took place during that conversation.

PN83
**** STEVEN WALTER ROOKE XXN MR O'BRIEN

So the only direct evidence you can give on that point really amounts to annexure SR3 to your statement, doesn’t it?---Annexure?

PN84

This is the letter of offer, Mr Rooke?---There is annexure SR2 which is the template that the recruitment officers use in discussions with job applicants.

PN85

Yes, Mr Rooke, but you're not saying you were present every single time the recruitment officers go through this template, are you?---No, of course not.

PN86

You're not saying that this template is given to prospective employees are you?
---No, I'm not saying that.

PN87

This is a guide for recruitment officers to use when they're having conversations with prospective employees during which you are not present, is that your evidence?---I have been present on occasions but not every time.

PN88

Mr Rooke, have you ever been present such that you can hear both participants in a pre-employment interview?---I've already answered that.

PN89

No, so you cannot say that you have ever been present in a meeting where you can hear both parties while this document is being discussed, can you?---I think I've already said.

PN90

Thank you for that, Mr Rooke. Just to be clear, this document is not given to prospective employees is it?---No.

PN91

But SR3 is given to prospective employees isn't it?---That's their letter of offer.

PN92

I see. Mr Rooke, are you familiar with a gentleman by the name of Dave McGee?---I know the name, I can't put a face to it.

**** STEVEN WALTER ROOKE XXN MR O'BRIEN
PN93

Have you had a conversation recently with CFMEU organiser Mr Ben Loakes about an employee who lives in Midland?---Not that I recall, in Midland whereabouts?

PN94

Midland, Western Australia, I believe it's about 30 minutes from Perth airport, if that assists?---Okay, yes, I know the Midland you're talking about.

PN95

Do you recall having a conversation with Mr Loakes about a non-local employee who lives in Midland?---I have a vague recollection of a conversation, I can't recall the detail.

PN96

Would you agree with me that a non-local employee who lived in Midland would finish work at one p.m. on the final day of their swing, would you agree with that?---They depart site at 1.30.

PN97

So what time would that employee be flying out of Gladstone?---At 4.20 p.m.

PN98

So they would arrive in Brisbane about an hour later, would they?---A bit over an hour later, yes.

PN99

At what time would their flight to Perth leave Brisbane airport?---I think it's some time after eight p.m., 8.15 or 8.30.

PN100

What time would that flight arrive in Perth?---About 11.30 p.m.

PN101

How long does it take to get from Midland to Perth airport?---It would depend on traffic, at that time of night it wouldn’t take very long at all, 15, 20 minutes.

PN102

So that particular employee, what time would they start work on their final day of their roster?---Normal starting time, 6.30 a.m.

**** STEVEN WALTER ROOKE XXN MR O'BRIEN
PN103

So they would start work at 6.30 a.m.?---Yes.

PN104

They would then be driving from Perth airport to Midland between 11.30 p.m. and midnight, does that sound right?---I don't know how they would get from Perth airport to Midland, it could be by private car, could be by taxi, I don't know.

PN105

That would be some 18 hours after they commenced work that day, wouldn’t it?
---I'd have to calculate it.

PN106

I see. I have no further questions, your Honour.

<RE-EXAMINATION BY MR MURDOCH [10.44AM]

PN107

MR MURDOCH: Just one matter, Mr Rooke. Are you able to give an approximation of how many non-local employees are presently employed on the project who would be subject to this agreement?---It would be a very rough approximation but it could be 200.

PN108

Nothing further thank you, your Honour. Might the witness be excused?

PN109

THE SENIOR DEPUTY PRESIDENT: Yes, the witness is excused, thank you, Mr Rooke.

**** STEVEN WALTER ROOKE RXN MR MURDOCH

<THE WITNESS WITHDREW [10.45AM]

PN110

MR MURDOCH: That's my case, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: Mr O'Brien, closing submissions.

PN112

MR O'BRIEN: Thank you, your Honour. Your Honour, I would submit that what this case really turns on is what your Honour determines the enterprise agreement obligates the employer to do regarding travel home for non-local employees at the completion of their work cycle. I would submit, your Honour, that there are two separate obligations that arise from this agreement. The first obligation regards to payment for travel, and by that I mean provision of travel at the expense of the employee, and the second obligation regards the timing of that travel, such that the rostering arrangements as they exist under the agreement are complied with. That becomes very important, your Honour, when we turn to the specific clauses in the agreement and I will come back to that as we go through those clauses.

PN113

I might start briefly with the respondent's outline of submissions and the authorities that they cite which provide the principles which must be observed when applying provisions of an agreement. The first of those is the Land v. Dunnings decision which is a full bench decision of this Commission in which the leading high court case of AMCOR v. CFMEU was relied upon. The key passage from the AMCOR v. CFMEU decision for the matters that are before us, your Honour, in my submission is cited at paragraph 9 of the respondent's submission and reads in part, "The text and operation of the agreement both as a whole and by reference to other particular provisions made by it is a key princple, a key consideration when determining the application of particular provisions in the agreement."

PN114

I say that it is that princple that is key to the matter that is before you today. We have two clauses in the enterprise agreement and an appendix that contains a roster. The appropriate course for your Honour in my submission is to read those three provisions holistically in such a way that each of those three relies on each other in determining the correct application of the three clauses. They cannot be read in isolation, they must be read concurrently and holistically. At paragraph 10 the respondent cites the decision of Justice Kirby from the AMCOR v. CFMEU decision and his Honour provided that, "The construction should not be a strict one, but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the agreement."

PN115

If I can put that in my own words, your Honour, the strict legalistic meaning of words should not be applied. The proper course is to read the three clauses the subject of this application together and for your Honour to attempt to find a commonsense application for the three clauses in a holistic way. Justice Kirby goes on to cite Justice Madgwick in the Cucks v. CSR decision which expands on that point, your Honour. Justice Madgwick provides, "It is trite that narrow or pedantic approaches for the interpretation of an award are misplaced." Where that leaves us, your Honour, when we look at the particular clauses that are before us, is this. If I can take you to clause 12.4F of the agreement and I belive you have a copy of the agreement in front of you. The respondent submits that at clause 12.4F - I beg your pardon, your Honour, I think I'm looking at 10.4F, I do beg your pardon.

PN116

THE SENIOR DEPUTY PRESIDENT: I'm glad that's the case because I thought (indistinct).

PN117

MR O'BRIEN: The respondent would have you submit that the word "commence" in the first sentence there should be applied in such a way that the framers of this document, the parties that reached this agreement intended that the journey should commence on the last day of work but not necessarily complete because it does not specifically say the journey does not complete. I say that that application that is being put forward by the respondent is exactly the narrow and trite application that Justice Madgwick was referring to.

PN118

We say that the application or the meaning that should be given to the use of the word "commence" there is nothing more than the journey home does not start on the second last day of the roster, it starts on the last day. There can be no meaning as to when a journey is to conclude that you could take from paragraph 10.4F. The meaning of that clause is only that the journey starts on the last day, it doesn't start on the second last day, it starts on the last day. It says absolutely nothing about when the journey concludes. To apply an overly legalistic interpretation to this clause's silence regarding when a journey concludes is a narrow and trite approach that the high court has said should be avoided.

PN119

The respondent says regarding paragraph 10.4E that the journey's - the specific details of travel arrangements will vary relative to each individual employees circumstances, and it's put forward that that supports the respondent's contention that the journey to the employee's home does not necessarily need to conclude on the last day of their swing. Well, no it doesn't, your Honour, it just quite simply doesn't. What it says is that the respondent employer has an obligation to consider where each individual employee lives when they are creating and formulating the travel arrangements. I would submit, your Honour, that that supports the application that has been proposed by the applicant.

PN120

If the obligation regarding the timing of the journey home only extended to the arrival at the nearest RPT airport, it would not be necessary to say that each individual employee's circumstances must be taken into account because there would be a very, very limited number of circumstances because there are a very, very limited number of RPT airports. It is the application being put forward by the applicant that is supported by clause 10.4E. Finally, clause 10.4D of the agreement. It provides that the employer shall transport non-local employees by economy air transport from the high capacity RPT airport nearest to the employee's usual place of residence.

PN121

I come back to my initial point, your Honour, that there are two separate obligations on the employer regarding travel arrangements in this agreement. One is to timing, and the other is to the payment for that travel. This clause does nothing more than set out that the employer will pay for travel to the employees nearest RPT airport and the cost of travel to the employee's home from there is at the employee's own expense. This clause does nothing more than talk about the employer's obligation regarding payment. You will note there is nothing in clause 10.4D that deals with timing. It simply provides the employer shall transport the non-local employee to the nearest high capacity RPT airport. This clause deals with payment and not with timing.

PN122

Whilst it is certainly true that there is no clause in this agreement that specifically says employees will arrive at their usual place of residence on the last day of their swing. There is some ambiguity on that point in the clauses, but I will say this, your Honour, if we turn to the letter of offer that is annexed to the statement of Mr Rooke at SR3, this is page 5 of 7, and if we turn to the appendix to the agreement. Appendix 2, sub-appendix B, "Example, non-local work cycles." There is no ambiguity here, your Honour, there is no ambiguity at all. The 21st day of the roster, the Monday of week 4, it is designated reduced hours scheduled work day includes breaks and travel out from site at the end of the last day. That is what is to occur in its entirety on day 21 of the roster. We come to day 22 of the roster. Unequivocally rest day, taken at usual place of residence for non-local employee.

PN123

There is no grey area, your Honour, there is no ambiguity, it is unequivocal. Day 22, the first day of R&R is it be spent in its entirety - in its entirety - taken at usual place of residence. The application of all of these clauses being sought by the respondent is completely inconsistent with the unequivocal roster that is not only found in the agreement, it's also found in the letter of offer. Mr Rooke says to you employees have agreed to travel arrangements where they are travelling on the first day of their R&R because they signed this letter of offer. It's clearly nonsense, your Honour, what they have agreed to is a roster. In the letter of offer that says day 22, R&R, day 21 the last day of the roster is a travel day. It says, "Day 21, fly." Day 22, the following day, it is rest and recreation. You will have noted, your Honour, that the appendix to the agreement has example, non-local work cycles. It is an example.

PN124

Let's come to the letter of offer. Page 5 of the letter of offer annexed to the statement of Mr Rooke reads thus, "Roster, outlined below are the current Wicket project rosters. 21 days on, seven days off, 28 day roster cycle, you will be allocated to one or other of these rosters." You will be allocated to one of these rosters. There is no equivocation, there's no ambiguity, you will be allocated to a roster where day 22 of the cycle is nothing but rest and recreation at your usual place of residence. My learned friend on behalf of the respondent will take you to the specifics of clauses 10.4D, 10.4E, 10.4F and will ask you to find your way through the words in those agreements such that day 22 of a cycle can be spent doing something other than rest and recreation at your usual place of residence.

PN125

You've heard me on what Justice Madgwick has to say about that, your Honour, in that the difficulty with that approach is that it is completely contradictory to the unequivocal express roster that provides day 22 is nothing but rest and recreation at your usual place of residence. It is the application that is being put forward by the applicant that is the only application that is before you that can comply with 10.4D, 10.4E, 10.4F and the rosters. The application that is being put forward to you by the respondent they will say complies with 10.4D, 10.4E and 10.4F and what they say is that that application, as trite and narrow as I say it is, should somehow be preferred over the unequivocal statement of the roster, and that cannot be accepted, your Honour, that cannot be accepted. It is only the position of the applicant that complies with all four of those clauses.

PN126

You have already heard from me that when applying clauses in agreements you must take a holistic approach, the document as a whole is to be read and it is only the application that the applicant has put forward that complies with the whole document. The hurdle that the respondent has is that their application does not comply with the example rosters and they just cannot get over that hurdle. They cannot get over that hurdle, your Honour. Unless I can be of further assistance those are my submissions.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Brien. Mr Murdoch.

PN128

MR MURDOCH: Yes, thank you, your Honour. Your Honour is essentially faced in this case with two competing submissions. The applicant's position as I understand it is the agreement requires the respondent to ensure that employees arrive at their usual place of residence before the end of the last working day prior to R&R leave commencing. The respondent's position however is that the agreement does not require this. What it does require is commencement of that journey on the last working day, with working hours aligned to allow this to occur. My submission is that the respondent's submission is consistent with the words of clause 10.4. It is consistent with the words of 10.4 when read in the context of the agreement as a whole, including the relevant appendix, and it is also consistent with the accepted principle that applies both in respect of agreements generally and also industrial agreements, that they should be read in such a way as to avoid an interpretation that is absurd or curious.

PN129

In my submission were the Commission to read the agreement in the way that the applicant submits that would be the outcome. Prior to taking you to the relevant parts of the agreement could I also refer you to some of the authorities. Can I hand to you a copy of the authorities that are referred to in the outline that's been provided by the respondent and also two additional authorities that deal with the interpretation of agreements generally, I will take you to relevant parts of those in due course. I won't rehash or go over again the extracts from the relevant authorities my friend has taken you to because he has taken you to them and of course your Honour would be well familiar with them. But it's a particular issue that each of the cases refers to that in my submission is important to be borne in mind and it's this. If your Honour takes up the decision of Lamb v. Bunnings Group which conveniently from paragraph 15 marshals up the established or what are described as correctly, in my submission, the well-established principles concerning the approach to interpreting enterprise agreements.

PN130

The full bench there of course refers to AMCOR and then goes on by way of extracting part of Justice Kirby's judgement to refer to part of what Justice Madgwick said in Cucks. If your Honour goes to paragraph 16 and then the extract of Cucks, it's about two thirds of the way down the page. Whilst true and of course it's correct that one should eschew narrow or pedantic approaches to the interpretation of an award or an agreement it's also of course correct as I have italicised towards the end of the quotation, "meaning which avoid inconvenience or injustice may reasonably be strained for." Can I then ask you to take up the copy of AMCOR itself, it's been provided, and could I ask you to go to paragraphs 13 and 14.

PN131

And that is paragraphs 13 and 14 of the joint judgement of Chief Justice Gleason and Justice McHugh and your Honour will recall in the AMCOR decision it really turned on the interpretation that would be given to a particular phrase, being relevantly "position". You will note in paragraph 13 there is a reference to the operation if we give it a relevant clause as what's referred to as being on the respondent's case and their Honours go on to say that that seemed a very curious result, both industrially and commercially. Then their Honours go on to then expand a little bit on the respondent's argument for position and then go on to say that, "The approach is too narrow and allows insufficient flexibility which will accommodate the commercial and industrial realities which the general terms of clause 55.1.1 have deal. On the other hand if the words are given the meaning for which the appellant's contend, that is to say the position of the business, they're more readily capable of sensible adaptation to the circumstances of particular cases."

PN132

Can I then before I go to the agreement itself take you to the two cases that are in the bundle that refer to commercial agreements and I hand these to your Honour simply by way of illustrating the approach that is taken generally in respect of the interpretation of agreements. Can I ask you to take up Lewis Construction v. Southern Electrical Authority Queensland and to turn to page 773 and without reading it out to your Honour just ask your Honour to note on the second - at the foot of the second column on page 773 there is a quote that begins, "It is trite law." I just ask your Honour to read or to note at least from the beginning of that quote over onto page 774 to the end of the first new paragraph.

PN133

Your Honour will note in the first new paragraph there is the reference to principles that are well known being if the clause is ambiguous the construction that will avoid an unreasonable result will be confirmed. Then can I take you to the last case, Australian Casualty Co Ltd v. Frederico, again a commercial case, this one dealing with insurance policies. I just ask you to turn to page 520 and just ask you to note at about two thirds of the way down the paragraph that begins, "The ordinary rules of interpretation apply." Down to the end of the paragraph which ends with the word, "construction." Your Honour, can I ask you to take up the agreement itself and what I would like to address you on first is clause 10.4 and then take you to the appendix. In fact it might be useful in light of what my learned friend has said to take you to the appendix first. The relevant part of the appendix is on page 52.

PN134

There is under the heading, "Example local work cycle," the words "legend" appear and even though it's under the heading, "Example local work cycle," the legend appears to relates to both the local work cycle and also over the page the non-local work cycle. In the legend the particularly relevant parts, in my submission, are (d) reduced hours, scheduled work day, (o) rest day and out, travel out from site at the end of the last day. You will note that "out" appears with the small (d) on the last day of each of the swings, as it were, for both the 21 on, 7 off roster and the 28 on, 7 off roster. So the effect of that is that on the last day according to the legend that enables one to understand the roster there are reduced hours on that scheduled work day but it's out, one travels out from site at the end of the last day. I accept of course as my learned friend says when one then goes to the next day, being the first day of the R&R period it says, (o) but the roster must be read as a whole and notwithstanding that it says (o) at the beginning of the first rest day it also says "travel out from site at the end of the last day".

PN135

Which in my submission is consistent, directly consistent with the approach that the respondent submits your Honour should take to interpreting this agreement. Because as the analysis, and I'll take you to these examples in a moment, as the analysis that Mr Rooke has put forward in his affidavit reveals, if the clause is interpreted in such a way that the applicant's analysis is correct, that will inevitably lead to a situation where an employee who because of their location in terms of their home base combined with the closeness of that home base to the high capacity RPT airport, combined with airline travel schedules will inevitably lead to a situation where there would be employees who when one adds all of those things together would be having to leave to get home, or as the applicant submits, before the end of the last day, having to leave before the beginning of the last day and not doing any work at all on the last day which would be directly inconsistent with the clear terms of the roster. If such a person would not be able to perform reduced hours on the last day and such a person would certainly not be able to travel out from site at the end of the last day.

PN136

Can I then ask you to go back to clause 10.4. In my submission not only does appendix 2 when read as a whole as it must be not support the applicant's contention, but clause 10.4 which is the clause that deals squarely with the question of rest and recreation or R&R, one searches in vain in clause 10.4 to find any part of it that supports what the applicant contends. In essence in order for what the applicant tends to be correct, one has to not interpret clause 10.4, one has to rewrite it and one has to rewrite it importantly by stating in it somewhere that the person has to be transported home to their place of residence before the end of the last working day. Can I take you firstly to 10.4D? That is the clause that sets up the obligation on my client in respect of transportation. The obligation is to transport the relevant person to the high capacity RPT airport nearest to their usual place of residence. It says nothing about the timing of getting to the high capacity RPT airport, let alone the timing of getting to their usual place of residence. The obligation is transport them to the nearest high capacity RPT airport.

PN137

10.4E refers to the provision of bus pick up and drop off service operating between Gladstone airport and the project site, well that's unexceptional. The second sentence, "The specify details of R&R travel arrangements will vary relative to each individual employees circumstances." Well, that's again unexceptional. There will be people who will drive and won't require transport at all. There will be people who one would infer might need to leave at a different time in order to commence their journey depending upon where the nearest high capacity RPT airport is. So there is nothing in the second sentence of 10.4E that counters the interpretation put forward by my client. When we then turn to 10.4F in my submission 10.4F confirms that my client's interpretation of the agreement is correct because the clear words, and this is not about being narrow or pedantic, it's about reading it and reading it in context. The clear words of 10.4F are, "Travel for R&R shall commence." It doesn't say complete, it says commence.

PN138

If the intention had been to complete it, particularly taking into account the obvious industrial ramifications in terms of time of departure, if that had been the intention it would have been a very simple matter for clause F to refer to not just commencing but to refer to it completing. But what it does say is, "Travel for an R&R shall commence on the last working day of the employees work cycle within normal work hours aligned to required departure time for employees return travel." So not only does it not say "shall complete" but importantly nor does it say travel for an R&R may commence earlier than the last working day. Again I come back to the fact that on Mr Rooke's analysis in respect of potential locations at which people could live, if the applicant's interpretation is correct then unerringly and unavoidably if someone's home base was at such a place that because of its location, because of RPT, because of airline travel arrangements the only way that person could be home before the end of the last working day was to leave prior to the beginning of the last working day, then that would be directly - it's not a question of any ambiguity, would be directly inconsistent with 10.4F.

PN139

Then we turn to 10.4G. It's interesting in 10.4G that there has been attention given to the timing of the completion of the relevant journey. It's 10.4G that deals with the return to site, "Air travel return the employee to the project will be taken no late - to return the employee no later than the last day to ensure the employee is able to recommence work activity at their normal start time on the first day." So there is a very careful focus there in respect of timing of return and one would have thought again the timing of return home was of the importance my friend puts on it that could have been clarified similarly in 10.4F and it wasn't. If we then go to 10.4H, in my submission it is of quite significant relevance to the issue before the Commission because when one looks at 10.4H(2) that provides for employees on R&R work cycle to entitlement to travel payments in lieu of any compensation for travelling time, and relevantly for employees engaged from interstate these folk get in addition to their normal salary eight hours paid at the employee's base hourly rate as per sub-clause 13.1A for the return trip.

PN140

In my submission when one looks at the fact that that entitlement is provided, this eight hours paid for employees engaged from interstate that rather puts into context the overall circumstances in respect of which the travel is occurring. In my submission one could well infer that the provision of such a benefit is to provide a benefit for people who for whatever reason are travelling late in the night on the last day, are in a situation where they don't get home until after midnight on the last day and therefore have to travel a little bit on the first day of their R&R. There is a built in accommodation in my submission in such circumstances. Then when one turns to look at clause 10.4I it's important to note that the entitlement to R&R travel payments that are referred to in clause H(2) they are contingent upon the employee being available to commence work on the first working day and make themselves available to work on each day of the previous cycle.

PN141

Again, that in my respectful submission demonstrates a very, very clear emphasis on the part of those who drafted this agreement that there would be productive work occurring on each day of the cycle which of course includes the last day. The difficulty for the applicant is if one accepts the applicant's interpretation it means that regardless of what time a person has to leave the site on the last day or even if they've got to leave the site on the previous day, they've got to be home by midnight which in my respectful submission draws a line directly across any aspect of this agreement that refers to the requirement and the capacity to be performing work on the last day of the cycle. It obliterates and renders irrelevant those clauses because if one did live in some part of Western Australia where one couldn't get home, on the applicant's interpretation that person must be allowed to leave at a time, whatever it might be, to get them home for them the last day.

PN142

You will recall that when I - the final matter that I asked Mr Rooke about was the number of people who are potentially subject to this clause and he said 200. Certainly Mr Rooke has put forward in his statement a number of examples which would cause people to want to leave before the last day and very early on the first day, referring to Exmouth, Kununurra, Birdsville, places of that nature. There is nothing wrong with doing that because they're all possibilities, they're all possibilities that could arise if the applicant's interpretation is preferred and possibilities that if they did arise would in my submission render a large number of other provisions in the agreement to be nugatory and coming back to the principles that are expressed in the case that I've handed to you simply not reflect industrial reality. Without wishing to be overly dramatic about it I pose the question this way.

PN143

What employer - what employer would agree to a provision in an agreement that could leave them in a situation where potentially the entire non-local workforce was unable to perform work at all on the last day, what employer would agree to that? It's a nonsense to suggest the clause could be read in that way. So in my submission the clause is clear, that even in the event your Honour forms the view there is some ambiguity there, when one applies the classic tests that are applied in respect of resolving that ambiguity both industrially and commercially your Honour wouldn’t in my submission favour the interpretation that results in an industrially untenable situation which would be the situation that would apply if the agreement could be interpreted as the applicant's (indistinct).

PN144

Could I then just finally take your Honour to a matter that my friend took Mr Rooke to in cross-examination that in my submission needs to be clarified. If you take up Mr Rooke's statement, my friend - you will recall that Mr Rooke in his material made the point that employees know of the arrangements before they're engaged. I submit and accept that that's not of overwhelming relevance in respect of how your Honour should interpret the agreement but it's certainly of some relevance. If your Honour goes to the SR3 I rather infer that my friend was suggesting that the rosters that are on page 5 of 7 were somehow directly inconsistent with what the applicant is submitting in this case. Well, they're actually not because your Honour will see that there is at the foot of page 5 an asterisk, "Employees work ordinary hours on the 21st day of the roster, Tuesday, and fly out in the evening. They fly in on the last day of their R&R the following Tuesday, ready to resume work on the Wednesday morning."

PN145

Again, it can't be clearer, this is not a situation where my client's letter of engagement is interpreting the agreement in the way the applicant contends. Quite to the contrary, very clearly by that statement there, "The employees will work ordinary hours between first day and fly out in the evening," that's consistent with the approach my client takes in respect of its interpretation of the agreement, that they are required to work ordinary hours on that day and fly out in the evening and that of course in my submission is consistent with what is the correct interpretation of the agreement. Unless there is anything your Honour requires clarification on from myself, they are my submissions.

PN146

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Murdoch. Mr O'Brien in closing.

PN147

MR O'BRIEN: Thank you, your Honour. I do have a number of responses that I would like to make to the submissions of my learned friend. I will go through them in chronological order if I may. My learned friend submits that an absurd or a curious outcome is to be avoided when applying agreements and of course I accept that's what the authorities compel us to do on questions such as this. What I do say though, your Honour, is that you can completely reject the examples that are given by Mr Rooke in his material. You heard under cross-examination when asked there were any employees at Kununurra, he said no, not now, not at any time. Birdsville, not now, not at any other time. There was a third location where Mr Rooke agreed they had not now nor at any other time employed somebody who had the usual place of residence there, that was Exmouth, Western Australia.

PN148

One can assume that if they had an employee who lived in Brussels that it might create some difficulties for them, if they lived in Cairo it might create some difficulties for them. They don't employ anyone in Cairo, they don't employ anyone from Exmouth, and Mr Rooke also readily agreed that they would know this going in, they would know where the employees usual place of residence was before they employed them. So one can assume that if a prospective employee lived in such a remote location as to create difficulties with the travel arrangements, be that Exmouth or Brussels, that they wouldn’t get the job. So to suggest that the application of the agreement that's being proposed by the applicants here would lead to absurd or curious outcomes just can't be accepted your Honour. It cannot be accepted. If that argument were to be accepted then it could be applied to any provision in any agreement.

PN149

It's also been submitted that an application should be found to avoid any inconvenience. The inconvenience here, your Honour, in my submission, applies from the fact that this employer has misconstrued the agreement. They have applied a trite and narrow approach to this agreement and that is the source ego the inconvenience for them and they don't get to rewrite this agreement because they quite simply just got it wrong. The second limb of that particular authority provides that you should avoid any injustice when applying an agreement. Well, the injustice here would be if you accept the submissions of the respondent. You have employees who through no fault of their own are going to be denied a clear entitlement to spend their first day of rest and recreation in their own home because the employer got it wrong when they were employing them. That's the injustice here.

PN150

My friend has taken you to the roster in the annexure of the agreement - I beg your pardon, my learned friend has taken you to the annexure in the agreement which contains the example roster and he says that you should be persuaded by the fact that the code "out" which provides travel out from site at the end of the last day. He asks you to take from that that an employee must work their full rostered hours, because they travel at the end of the last day. If I take you up to (d) it quite clearly provides, "Reduced hours scheduled (indistinct) day. Reduced hours." As you have heard in clause 10.4 it provides that, "The respondent employer must make specific arrangements for the last day to suit each employees particular needs." So when one considers all three of those things in their totality, your Honour, you can only conclude that in the legend for "out" where it says, "At the end of the last day," it clearly means at the end of the hours worked, it doesn't mean the end of a full work roster, it means at the end of the hours worked.

PN151

An employer must change the working arrangements for an employee, the roster provides that those hours could be reduced and I would submit that the approach that is being put forward regarding the interpretation of the legend "out" is a particularly narrow one. You could only agree with that if you read that in isolation without taking into account the many other provisions which make the application for that clause clear. My friend also says that the interpretation that has been put forward by the applicants here could see workers not doing any work at all on the last day. That's true, it would depend on where their ordinary place of residence is and as you heard from Mr Rooke under cross-examination the employer knows where they live at the time of engaging them and it's their choice on whether or not to engage that employee.

PN152

But I would also draw your attention to the statement of Mr Rooke where he gives the somewhat bizarre examples of where employees could possibly live and the travel arrangements that would be necessary there. We've got Exmouth, we've got Kununurra, we've got Birdsville, he did miss Brussels and Cairo but he includes Darwin as somehow an extreme example. He says if they live in Darwin and the applicant's case is accepted on this well, they'd only get two hours work done, they'd have to leave at 8.30. Well, that's entirely consistent with the legend of the example roster, reduced hours, schedule work day. The fact of the matter is they would only get two hours work from that employee. But they should have known that when they hired him. They should have known that when they hired him. It's their choice, they're not forced to hire anybody and they're now trying to rewrite this agreement because they got it wrong - they got it wrong - when they were choosing who to employ and who not to employ.

PN153

My learned friend also says that if my interpretation is to be accepted that you need to rewrite clauses. Well, I disagree with that, your Honour. You've heard me on why it is only my interpretation of the clauses that is consistent with the roster, it's not the respondent's. The respondent requires you to ignore the roster. We say that you can't do that, you must read the agreement as a whole. If you accept that the roster must be considered when you are interpreting clause 10.4 and it's only the applicant's submissions on 10.4 that are consistent with the roster. My friend says regarding clause 10.4E if you'll bear with me for a moment. My friend says that 10.4E provides that employees may leave at different times to commence their journey home. Well, that is consistent with the agreement when it's read in its entirety.

PN154

I would submit, your Honour, that what the case of the respondent boils down to, the high watermark for them, the high watermark of their case is that at clause 10.4F it does not specifically provide that the journey is to conclude on the last working day of the employee's work cycle. There's two things I'd say about that. One is it does not say that the journey can conclude on any other day, it does not say the journey can conclude on the day following its commencement. So it's drawing a very, very long bow to say that that clause specifically provides there is no obligation for the journey to conclude on the last day of work. You have heard me on how there are many other parts of this agreement and also the letter of offer that support that conclusion but this clause is entirely consistent with the employer having an obligation to ensure that the journey concludes on the last day of work.

PN155

The meaning, the effect, the work done by 10.4F is simply this, you can't start your journey home on day 20 of a swing. That's the work that this clause does. It says, your journey home starts on day 21 of the swing, it starts on your last work day, you can't start on day 20. So if you live in Cairo you've got a problem. If you live in Exmouth you've got a problem. But as you've heard no employees live in Cairo, no employees live in Exmouth. My learned friend says that clause 10.4G is a clear statement, it's a clear statement that air travel returning. The key word here being returning, your Honour. Returning the employee to the project will be taken no later than the last day of the employees R&R leave to ensure that the employee is available to recommence work at their normal start time on the first day of their next cycle. Where this agreement requires an employee to travel on their R&R time it clearly stipulates it.

PN156

The only conclusion you can draw from that your Honour is if the parties to this agreement intended that there was to be travel time on the first day of R&R on your journey out of the project they'd clearly stipulate it. We say they have clearly stipulated it in the rosters. The only thing you can take from clause 10.4G is that if the parties intended employees to travel during R&R time they would have clearly spelt that out because that's what they do at 10.4G regarding the journey back to the project. At 10.4H my learned friend says that because the agreement provides for compensation for employees for travel time that must mean its contemplated that they can travel on the first day of R&R.

PN157

No it doesn't, your Honour, what it says is employees are going to be travelling in their personal time and they're going to get paid for that, that's what it means. They're paid for their ordinary work hours on the last day and they could be getting home to their usual place of residence at 11.30. We say that would be consistent with the obligations under the agreement if they arrived home at 11.30 p.m. on the last day of their swing. We also say that it's fair and reasonable and it's to be expected that they get paid for their time travelling on the last day of their swing and that's all that 10.4H does, it does not support the application that's being put forward by the respondents. At 10.4I my learned friend submits that because employees must make themselves available for work during their normal cycle that the submissions of the applicant can't be accepted.

PN158

What it doesn't say there is that employees must perform full rostered hours, it says they must be available for work. All that means is that you present yourself and are available to commence work. You will note that in the roster it clearly spells out that where required there will be reduced work hours on the last day of swing. It says that in black and white. It says it in black and white. There is nothing inconsistent in clause 10.4I that is inconsistent with the submissions on behalf of the applicant. Now, my friend submitted that it is possible if the submissions of the applicant are accepted that an employee would do no work on the last day of their swing. That's absolutely right. That's absolutely right. That's a decision that the employer makes when they employ an employee who lives in a remote location.

PN159

They can choose to employ that person or they can choose not to, but that's a decision they make. It doesn't affect the application that should be given to this agreement and again my learned friend says if our submissions are accepted it can lead to a situation where there is no productive work that could be performed on the job because certain key trades are not there. That's a question for organisation for the employer. The fact that that may create a managerial challenge doesn't mean they get to rewrite the agreement. It means that the managers have to do their jobs. They have to ensure that they've got key employees on the project to perform productive work. That might mean that they have to do some work to ensure that the appropriate personnel are there. That's what managing a business is all about. Because that's difficult you don't get to rewrite the agreement, and that's what you're being asked to do here, your Honour, you're being asked to rewrite the agreement for the convenience of the employer.

PN160

My learned friend says the roster in the letter of offer could not be any clearer. I am in furious agreement with that. I am in furious agreement with that. You will note that on the last day of R&R in the work cycle, in the letter of offer at page 5 of 7 of SR3 it provides R&R fly. Couldn’t be clearer. Where you're required to travel on a day of rest and recreation the roster tells you say. It says R&R fly. You will note that the first day of R&R just says R&R, it couldn’t be clearer, that is a day in its entirety to be spent at your usual place of residence on R&R. My friend says that the asterisk down the bottom of the roster where it provides, "Employees work ordinary hours on the 21st day of the roster and fly out in the evening."

PN161

My learned friend would have you believe that those words there override the legend to the roster appendixes to the agreement which provides reduced hours, scheduled work day. My friend would have you believe that that overrides clause 10.4 - I beg your pardon, your Honour, bear with me. My learned friend would have you believe that that clause in the letter of offer overrides the provision in the agreement which says there must be individual arrangements made for each employee. It clearly doesn't do that. The agreement provides that employees will be paid for their ordinary hours for their last day of work. I would submit that that is the meaning, that is the effect of the words, "Employees work ordinary hours." To give those words any other meaning would completely undo the clear unambiguous provisions of the agreement itself.

PN162

The agreement clearly provides for reduced hours on your last day, you will be paid for your ordinary hours however and that is only consistent with the words at the bottom of the roster on the letter of offer if it's taken to mean you will be paid for ordinary hours. But my friend is quite right, the roster itself is clear. It could not be clearer. Last day of R&R is R&R fly. You're travelling on your last day of R&R. Your first day of R&R is resat and recreation at your usual place of residence with no travelling. I agree, it could not be clearer. Beyond that your Honour I have nothing further.

PN163

THE SENIOR DEPUTY PRESIDENT: Good. Thank you Mr O'Brien and Mr Murdoch for your submissions and adducing the relevant evidence in this matter. As you would imagine the decision is reserved and we are adjourned as a consequence.

<ADJOURNED INDEFINITELY [11.52AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 WITNESS STATEMENT OF TRAVIS O'BRIEN PN19
STEVEN WALTER ROOKE, AFFIRMED PN36
EXAMINATION-IN-CHIEF BY MR MURDOCH PN36
EXHIBIT #M1 WITNESS STATEMENT OF STEVEN ROOKE PN42
CROSS-EXAMINATION BY MR O'BRIEN PN42
RE-EXAMINATION BY MR MURDOCH PN106
THE WITNESS WITHDREW PN109