B2014/912, Transcript of Proceedings [2014] FWCTrans 369 (10 July 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050235-1

DEPUTY PRESIDENT BOOTH

B2014/912 B2014/913

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Application by Australian Maritime Officers' Union, The
(B2014/912)



s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
Australian Institute of Marine and Power Engineers, The
and
Harbour City Ferries Pty Ltd
(B2014/913)





Sydney

9.37AM WEDNESDAY, 2 JULY 2014

PN1

THE DEPUTY PRESIDENT: Good morning, everybody. I think the applicants are the unions in this case so could I take appearances first for the applicants?

PN2

MR A. HOWELL: Yes, your Honour: Howell, initial A, with your Honour's permission, on behalf of the AMOU.

PN3

THE DEPUTY PRESIDENT: Thanks, Mr Howell.

PN4

MR HOWELL: I apologise for the croaky voice.

PN5

THE DEPUTY PRESIDENT: I'm sure that that's a temporary phenomenon and one which the court reporter will have to grapple with. Could you hear Mr Howell okay? Very good. Thank you, Mr Fallone.

PN6

MR J. FALLONE: Yes, good morning, Commissioner. If it pleases, Fallone, initial J, on behalf of the Australian Institute of Marine and Power Engineers.

PN7

THE DEPUTY PRESIDENT: Mr Fallone, thank you. And for the respondents?

PN8

MR S. PRICE: And finally, with the permission of the Commission, my name is Price, solicitor, and with me MR D. MOY on behalf of the company Harbour City Ferries.

PN9

THE DEPUTY PRESIDENT: Thank you very much. Now under section 596 permission has been sought by Mr Howell and Mr Price. Do either of you have a view about the other's appearance?

PN10

MR HOWELL: Certainly from our part we have no objection to legal representation on behalf of the employer in our respectful submission having regard to the criteria in 596(2) enable the matter to be dealt with more efficiently, may it please the Commission.

PN11

THE DEPUTY PRESIDENT: Thank you, Mr Howell. Mr Price, your view?

PN12

MR PRICE: No objection and I embrace that submission as well.

PN13

THE DEPUTY PRESIDENT: Thank you. I concur with that submission and under section 596 permission is granted to both parties. Mr Howell, are you going to commence?

PN14

MR HOWELL: Yes, thank you, your Honour. I understand those who instruct me forwarded to your Honour's chambers yesterday a short statement of Mr John Wydell - - -

PN15

THE DEPUTY PRESIDENT: Correct.

PN16

MR HOWELL: - - - and a short outline of submissions?

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR HOWELL: Your Honour, the outline of submissions in essence articulates everything that the AMOU wants to say, other than to simply emphasize in the submission - pardon me, your Honour - at paragraph 3 it was put that a majority of the relevant employees of the HCF had approved taking the various forms of industrial action. Your Honour would note from paragraph 8 of Mr Wydell's statement that's perhaps an understatement. 75 employees on the role, 60 votes returned, 59 of which were valid, 100 per cent of which voted in favour of all of the forms of action and in that respect I note paragraph 5, item 5 of the order made by Commissioner Cambridge outlines the particular form of stoppage which has been proposed and the notice which was described by Mr Wydell as having been given on 27 June at paragraph 16.

PN19

As your Honour would well appreciate from the Yallourn Energy full bench referred to in the written submissions there is no prohibition in granting an application under section 459(3) retrospectively so as to insure that any action taken is subject of course to the other requirements of the Act, properly authorised by a ballot after the initial 30-day period. My client did seek the ballot order. No extension has to date been granted. The criteria in 469(3) are met. The affidavit of Mr Wydell, which I understand isn't to be contradicted - I'll let my friend speak for himself, of course - should in my respectful submission leave the Commission in no doubt that the parties are continuing to endeavour to reach agreement and they are bargaining in good faith to that end.

PN20

In light of the observations of the full bench in Yallourn Energy, affirming what was said by Commissioner Hampton in the DP World decision, which is extracted in the written submissions, and similarly as was observed by Commissioner Lewin in the Transport Workers' decision, again referred to in the written submissions and extracted in the written submissions which I'd take the Commission's time in pursuing.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR HOWELL: Given the submissions were forwarded yesterday, I'll respectfully assume that your Honour has had the opportunity to read them.

PN23

THE DEPUTY PRESIDENT: Yes, I have.

PN24

MR HOWELL: In those circumstances, an extension of time would ordinarily, in my respectful submission, be granted and in these circumstances, given there was 100 per cent approval some five weeks ago there would be no good reason, in my respectful submission, to not exercise the discretion in favour of extending the time in the way contemplated by 459(3), including for the full 30 days so as to permit the maximum opportunity for discussions to occur. Those are my submissions.

PN25

THE DEPUTY PRESIDENT: Thanks, Mr Howell. So, Mr Price, perhaps you could first of all indicate whether you seek to cross-examine Mr Wydell on his statement?

PN26

MR PRICE: No, Deputy President, I would not.

PN27

THE DEPUTY PRESIDENT: All right. In that case, you are going to put submissions to me in relation to the submissions that have been put by Mr Howell but in the course of that I'd be keen to know what progress the parties have made and where the areas of difference are.

PN28

MR PRICE: Yes, Deputy President. What I was going to propose was to put Mr Moy, either from here or into the box, just to provide some colour in relation to that and background in where the status of negotiations were, if that would be of assistance.

PN29

THE DEPUTY PRESIDENT: Certainly, I'm happy to have him affirmed or sworn at the bar table if that's more convenient or happy for him to take the witness stand. It might be easier for the court reporter to capture what he says if he's closer to the microphone, since you're sharing one there at the bar table.

PN30

MR HOWELL: Your Honour, before Mr Moy is sworn, I should confirm my appearance is only on behalf of the AMOU. I understand my friends have a similar application.

PN31

THE DEPUTY PRESIDENT: I beg your pardon.

PN32

MR HOWELL: I'm not sure whether your Honour would be assisted by hearing from them - my friend's claim - - -

PN33

THE DEPUTY PRESIDENT: I do apologise. I was focussed on the organisation that had made the submissions. Mr Fallone, do you have some submissions to make and Mr Moy, would you mind waiting for a moment? I have been pre-emptive.

PN34

MR FALLONE: I do apologise. I should have intervened before the matter was referred to the respondent. Your Honour, I have provided submissions and a statement to Harbour City Ferries this morning and to my colleague here. I have a statement I can tender for your purposes if you would like.

PN35

THE DEPUTY PRESIDENT: All right, yes.

PN36

MR FALLONE: Essentially, the crux of our submission is relying on the AMOU's outline of submissions. I can also confirm that we had a protected action ballot of employees and a declaration was provided on 23 May and from that declaration of the 65 employees that voted 60 returned their ballot and 59 approved the protected action. 100 per cent of those were approved.

PN37

THE DEPUTY PRESIDENT: Just co-incidentally precisely the same number.

PN38

MR FALLONE: It is, I must say, quite a coincidence.

PN39

THE DEPUTY PRESIDENT: Just a coincidence, I'm sure.

PN40

MR FALLONE: There is a slight difference: the number of employees that were taken for the role was 65 and AMOU had 75 so there is a slight difference there for the declaration. We met with the company since 23 May. We've had meetings on Friday, 6 June and subsequently received an offer on Friday, 20 June. That offer was revised and a proposed heads of agreement that was given to the parties on Friday, 27 June. As I understand it the company had meetings with the Maritime Union of Australia last week on Thursday 26th and Friday 27th. AIMPE received no formal invitation to either of those bargaining meetings. Subsequently we were invited to a bargaining meeting yesterday. We were given that invitation at 6.30 pm on Monday evening, so some 18 hours notice to attend a bargaining meeting to discuss the proposed terms of agreement.

PN41

AIMPE does not agree to all the terms as proposed in this heads of agreement and as far as we are concerned there are still some outstanding matters that need to be bargained. So we haven't reached agreement on a number of items. So we request the extension be granted under section 459.

PN42

THE DEPUTY PRESIDENT: All right. Perhaps you would like to tender that statement and then for clarity I'll mark the statement of Mr Wydell as AMOU1.

EXHIBIT #AMOU1 WITNESS STATEMENT OF JOHN WYDELL

PN43

MR HOWELL: Thank you, your Honour.

PN44

THE DEPUTY PRESIDENT: I might mark the submissions as well, just to be orderly: AMOU2 for the submissions from the AMOU.

EXHIBIT #AMOU2 AMOU'S OUTLINE OF SUBMISSIONS

PN45

THE DEPUTY PRESIDENT: The statement of Mr Fallone, which I think is just a statement, not also a set of submissions - it serves the same purpose - we'll mark that as AIMPE1.

EXHIBIT #AIMPE1 STATEMENT OF MR FALLONE

PN46

THE DEPUTY PRESIDENT: Good, thank you. Apologies, Mr Price.

PN47

MR PRICE: Quite all right, sorry.

PN48

THE DEPUTY PRESIDENT: We can now proceed.

<DARREN MOY, SWORN [9.48AM]
<EXAMINATION-IN-CHIEF BY MR PRICE [9.48AM]

PN49

MR PRICE: Thank you, Mr Moy. Would you mind telling the Commission your role in the company?---Good morning, your Honour. My role is the general manager of people and culture.

PN50

What is your role in relation to the industrial negotiations for the enterprise agreement? What is your role?---Well, I take ultimate responsibility for the development of a new EBA and all matters associated with discussions with all parties is determined by myself and the CEO.

PN51

All right. Would you also mind telling the Commission the approximate numbers of employees covered by the three unions?---The approximate number to be covered by this agreement would be 510 employees - - -

PN52

Yes?---- - - of which the MUA would have coverage of around or over 300 and the balance being the two unions who are here today.

PN53

The important question: what is the status of the negotiations at this point?---We've been attempting to meet with AIMPE and the AMOU. I had discussions with MAPI on Friday, where I said that we would be available at any time, including the weekend, and I've exchanged correspondence to that effect and I've been attempting to contact John Wydell from the AMOU. We've exchanged emails. So we stand firm on that. We are ready to meet at any point. The MUA, as the Commission may be aware, had plans for a range of industrial action this week. On the basis of that action we were approached by the MUA last Thursday. My understanding is that they advised the other two unions who had been negotiating with them that that meeting was going to take place and on the basis of those discussions the industrial action was withdrawn and that was based on a revised offer that has been put to the MUA and subsequently put to the other two unions, which we believe is bringing us very close to a resolution of this matter.

**** DARREN MOY XN MR PRICE
PN54

What is the - could I also ask, what is the relative role, if you like, of the three unions in the negotiations?---The negotiations have been conducted with all three unions throughout the process. The only time that there has been a variation to that is when it relates specifically to MUA matters only. There has been sort of sub-discussions, if you like, to progress those particular issues. With respect to how the negotiations have been conducted, the MUA have taken on a leadership role in that area.

PN55

Right. So what is your feeling as to the conclusion of the negotiations as a result of your discussions with the MUA last Thursday and Friday?

PN56

MR HOWELL: I object. Is it relevant to the question that's presently before the Commission? It's the exercise of discretion dealing with negotiations pursuing an agreement on behalf of the AMOU, not on behalf of the MUA.

PN57

THE DEPUTY PRESIDENT: I'm going to allow the question because I'm interested in the answer.

PN58

MR HOWELL: May it please your Honour?---We are very confident that the revised heads of agreement is a basis for resolving the issues. We have not been advised by the AMOU as to how the revised agreement does not satisfy their position and my understanding from discussions I've had with Mr Fallone from the MAPI is that in terms of how this affects the members that will be affected by this agreement where we've met more or less what their position was, which was 10 per cent over four years. So we're very confident that we're moving closer to an agreement.

PN59

MR PRICE: Thank you. Some statements have been made by Mr Fallone in relation to the constituency; that is, it's still representing the will of the employees which his union covers. Do you have any comments in relation to the constituency of AIMPE?---We're all aware that AIMPE have had quite a few resignations from their membership recently. We've been advised by one of their delegates that they've had - I think it's somewhere in the order of seven members resign from AIMPE from the harbour recently, which includes two former delegates.

**** DARREN MOY XN MR PRICE
PN60

THE DEPUTY PRESIDENT: I see you have a concern with that question, Mr Fallone?

PN61

MR FALLONE: Yes. It seems to be a bit of conjecture, Commissioner. We have not - there has been no formal resignations accepted by the Australian Institute of Marine and Power Engineers at this stage. So there have been no formal resignations at this stage of the AIMPE membership.

PN62

THE DEPUTY PRESIDENT: I think I would have difficulty putting weight to that response, Mr Moy, because we're not hearing the direct evidence of the employees themselves so I hear it as your perception?---Sure. Your Honour, all I'm doing is passing on comments that were made to me by a delegate. That's all I'm doing. I understand. Thank you.

PN63

MR PRICE: Thank you. I have no further questions.

PN64

THE DEPUTY PRESIDENT: Okay. Mr Howell.

PN65

MR HOWELL: Thank you.

<CROSS-EXAMINATION BY MR HOWELL [9.54AM]

PN66

MR HOWELL: Just to clarify, Mr Moy, and I apologise - if you can't hear me, just say?---No, not at all.

PN67

You have no reason to believe from - that with AMOU has not said it is prepared to accept the terms of the proposal most recently put, has it?---I've had no conversations with the AMOU and I've been advised the earliest they could meet with us is 15th or 17th of this month.

PN68

You are aware that the AMOU on 27 June gave notice of an intention to take industrial action?---They forwarded that to me, yes, that's correct.

**** DARREN MOY XXN MR HOWELL
PN69

Quite, yes. Thank you. No further questions. Sorry, 27 June was the day that the proposal was forwarded to the AMOU, wasn't it?---That's correct.

PN70

Their revised proposal, I should say?---That's correct.

PN71

Yes, thank you.

PN72

THE DEPUTY PRESIDENT: Mr Fallone.

PN73

MR FALLONE: Yes, thank you.

<CROSS-EXAMINATION BY MR FALLONE [9.55AM]

PN74

MR FALLONE: Just confirming, Mr Moy: we had a conversation on Friday, 27 June and during that conversation I advised you that the heads of agreement as it currently stands will not satisfy a portion of our membership, specifically the outer-harbour engineers, given that the vast majority of efficiencies provided in this heads of agreement stems off the reduction of their full-time equivalent roster line and a change in the utilisation of their rosters for workers direct to employees. So some significant savings were being afforded there and the offer in the first year of a 1 per cent pay increase was not going to suffice. We had that conversation - you'd agree that AMIPE made that clear to you, that we haven't reached agreement and this has not sufficed at this stage?---You made reference to that for the outer-harbour. You said for the inner-harbour, however, you would be endeavouring to convince your members that it was an acceptable agreement.

PN75

Whilst I said we needed to have discussions we haven't had those discussions and there is outstanding matters in relation to the overtime rate that needs to be discussed as well?---That was not discussed on Friday. That was not put to me.

PN76

I put it to you this morning that there are other matters that are outstanding that affect the inner-harbour and this as well, Commissioner.

**** DARREN MOY XXN MR FALLONE
PN77

THE DEPUTY PRESIDENT: All right, thank you. A question for both - sorry, is there any re-examination before Mr Moy steps down?

PN78

MR PRICE: No, nothing else.

PN79

THE DEPUTY PRESIDENT: You are excused from the witness box?---Thank you, your Honour.

<THE WITNESS WITHDREW [9.56AM]

PN80

THE DEPUTY PRESIDENT: A question for Mr Howell and Mr Fallone: so in relation to the AMOU and AIMPE, future engagement with Harbour City Ferries; is it intended that they meet together with Harbour City Ferries and is the date that was set by Mr Moy in the witness box, 15th through to the 17th, being the first availability of both unions - is that rigid?

PN81

MR HOWELL: Your Honour, on behalf of the AMOU I can say yes. 15th to 17th is the earliest available opportunity because of leave commitments and a range of other matters but they are content - my client is content to continue the discussions in the way that it has; in a fruitful and hopefully productive way.

PN82

THE DEPUTY PRESIDENT: Not commencing until 15 July?

PN83

MR HOWELL: Well, in terms of face-to-face meetings I think that's right. That doesn't mean that discussions can't be had in the interim and I have no instructions about other formal meetings and the like. But there is the 15th and the 17th. I understand - - -

PN84

THE DEPUTY PRESIDENT: How would the discussions progress if they weren't face to face? Would it be exchange of emails, telephone calls?

PN85

MR HOWELL: All I can suggest, your Honour, is that it might well be. That's to date at least in part how some of the exchanges have occurred: for example, the proposal which was given on 27 June was given in writing. I have no specific instructions about that but there would be no reason why that couldn't occur, provided those who are instructing me were able to obtain the views of their members in a timely way.

PN86

THE DEPUTY PRESIDENT: I'll tell you what's concerning me, and I'm not suggesting that it's an impediment to the exercise of my jurisdiction; it's just a practical concern - - -

PN87

MR HOWELL: Yes, your Honour.

PN88

THE DEPUTY PRESIDENT: - - - is that if the protected action is extended from today and presuming I've had no submissions about the notice period suggested so the default being three days, say that's repeated then protected action could occur in circumstances where the parties have indicated that they're not able to meet. It just seems to me to be somewhat contrary to the spirit of good faith bargaining, if not the letter. But if the parties meet earlier then they may be able to avert the industrial action, notwithstanding that they're entitled to take it and that would be better for the community.

PN89

MR HOWELL: Your Honour, if I might just clarify one matter?

PN90

THE DEPUTY PRESIDENT: Perhaps I can add - I know you're speaking with your client, Mr Howell - but I would be happy to chair conciliation and I would be happy to do it after working hours in order to facilitate the progress of the negotiations.

PN91

MR HOWELL: Thank you, your Honour. My client is in the court and no doubt has heard your Honour's helpful observations. Thank you for that. The only thing I should say is that the stop-work which is proposed tomorrow, the form of industrial action of which notice has been given, is in part to communicate with the members in order that they can facilitate the further discussions of the matter.

PN92

THE DEPUTY PRESIDENT: Okay.

PN93

MR HOWELL: The notice does not propose the rolling of stop-works and matters of that kind. That's the form of action which has to date been contemplated.

PN94

THE DEPUTY PRESIDENT: I'm looking here at Commissioner Cambridge's order of 15 April and the questions that were asked and answered in the affirmative. Which of those is - - -

PN95

MR HOWELL: It's paragraph 5, your Honour; paragraph 5, item 5.

PN96

THE DEPUTY PRESIDENT: Right. Is it intended to - is there an intention yet to utilise the full period for four hours or is possible that might be a shorter period, just for the purpose of holding a meeting and consulting with members?

PN97

MR HOWELL: Your Honour, in terms of the practicalities of the discussions it may well be that they involve some or all of the relevant four-hour period but the four-hour stoppage is contemplated because the four-hour is the minimum.

PN98

THE DEPUTY PRESIDENT: Yes, I understand that's somewhat of a perverse incentive - - -

PN99

MR HOWELL: Quite.

PN100

THE DEPUTY PRESIDENT: - - - that exists in the legislation. Yes, all right. If that were to go ahead as protected industrial action as a result of a decision that I make this morning - - -

PN101

MR HOWELL: Yes, your Honour.

PN102

THE DEPUTY PRESIDENT: - - - would the parties or would the applicants consider bringing forward discussions with Harbour City Ferries and would they be interested in those discussions being chaired by myself?

PN103

MR HOWELL: Your Honour - - -

PN104

THE DEPUTY PRESIDENT: I suppose that could be yes and no or yes and yes or no and no.

PN105

MR HOWELL: I think the short answer is potentially and potentially. It all depends on what transpires with the meeting of members, I expect, your Honour.

PN106

THE DEPUTY PRESIDENT: Yes.

PN107

MR HOWELL: But again, to deal with the - I'm sure my client appreciates the helpful observations that have been made and will need an opportunity to consider how it would progress once it's had the opportunity to ascertain the views of its membership from the meeting which is proposed for tomorrow. Pardon me.

PN108

THE DEPUTY PRESIDENT: Perhaps a glass of water.

PN109

MR HOWELL: In order to deal with the application - in order for that to occur my client needs this application to succeed, in short. In my respectful submission it's an application regular in form. The principles are, in my respectful submission, well established. As I say whilst my client would no doubt appreciate your Honour's helpful observations it's difficult for it to canvas the unknowable, for want of a better way to characterise it, simply because the meeting which is contemplated during that period of stop-work is for the very purpose of ascertaining the view of its membership and otherwise I would anticipate at least formulating its position in the further negotiations in the ordinary way. In my respectful submission, whilst they are relevant considerations they are not considerations which would cause your Honour to reject the applications.

PN110

THE DEPUTY PRESIDENT: Thank you.

PN111

MR HOWELL: May it please your Honour.

PN112

THE DEPUTY PRESIDENT: I appreciate in my questioning I somewhat distorted the usual, simple applicant-respondent-applicant order there. So, Mr Price, is there anything that arises that you'd like to comment on?

PN113

MR PRICE: No, your Honour, no. I'm thankful for your questioning, thank you. In the submissions, if I may, that I wish to make is we concede that the criteria is met by the two unions to enable them to come into the room and ask you to exercise your discretion. But the onus is on them to satisfy you that you should exercise your discretion and the essential element is one of fairness; not just the fairness of the particular workers which we're talking about but particularly for all the workers who will be covered by this industrial agreement and the employer as well. We are talking about a number of employees, 70 and 70, with a total workforce of 500 employees. As Mr Moy said, the facts are on the ground that the MUA have taken the lead on this negotiation. These two unions have been happy for the MUA to do that. They last met, these two unions and the company, on the 20th.

PN114

So if you like, in one way, the MUA has been the bargaining representative's representative. As of last Thursday and Friday it has reached a position where it has caused Mr Moy to have a high degree of confidence that they will be able to reach agreement with that union and they've withdrawn their proposed industrial action, which was for this week. That in my respectful submission changes the dynamic of this completely from a number of the other cases. Another I think very important point which we would seek to put to your Honour is this: this is a company which as you would be aware provides an essential public service. Thousands of customers depend upon it providing its service.

PN115

The particular part of the legislation which we are talking about provides for a number of time limits for things to be done - notices, et cetera - and 30 days is another one where industrial action should be taken. That's to enable a company, the employer, to make certain adjustments to its operations so it can expect certain things to happen. It was entitled to expect industrial action - if it was to be taken it would be taken within that 30 days and not to assume that it was 30 days-ish and afterwards that an application for you to exercise your discretion would be made. It's proceeded and we concede we're in good faith with all of the unions to reach a very hopeful position as of last Friday. Then as a result of that to then have this application brought by the two unions who have effectively been sitting on the sidelines to then bring the industrial action which they could have taken before - there's no explanation as to why this industrial action - these meetings could have been taken. There's no statement that there's an overwhelming majority of the members wish this action to be taken. It's stated that, "many," employees wish it to be taken. The only statement as to the prejudice to the particular unions is that it's said for example in the final paragraph of Mr Wydell's statement that he has a concern that some of the members will not understand the circumstances in which industrial action for the proposed enterprise agreement would be authorised by the Act and will not understand why there should be any delay. In my respectful submission there are many other ways in which the unions can communicate with their members. We're talking about a stop-work meeting where not in fact everybody is going to be rostered on.

PN116

So the communication will have to take place with those other employees and it will take place in other modes, which could take place for everybody, I would suggest. I'd also point out this last of all, that the particular industry we're talking about, four hours stop work meeting doesn't mean everybody go back to work. When you stop the ferries it takes some time to get things up and going again. So you just don't flick the switch and the thing is running again. I would suggest that is a very significant consideration. So we would submit that you are asked to consider the fairness of the situation in relation to all the employees covered by this agreement and the employer. There are other ways in which this agreement can be brought to finality and we would embrace the suggestion that your Honour would chair a conciliation. We are very confident that we should be able to reach an agreement in the coming week.

PN117

We don't understand - we also accept and make the point why this action should take place and yet the unions aren't able to meet for - from my calculation, another two weeks. So the urgency for this when they could have done something about seeking an extension before the 30 days expired is incongruous.

PN118

THE DEPUTY PRESIDENT: I do have a couple of questions for you too, so I am going to continue to distort the clean sequence of submissions. In relation to the usual practice of unions consulting their members at Harbour City Ferries, what can you tell me or what can Mr Moy tell me about how that would occur in the absence of a mass meeting? It's obviously a question for Mr Howell and Mr Fallone as well but from the company's point of view, what is your experience?

PN119

MR MOY: Your Honour, as you know we've been running Harbour City Ferries since 28 July 2012 and at no point have either of these two unions had a stop-work meeting with their members. Our understanding is that they have meetings after shifts. They meet in places like the Gallipoli Club, where they report to their members quite successfully and quite effectively. Their delegates meet - we allow them as long as they don't disrupt services - they meet on our premises when that's available. We've made that offer to them from time to time and we release their delegates when ever we can, as long as it doesn't have an adverse impact on our business. We're talking about the more senior parts of this agreement; you know, people who are masters and engineers, your Honour, and we're aware that that group are very well organised in terms of using email, social media and regular union updates.

PN120

As Mr Price outlined, not all of their members will probably be at these meetings. They're not all rostered on at the same time and no doubt they will have to look at other ways to communicate with that group and at no point have we been advised that that was required to prosecute these negotiations that we're currently in.

PN121

THE DEPUTY PRESIDENT: If you don't mind - I know you're not likely to hold the thoughts but there's two other questions I wanted to ask the respondent so it might be cleaner if I do that and then you can give your views on each of those. The second question is in relation to the consequences for the balance of employees: so if there was a four or more hour stoppage at any time at Harbour City Ferries and only the masters and the engineers were to take part in that form of industrial action, what would the consequences be for the balance of employees in terms of their attendance at work and their pay?

PN122

MR MOY: The employees that are not taking part in the industrial action, your Honour, we would seek to try to identify alternative duties for them.

PN123

THE DEPUTY PRESIDENT: Yes. If in individual circumstances alternative duties could not be found, what would happen?

PN124

MR MOY: We would - we are confident we can provide them with alternative work, your Honour.

PN125

THE DEPUTY PRESIDENT: Then this is more in the vein of a legal question and that is if I were inclined to exercise my discretion in favour of the applicants this morning and provide a 30-day window which commenced today and obviously therefore would conclude on 2 August, what would you say is the consequences of that for the notice that has already been given for the action tomorrow morning? Would that be valid or would a new period of notice be required?

PN126

MR PRICE: We would submit that a new period of notice would be required.

PN127

THE DEPUTY PRESIDENT: Do you have authority for that proposition?

PN128

MR PRICE: No, I don't, your Honour.

PN129

THE DEPUTY PRESIDENT: What's the logic of it, then?

PN130

MR PRICE: Well, the logic of it is that there is effectively nothing lost by the opportunity. The parties won't be meeting for another two weeks. So an action taken say tomorrow, there will be no prejudice to the unions as opposed to an action being taken next Monday. They will then sit on the information which they have received from their members, presumably, and just sit on it and drum their fingers and wait for another week for the meeting, if I hear correctly. Otherwise they will be communicating by email as Mr Moy said. So there is no urgency for this.

PN131

THE DEPUTY PRESIDENT: All right, Mr Howell and then Mr Fallone, the three questions.

PN132

MR HOWELL: Thank you, your Honour. Firstly as to the methods of communication to date, my clients have an extensive delegate structure and to date the communication has been reliant on that delegate structure. It's the very thing which has enabled us not to have to engage in stop-work activities to date. It's a very sort of constructive approach to negotiations, not necessarily embracing already approved industrial action, which is contemplated in the relative passages of the Yallourn Energy full bench decision as to be encouraged rather than as being something which should justify the refusal of an extension of time when those constructive approaches don't ultimately produce a complete and successfully negotiated agreement.

PN133

I'm not sure if this was the second or third of your Honour's questions - - -

PN134

THE DEPUTY PRESIDENT: Probably the second was really one for Harbour City Ferries, now that I think about it, so you may not want to comment.

PN135

MR HOWELL: The only thing I was going to say is that my friend made some points about the chronology of events. Well, I should remind your Honour what the chronology is: 20 June, there is a meeting. 23 June, the authorisation period contemplated by 459(1)(d) lapses. 27 June a further offer is made. 27 June my client gives notice that it intends to take industrial action and shortly thereafter makes this application for an extension. To the extent that the chronology aids anyone, with respect, it reinforces the idea that my client has not reached an agreement and genuinely intends to continue to reach agreement, given the form of action which was notified and contemplated was a stop-work to enable it to communicate with its membership.

PN136

The only other thing I should say in that connection is whilst it's true not everyone is on shift at any given time the very fact that these things aren't called by my client with any degree of frequency or regularity should give your Honour some comfort that when one is called, people will attend. That will facilitate - the inference to be drawn is that will facilitate more active and direct discussions and proper instruction for my client from its membership, as is the purpose of such a meeting. The only other thing that I should briefly address is the legal question that your Honour invited some submissions on. The starting point is this: section 408 contemplates certain action being protected, namely and relevantly in this context employee claim action which is defined in section 409.

PN137

In order for action to be relevantly protected, there are two - firstly, we'll take it in stages: subsection 409(1)(a), there's no suggestion that the action being contemplated and which has been notified is not being engaged in for the purpose of advancing claims. Subsection (b), it is against an employer, not some third party entity and it's being organised by a bargaining representative and will be taken by employees. Subsection 409(1)(c), the common requirements - I'll come back to that in one moment, if I might. Otherwise 409(1)(d), which is the additional requirements of section 409, they're outlined in subsections (2) through to (7). Now, the first is subsection (2), the industrial action. Now, I note there it's not the notice of action, it's the - what we're talking about here in section 409(2) is the action itself. It must be authorised by a protected action ballot. I'll come back to that in one moment. Unlawful terms: there's no suggestion here that that applies. The same can be said of subsections (4), (5), (6) and (7). None of those have any direct application here. Subsection (6) contemplates notice being given where there has been a suspension order or a determination order that has no application here. So the only additional criteria contemplated by 409, consistent with 409(1)(d) is that contemplated by 409(2): that is directly referring one to section 459, which in terms defines when a ballot authorisation exists, if I could take your Honour briefly to 459(a).

PN138

The action was the subject of the ballot. Your Honour has already seen the ballot which was ordered by Commissioner Cambridge in the evidence of Mr Wydell. The action contemplated was part of the ballot. 50 per cent of employees on the role voted. More than 50 per cent voted approving the action. Again, your Honour has seen the evidence of Mr Wydell. That's more than satisfied. Subsection (d), the action commence again; this is not referable to notice, it's referable to the action itself and that is self-evident when one goes back to section 409. It's the action itself which is the subject of protection. It's the action itself which must commence within the relevant period of authorisation: either 30 days or as extended. Of course as the full bench had determined in Yallourn Energy that extension can be given after the relevant period has expired; the 30-day default period has expired.

PN139

Now, that's exactly what is contemplated by this application. If the application were granted the ballot would still authorise protected action after 23 June when the initial action 30-day period lapsed, up until the period contemplated in what ever order your Honour might make extending. So then if we then go back to section 409, what does section 409 otherwise have to say? Subsection (1)(c) is the common requirements and this is where the notice question comes in. Common requirements are outlined at section 413(2): it must not relate to a greenfields agreement - no application here. Subsection (3): genuinely trying to reach agreement - no issue is raised in that connection here. Indeed, my friends go so far as to say they're confident an agreement will relatively soon be reached.

PN140

Subsection (4): notice requirements; that's dealt with in section 414 and I'll come back to that in one moment. In compliance with orders: there are no orders that have been made against my client in the course of the negotiations to date. So again subsection (5) has no application. Subsection (6) has no application and nor does subsection (7). The only common requirement, then, would be the notice requirement and that is what one looks to 414 to identify. What are the requirements of the requisite notice? Subsection (1):

PN141

Before a person engages in employee claim action the notice must merely be given before the action commences.

PN142

That has, with respect, on the evidence plainly been done. The Act does not say that the notice must be given within the 30-day period contemplated by 459(1) as the default. Now, with respect, that's highly unsurprising given the Act in terms contemplates that authorisation period being extended.

PN143

THE DEPUTY PRESIDENT: When was the notice given in relation to tomorrow morning's proposed action?

PN144

MR HOWELL: 27 June.

PN145

THE DEPUTY PRESIDENT: Sorry, I know you said that.

PN146

MR HOWELL: More than the three days contemplated by the Act - I should note, I don't think there's any dispute about this that the ballot order is attached to Mr Wydell's evidence. The period contemplated as the statutory period is not some extended period. Pardon me.

PN147

THE DEPUTY PRESIDENT: All right.

PN148

MR HOWELL: The only other requirement chronologically of the notice is that outlined in subsection (3) of section 414 and that is that the notice must not be given until after the results of the protected action ballot; again, quite deliberate language, not contemplating the notice being given during the period of authorisation, merely after the ballot itself has been declared and that has occurred in this case and occurred on 23 May. Again, unsurprising in the context of a legislative regime which contemplates that period of authorisation for that relevant ballot being extended, including after the default authorisation period having lapsed. Subsection (5) has no application here. So to answer your Honour's question directly, it would have no - the notice would not, in my respectful submission, need to be given.

PN149

More than three days has been given. The form of the notice is consistent - I can tender it if it would be of assistance, your Honour, but I can say it's consistent with subsection (6): that is to say, it identifies with precision the date and the nature. The nature was approved by the ballot, the results of which were declared on 23 May.

PN150

THE DEPUTY PRESIDENT: Unless there's any issue being taken with that by Harbour City Ferries I don't need to see that.

PN151

MR HOWELL: May it please your Honour.

PN152

THE DEPUTY PRESIDENT: I have another question for you.

PN153

MR HOWELL: Yes, your Honour.

PN154

THE DEPUTY PRESIDENT: This might involve consultation with clients but let me ask Mr Fallone if you have any additional submissions to make to what Mr Howell has said?

PN155

MR FALLONE: Thank you, your Honour. Just in regards to the legal submissions, I rely on the AMOU's counsel. We support those submissions. In regards to just some comments about the negotiations and the perception that MUA have taken the forefront in leading the negotiations: I don't accept that argument at all. AIMPE lodged a log of claims, a quite extensive log of claims for its membership on 21 February this year. We have met with Harbour City Ferries on over 20 occasions in the past six months. I have been a direct liaison between management and our membership for that whole period. We continue to want to meet with Harbour City Ferries. Unfortunately, they seem to respond to MUA action to knock on their door and have a meeting but not to inform other unions that a meeting is going to occur. Their submissions today seem to be that they're relying on the MUA to mediate the negotiations and to somehow be the managing agent of the negotiations whereas as a representative we rely on the employer to take leadership in that regard.

PN156

So if management want to take a lackadaisical approach in management of the negotiations, then that's their prerogative. But from our perspective we always remain open to sit down with Harbour City Ferries and represent our members. The purpose of the extension today is also provided - we gave management two weeks concession between 6 June and 20 June. We gave them the commitment of no industrial action during this period because they said they were going to sit down with us and come up with a fair deal and work out a way forward. On 20 June we received a heads of agreement and that heads of agreement provided for a 0.5 per cent wage increase in the first year. So that's what they come up with after two weeks of no industrial action. We've given them that concession. In fact that took 14 days out of our 30-day period.

PN157

Unfortunately, we didn't quite meet the mark on that regard. So we want to report back to our members about this latest heads of agreement, which is a 1 per cent offer in the first year, and we feel that tomorrow would be absolutely appropriate because we expect that - we want to reach agreement as well. If we can report back to our members and get their feedback at a mass meeting - and who ever is not on shift will come in for the meeting - then we can report back to management via email in a formal way about the heads of agreement. So there won't be two weeks of delay or us - there won't be two weeks of us just sitting on our hands. It will be a matter of us reporting to the members tomorrow, coming up with a position and then reporting back to management of our position. That's what I'd like to say about the stop-work meeting.

PN158

Your question about stop-work meetings, if it's a regular occurrence: it's only a regular occurrence when we have bargaining periods. This is our first bargaining period with Harbour City Ferries so Mr Moy's assertion that we haven't had a stop-work meeting for two years is correct, because we haven't had any bargaining for two years. Before that we had a transfer negotiation with the government and we had a stop-work meeting to report back to the members. We feel it's essential to us and we also provided notice on 27 June and our requirement under our declaration and under our order is also three business days, as per the statutory requirements of the Act.

PN159

Hindering the stop-work meeting tomorrow will only delay the process even further and frustrate the parties and not be conducive to reaching an agreement. So I don't understand why they would say they would stop the stop-work meeting tomorrow. Thank you.

PN160

THE DEPUTY PRESIDENT: Whether or not I did extend the authorisation period here this morning, would the parties see any value in a conciliation that was conducted later this afternoon, say, commencing at 4 pm?

PN161

MR PRICE: We certainly would.

PN162

MR HOWELL: I think without being able to canvas the views of its membership on the proposal which is currently before the Commission, which is what's contemplated tomorrow morning, that conciliation would be premature. Certainly not to be disrespectful or cut off the opportunity; perhaps if it may be left open for my client to approach the Commission at an appropriate time? This afternoon I think would be premature from my client's perspective, your Honour.

PN163

THE DEPUTY PRESIDENT: Because the circumstances are that the latest offer is that which has been made by Harbour City Ferries and that - it's that offer that you are intending to canvas with members tomorrow morning.

PN164

MR HOWELL: 27 June, yes, your Honour.

PN165

THE DEPUTY PRESIDENT: If conciliation was conducted this afternoon, does Harbour City Ferries see any likelihood that that offer would be amended in a way that the officials might be able to indicate would land more favourably with members?

PN166

MR MOY: Your Honour, no, and I must say we haven't heard anything at all from AMOU about what is and what isn't acceptable in a revised offer. We've had nothing at all. Nothing at all and the objections that AIMPE have to it relate firmly to the outer harbour. They're going to be covered by a different agreement. The impact it's having on their inner-harbour members - which is the majority of their members - is this agreement and as I said earlier when I was in the witness box, your Honour, they indicated that they are broadly in favour of the agreement as it affects the inner harbour.

PN167

THE DEPUTY PRESIDENT: I suppose it's for them to make decisions about what they are in favour of.

PN168

MR MOY: I'm only portraying the discussions that I've had, your Honour.

PN169

THE DEPUTY PRESIDENT: Yes. I mean, you can tell that I am troubled by the application. Let me say that I see in terms of the scheme of the Act that the application sits squarely within the intention, and that is that protected industrial action is available in circumstances where parties are undertaking good-faith bargaining and it's intended to be a form of the exercise of power that is intended to influence the progress of the negotiations and that's - one reads the explanatory memorandum of the Act, one will see the jurisprudential origins of that intent coming from particularly the American jurisprudence around collective bargaining. I'm also quite satisfied and accept the submissions of the applicants and in particular the submissions of Mr Howell that there is no impediment to my exercise of discretion.

PN170

Indeed, none of the matters that the respondent has raised I think, whilst they are of practical concern to me, they don’t pertain to the exercise of my discretion in terms of the applicant's application. But I am aware of the significance of the transport and recreational use of ferries on Sydney Harbour and in particular I'm aware that it's school holidays and I'm concerned about the deleterious consequences on families and on commuters. So I'm seeking to engage the parties in that conversation understanding that it's not a matter that pertains to the exercise of my discretion directly in relation to the Act but what I'm looking for is for the parties to see that whilst this is part of the scheme of the Act, whilst it is legally available to the parties, should we do everything that we're entitled to do?

PN171

MR HOWELL: Your Honour, I can well understand your observations, your Honour. The only thing I should say, really, in response is two things: consistent with what Mr Moy has just informed your Honour from the bar table, the position as I understand it and as was communicated to my client on 27 June was if agreement was not reached based on the document they were given on 27 June, there would be no further discussions, hence the response, with respect.

PN172

THE DEPUTY PRESIDENT: Once again - - -

PN173

MR HOWELL: Hard bargaining.

PN174

THE DEPUTY PRESIDENT: - - - I probably would say the same to you, Mr Howell, as I said to Mr Moy; that people say things in negotiations - - -

PN175

MR HOWELL: Your Honour, I wasn't intending to be critical of that. Hard bargaining is precisely what's contemplated by the Act.

PN176

THE DEPUTY PRESIDENT: It is.

PN177

MR HOWELL: But it's precisely what protected industrial action is designed to deal with.

PN178

THE DEPUTY PRESIDENT: Yes.

PN179

MR HOWELL: The only other thing I should say is your Honour doesn't - in my respectful submission, as your Honour has already observed, the matters that your Honour has outlined are exercising your Honour's mind but they, with respect, don't bear directly upon the exercise of your discretion because what is contemplated by section 459(3) is the exercise of discretion relating to the approval given by the employees to enable them, should they be minded to, to engage in protected industrial action. They've had that vote, they've given that authority and the requisite notice has been given. The employer has had notice. They can take relevant protective action - defensive action, as the Federal Court described it in the National Union of Workers case - in order to try and ameliorate the consequences of that.

PN180

That’s a matter for them, in my respectful submission, and that's not intended to be an unhelpful observation but simply to draw attention back to what it is that's here being contemplated; that is it is an extension of the authority that has already been given by the unanimous vote of the workers to engage in a form of protected industrial action in order to enable the pursuit of an agreement, hard bargaining of course being a part of it and protected industrial action of course being a part of it.

PN181

THE DEPUTY PRESIDENT: Yes.

PN182

MR HOWELL: So again, in my respectful submission, there is no good reason to refuse the extension and for precisely the reasons your Honour has outlined, one doesn't want to have to resort to all of the forms of action that are potentially available if it were extended. The action should be extended for 30 days to facilitate the greatest possible discussion, again consistent with what was outlined by the full bench in the Yallourn Energy case. I think my voice is probably at an end, your Honour, which is probably a good thing.

PN183

MR PRICE: Your Honour, if I may respond?

PN184

THE DEPUTY PRESIDENT: Yes, Mr Price.

PN185

MR PRICE: We don't agree that the only thing to be thought about is the will of some employees who voted to have a ballot back in May. The objects of the particular division talk about establishing a fair, simple and democratic process. His Honour Mr Justice Dowsett in the Yallourn Energy case, which has been quoted; he was in the minority in that decision but in respect of the point about extension, he makes the point a number of times that the particular division we are talking about is designed to regulate industrial action for the benefit of both employers and employees and he speaks on a number of occasions about the need when the objects of the Act talk about fairness, it's not just fairness about these 59 or 70 employees. It's fairness to all the employees and the employer.

PN186

We had hoped that Mr Moy had demonstrated that there were other means by which we could do this. We could do it with your Honour's assistance. There could be meetings, as Mr Moy has suggested, at other times, at the Gallipoli Club after work. That way the employer and the other employees to be covered would not be disrupted and we would say that is an appropriate approach and it meets the objects of the division of the Act. That is why we're opposing this. We do believe - the position that was got that we think this is a futility. There's a good hope of getting an agreement because of the position which we've got and the communication, which is what this is said to be about, can be done by other means. This has very serious consequences.

MR HOWELL: Your Honour, the only thing I should say in response to that is Justice Dowsett can express - with all due respect to him - what ever view he likes. What he can't do is cut across the language of section 436 of the Act. It is not, with respect, a general objects provision. It is a specific objects provision and what it says is instructive. The object of this division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed agreement. This is not a general question of fairness. The question which is contemplated by this division including the exercise of the discretion contemplated by 459(3) is whether or not the employees have genuinely approved the requisite form of action. It has been unanimously, in my respectful submission again. That submission is, with respect, a distraction.

PN187

THE DEPUTY PRESIDENT: I think the difficulty with the submission, Mr Price, from my point of view is that the very purpose of protected industrial action is to be disruptive. I've clearly expressed my concern about that but I don't think that I can decline the application on the strength of that, in the sense that the scheme of the Act is actually designed to permit such disruption in the circumstances where it's been properly, procedurally arrived at. I do have another question for both of you and it's again a legal question: looking at my powers in relation to section 592 of the Act - that is the power to direct persons to attend conferences - what would stop me in terms of my powers under the Act from directing the parties to attend a conciliation conference at 4 o'clock this afternoon? I'll perhaps hear from the applicant first.

PN188

MR HOWELL: If your Honour would bear with me just for one moment?

PN189

THE DEPUTY PRESIDENT: Certainly.

PN190

MR HOWELL: Sorry.

PN191

THE DEPUTY PRESIDENT: That is not in the alternative - - -

PN192

MR HOWELL: No, I understand.

PN193

THE DEPUTY PRESIDENT: - - - but in either circumstance.

PN194

MR HOWELL: Thank you for that. The short answer is does your Honour have power? There is nothing that I can immediately put my hands on that says your Honour would not have that power. It of course is one which is facilitative; that is to say for the purpose of performing a function or exercising a power contemplated elsewhere in the Act. So it's a facilitative provision.

PN195

THE DEPUTY PRESIDENT: Yes.

PN196

MR HOWELL: The limits of the general discretion are otherwise, as one would ordinarily impute, drawn from the general subject matter, scope and purpose of the substantive power that's being exercised. There would be nothing in the exercise of the discretion directed towards the - there would be nothing in the exercise of discretion under section 459(3) that would be legitimately, in my respectful submission, facilitated by a condition of that kind. That is, in my respectful submission again, turning to questions of merit, particularly so, where the very purpose of the industrial action - one of the purposes of the industrial action is to enable my client to communicate with its membership about the offer. Your Honour has already heard evidence that this is not something that my client does regularly.

PN197

Indeed, Mr Moy's evidence was that it hasn't happened to date. The very purpose of a significant meeting that like is to ascertain precisely how far the members want to go, what their response is, precisely what the types of issues are that they want their bargaining representatives to pursue. Exercising the discretion of 592 to impose as a condition - not as a condition; your Honour didn't express it in that way - to require my client to attend a conference this afternoon would firstly not be facilitating the power that we've been asking your Honour to exercise and otherwise, in all of the circumstances would be futile. We could likely attend but in the absence of having the opportunity, which tomorrow is designed to deal with, we wouldn't really be able to advance the position, I don't think.

PN198

THE DEPUTY PRESIDENT: If we put aside the question of futility, which is not really known until the occurrence happens, and in the absence of an application pursuant to section 459 and in circumstances where the Commission apprehends that there is a dispute or a difference between the parties undergoing bargaining in the absence of an application pursuant to section 240, do you think the Commission has the power to order attendance at a conference?

PN199

MR HOWELL: No, your Honour. The commission has to otherwise - there is no general industrial disputes power of the kind that used to exist in section 99 of the old Act.

PN200

THE DEPUTY PRESIDENT: I am showing my vintage in asking these questions.

PN201

MR HOWELL: No, no; not at all. It's a legitimate question but it's one of the vices of the system which now operates to prohibit certain things other than in certain circumstances and removes from the independent umpire the capacity to do the very sensible thing which had been done for many, many, many years. But the short answer is no, this Commission has no general power to deal with industrial disputes. To the extent it has the power it is conferred through either expressly agreed or modified - either expressly agreed or implied dispute resolution provisions which exist in either a modern award or in an enterprise agreement. It doesn't have the capacity to act of its own motion to break a deadlock in the way that it once did.

PN202

THE DEPUTY PRESIDENT: Mr Price, do you have a view about that?

PN203

MR PRICE: I would say you do have the power. We would say that you have been asked to exercise what is said to be a wide discretion. It's 30 days is the period of time. Nothing was done about making this application within the 30 days or bringing of particular industrial action was proposed within the 30 days. But you are given a wide discretion to provide an extension. We accept that. But you are also given a wide power to perform a function or exercise a power of the Commission, and we say it's not in relation to general industrial action or negotiation. That power is in relation to the exercise of your discretion, that wide, general discretion which I spoke of in 592.

PN204

THE DEPUTY PRESIDENT: Yes, yes. All right, well, I should have mentioned to you earlier, to the extent that you were sitting there worried about my next matter starting at 10 o'clock I actually postponed it till 11 so that we could seek to explore all of the options to avert the disruption which will undoubtedly occur by extending the authorisation period. I think we've probably explored that sufficiently and I ought to make a decision. Right, so I will do so. In this matter, the Australian Maritime Officers' Union and the Australian Institute of Marine Power and Engineers has made an application pursuant to section 459 of the Act to extend the 30-day period in which industrial action is authorised by a protected action ballot. It is proposed that that 30-day period be extended from 2 July 2014 and would - based on the calendar - expire on 1 August 2014. Yes, I believe it would expire on 1 August 2014. I intend to accede to that application. I do so in exercising my discretion because the relevant procedural requirements of the Act have been met and nothing that the respondent has put to me causes me to believe that I should not exercise my discretion.

PN205

If further appreciation of my reason is required then those requiring it can look at the transcript and understand what I have previously said on transcript about my understanding of the scheme of the Act and the purpose of protected industrial action and notwithstanding the disruption that it causes the anticipation of the parliament that such a scheme should nevertheless be placed within the Act. I also alert, should I need to, the respondent that this is not something that I've raised with the parties but it would seem to me that there is nothing stopping the respondent making an urgent application pursuant to section 240 of the Act, should they desire to and I foreshadow that if such an application was made that I would be in a position to list the matter for 4 o'clock this afternoon. Unless there is anything further from the parties, the Commission is adjourned.

PN206

MR PRICE: If your Honour pleases.

PN207

MR HOWELL: Thank you, your Honour.

<ADJOURNED INDEFINITELY [10.48AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMOU1 WITNESS STATEMENT OF JOHN WYDELL PN43
EXHIBIT #AMOU2 AMOU'S OUTLINE OF SUBMISSIONS PN45
EXHIBIT #AIMPE1 STATEMENT OF MR FALLONE PN46
DARREN MOY, SWORN PN49
EXAMINATION-IN-CHIEF BY MR PRICE PN49
CROSS-EXAMINATION BY MR HOWELL PN66
CROSS-EXAMINATION BY MR FALLONE PN74
THE WITNESS WITHDREW PN80