B2014/158, Transcript of Proceedings [2014] FWCTrans 657 (3 November 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050818-1

COMMISSIONER CLOGHAN

B2014/158

s.437 - Application for a protected action ballot order

Maritime Union of Australia, The
and
Swire Pacific Ship Management (Australia) Pty Ltd
(B2014/158)





Perth

8.58AM, WEDNESDAY, 22 OCTOBER 2014

PN1

THE COMMISSIONER: I’ll take appearances.

PN2

MR L. EDMONDS: Thank you, sir, Edmonds appearing for the applicant in this matter.

PN3

MR R. WADE: May it please you, Commissioner subject to the grant of leave I appear for the respondent.

PN4

MR EDMONDS: There’s no objection to leave.

PN5

MR COMMISSIONER: Thank you, Mr Edmonds. Leave is granted. Good morning to both of you.

PN6

MR EDMONDS: Sir, I might hand over to my friend to take you through the agreement the parties have reached today about how this matter can proceed.

PN7

MR WADE: Commissioner, I beg leave just to hand to you a bundle of correspondence, the agreement is recorded in one of the letters.

PN8

THE COMMISSIONER: Mr Wade have you ever heard of the expression, “A horse talks?”

PN9

MR WADE: “A horse talks.”

PN10

THE COMMISSIONER: Yes.

PN11

MR WADE: No, Commissioner. Should I have?

PN12

THE COMMISSIONER: I’m sure Mr Edmonds will explain to you the reason why I did nothing. Sometimes if you do nothing, Mr Wade, “the horse talks.” So it’s unexpected but it happens.

PN13

MR WADE: Commissioner, the bundle of documents that I’ve handed to you going by agreement. It records in substance the relevant correspondence exchanged between the parties following your request that the parties confer about the procedure going forward. You may recall, and some of this correspondence has been copied to the Commission but it commences with the email of 16 October which is the last document in the bundle. Attached to that email are a whole number of other relevant emails. They’re just by way of background.

PN14

We thought it best just to update you in full with the correspondence and all I need do now is just refer you to the flagged document in that bundle of correspondence. Commissioner that is the document which records the parties agreement on the way forward for the matter, subject of course to you confirming that it’s suitable to the Commission. If I may just take you through these.

PN15

THE COMMISSIONER: If you would.

PN16

MR WADE: In substance, Commissioner it has been agreed without either party conceding any particular point. The evidence in the GFBO proceedings which you may recall included evidence concerning the so called, “Scope issue.” Will stand to the extent that either party wishes to rely upon it in relation to this particular application. You recall the Swire application is about whether they’re seeking a separate agreement in respect of Swire and in relation to Gorgon employees. So that evidence stands.

PN17

The second point is that the supplementary evidence of Hearnden and Sneyd and the reference to supplementary evidence is simply the fact those are the two statements that have been served and filed with the Commission. Those statements are entered into evidence by agreement and without the need for either of those two witness to present for cross examination. I suppose, Commissioner another way of putting that is evidence is not contentious. There is one exception and that’s recorded in paragraph 2 of that letter. The sentence commencing, “I believe Mr Field,” in paragraph 10 of Mr Sneyd’s statement is deleted and can’t be relied on by the respondent.

PN18

Commissioner, essentially the same agreement is reached in relation to the statement of Mr Tracey dated 7 October 2014. That too is admitted into evidence by agreement and without the need for Mr Tracey to present himself for cross examination. The fourth point of consequence is that certain documents were disclosed informally. These are documents relevant to the supplementary evidence of Mr Sneyd and Mr Hearnden. Those documents which I’ve handed to you with your permission, are also entered into evidence by agreement between the parties and without the need for any further evidence in relation to them.

PN19

I might beg leave to hand that to you. When you see the documents you’ll understand why they go in on that basis. They’re simply the correspondence exchanged within the union and they inform what happened on the pacific blade which is the focus of the evidence of Mr Sneyd and Hearnden.

PN20

The fifth point raised in the letter and confirming the parties’ agreement. Commissioner is agreement of the submission of written submissions in support of the application. You’ll notice the timeframes which are recorded are two weeks for the applicant to file its submissions in support of the application, two weeks for the respondent to file its submissions in opposition to the application and a week for a reply. The intension is that those statements, submissions rather will reference whatever evidence the parties want to reply upon in the
GFBO proceedings.

PN21

THE COMMISSIONER: Mr Wade it might be useful if I mark those documents that you referred to me as - - -

PN22

MR EDMONDS: Sir, it might be a better idea to mark the witness statements first and then mark those documents as well.

PN23

THE COMMISSIONER: I’m about to do it sequentially, in the way it was given to me so that the documents that I’ve been (indistinct) with this morning, I’ll mark that exhibit R1.

PN24

MR EDMONDS: I wonder if it’s possible for the purposes of the transcript, sir to just identify the documents, just by date or description. The ones that you’ve got there.

PN25

THE COMMISSIONER: The documents that have been given to me this morning, on the top is an email exchange which ends on 21 October at 2.50. Do you want me to go through them individually?

PN26

MR WADE: Yes please, Sir. Sorry if you could just number the bundles I suppose.

PN27

THE COMMISSIONER: That’s what I was doing. That’s exhibit R1.

EXHIBIT #R1 EMAIL EXCHANGE ENDING 21 OCTOBER AND EMAIL DATED 21 OCTOBER 12.58

PN28

THE COMMISSIONER: Now for the purposes of the remaining material I’m going to refer to an email dated 21 October at 12.58 which is part of the bundle of exhibit R1. At point 2 it refers to, “the supplementary evidence of Hearnden and Sneyd.” I shall mark the witness statement of, Mr Hearnden as exhibit R2.

EXHIBIT #R2 MR HEARNDEN WITNESS STATEMENT

PN29

THE COMMISSIONER: The supplementary evidence of, Mr Sneyd as exhibit R3.

EXHIBIT #R3 MR SNEYD WITNESS STATEMENT

PN30

THE COMMISSIONER: I shall mark the witness statement of, Mr Tracey as exhibit A1.

EXHIBIT #A1 MR TRACEY WITNESS STATEMENT

PN31

THE COMMISSIONER: The documents referred to in paragraph 4 of that email and there are two that I’ve been given. I’ll mark email which is dated 21 July, I take it this is coming from you, Mr Wade is it? So I’ll mark that as exhibit R4.

EXHIBIT #R4 DOCUMENTS REFERED TO IN PARAGRAPH 4 OF EMAIL DATED 21 JULY FROM MR FALCONE

PN32

MR WADE: That’s correct.

PN33

THE COMMISSIONER: That’s an email from Mr Falcone dated 21 July at 4.09, or ends with that email. The next document I’ll mark as exhibit R5. That is an email also from Mr Falcone dated 22 July and it’s to, member MUA.

EXHIBIT #R5 EMAIL FROM MR FALCONE DATED 22 JULY TO MEMBER MUA

PN34

THE COMMISSIONER: I think that takes care of all the documentation. There’s nothing else is there? So I’m clear.

PN35

MR WADE: Not by way of introduction, no, Commissioner. So that is the parties’ procedural agreement subject of course to your approval. It’s obviously an agreement reached with a view to avoiding you having to either re-hear or reflect upon evidence already introduced and already subjected to cross examination. Of course our feeling that that was the most appropriate way to take this application forward. Occasioning the least amount convenience to any other party or the Commission.

PN36

THE COMMISSIONER: Mr Edmonds the last date for the filing of the submissions in reply is 26 November.

PN37

MR EDMONDS: Yes, sir.

PN38

THE COMMISSIONER: Are you able to bring that forward?

PN39

MR EDMONDS: We can bring it forward by a few days, sir. I’m just mindful that Ms Palmer has got exams in and around the end of October and the beginning of November. I suppose I could do it myself.

PN40

THE COMMISSIONER: If I brought forward that to Monday.

PN41

MR EDMONDS: If I could clarify the date on Monday, sir?

PN42

THE COMMISSIONER: That would be Monday 24 November.

PN43

MR EDMONDS: Yes, we could probably do that, sir.

PN44

THE COMMISSIONER: Mr Wade, with that amendment I’m happy to concur with that proposed course of action.

PN45

MR EDMONDS: I have no objection to the amendment, Commissioner. So that’s fine with us.

PN46

THE COMMISSIONER: Having recorded that on transcript, is there anything else that I need to know?

PN47

MR EDMONDS: I think that’s it, thank you, sir.

PN48

THE COMMISSIONER: This matter will proceed as outlined in the email dated 21 October as agreed between the parties with that variation and incorporate those documents which have been listed. There’s nothing further. I’ll adjourn these proceedings.

<ADJOURNED UNTIL MONDAY, 27 OCTOBER 2014 [9.12AM]