AM2014/90, Transcript of Proceedings [2015] FWCTrans 111 (10 March 2015)

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s.156 - Four yearly review of modern awards

Four yearly review of modern awards
(AM2014/90)
Stevedoring Industry Award 2010

(ODN AM2008/49)
[MA000053 Print PR988697]

PN855.

VICE PRESIDENT WATSON: Mr Jauncey, you have a change of appearance.

PN856.

MR JAUNCEY: That’s correct, your Honour. I appear on behalf of applicant, Patrick Container Ports Proprietary Limited trading as Patrick Port Logistics, and Patrick Stevedores Holdings Proprietary Limited, in place of Ms Lim.

PN857.

VICE PRESIDENT WATSON: Thank you. Mr McNally.

PN858.

MR McNALLY: Good morning, your Honours. We have our witnesses here. One is not available, for reasons I don’t really understand, until 2 o’clock if that fits in with the scheme of things. We’ve indicated we don’t wish to cross-examine the witnesses who filed statements on behalf of the TWU. I won’t deal with it now but if you read those statements they deal more with the demarcation than award coverage issues. We do wish to cross-examine the witnesses filed on behalf of Patricks and filed on behalf of Toll. We have available our witnesses, as I understand it. There might be one not there. I think there’s three that need to be cross-examined. So what I had in mind was calling those three first, if that’s convenient to the Commission.

PN859.

VICE PRESIDENT WATSON: Yes, indeed. Who is the first one?

PN860.

MR McNALLY: Then file the remaining statements, and then cross-examine the witnesses I want to cross-examine. Start the addresses on Friday, if that’s convenient. Someone suggested 12 o’clock. What I had in mind doing was addressing and then filing written submissions next week when I have the transcript and read the transcript, if the Commission pleases. Might we proceed along those lines?

PN861.

VICE PRESIDENT WATSON: Yes.

PN862.

MR McNALLY: Jason Campbell is one of the witnesses, your Honour. He’s available on the telephone at 10.30. We could commence by calling Mr Sheehan if the Commission pleases.

PN863.

VICE PRESIDENT WATSON: Mr Sheehan.

PN864.

MR McNALLY: Yes.

PN865.

VICE PRESIDENT WATSON: Mr Sheehan, come to the witness box, please.

<PAUL SHEEHAN, SWORN [10.05 AM]

<EXAMINATION-IN-CHIEF BY MR McNALLY [10.06 AM]

PN866.

MR McNALLY: Mr Sheehan, you have stated your full name and have you filed a statement in these proceedings dated 24 December 2014?‑‑‑I did.

PN867.

Do you have a copy of that statement?‑‑‑I do.

PN868.

Is there any alteration or deletion or addition you wish to add to that statement?‑‑‑Probably an addition in the CargoLink site.

PN869.

Sorry?‑‑‑An addition to the CargoLink site. There’s a couple of explanations that I probably left out of there that might be relevant.

PN870.

Right. We’ll see how we go. You tell the Commission?‑‑‑Okay. Two things in relation to CargoLink site. The first thing is - - -

PN871.

That’s CargoLink in Brisbane, is it?‑‑‑In Brisbane, sorry.

PN872.

Yes. Yes?‑‑‑First is the proximity of the CargoLink site to the actual AutoStrad terminal. It is – and it’s identified in there as an MX area, as it’s called, where containers are planned and placed. And the planned part of it is probably the bit that’s been left out where the clerical liaise with the terminal – they’re now called production managers. It used to be planning clerks. But they liaise with them as to the placement of them, so that the production managers can start a process for the AutoStrads to come in and get the box. So if that information is put in incorrectly from the CargoLink people, all hell could break loose actually. For instance, as an example, if a box is stacked too high and they haven’t identified that to the terminal, the AutoStrad doesn’t know. It just comes in and knocks a box off the top. If a 40-footer was placed in that area but incorrectly data processed as a 20, the strad would just come in and put four holes in the top of a 40-foot box because it’s looking for a 20-foot box in a certain GPS area. The other issue – so the planning has a lot to do with that as to the receivable delivery of that cargo. So there were three areas. In fact, different to any other yard as described in the company’s issues, I don’t believe there’s another yard in the country that’s the same as CargoLink in Brisbane, when they try to refer to transport. The CargoLink site is blocked off by a gate purely as a safety issue because if a person or a dog, for instance, went into that area, it would trigger the laser lights and the whole joint would shut down. So they need to isolate it from a safety perspective and obviously a production perspective. They wouldn’t want to be shutting down every five minutes. Is that - - -

PN873.

Is that facility in the vicinity of the wharf?‑‑‑Yes, it is in the vicinity of the wharf.

**** PAUL SHEEHAN XN MR McNALLY

PN874.

Thank you?‑‑‑Further to that is the VDU which is another name for receivable and delivery for the terminal.

PN875.

Did you say BTO?‑‑‑V-D.

PN876.

VDU. Thank you?‑‑‑Which is another area for receivables because they don’t just necessarily come to the gate. This area covered by the Stevedore Industry Award is actually in proximity – is terminal, CargoLink, roadway, and then this other area where the trucks marshal, come in, put in their paperwork for receivable delivery into the terminal. Also into that same area the trucks were marshalled to go into CargoLink. Now, over in the CargoLink area is a big screen with the BAT numbers for the truck. So if you - - -

PN877.

Just slow down a little bit, will you?‑‑‑Sorry?

PN878.

Just slow down a little bit. Slow down a little bit?‑‑‑BAT 20, as an example, that BAT 20 will come up and the truck that’s BAT 20 will know that they’re on their way. Now, they both come out of that yard, one enter into CargoLink if they’re going there. The other goes around the road to a roundabout into the terminal stacked area – sorry – the terminal receivable delivery area, which enclosed – I don’t know what you’d call it. Anyway, it’s an enclosed area. The gates are either side, which is open to the truck and they back the truck in. The driver gets out and walks out of that area. They close the gate and they open the other gate and bring the AutoStrad in, which is done by a toggle operator. He’s not working on the vessel either but he’s covered under the Stevedoring Industry Award.

PN879.

Now, those three facilities are all in the vicinity of the wharf?‑‑‑Absolutely.

PN880.

They don’t necessarily adjoin the wharf, do they?‑‑‑No. In fact, the terminal receivable delivery is a roadway.

PN881.

Yes, I see?‑‑‑I think it’s called Curlew Street.

PN882.

That last function that you just described of the truck coming into the enclosure and being closed off - - -?‑‑‑Yes.

PN883.

- - - and then the AutoStrad loading the box onto the truck, that’s always been covered by the Stevedoring Industry Award?‑‑‑Yes, and those trucks coming back out of the terminal or out of CargoLink both exit the same exit gate which is open area, as against MX which is sealed off, what I said earlier. The company in fact that are in the area across the road wanted to move their receivable delivery over there but then were a bit concerned that that then would be going into a Stevedoring Industry Award covered area, so they’ve desisted from doing that. They’ve also spoken to us during the EA process of putting VDUs into the forklifts, so that there was a direct link. The driver would get it, there it is, place it there, et cetera, et cetera, for smoothness of operation, whatever, and those

**** PAUL SHEEHAN XN MR McNALLY

receivable delivery clerks would have been either in the same building as the terminal stevedoring covered clerks, or in an adjoining building if they built another one. There is room there to put both but I don’t know what the plan was for that. So in those three things, to say that they don’t load or unload a ship is correct, but they do receive and deliver for the ship in the very same way. And also to that is those workers that are in the CargoLink area that the company claim is one PPL, are on different rates of pay to the people over in the other yards that do exactly the same work with the same machinery. So anyway that’s the extra that I wanted to add to my statement.

PN884.

Thank you very much. Thank you very much for that. I have no further questions, if the Commission pleases.

PN885.

VICE PRESIDENT WATSON: We’ll mark the statement of Paul Sheehan dated 24 December 2014 with the attached annexure, exhibit M4.

EXHIBIT #M4 STATEMENT OF PAUL SHEEHAN INCLUDING ANNEXURE, DATED 24/12/2014

PN886.

VICE PRESIDENT WATSON: Who wishes to cross-examine this witness? Mr Jauncey?

PN887.

MR JAUNCEY: We do, your Honour.

<CROSS-EXAMINATION BY MR JAUNCEY [10.14 AM]

PN888.

MR JAUNCEY: Mr Sheehan, I’m Mr Jauncey. I think - - -?‑‑‑We’ve met before Mr Jauncey. How are you?

PN889.

Mr Sheehan, you know that Patrick Port Logistics operates a number of depots and facilities at Fisherman Island in Queensland, don’t you?‑‑‑Yes, I do.

PN890.

That is the CargoLink yard, the Port Drive depot and the Moreton Bay Container Park?‑‑‑Yes.

PN891.

If the definition of the Stevedoring Industry is changed in the manner sought by your union, do you believe that the CargoLink yard facility would become covered by the Stevedoring Industry Award?‑‑‑Sorry, could you say that again?

**** PAUL SHEEHAN XXN MR JAUNCEY

PN892.

MR McNALLY: I’m not sure that this witness might have been informed of the amendment. My friend could probably clarify that.

PN893.

MR JAUNCEY: Well, Mr Sheehan, you understand that your union is seeking a change to the definition of Stevedoring Industry which would have an effect on the coverage of the Stevedoring Industry Award, don’t you?‑‑‑Yes. Yes.

PN894.

If that change sought by your union were to be made, do you believe that the CargoLink yard in Queensland would become covered by the Stevedoring Industry Award?‑‑‑Yes.

PN895.

What about the Port Drive depot operated by Patrick Port Logistics?‑‑‑No, it’s across the road. It’s not adjacent or in the vicinity of the wharf. It’s separated by two roads actually. But they’re across the road and covered by the TWU.

PN896.

What about the Moreton Bay Container Park?‑‑‑It’s further away. It adjoins inside their facility. You can go straight through from Port Drive through the back way into Moreton Bay. If they want to move containers inside and put them on trucks to go out, but they have nothing to do with us.

PN897.

So it’s not the intention of the union, as you understand it, to have the Stevedoring Industry Award cover the Port Drive depot or the Moreton Bay Container Park?‑‑‑No, it’s not. Look, the Port Drive and Moreton Bay are exactly the same as the Melbourne ones that are in Coode Road across – out of the wharf precinct, but by changing fences which they’ve done at East Swanson Dock, that could change in time but currently it’s not.

PN898.

You’re aware that Patrick Port Logistics operates various facilities in Melbourne, aren’t you?‑‑‑They’ve got four yards, as I understand it.

PN899.

Yes. There’s the Appleton depot?‑‑‑Yes.

PN900.

The Appleton rail yard, and the Coode Road empty park?‑‑‑Yes.

PN901.

Is it your evidence that the change sought by the MUA would not result in the Stevedoring Industry Award covering any of those depots or facilities?‑‑‑Yes, and we took that off the table in the EA when it became clear. The only area in Melbourne, to my knowledge, is the – what they call the Q block which is where the rail comes in, and they send blokes from one of those yards across to Q block to load or unload the rail into Q block, and then the terminal takes those boxes from there. So I mean that may be a claim in the future; I don’t know.

**** PAUL SHEEHAN XXN MR JAUNCEY

PN902.

Well, I suggest to you that at the Appleton depot in Melbourne there is in fact a Q block where people from the Appleton depot move containers into that pad. Then they turn the pad over to the terminal and the terminal staff come in and take the containers out of that pad?‑‑‑I’ll have to take your word for it. I mean, when I – I worked in Melbourne but it was back in the ‘80s, that work was done by stevedores. The Appleton dock precinct and the terminal precinct was an open – there was no fence-off. I don’t know if there’s a fence-off now. But the trains were loaded and unloaded by wharfies, stevedores at the time.

PN903.

Nothing to do with the trains. Do you actually know that there is a Q block there in which people from the Appleton depot place containers? Are you aware of that or is that - - -?‑‑‑I know there’s a few - - -

PN904.

- - - something that has occurred since you ceased work there?‑‑‑I know there’s a Q block but I don’t know what yard they come from to do it. It could be Appleton. It’s probably the closest by the name, because Appleton dock and Swanson dock meet, but I don’t know for sure that that’s where they come from. But I do know there’s a Q block attached to the terminal.

PN905.

Presently does the union say that the change to the award which it seeks will cover anybody at all amongst Patrick Port Logistics operations in Melbourne?‑‑‑That’s not our current claim.

PN906.

So it might change?‑‑‑Well, it may. It’s not for me to decide but it’s not our current claim.

PN907.

What do you say the award variation does? Does it bring those people into coverage, in your view, or not?‑‑‑I don’t know about the people but it certainly would – I would think it would bring that area in.

PN908.

So it would actually bring into coverage some people in Melbourne?‑‑‑Possibly but it’s not my decision whether that’s going to be done, but in my opinion, yes.

PN909.

You know that the Chalmers Industries business operates a container depot and washing facility at Whimbrel Street in the Fisherman Island port precinct?‑‑‑Okay. I have to take your word for it.

PN910.

You’re not aware of that?‑‑‑I know that Chalmers work there but I don’t know if they’ve got – I’ve never been in the yard. I don’t know if they’ve got a washing facility or not but they are on the island.

PN911.

You know that Chalmers has a yard?‑‑‑Chalmers. I knew that. They’re on the island, yes.

**** PAUL SHEEHAN XXN MR JAUNCEY

PN912.

If the change sought by your union is made, in your view would that yard become covered by the SIA?‑‑‑I don’t think so.

PN913.

You know that there’s a container park known as the Gateway Container Park at Hemmant?‑‑‑Yes. Yes.

PN914.

If the change sought by your union is made, would that yard become covered?‑‑‑No. Not unless they change the dirt for concrete.

PN915.

Now, there is also an AAT terminal at Fisherman Island in Brisbane, isn’t there?‑‑‑Yes. That’s where the original CargoLink was.

PN916.

That terminal primarily handles bulk and general freight, doesn’t it?‑‑‑It handles a lot of freight primarily, yes. It’s containers, cars, trucks, bulk in general.

PN917.

You don’t need forklifts to handle cars coming off vessels, do you?‑‑‑Some second-hand ones you do but, no, generally you would drive them.

PN918.

The number of second-hand cars coming through AAT is much lower than the number of new cars coming through the AAT terminal?‑‑‑Absolutely. Yes. I couldn’t give a percentage but it would be below 10 per cent, at the moment.

PN919.

Nothing more.

PN920.

VICE PRESIDENT WATSON: Mr McNally.

PN921.

MR McNALLY: Thank you very much. Might this witness be excused?

PN922.

VICE PRESIDENT WATSON: Yes.

PN923.

MR McNALLY: Just one thing.

<RE-EXAMINATION BY MR McNALLY [10.22 AM]

PN924.

MR McNALLY: When did you last work in Melbourne?‑‑‑1989.

PN925.

Right. Okay?‑‑‑A while ago. Yes.

**** PAUL SHEEHAN RXN MR McNALLY

PN926.

Thank you. Might this witness be excused?

PN927.

VICE PRESIDENT WATSON: Thank you for your evidence, Mr Sheehan. You can step down. Thanks for attending, Mr Sheehan.

<THE WITNESS WITHDREW [10.22 AM]

PN928.

MR McNALLY: I call Mr Jason Campbell, please, from the Tasmanian branch.

PN929.

MR JAUNCEY: He’s on the telephone, is he?

PN930.

VICE PRESIDENT WATSON: Are you going to call a witness on the telephone?

PN931.

MR McNALLY: He’s on the phone. He’s in Tasmania.

PN932.

VICE PRESIDENT WATSON: You are going to telephone a witness, Mr McNally?

PN933.

MR McNALLY: I think he is, your Honour.

PN934.

VICE PRESIDENT WATSON: Yes.

PN935.

MR McNALLY: Yes, your Honour.

<JASON CAMPBELL, AFFIRMED [10.24 AM]

<EXAMINATION-IN-CHIEF BY MR McNALLY [10.24 AM]

PN936.

VICE PRESIDENT WATSON: Thank you, Mr Campbell. Mr McNally.

PN937.

MR McNALLY: Thank you, Mr Campbell. My name is McNally and I’m representing the Maritime Union, Mr Campbell. You have prepared a statement dated 24 December 2014. Is that correct?‑‑‑That’s correct.

PN938.

Do you have available to you a copy of that statement?‑‑‑Yes, I do.

PN939.

You wish to make a correction in paragraph 15 of that statement, is that correct?‑‑‑Yes, that’s correct.

PN940.

At the end of the first sentence the year 2015 appears. It’s meant to be 2014. Is that correct? Hello?‑‑‑Yes, that’s correct.

**** JASON CAMPBELL XN MR McNALLY

PN941.

Good. You wish to make a correction to the second sentence. Is that the second sentence of the statement?‑‑‑Sorry?

PN942.

You say in your email that you wish to make a change to the second sentence. Which sentence is that?‑‑‑Yes. That’s the one - - -

PN943.

In paragraph 15?‑‑‑In paragraph 15, yes.

PN944.

What’s the alteration you wish to make there?‑‑‑It should also include TasPorts and TasRail.

PN945.

Where do those words go in?‑‑‑At the end of “by State and federal governments, Toll, TasPorts and TasRail.”

PN946.

I’m sorry, say that again?‑‑‑At the end of “the subject of funding by federal and State governments” - - -

PN947.

Yes?‑‑‑ - - -“TasPorts and TasRail.”

PN948.

Then you say at the end of the third sentence – the third sentence in that same paragraph, is it?‑‑‑Yes, it’s the third sentence at the end of - - -

PN949.

That the year 2016 should be 2015. Is that correct?‑‑‑That’s correct.

PN950.

Are they the only alterations you wish to make?‑‑‑Yes, that’s correct.

PN951.

Is there any additions you want to make to your statement?‑‑‑No.

PN952.

Is your statement true and correct?‑‑‑Yes.

PN953.

You swear it’s true?‑‑‑Yes.

PN954.

I have no further questions, if the Commission pleases.

**** JASON CAMPBELL XN MR McNALLY

PN955.

VICE PRESIDENT WATSON: Do you tender the statement, Mr McNally?

PN956.

MR McNALLY: I do.

PN957.

VICE PRESIDENT WATSON: The statement of Jason Campbell dated 24 December 2014, as amended, will be exhibit M5.

EXHIBIT #M5 STATEMENT OF JASON CAMPBELL, AS AMENDED, DATED 24/12/2014

PN958.

MR McNALLY: Thank you, your Honour.

PN959.

VICE PRESIDENT WATSON: Mr Gardener.

PN960.

MR GARDENER: Thank you, your Honour.

<CROSS-EXAMINATION BY MR GARDENER [10.28 AM]

PN961.

MR GARDENER: Mr Campbell, my name is Chris Gardener and I appear for Toll, and I’m going to ask you some questions. Can you hear me all right?‑‑‑Yes.

PN962.

I’d like to begin by asking you some questions about the current operations that Toll has at the McGaw wharf. At the wharf currently there is a rail line or a rail spur which comes straight into Toll’s terminal. That’s right?‑‑‑That’s correct.

PN963.

Toll employees who are classified as stevedores, take cargo off and on that train within the terminal?‑‑‑That is correct.

PN964.

Toll employees who are classified as stevedores then transport the cargo or put the cargo to and from the vessel as the case is?‑‑‑That’s correct.

PN965.

Occasionally there are reasons which see the train itself – the trains stop at the TasRail intermodal facility. Yes?‑‑‑Sorry?

PN966.

At times there are circumstances where the trains don’t come onto the terminal but stop at a TasRail intermodal facility?‑‑‑I understand that has happened on occasion.

PN967.

That intermodal facility is not within Toll’s terminal as such?‑‑‑That’s correct.

**** JASON CAMPBELL XXN MR GARDENER

PN968.

When that occurs cargo is loaded and unloaded by workers other than stevedores. Let’s call them transport workers?‑‑‑Off the train?

PN969.

Yes?‑‑‑That’s correct.

PN970.

When that happens the cargo is transported by road to – from the intermodal facility to the terminal, by transport workers?‑‑‑That is correct.

PN971.

When that happens Toll employees within the terminal who are stevedores or classified as stevedores, load the cargo?‑‑‑Load or unload, yes, that’s correct.

PN972.

That situation that I’ve just described relating to the TasRail facility – sorry – the TasRail intermodal facility, the situation that I have just described has been in place since around 1996. Are you aware of that?‑‑‑Sorry?

PN973.

The situation that I’ve just described relating to the TasRail intermodal facility and the loading and unloading of cargo from trains, that has been the case since 1996. Are you aware of that or not? You might not be but - - -?‑‑‑I guess it has but it’s not the norm.

PN974.

I’m sorry, I missed your answer?‑‑‑If it was 1996 that that intermodal facility has been there, it’s 1996 – I’m not sure.

PN975.

All right?‑‑‑But it’s not the norm for that train to be unloaded at that facility.

PN976.

Well, Mr Duncan will say that the situation that we’ve just described has been the case since 1996. You wouldn’t be in a position to disagree with that?

PN977.

MR McNALLY: We’ll admit that.

PN978.

THE WITNESS: Sorry?

PN979.

MR GARDENER: You wouldn’t be in a position to disagree with Mr Duncan who says that has been the position since 1996?‑‑‑No.

PN980.

All right. Can I talk about the proposed redevelopment, which you refer to in your statement?‑‑‑Yes.

PN981.

The redevelopment will see the trains no longer come into the Toll facility but they will - - -?‑‑‑That’s my understanding.

**** JASON CAMPBELL XXN MR GARDENER

PN982.

Yes. They will stop at the TasRail facility?‑‑‑The new facility that will be built.

PN983.

Yes, and workers other than stevedores will take the cargo off the train or put it on the train as the case may be, at the intermodal facility?‑‑‑That’s what has been explained to us, yes.

PN984.

Yes, but you know that Toll’s intention is that employees who are classified as stevedores at Toll will shuttle the cargo from the intermodal facility to the wharf?‑‑‑No, I’m not aware of that. The latest discussion that I had in regard to that was that road transport workers will shuttle that cargo from the intermodal facility to the terminal.

PN985.

The intention of Toll has always been that stevedores would do that shuttling?‑‑‑No, I disagree.

PN986.

You don’t know that?‑‑‑No, I disagree. As of 6 January and the current negotiations, we were informed that transport workers would do that shuttling.

PN987.

Who informed you of that?‑‑‑Darryl Liddell and Wayne Boyd, local managers.

PN988.

In paragraph 12 of your statement, you speak of a dispute?‑‑‑That’s correct.

PN989.

Can I take you to your attachment JC4?‑‑‑Yes.

PN990.

Do you have that in front of you?‑‑‑I do, yes.

PN991.

The points at 3 resolve issues about overtime, overtime extension, a circumstance where a vessel unexpectedly goes over an expected finish time, and a circumstance where Hi-Haul delivers cargo. Now, they were the issues in dispute, were they not?‑‑‑No, they weren’t.

PN992.

Well, this document is presented as the settlement of the dispute. They are mentioned here. They are the issues that were in dispute?‑‑‑The main issue in dispute was increasing the permanent rostered employees and they were other issues that affected at the time the increase of additional rostered employees.

PN993.

That’s to do with the question of ratios which you are keen to preserve. The ratios between permanents and casuals?‑‑‑No, it was part of a labour review on the commitment that was given in the enterprise agreement that if non-permanent employees were working the same amount of hours, or in excess of the same amount of hours of rostered employees, then we would look at increasing the rostered employee numbers.

**** JASON CAMPBELL XXN MR GARDENER

PN994.

So it was a rostering dispute then?‑‑‑It was a dispute in regards to increasing the permanent rostered employees and while the dispute was going on there was a hesitance of Toll employees to work overtime or to extend on overtime.

PN995.

The dispute had nothing to do with award coverage then, did it?‑‑‑Sorry?

PN996.

The dispute had nothing to do with award coverage, did it?‑‑‑Well, it did. It’s part of the – initially the dispute, no, it didn’t but as part of the settlement Toll wanted the MUA to give a commitment that we wouldn’t pursue the work once the rail spur had come off the Toll terminal or coverage of those logistics personnel at the intermodal facility.

PN997.

There’s no mention of award coverage in this settlement, and there was no mention of award coverage relating to the dispute at any time, was there?‑‑‑There was.

PN998.

There was not, Mr Campbell. You are - - -?‑‑‑There was. There was in the discussions. The document JC4 is a settlement of the dispute but during the dispute discussions there was a reluctance of Toll to increase the permanent numbers because of the redevelopment of the rail intermodal facility at the Burnie terminal.

PN999.

You’re saying – your evidence is that someone from Toll made a request that the union not seek coverage. Is that right?‑‑‑That is correct.

PN1000.

That’s different from award coverage?‑‑‑I don’t think it is. The discussion that we had at the time was in regard to those workers not being covered under the Stevedoring Industry Award for that work once the rail spur had come off the terminal.

PN1001.

I’m putting to you that at no time was the question of award coverage ever raised?‑‑‑It definitely was.

PN1002.

At no time has Toll ever mentioned anything to do with the reduction in permanent employees?‑‑‑Well, if you go to the point 1D it clearly states there, “A reduction of permanent employees above 52 may occur over time by natural attrition, after completion of the rail terminal when and if conditions allow.”

PN1003.

I’m putting to you that Mr Duncan never made the request – never requested any MOU regarding the matters you refer to in paragraph 14. That is, Mr Duncan has never mentioned that to you or anyone at the MUA?‑‑‑I disagree.

**** JASON CAMPBELL XXN MR GARDENER

PN1004.

He’s never mentioned that because the intention of Toll is that there would not be any reduction in numbers?‑‑‑I disagree. I disagree.

PN1005.

Do you recall that in 2011 Mr Duncan presented an MOU to yourself and Mr Smith?‑‑‑I do recall, yes.

PN1006.

Do you recall that MOU dealt with workplace union delegate rights, trade union leave, union induction, working the evening train. See that? Do you have that?‑‑‑I don’t have that, no. I am aware of the document.

PN1007.

Do you have a recollection of the document?‑‑‑I do.

PN1008.

I did make it available yesterday?‑‑‑Yes, I’m sorry I can’t download it.

PN1009.

VICE PRESIDENT WATSON: The email of Mr Duncan to Mr Smith and Mr Campbell dated 27 March 2011 with the attached draft memorandum of understanding will be exhibit G1.

EXHIBIT #G1 EMAIL OF MR DUNCAN TO MR SMITH AND MR CAMPBELL WITH ATTACHED DRAFT MEMORANDUM OF UNDERSTANDING, DATED 27/03/2011

PN1010.

MR GARDENER: Yes. Nothing further.

PN1011.

VICE PRESIDENT WATSON: Mr McNally.

PN1012.

MR McNALLY: I have no questions in reply. Thank you very much, Mr Campbell. Might the witness be excused from the telephone?

PN1013.

VICE PRESIDENT WATSON: Yes. Thank you for your evidence, Mr Campbell. We’ll terminate the phone call now?‑‑‑Thank you.

PN1014.

Thank you very much.

<THE WITNESS WITHDREW [10.43 AM]

PN1015.

MR McNALLY: Could I call Jamie Newlyn. He’s from the South Australian branch, if the Commission please.

PN1016.

VICE PRESIDENT WATSON: Mr Newlyn, my associate will administer the oath or affirmation if you remain standing.

<JAMIE NEWLYN, AFFIRMED [10.45 AM]

<EXAMINATION-IN-CHIEF BY MR McNALLY [10.45 AM]

PN1017.

VICE PRESIDENT WATSON: Thank you, Mr Newlyn.

**** JAMIE NEWLYN XN MR McNALLY

PN1018.

MR McNALLY: Have you got your statement with you?‑‑‑I do.

PN1019.

Thank you. Thank you, Mr Newlyn. You’re the South Australian Branch Secretary of the Maritime Union of Australia?‑‑‑Yes.

PN1020.

You’ve held that position since July 2003?‑‑‑That’s correct.

PN1021.

I think your dad was the secretary before that, was he?‑‑‑That’s right.

PN1022.

You’ve made a statement in relation to these proceedings, dated 24 December 2014. Correct?‑‑‑Yes.

PN1023.

Is there any addition you wish to make to that statement?‑‑‑Just at point 6 I would prefer that the words probably said “subcontracted Patricks to perform some of the stevedoring work”.

PN1024.

So the words “some of” go in before the word “stevedoring work” on the second line?‑‑‑That’s correct.

PN1025.

Is that it?‑‑‑That’s all.

PN1026.

Is the statement true and correct?‑‑‑Yes, it is.

PN1027.

I tender the statement, if the Commission pleases.

PN1028.

VICE PRESIDENT WATSON: That statement, as amended, will be exhibit M6.

**** JAMIE NEWLYN XN MR McNALLY

EXHIBIT #M6 STATEMENT OF JAMIE NEWLYN, AS AMENDED, DATED 24/12/2014

PN1029.

MR McNALLY: Could I show you this photostat of a photograph, please. Do you recognise that – what do we call it – machinery?‑‑‑Yes, I do.

PN1030.

What is it precisely?‑‑‑It’s the mobile bulk loading plant in Port Pirie.

PN1031.

Tell us about that?‑‑‑So that particular piece of machinery loads the zinc and lead concentrates from the shed that’s immediately adjacent to the wharf there.

PN1032.

At Port Pirie?‑‑‑At Port Pirie.

PN1033.

Yes. I have no further questions. I tender the photograph, if the Commission pleases.

PN1034.

VICE PRESIDENT WATSON: Exhibit M7.

EXHIBIT #M7 PHOTOCOPY OF PHOTOGRAPH OF MOBILE BULK LOADING PLANT IN PORT PIRIE

PN1035.

VICE PRESIDENT WATSON: Mr Gardener.

PN1036.

MR GARDENER: Thank you, your Honour.

<CROSS-EXAMINATION BY MR GARDENER [10.48 AM]

PN1037.

MR GARDENER: Mr Newlyn, Toll at Port Pirie, you’re obviously familiar with the operation there?‑‑‑Yes.

PN1038.

Toll doesn’t load the lead or zinc concentrate into the ship as such. It doesn’t perform that function?‑‑‑No, they don’t operate that piece of machinery in that photograph.

PN1039.

No. That machinery is operated by Patrick Stevedores?‑‑‑Correct.

PN1040.

Yes, and similarly the unloading is not performed by Toll?‑‑‑Correct. There’s no unloading in that particular operation.

**** JAMIE NEWLYN XXN MR GARDENER

PN1041.

Toll’s function is opening the shed and putting the material onto hoppers that go onto the conveyor, as I understand it?‑‑‑That’s correct.

PN1042.

There has been no further correspondence with Toll about the issue that you say – the award coverage since October last year?‑‑‑Around that time.

PN1043.

Nothing since?‑‑‑Nothing since, no.

PN1044.

So when you say that you’re still in dispute, you mean that the MUA is dissatisfied with the fact that Toll has employees on the enterprise bargaining agreement underpinned by transport worker conditions?‑‑‑In a stevedoring operation, yes.

PN1045.

You know, don’t you, that sometimes down the track there’s nothing to prevent you from bargaining with Toll should you have the right to bargain?‑‑‑Well, it’s a stevedoring operation. They currently have an enterprise agreement until whenever it is, with the TWU, under the load, transport and distribution award as the underpinning instrument. I’m not sure when that expires or when that opportunity will arise.

PN1046.

Until that time the award issue doesn’t arise?‑‑‑Well, the award issue should arise because it’s a stevedoring operation.

PN1047.

But, again, there’s nothing – irrespective of the award position, there’s nothing to prevent you from bargaining should you so choose, should you so have the right, when the time arises?‑‑‑I’m happy to bargain right now with them if they come under the Stevedoring Industry Award.

PN1048.

Nothing further.

PN1049.

VICE PRESIDENT WATSON: Mr McNally.

PN1050.

MR McNALLY: Might this witness be excused?

PN1051.

VICE PRESIDENT WATSON: Yes. Thank you for your evidence, Mr Newlyn. You may step down.

<THE WITNESS WITHDREW [10.51 AM]

PN1052.

MR McNALLY: We call Mr Jeffrey Cassar.

PN1053.

VICE PRESIDENT WATSON: You can come to the witness box, Mr Cassar.

<JEFFREY MICHAEL CASSAR, SWORN [10.52 AM]

<EXAMINATION-IN-CHIEF BY MR McNALLY [10.52 AM]

PN1054.

VICE PRESIDENT WATSON: Thank you, Mr Cassar. Will you please be seated. Mr McNally.

PN1055.

MR McNALLY: Is your full name – you’ve given your full name, Mr Cassar. You are an organiser with the Western Australian branch of the Maritime Union of Australia?‑‑‑Yes, I am.

PN1056.

You have held that position since last year, is it?‑‑‑No. Over two years now.

**** JEFFREY MICHAEL CASSAR XN MR McNALLY

PN1057.

2002, Western Australia, is it?‑‑‑No, not 2002. I’ve had it for two years.

PN1058.

Two years. Sorry?‑‑‑Yes. 2012.

PN1059.

Sorry. Before that you were a delegate for the MUA in Victoria, were you not?‑‑‑Yes, I was, that’s correct.

PN1060.

Thank you very much. You’ve prepared a statement in relation to this matter, dated 24 December 2014?‑‑‑Yes, I have.

PN1061.

Do you have a copy of that statement?‑‑‑Yes, I do.

PN1062.

Is there any addition you want to make to that statement or any alteration?‑‑‑Not at this point.

PN1063.

Are the contents of the statement true?‑‑‑Yes, it is.

PN1064.

I tender the statement, if the Commission pleases.

PN1065.

VICE PRESIDENT WATSON: That statement with attachments will be exhibit M8.

**** JEFFREY MICHAEL CASSAR XN MR McNALLY

EXHIBIT #M8 STATEMENT OF JEFFREY PAUL CASSAR, WITH ATTACHMENTS, DATED 24/12/2014

PN1066.

MR McNALLY: No further questions, if the Commission pleases.

PN1067.

VICE PRESIDENT WATSON: Mr Gardener.

<CROSS-EXAMINATION BY MR GARDENER [10.53 AM]

PN1068.

MR GARDENER: Mr Cassar, at paragraph 3 you refer to a dispute. I take it that in the second part of paragraph 3 you’re referring to B2014/1603?‑‑‑Yes, that would be correct.

PN1069.

In B2014/1603 the MUA is seeking bargaining orders against Toll Mermaid Logistics – let’s call them TML?‑‑‑Sure.

PN1070.

The way that matter has transpired, TML have asserted that the MUA doesn’t have the standing to make the application. It doesn’t have the - - -?‑‑‑Constitutional coverage.

PN1071.

It doesn’t have the coverage under the rules of the union?‑‑‑Correct.

PN1072.

That has been the subject of debate between the parties?‑‑‑Correct.

PN1073.

I note in your statement of facts at attachment A, you assert at paragraph 11 that the work is performed within the scope of the Stevedoring Industry Award 2010 but that’s quite a different thing from coverage, isn’t it?‑‑‑That’s correct, but it’s been part of the discussions about the coverage.

PN1074.

You have raised the question of award coverage in this proceeding because you take the view that that helps your case around rules coverage?‑‑‑It’s come up in conversation during the hearing.

PN1075.

You’ve raised it as part of the hearing?‑‑‑Well, so has the other side.

PN1076.

But it’s not accurate to say that it’s a dispute about award coverage, as such?‑‑‑No, I didn’t say it was a dispute about award coverage. I said it’s a dispute about constitutional coverage. I’m not a lawyer but given the fact that both lawyers from both sides have raised issues related to award coverage I’ve made the assumption that it must help either case.

**** JEFFREY MICHAEL CASSAR XXN MR GARDENER

PN1077.

The outcome of the disputed bargaining orders, as you know, is that you’ll have the right to bargain?‑‑‑Sure.

PN1078.

Whatever the position under the award, you can seek whatever terms you see fit?‑‑‑(No audible response).

PN1079.

Thank you. Nothing further.

PN1080.

MR McNALLY: Might this witness be excused?

PN1081.

VICE PRESIDENT WATSON: Yes. Thank you for your evidence, Mr Cassar?‑‑‑Thank you.

PN1082.

You can step down. Thank you.

<THE WITNESS WITHDREW [10.57 AM]

PN1083.

MR McNALLY: There’s a statement folder. There’s a statement by Thomas Mayor, M-a-y-o-r. Could I tender that statement, if the Commission pleases.

PN1084.

VICE PRESIDENT WATSON: That’s Thomas Mayor dated 24 December?

PN1085.

MR McNALLY: Yes.

PN1086.

VICE PRESIDENT WATSON: Is that the one?

PN1087.

MR McNALLY: Yes. Yes, your Honour.

PN1088.

VICE PRESIDENT WATSON: We’ll admit that statement into evidence with the attachments thereto, and mark it exhibit M9.

EXHIBIT #M9 STATEMENT OF THOMAS MAYOR, WITH ATTACHMENTS, DATED 24/12/2014

PN1089.

MR McNALLY: There’s a statement by Adrian Evans, the Assistant Branch Secretary of the Western Australian Branch. I tender that statement, if the Commission pleases.

PN1090.

VICE PRESIDENT WATSON: That statement will be exhibit M10.

**** JEFFREY MICHAEL CASSAR XXN MR GARDENER

EXHIBIT #M10 STATEMENT OF ADRIAN EVANS

PN1091.

MR McNALLY: There’s a statement by Kyle McGlynn from the Western Australian branch. I tender that statement.

PN1092.

VICE PRESIDENT WATSON: Exhibit M11.

EXHIBIT #M11 STATEMENT OF KYLE McGLYNN

PN1093.

MR McNALLY: Might I have a moment, your Honour? Right. That’s the evidence for the Maritime Union of Australia, if the Commission pleases.

PN1094.

VICE PRESIDENT WATSON: Thank you, Mr McNally. You’re next, Mr Fagir.

PN1095.

MR FAGIR: We have filed four fairly short statements.

PN1096.

VICE PRESIDENT WATSON: Yes.

PN1097.

MR FAGIR: We understand that the MUA at least doesn’t require any of the witnesses for cross-examination. Perhaps I could tender those formally now.

PN1098.

VICE PRESIDENT WATSON: Is the first one the statement of Mr Wyatt?

PN1099.

MR FAGIR: Yes.

PN1100.

VICE PRESIDENT WATSON: I mark the statement of Ray Wyatt dated 2 February 2015 exhibit F1.

EXHIBIT #F1 STATEMENT OF RAY WYATT DATED 02/02/2015

PN1101.

MR FAGIR: Thank you, your Honour.

PN1102.

VICE PRESIDENT WATSON: I mark the statement of Ian Smith dated 3 February 2015, exhibit F2.

EXHIBIT #F2 STATEMENT OF IAN SMITH DATED 03/02/2015

PN1103.

VICE PRESIDENT WATSON: I mark the statement of Tim Dawson dated 2 February 2015, exhibit F3.

EXHIBIT #F3 STATEMENT OF TIM DAWSON DATED 02/02/2015

PN1104.

VICE PRESIDENT WATSON: We’ll mark the statement of Peter Biagini, undated but signed, exhibit F4.

EXHIBIT #F4 STATEMENT OF PETER BIAGINI, UNDATED

PN1105.

MR FAGIR: Thank you, your Honour. That’s the TWU’s evidence.

PN1106.

VICE PRESIDENT WATSON: Thank you, Mr Fagir. Does any other party wish to call evidence in the matter? Mr Jauncey?

PN1107.

MR JAUNCEY: Yes, your Honour. Your Honour, I’m informed that Mr Damian Arnold is available on the phone. We shall be calling three witnesses. I’ve been informed that each is required for cross-examination. Mr Arnold will be available on the phone. Mr Nash and Mr Shueh are actually present here today.

PN1108.

VICE PRESIDENT WATSON: Okay. Who do you wish to commence with?

PN1109.

MR JAUNCEY: I think we shall start with Mr Arnold if we may. I do have his contact details here.

PN1110.

VICE PRESIDENT WATSON: Thank you. That’s helpful.

<DAMIAN BLAKE ARNOLD, AFFIRMED [11.05 AM]

<EXAMINATION-IN-CHIEF BY MR JAUNCEY [11.05 AM]

PN1111.

VICE PRESIDENT WATSON: Thank you, Mr Arnold?‑‑‑No worries.

PN1112.

Mr Jauncey.

PN1113.

MR JAUNCEY: Thank you, Mr Arnold. It’s Stephen Jauncey here. Mr Arnold, you’ve prepared a statement in this matter?‑‑‑Yes.

PN1114.

Do you have a clean, unmarked copy of that statement with you?‑‑‑Yes, I do, yes.

PN1115.

Is that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.

PN1116.

I tender it.

PN1117.

VICE PRESIDENT WATSON: That statement will be exhibit J1.

EXHIBIT #J1 STATEMENT OF DAMIAN BLAKE ARNOLD

PN1118.

MR JAUNCEY: Thank you, Mr Arnold. Nothing further?‑‑‑No worries.

PN1119.

VICE PRESIDENT WATSON: Mr McNally.

PN1120.

MR McNALLY: Thank you, your Honour.

<CROSS-EXAMINATION BY MR McNALLY [11.06 AM]

PN1121.

MR McNALLY: My name is Bill McNally. I’m representing the Maritime Union, Mr Arnold?‑‑‑Hi.

PN1122.

I just have a few questions?‑‑‑Sure.

PN1123.

You’re the Queensland State Manager of Pacific Container Services Proprietary Limited trading as Patrick Port Logistics. Is that correct?‑‑‑Yes, that’s correct.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1124.

We’ll call them PPL. PPL. Is that understood?‑‑‑Yes. Yes.

PN1125.

Moving along to paragraph 16 of your statement, we see that the PPL operates a number of depots and facilities which are in close proximity of one another?‑‑‑Correct.

PN1126.

One of those is Port Drive depot off Port Drive. Where is that?‑‑‑The Port Drive depot facility is across Port Drive. You would say it’s on the borderline – if you were on the border of DP World and Patricks and across the road.

PN1127.

Yes?‑‑‑We’re positioned there and we are positioned – nestled in between Qube Logistics, which is a neighbour.

PN1128.

You load and unload – I’m sorry. Does PPL load and unload cargo at a wharf facility in the vicinity of the Port Drive depot?‑‑‑Do we unload and load cargo at a wharf facility, did you say?

PN1129.

Yes. Yes?‑‑‑No.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1130.

You unload and load cargo anywhere?‑‑‑We unload and load cargo at my three facilities.

PN1131.

What’s that?‑‑‑Port Drive, CargoLink and Moreton Bay Container Park.

PN1132.

CargoLink and where?‑‑‑Moreton Bay Container Park. As assets that are under my management.

PN1133.

Yes. Okay. Well, just explain the operation at CargoLink. Where is that conducted?‑‑‑That is conducted along Curlew Street and Bishop Drive.

PN1134.

What suburb?‑‑‑It’s on the Fisherman Island Port of Brisbane.

PN1135.

Thank you. Just explain how that operates. Are there storage facilities in the vicinity?‑‑‑Inside the site at – do you want CargoLink now or Port Drive?

PN1136.

Port Drive?‑‑‑You want Port Drive?

PN1137.

Yes. Yes, please?‑‑‑So Port Drive, we - - -

PN1138.

Sorry, I confused you there, yes. Port Drive?‑‑‑Okay. So Port Drive, we basically unload and load trucks that are inbound from my transport, and outside carriers.

PN1139.

Inbound from where? I missed that. The trucks were in - - -?‑‑‑The trucks get done at the facility at Port Drive.

PN1140.

Yes, but where do they come from?‑‑‑They enter in off Port Drive.

PN1141.

Where do they come from?‑‑‑And they come from – they come from anywhere. They come from - - -

PN1142.

Okay?‑‑‑They can come from DP World Hutchison. They can come from Patricks. They can come from - - -

PN1143.

Anywhere?‑‑‑ - - - JBS Dinmore. They can come from Toowoomba. They can come from wherever.

PN1144.

Right. They arrive at the Port Drive depot. Is that correct?‑‑‑That’s correct.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1145.

What happens at the Port Drive depot?‑‑‑Well, we decide what we have to do with the container that arrives or cargo that arrives, and designate it to an appropriate area. Sometimes we unpack containers. Sometimes we perform quarantine duties. Sometimes we will hub a container for a short period of time or a long period of time for a customer of Patricks or someone else. Then we would deliver it out.

PN1146.

Did you say hub?‑‑‑Hub.

PN1147.

What does that mean?‑‑‑Hubbing is generally a term used to have cargo held between terminal to customer or - - -

PN1148.

Did you say - - -?‑‑‑ - - - customer to terminal.

PN1149.

- - - hug as in - - -?‑‑‑Hub, h-u-b.

PN1150.

Hub. Right. Okay. I understand. We’re learning every day. Thank you?‑‑‑No worries.

PN1151.

Go on?‑‑‑So the tasks performed at Port Drive can be washing of cargo. As I said tailgates. Tailgates, we – do you understand the tailgate?

PN1152.

Yes, you might explain it?‑‑‑A tailgate is where a container arrives on site and quarantine officers will open the container and they will inspect it, much like a bag inspection is done at an airport.

PN1153.

I see. Okay?‑‑‑Checking for infestations, bugs and all sorts. If there’s a risk material inside they could direct it to fumigation or they could direct it to get unpacked and had further quarantine matters done to it.

PN1154.

What happens to it?‑‑‑We – sorry? What happens to it?

PN1155.

Yes?‑‑‑Well, we would check it and clean it. If necessary, we might need de-bugging. We would do that, and then dispatch it to the customer as loose cargo. We also handle empty containers through Port Drive and at times we will use a backdate that I have between the two facilities to handle the empties through to the Moreton Bay Container Park.

PN1156.

So the two facilities you’re referring to is the Port Drive depot and the Moreton Bay Container Park, is it?‑‑‑Yes, and that’s – I just touched briefly on the Moreton Bay Container Park. Correct.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1157.

What happens at the Moreton Bay Container Park?‑‑‑Moreton Bay Container Park primarily acts as an empty container facility.

PN1158.

Yes?‑‑‑Where we will have containers that have been unpacked or used by a customer in Queensland. We have that container come through our facility where we store it. We may repair, fix, upgrade it for reuse to go back outside. Or alternatively if there’s not a lot of export cargo, because as you know you would expect imports and exports are quite different in Australia, given we’re heavily reliant on imports. A lot of exports will be sent into the wharf, DP World Hutchison or Patricks terminal, to be shipped back to China or wherever they are preferred, as empty containers.

PN1159.

What about cargo – apart from empty containers, cargo - - -?‑‑‑Well, we also – just before we go too far onto CargoLink, we also do handle full reefers into Moreton Bay Container Park and put them on power as well, as need be.

PN1160.

Put them on - - -?‑‑‑Put them on power.

PN1161.

Power, you say?‑‑‑Correct.

PN1162.

What does that mean?‑‑‑Power.

PN1163.

Refrigerated containers, are they?‑‑‑Correct. Yes. Sorry for my terminology.

PN1164.

That’s all right?‑‑‑20 years of being in the game, terminology controls - - -

PN1165.

I hope it doesn’t take me that long?‑‑‑So CargoLink is again used as a transport hubbing facility and also does holding and receiving of empty containers, and it also does quarantine services for machinery, gas inspections and such.

PN1166.

What is the incoming cargo in those two facilities?‑‑‑For – the three facilities or two? When you say two, what do you mean two? CargoLink and - - -

PN1167.

I mean Port Drive and Moreton Bay?‑‑‑Okay. So what was the question? What is the cargo?

PN1168.

What is the cargo that – the incoming cargo?‑‑‑To be honest, it’s so vast but just to name a couple for Moreton Bay Container Park, maybe air coming in.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1169.

What you’re trying to say is it could be anything. Is that the position?‑‑‑Yes, it could be anything.

PN1170.

What about the outgoing cargo? What’s the nature of the outgoing cargo?‑‑‑It could be anything. It could be anything. Generally it’s – the outgoing cargo is – from those facilities – well, from Port Drive, it’s specifically my own cargo. Generally most of it controlled where we do the own transport for.

PN1171.

Okay?‑‑‑But, again, it could be anyone.

PN1172.

So cargo including containers are delivered to the two facilities, and – on truck, by truck?‑‑‑Three facilities, yes.

PN1173.

What’s the third one?‑‑‑The three – CargoLink.

PN1174.

CargoLink. Right. I’m just dealing with the first two first. I’ll come to CargoLink. But they’re all the same so, yes, you can split it out if you like.

PN1175.

Okay. Thank you. The cargo, whatever the cargo is, arrives by truck and is - - -?‑‑‑Yes.

PN1176.

- - - unloaded at one of the three facilities?‑‑‑Correct.

PN1177.

I better get the correct terminology?‑‑‑Hubbed it or stored, short – long term. The cargo that comes into the facilities could be freight bulk as well. It’s limited to just containers.

PN1178.

Yes. Just a minute, would you, please?‑‑‑It could be palletised freight as well. Loose container loads as well.

PN1179.

Yes?‑‑‑It’s a transport facility that caters for all needs in a diversified revenues.

PN1180.

Right. How does the cargo, whatever it is, get from the depots to the ship?‑‑‑Generally by truck into a facility, with the exception of CargoLink and then we use an exchange pad. Much like the empties that I transfer from Port Drive into Moreton Bay where we transfer between gates.

PN1181.

Right. Well, we’ll deal with the first two. Port Drive and Moreton Bay. Outgoing cargo gets – that is cargo going to the ship, gets transported to ship from one or other of the facilities by truck. Is that right?‑‑‑Yes, it gets transported by truck, yes, or – and it will either go to a – onto a vessel or it will go to a customer, or it will go to even a train for sending up, you know, in the regional areas.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1182.

Yes, but I’m sorry I’m talking about cargo that’s going to the ship. Right?‑‑‑Okay. Yes, that’s correct, it would go by truck.

PN1183.

Yes, by truck. Who employs the truck drivers? Presumably they have drivers, do they?‑‑‑It could be anyone. We employ our drivers of course. We also have some subcontractors who work for me under contracts. I also have outside carriers, be it Qube Logistics, Chalmers, ACFS, Container Sling Lift. It’s a mixed bag of transport companies. Will come into my facility and deliver out.

PN1184.

So that’s your – who employs – you employ those people, do you?‑‑‑No, I don’t.

PN1185.

I mean, the company. When I say you I mean PPL of course?‑‑‑No, PPL doesn’t. Not those particular organisations that I just mentioned.

PN1186.

So all types of cargo is hauled and trucked from the storage sheds to the ship loading facility?‑‑‑Shed then yards, that’s correct.

PN1187.

Incoming cargo is hauled and trucked from the ship loading area to the shed?‑‑‑Yes. When a ship is involved, that is correct.

PN1188.

What do you mean by when a ship is involved? Is a ship not always involved?‑‑‑Correct.

PN1189.

What’s correct? I’m sorry, you said when a ship is involved?‑‑‑You said a ship.

PN1190.

Yes?‑‑‑And I’m saying, yes, when a ship is involved. Ships aren’t always involved in all cargo that I touch, or vessels or boats, whichever you like to call them.

PN1191.

Well, can I say this. I’m talking about cargo, all types of cargo, that is loaded on ships. Right. Transferred from Port Drive depot or Moreton Bay Container Park. Do you understand?‑‑‑Yes, I’m with you.

PN1192.

Sorry?‑‑‑I’m with you, yes.

PN1193.

Thank you very much. I think we got to the stage where the cargo is transported from the Port Drive depot or the Moreton Bay Container Park by truck to the loading area where it is loaded onto ships. Is that right?‑‑‑Loaded into the terminals that have the contracts with the vessel owners.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1194.

What terminals are you referring to there?‑‑‑It could be AAT. It could be DP World. It could be Hutchisons. It could be Patricks, to name the ones that I know, to the best of my knowledge.

PN1195.

Does PPL employees load ships?‑‑‑No.

PN1196.

Do they unload ships?‑‑‑Not that I’m aware of, no.

PN1197.

Do they unload ships?‑‑‑No.

PN1198.

Where is the Port Drive depot located in relation to the terminals?‑‑‑76 Port Drive, to be precise.

PN1199.

Yes. How near is that to the loading facility?‑‑‑For the Patricks’ facility, the entrance gate for the unloading and loading facility at Patricks’ terminal, we are directly opposite that, across the road.

PN1200.

So it’s in the near vicinity?‑‑‑Yes, that is correct, for that particular terminal.

PN1201.

Right?‑‑‑Where my particular side is, that is correct.

PN1202.

VICE PRESIDENT WATSON: Can we see that at annexure DA8 to your statement?‑‑‑Sorry?

PN1203.

Can we see that at annexure DA8 to your statement?‑‑‑You’re saying 8? Sorry, I couldn’t really hear you too properly. This phone is not the best.

PN1204.

DA8?‑‑‑PA8? So paragraph 8 are you talking about?

PN1205.

No. Annexure DA8. Do you have the annexures to your statement?‑‑‑Hang on.

PN1206.

MR McNALLY: What page is that on?

PN1207.

VICE PRESIDENT WATSON: 39.

PN1208.

MR McNALLY: Page 39 of your statement?‑‑‑I haven’t got that printed out, I’m sorry.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1209.

Well, there are photographs attached to your statement. Have you seen those photographs?‑‑‑Yes, I have, yes. I don’t understand that there would be a change because they’re photographs – unless I’m – unless what I’ve – my description is wrong.

PN1210.

What do you mean by that?‑‑‑For that I apologise.

PN1211.

What do you mean by that?‑‑‑Well, if there’s a change to the description of the sites, then obviously I’m describing it wrong because the Port Drive facility is across the road from the Patricks facility.

PN1212.

In the near vicinity. Is that correct?‑‑‑It’s across the road.

PN1213.

Okay. What about the Moreton Bay Container Park?‑‑‑Mm.

PN1214.

How close is that to the terminal – the Patricks terminal?‑‑‑I guess – I would guess probably 800 metres down Bishop Drive.

PN1215.

So in the vicinity of the loading area. Is that correct?‑‑‑Yes.

PN1216.

Now tell me this. The people who work at the Port Drive depot, are they employed under the Stevedoring Award or another award, do you know?‑‑‑Another award. The Transport Workers Award.

PN1217.

What’s your understanding of the reason that the – I’m sorry. Do you have an understanding of the reason why the Stevedoring Industry Award doesn’t apply there or isn’t applied by PPL?‑‑‑No, I’m sorry, I’m not aware.

PN1218.

So you don’t know why they’re under the TWU award, as distinct from - - -?‑‑‑Only because it’s historic and it has been done that way and the task that they do is more relevant.

PN1219.

Right. So they’re involved in the – the people at the depots, the two depots – I’m sorry, the depot and the container park are involved in preparing cargo for shipment on ships but they’re employed under the Transport Workers Award. Is that what you say?‑‑‑What I’m saying is they’re employed under the Transport Workers Award for the loading and unloading of cargo at each facility, to vessels or anywhere else as required.

PN1220.

The cargo you’re referring to is cargo that either comes in by truck or comes in – or goes out by truck, or comes in from ships or goes out by ships. Is that the

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

position?‑‑‑No, that is not my position. The position is that all cargo in my facilities at Port Drive and Moreton Bay Container Park come and go to my facility by truck.

PN1221.

Yes, but they go in and from your facilities by truck to the loading facilities, or by truck elsewhere. Is that the position?‑‑‑They come in and go out by truck to the loading facilities or unloading facilities around Queensland. Correct.

PN1222.

Okay. Got you?‑‑‑We don’t just deliver cargo onto vessels.

PN1223.

No, because cargo comes in - - -?‑‑‑Or terminal operators.

PN1224.

Well, is it - - -?‑‑‑It could go to rail terminals. It could go to customers. It could go anywhere.

PN1225.

So is there cargo or – sorry. Freight comes into those two - - -?‑‑‑Facilities.

PN1226.

- - - the Port Drive depot and the Moreton Bay Container Park. Freight comes in and goes out, and goes nowhere near a ship. Is that what you say?‑‑‑No, that’s not what I’m saying. I’m saying freight goes anywhere and everywhere. Is that difficult? I’m sorry, my language is wrong?

PN1227.

No, no, no, I think we’re at cross-purposes. Cargo comes off a ship to those depots. Right?‑‑‑It can, yes. It’s not all accepted that way but it can.

PN1228.

Okay, and cargo goes into those depots from elsewhere?‑‑‑Correct.

PN1229.

When the cargo goes into those depots from elsewhere does it necessarily go onto a ship?‑‑‑It might have had a ship involved at some part of its journey.

PN1230.

I don’t understand that?‑‑‑Well, we could have loose container loads that come into – do you understand the terminology LCL, loose cargo?

PN1231.

Yes?‑‑‑Okay. So we might have that cargo come in from another depot where they had the involvement with the vessel, being the terminals. So I didn’t actually have any direct contact with them but the other carrier did for that particular cargo.

PN1232.

Who is the other carrier?‑‑‑It could be ACFS. It could be Qube Logistics. It could be Chalmers.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1233.

Whereabouts are the ships that that cargo comes from?‑‑‑Generally it’s along the line at Fisherman Island. One of those facilities.

PN1234.

In the vicinity of the depot or the container park. Is that right?‑‑‑Sorry, can you repeat that?

PN1235.

In the vicinity of the Port Drive or the - - -?‑‑‑In the vicinity?

PN1236.

Yes?‑‑‑Yes.

PN1237.

I’ll just see if I have a clear picture of it. I think I’ve managed to confuse myself. But the incoming cargo from ships comes from a number of loading facilities. Is that right?‑‑‑It can do, yes.

PN1238.

Well, when you say it can do, where else might it come from?‑‑‑Well, it depends on how you want to micro-analyse the supply chain.

PN1239.

Okay. Just - - -?‑‑‑If you come back to my example I used of the LCLs, and freight could come through there.

PN1240.

Yes?‑‑‑Where it was another carrier who pulled it off a vessel that was out of a – well, not off a vessel but out a terminal, that had the connection to the vessel. I sometimes at times – it’s not often but I sometimes have air freight coming through to my facility.

PN1241.

How does it get there?‑‑‑By truck.

PN1242.

Where does it go to?‑‑‑Customers.

PN1243.

It goes nowhere near a ship?‑‑‑No, unless we’re going to be – no, it doesn’t.

PN1244.

How much of the freight that goes in the depots do we find in that position? That is, that it comes - - -?‑‑‑Not a great deal. Not a great deal, and that’s what I said. It does happen but it’s definitely not a large proportionate amount of the total cargo that I move. It probably wouldn’t even register 1 per cent, to be honest.

PN1245.

Okay. Thanks very much for that?‑‑‑But it does happen.

PN1246.

Yes. Okay. But the large bulk of the cargo in the depot and in the container park goes into those - - -?‑‑‑Will come and go between terminals that have quay line operations connected to them.

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

PN1247.

Where’s loaded or unloaded from ships. Is that right?‑‑‑Yes.

PN1248.

Tell me about the truck marshalling yard that you refer to in paragraph 16. Where is that located? It’s off Bishop Drive. Where is that in relation to the loading facilities?‑‑‑Sorry, I don’t have the annexures but were they not clear on the location?

PN1249.

Well, they had explanations, they’re not very clear, if you could - - -?‑‑‑Okay. I don’t know the exact address for the – are you referring to the Patricks terminal TMA, transport marshalling area?

PN1250.

You refer in paragraph 16 of your affidavit – of your statement - - -?‑‑‑Is that 16.D?

PN1251.

D. Yes. That’s the one?‑‑‑Yes. Well, the entrance gate to that particular facility is directly adjacent from my Moreton Bay Container Park.

PN1252.

Is that near the loading facilities?‑‑‑At my facility or the terminal?

PN1253.

At the terminals?‑‑‑No, it’s not.

PN1254.

How far away is it?‑‑‑Probably the same distance as I mentioned in earlier, from Moreton Bay, because the entrance gates are the same.

PN1255.

About 800 metres?‑‑‑Again, that’s an approximation, not having measured it myself.

PN1256.

No. Are you able to assist in an estimation?‑‑‑Look, I – you would have to drive – to get – if I was a truck and pulled into the transport marshalling area that I had to unload or load freight at the Patricks terminal, I would have to approximately drive 100, 200 metres down Curlew Street. I would have to turn right into Bishop Drive and travel maybe 40 metres or 30 metres, and then I would have to turn left down Port Drive and travel to the roundabout. Now, that distance I don’t know but maybe it’s 500 metres. Do a right-hand turn around the roundabout and into the terminal. Does that help with the - - -

PN1257.

It does. Thank you for that. Now, what happens at the truck marshalling yard? What activities are done there?‑‑‑At the truck marshalling yard I think it’s just a marshalling area for vehicles for loading. As I – to the best of my knowledge, you drive into there. You will swipe or request access to CargoLink. You’re given a number similar to the deli system you see at Coles or Safeway. That number is

**** DAMIAN BLAKE ARNOLD XXN MR McNALLY

displayed up on a board and then you proceed around. Sometimes there are errors with paperwork and they will be required to go into an office but I’ve never really done that myself.

PN1258.

Right. Thank you very much for your evidence. I have no further questions, if the Commission pleases.

PN1259.

VICE PRESIDENT WATSON: Mr Jauncey.

PN1260.

MR JAUNCEY: Nothing arising, your Honour.

PN1261.

VICE PRESIDENT WATSON: Thank you for your evidence, Mr Arnold. We’ll terminate the phone call now?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.35 AM]

PN1262.

VICE PRESIDENT WATSON: So your other witnesses are present here today, Mr Jauncey?

PN1263.

MR JAUNCEY: They are, your Honour. I’m just checking to make sure but I think they’re both available outside, and assuming that’s the case, I was next going to call Mr Shueh.

PN1264.

VICE PRESIDENT WATSON: Mr Shueh, if you can come to the witness box, please.

<KAI-YUAN SHUEH, AFFIRMED [11.37 AM]

<EXAMINATION-IN-CHIEF BY MR JAUNCEY [11.37 AM]

PN1265.

MR JAUNCEY: Mr Shueh, you’ve signed a statement in this matter?‑‑‑Yes.

PN1266.

Do you have a clean, unmarked copy of that statement with you?‑‑‑Yes, I do.

PN1267.

Is that statement true and correct, to the best of your knowledge and belief?‑‑‑Yes.

PN1268.

I tender it, your Honour.

**** KAI-YUAN SHUEH XN MR JAUNCEY

PN1269.

VICE PRESIDENT WATSON: Exhibit J2.

EXHIBIT #J2 STATEMENT OF MR KAI-YUAN SHUEH

PN1270.

MR JAUNCEY: Nothing further from me, your Honour.

PN1271.

VICE PRESIDENT WATSON: Mr McNally.

PN1272.

MR McNALLY: Thank you, your Honour.

<CROSS-EXAMINATION BY MR McNALLY [11.38 AM]

PN1273.

MR McNALLY: I’m representing the Maritime Union, Mr Shueh. The cargo that goes into the storage and handling facilities at the three depots or container parks or facilities that you refer to in paragraph 8 of your affidavit, comes from ships or goes to ships. Is that right?‑‑‑Predominantly, yes.

PN1274.

When you say predominantly, what’s the exception to that?‑‑‑From time to time we may have cargo that are non-port related that might get stored at our facilities.

PN1275.

It comes in not from ships?‑‑‑Not from ships.

PN1276.

And goes out not to ships?‑‑‑Correct.

PN1277.

Is there much of that?‑‑‑A small proportion.

PN1278.

One per cent or something like that?‑‑‑Less than 10 per cent.

**** KAI-YUAN SHUEH XXN MR McNALLY

PN1279.

Less than 10 per cent. Thank you. Now, I want to talk about the cargo that goes into those depots from ships or that goes to ships. Do you understand me?‑‑‑Sure.

PN1280.

Who does the loading or the unloading of the ships in relation to those cargo? Which company?‑‑‑The parties who would do that would be either Patricks or DP World or Hutchisons in Port Botany.

PN1281.

Sorry?‑‑‑In Port Botany.

PN1282.

In Port Botany, yes, we’re dealing with Port Botany. So what happens at the depots? Cargo comes in by truck presumably, does it?‑‑‑Yes. Correct.

PN1283.

What happens at the depots?‑‑‑The containers get unloaded into the yard. Where required, we do deconsolidate the containers into the warehouse or we may redeliver the containers on the back of trucks to customers or other - - -

PN1284.

I’m talking about cargo that comes – sorry, I misled you. I’m talking about cargo that comes into the depots by truck, from somewhere else?‑‑‑Sure.

PN1285.

When it gets to the depots, what happens?‑‑‑We would unload the truck and place the cargo into the warehouse, and we will await the exporter’s instruction to then consolidate them into containers how and when required.

PN1286.

What do you mean consolidate the containers?‑‑‑Pack them into containers.

PN1287.

Yes. You transport outgoing cargo by truck to the loading facility. Is that correct?‑‑‑To the loading – can you explain loading facility?

PN1288.

Well, to the ship. Where the ships are loaded?‑‑‑Sure.

PN1289.

What do you call it?‑‑‑Yes. The terminal. We call it the terminal.

PN1290.

Terminal. Sorry. Okay. Terminal. Wharf?‑‑‑Wharf. Terminal.

PN1291.

How is it transported from the depots or the container park or the facility to the – can I call it a wharf – to the wharf?‑‑‑Yes, so it’s done by truck.

**** KAI-YUAN SHUEH XXN MR McNALLY

PN1292.

Truck?‑‑‑Yes.

PN1293.

What’s the distance? Is it very far?‑‑‑It’s approximately – the furthest it has to go is probably around three kilometres.

PN1294.

So it’s all in the one facility? The depots and the loading facilities are in the same vicinity of one from the other?‑‑‑It’s in the same suburb.

PN1295.

Yes?‑‑‑It’s not the same facility. I wouldn’t call it the same facility. I go out onto open road.

PN1296.

Yes. Yes?‑‑‑Then it - - -

PN1297.

Right. Okay, and cargo that comes in from ships to the depots, container park or facilities, does that come by truck?‑‑‑Yes, it does.

**** KAI-YUAN SHUEH XXN MR McNALLY

PN1298.

What happens to the incoming cargo?‑‑‑So the incoming cargo from the terminals would be lifted off the truck.

PN1299.

Yes?‑‑‑Stored in the yard. Where necessary, it will be unpacked into the warehouses to be redelivered as palletised loose cargo to the client, or the containers might be delivered straight to the client’s premises from the depot.

PN1300.

Okay. So that cargo comes from ships to the depots where it gets processed for delivery to customers?‑‑‑Correct.

PN1301.

Or cargo comes – sorry, are you right? Cargo comes from elsewhere into the depots where it’s processed and got ready to be loaded onto ships, and then transported to the wharf, as I call it, and loaded onto ships. Is that correct?‑‑‑Yes.

PN1302.

So it’s all part of the process of shipping out or shipping in cargo from ships?‑‑‑What I would call the import and export supply chain, yes.

PN1303.

Yes. I have no further questions, if your Honour pleases.

PN1304.

MR JAUNCEY: Nothing arising, your Honour.

PN1305.

VICE PRESIDENT WATSON: Thank you for your evidence, Mr Shueh. You can step down and you’re excused from further attendance.

<THE WITNESS WITHDREW [11.44 AM]

PN1306.

VICE PRESIDENT WATSON: Mr Nash next?

PN1307.

MR JAUNCEY: Yes, your Honour. Someone is just getting him now.

PN1308.

VICE PRESIDENT WATSON: While we’re waiting for that we might have a short adjournment.

SHORT ADJOURNMENT [11.45 AM]

RESUMED [11.54 AM]

PN1309.

VICE PRESIDENT WATSON: Mr Jauncey.

PN1310.

MR JAUNCEY: Your Honour, I call Mr David John Nash.

PN1311.

VICE PRESIDENT WATSON: Mr Nash.

<DAVID JOHN NASH, SWORN [11.54 AM]

<EXAMINATION-IN-CHIEF BY MR JAUNCEY [11.54 AM]

PN1312.

VICE PRESIDENT WATSON: Thank you, Mr Nash. Please be seated. Mr Jauncey.

PN1313.

MR JAUNCEY: Thank you. Mr Nash, you’ve prepared a statement in this matter?‑‑‑Yes.

PN1314.

Do you have a clean, unmarked copy of that statement with you?‑‑‑Yes, I do.

PN1315.

That statement is, I think, unsigned because you were on holidays at the time it was finalised?‑‑‑Correct.

PN1316.

Nevertheless, you’ve reviewed the statement and it’s true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN1317.

I tender it, your Honour.

PN1318.

VICE PRESIDENT WATSON: That statement will be exhibit J3.

EXHIBIT #J3 STATEMENT OF DAVID JOHN NASH, UNSIGNED BUT ADOPTED ON 05/02/2015

PN1319.

MR JAUNCEY: Nothing further from me, your Honour.

**** DAVID JOHN NASH XN MR JAUNCEY

PN1320.

VICE PRESIDENT WATSON: Mr McNally.

<CROSS-EXAMINATION BY MR McNALLY [11.55 AM]

PN1321.

MR McNALLY: My name is McNally, as his Honour just said, and I represent the Maritime Union. I’ll see if we can hasten this up a bit. You’ve got photographs of the various facilities of PPL in Victoria which you refer to in paragraph 18 of your statement. Is that correct?‑‑‑Yes.

PN1322.

Now we’re concerned with the location of those facilities by reference to the area where the ships are loaded. Do you understand that?‑‑‑Yes.

PN1323.

I think you’ve directed your mind to that - - -?‑‑‑Yes.

PN1324.

- - - in relation to the paragraphs. Firstly, do the facilities referred to in paragraph 18 adjoin the terminals where the ships are loaded?‑‑‑Yes, there is a fence separating both facilities.

PN1325.

So they’re adjoining, apart from a fence?‑‑‑Yes, there’s a fence. We don’t cross the fence.

PN1326.

Sorry?‑‑‑We don’t cross the fence because of the maritime security.

PN1327.

Yes, but they’re adjoining – otherwise, apart from the fence, they’re adjoining the ship loading facilities?‑‑‑Correct.

PN1328.

That’s the Appleton depot, the Q pad area, the Coode Road empty park?‑‑‑No. Coode Empty Park has a road between itself and the terminal. There’s a road that runs between the terminal down there on the northern side of the facility. There’s a separated public road.

PN1329.

How far is the facility away?‑‑‑It would be 20 metres, 30 metres across the road.

PN1330.

So it’s not adjoining but it’s pretty close to?‑‑‑Yes, but there is a public road.

PN1331.

Does PPL employ all the employees working in those depots and parks?‑‑‑Not all. We have different contractors in there.

PN1332.

Apart from contractors?‑‑‑Yes, we have other contractors in there but apart from that, we control the facilities, yes.

PN1333.

Who employs the employees that load the ships?‑‑‑Patrick terminals employ them which is a separate business from ours.

**** DAVID JOHN NASH XXN MR McNALLY

PN1334.

A separate business but part of the Patricks or Ascianos group of companies?‑‑‑Ultimately, yes.

PN1335.

I have no further questions, if your Honour pleases.

PN1336.

MR JAUNCEY: Nothing arising.

PN1337.

VICE PRESIDENT WATSON: Thank you for your evidence, Mr Nash?‑‑‑Thank you.

PN1338.

You can step down.

<THE WITNESS WITHDREW [11.58 AM]

PN1339.

VICE PRESIDENT WATSON: That’s your evidence, Mr Jauncey?

PN1340.

MR JAUNCEY: Yes, your Honour.

PN1341.

MR McNALLY: Your Honour, there’s a witness - - -

PN1342.

VICE PRESIDENT WATSON: There was one witness only available by phone at 2 pm. Is that right?

PN1343.

MR McNALLY: That statement has been tendered, your Honour.

PN1344.

VICE PRESIDENT WATSON: Okay.

PN1345.

MR McNALLY: There’s a witness, Tony Brevi from Toll, who is at some – he’s at a funeral. We don’t wish to cross-examine him, your Honour.

PN1346.

VICE PRESIDENT WATSON: Yes.

PN1347.

MR JAUNCEY: Your Honour, I’m sorry. If I could just briefly interrupt. Our submissions and a number of the witness statements refer to various different enterprise agreements and other documents. I understand that bundles of those documents were provided to the Commission and to other interested persons and organisations yesterday. I’m not sure whether they strictly need to be tendered but I’m in the hands of the Commission as to whether they should be tendered or at least marked.

**** DAVID JOHN NASH XXN MR McNALLY

PN1348.

VICE PRESIDENT WATSON: I think we will mark them, Mr Jauncey. We will mark the two volumes as one bundle and we will mark them exhibit J4.

EXHIBIT #J4 ONE BUNDLE OF DOCUMENTS COMPRISING TWO VOLUMES OF VARIOUS ENTERPRISE AGREEMENTS AND OTHER DOCUMENTS

PN1349.

MR JAUNCEY: Thank you, your Honour.

PN1350.

VICE PRESIDENT WATSON: Mr Gardener, you’ve got some more evidence?

PN1351.

MR GARDENER: Yes. We’re calling Mr Duncan by phone, I understand.

PN1352.

VICE PRESIDENT WATSON: So Mr Duncan is required for cross-examination? All three witnesses are required?

PN1353.

MR GARDENER: Well, my friend said that Mr Brevi wasn’t required. Mr Brevi’s situation is that he’s at a funeral today. He is available tomorrow morning. It may be that there’s no need to cross-examine him upon me taking some instructions about a photo that was tendered this morning. I’m prepared to do that through the course of today, but as I said he is at a funeral, so whether we can get to him or not, I do not know.

PN1354.

MR McNALLY: What I’ve asked my friend to admit is that the shed that the witness refers to in his statement is the shed identified in the photograph that I tendered this morning.

PN1355.

VICE PRESIDENT WATSON: Yes, which is M7.

PN1356.

MR McNALLY: Exhibit M7.

PN1357.

VICE PRESIDENT WATSON: Well, let’s hope that’s not controversial.

PN1358.

MR McNALLY: Yes. It looks pretty adjoining.

PN1359.

MR GARDENER: Mr Duncan.

PN1360.

VICE PRESIDENT WATSON: Mr Duncan. [No answer by telephone.] Can we go to the next witness? [Telephone tried again.]

<ROSS DUNCAN, AFFIRMED [12.06 PM]

<EXAMINATION-IN-CHIEF BY MR GARDENER [12.06 PM]

PN1361.

VICE PRESIDENT WATSON: Mr Gardener.

PN1362.

MR GARDENER: Mr Duncan, it’s Chris Gardener here for Toll?‑‑‑Yes, Chris.

PN1363.

Just state again your full name and address for the record?‑‑‑Yes. Ross Duncan. 13 Monbulk Road, Belgrave, 3160.

**** ROSS DUNCAN XN MR GARDENER

PN1364.

Thank you. You’ve made a statement in this matter of five pages and 20 paragraphs?‑‑‑Correct.

PN1365.

To the best of your knowledge and belief, that’s a true and correct statement?‑‑‑To the best of my knowledge and belief, that’s correct.

PN1366.

Yes. I tender that.

PN1367.

VICE PRESIDENT WATSON: Exhibit G2.

EXHIBIT #G2 STATEMENT OF ROSS DUNCAN

PN1368.

MR GARDENER: Mr Duncan, Mr McNally for the MUA will now ask you some questions?‑‑‑Okay.

PN1369.

VICE PRESIDENT WATSON: Mr McNally.

PN1370.

MR McNALLY: Thank you, sir.

<CROSS-EXAMINATION BY MR McNALLY [12.08 AM]

PN1371.

MR McNALLY: As I understand your statement, cargo arrives by train at the McGraw wharf?‑‑‑McGaw wharf, yes.

PN1372.

What happens to it then?‑‑‑Yes, if I can explain the train. The train operation – there’s two trains that occur.

**** ROSS DUNCAN XXN MR McNALLY

PN1373.

Two a day?‑‑‑Correct. One is in the morning at 0500, and it’s worked between 0500 and 0700 by Burnie Stevedores. The rostering allocates a rail gang to that, “rail gain” in inverted commas, okay, which are Burnie Stevedores. They stevedore on the terminal proper. Stevedoring is the use of the forklift, okay, to offload containers, either put them on the ground for consolidation later in the day marry up with other cargo to be transferred – loaded onto the ship. The reverse occurs in respect to cargo, that is containers, right, loaded onto that train and returned, okay, into other distribution areas, Launceston and Hobart as a land bridge. The second train occurs in the evening, which is from 1700 to 1900, around about. Again, okay, the same process.

PN1374.

Right?‑‑‑The exclusions to that, just to add to that. I’ll just give you the full gamut, if you like, in respect to the operation procedure.

PN1375.

Yes?‑‑‑The contingency to that is that if trains can’t fit in those windows, okay, the trains are handled in what we refer to as the TasRail intermodal facility. Okay. And they are offloaded by non-MUA labour. They are transferred then onto road trailers and those road trailers are transferred, are shuttled if you like, to the terminal proper. It’s approximately one kilometre of distance.

PN1376.

That’s the exception rather than the rule, isn’t it?‑‑‑Correct. Yes.

PN1377.

Now tell me this. Where the trains are normally loaded or unloaded - - -?‑‑‑Yes.

PN1378.

- - - where is that facility in relation to the terminal? Is it - - -?‑‑‑Yes, that facility is within the terminal proper, and to give you a proximity on the layout, it’s on the northern boundary of the terminal, nor-east, if you like, and it’s adjacent to the sea wall. Okay. It’s closest to the sea wall. What it constitutes is three rakes on the terminal proper. So the train itself is split into three rakes. So we can service it either side.

PN1379.

They’re stevedoring employees, are they, that load and unload?‑‑‑That’s correct.

PN1380.

Yes?‑‑‑That’s correct. They’re stevedoring employees as part of our Burnie workforce collective agreement.

PN1381.

That outgoing cargo is handled by stevedoring employees and loaded on ships?‑‑‑Sorry, just say that again? That cargo - - -

PN1382.

That cargo that comes off the train is loaded on the ships by stevedoring employees?‑‑‑Correct. Yes.

**** ROSS DUNCAN XXN MR McNALLY

PN1383.

Incoming cargo is unloaded by stevedoring employees?‑‑‑Correct.

PN1384.

That facility where the train is, adjoins the terminal facilities. Is that right?‑‑‑Yes. Correct. It’s within the terminal proper boundaries. Yes.

PN1385.

Yes. I have no further questions, if the Commission pleases.

PN1386.

THE WITNESS: Yes, that terminal – sorry. That terminal is a dedicated terminal to Toll shipping.

PN1387.

MR McNALLY: Thank you.

PN1388.

VICE PRESIDENT WATSON: Mr Gardener.

<RE-EXAMINATION BY MR GARDENER [12.12 PM]

PN1389.

MR GARDENER: I’ll just clarify, Mr Duncan, you were asked about the TasRail facility and the unloading there by non-stevedores. Since approximately when do you understand that situation has occurred?‑‑‑That situation has occurred since 1996, which was the advent of the rail spur. It was actually constructed onto the terminal proper in 1996, and that was commensurate with a contract that was won by at the time Brambles, and that was to accommodate trains onto a terminal proper, and the contract was with Australian Newsprint Mills in Boyer in Hobart.

**** ROSS DUNCAN RXN MR GARDENER

PN1390.

Yes. Thank you, your Honour. Nothing further.

PN1391.

VICE PRESIDENT WATSON: Thank you for your evidence, Mr Duncan. We will now terminate the phone call?‑‑‑Okay. I can hang up now?

PN1392.

Yes, you can hang up now?‑‑‑Okay. Thank you.

<THE WITNESS WITHDREW [12.14 PM]

PN1393.

MR GARDENER: Mr Nieuwkerk, again by phone.

<PAUL NIEUWKERK, AFFIRMED [12.20 PM]

<EXAMINATION-IN-CHIEF BY MR GARDENER [12.20 PM]

PN1394.

VICE PRESIDENT WATSON: Thank you, Mr Nieuwkerk. Mr Gardener.

PN1395.

MR GARDENER: Mr Nieuwkerk, my name is Chris Gardener and I appear for Toll. You’ve made a statement in this matter of some 17 paragraphs over three pages?‑‑‑Correct.

**** PAUL NIEUWKERK XN MR GARDENER

PN1396.

The statement also has three annexures?‑‑‑Yes.

PN1397.

To the best of your knowledge and belief, do you say that the statement is true and correct?‑‑‑Yes.

PN1398.

Thank you, your Honour. I tender that.

PN1399.

VICE PRESIDENT WATSON: That statement will be exhibit G3.

EXHIBIT #G3 STATEMENT OF PAUL NIEUWKERK

PN1400.

VICE PRESIDENT WATSON: Mr McNally.

<CROSS-EXAMINATION BY MR McNALLY [12.22 PM]

PN1401.

MR McNALLY: Thank you, sir. My name is Bill McNally. I’m representing the Maritime Union. How do you pronounce your name, sir?‑‑‑Nieuwkerk.

PN1402.

Nieuwkerk. Thank you very much. Goods, you say in paragraph 15 of your statement, are received at the TMLB supply base. That when they arrive they’re checked, stored and repacked into containers. Is that correct?‑‑‑That’s part of the task, yes.

PN1403.

Once the goods are prepared, as you’ve described, they’re loaded onto trucks which are usually owner operated trucks, are they?‑‑‑Generally, yes.

PN1404.

Are there exceptions to that?‑‑‑Seldom. It’s not a hard and fast rule. It’s just multiple different operators.

**** PAUL NIEUWKERK XN MR GARDENER

PN1405.

Then they’re transported to the airport to be transported by air or transported to the wharf, if it’s outgoing cargo. Is that right?‑‑‑Go by road, transport to the airport or by – or transport to the wharf, seeing as where the customer wants us to send the goods to.

PN1406.

Who loads the cargo onto ships at the wharf?‑‑‑Depending which port it is but in this situation it’s the Broome Port Authority – the Kimberly Port Authority.

PN1407.

Are they stevedoring employees?‑‑‑I’m not sure. I don’t – we don’t deal with them.

PN1408.

Does the Broome Port Authority handle the cargo that comes off the ships?‑‑‑Yes, I believe so.

PN1409.

The TMLB supply base is in the vicinity of the loading facility, the ship loading facility?‑‑‑We’ve got multiple bases in Broome. It just happens that some are closer to the wharf than others, yes.

PN1410.

Are they all in the vicinity of the TMLB base?‑‑‑So we have multiple bases on Broome.

PN1411.

MR GARDENER: Perhaps the question could be rephrased to ask what vicinities (indistinct) and turn. The question could be clarified.

PN1412.

MR McNALLY: I think that’s fair enough, your Honour. Just describe where the terminals are in relation to the TMLB supply base?‑‑‑Our bases?

PN1413.

Yes?‑‑‑In relation to what?

PN1414.

To where the ships are loaded or unloaded?‑‑‑So we have bases that are within four kilometres or, you know, all of our bases are within maybe three kilometres of the wharf.

PN1415.

How many bases have you got?‑‑‑Four.

PN1416.

Four different bases. What are they referred to as? I don’t see them in your statement?‑‑‑They’re just logistics facility or supply bases, we’d call them.

PN1417.

Why have you got four?‑‑‑Just due to the growth and the area and the time of that growth over the past years.

**** PAUL NIEUWKERK XXN MR McNALLY

PN1418.

What’s the closest base?‑‑‑The closest base would be – to the wharf, would be about within 500 metres.

PN1419.

Ranging up to what?‑‑‑As I said before, up to three to four kilometres away.

PN1420.

VICE PRESIDENT WATSON: So is the closest base supply base 1?‑‑‑No. No. Supply base 2 would be the closest.

PN1421.

I see. The casing yard is the furthest away?‑‑‑Correct.

PN1422.

MR McNALLY: Yes. I have no further questions. Thank you, your Honour.

PN1423.

VICE PRESIDENT WATSON: Mr Gardener.

PN1424.

MR GARDENER: No re-examination, your Honour.

PN1425.

VICE PRESIDENT WATSON: Thank you very much for your evidence, Mr Nieuwkerk. You can hang up now?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.26 PM]

PN1426.

VICE PRESIDENT WATSON: That’s your evidence, Mr Gardener?

PN1427.

MR GARDENER: It is, subject to the issue of Mr Brevi.

PN1428.

VICE PRESIDENT WATSON: Yes.

PN1429.

MR GARDENER: But that shouldn’t get in the way of further progress of the matter, I wouldn’t have thought.

PN1430.

VICE PRESIDENT WATSON: Well, are we going to have an answer on that by 2 o’clock, are we?

PN1431.

MR GARDENER: Well, three or four people at Toll have been asked the question. I certainly hope so. So all reasonable endeavours have been made.

PN1432.

VICE PRESIDENT WATSON: Yes. Is there any other evidence that anyone

**** PAUL NIEUWKERK XXN MR McNALLY

wishes to call that hasn’t been called as yet? Mr McNally, you indicated a position regarding submissions. I think it was that there might be some oral submissions but also supplementary written submissions.

PN1433.

MR McNALLY: Yes. See, I - - -

PN1434.

VICE PRESIDENT WATSON: Perhaps we can ask the positions of the other parties as to what they propose is the best way forward. We’re conscious that a fair bit of detailed material was provided in recent times. The parties might be assisted in adjusting their submissions by reference to that material but exactly what are you proposing?

PN1435.

MR McNALLY: I’m in this position. We have a case to run. I could address that orally.

PN1436.

VICE PRESIDENT WATSON: Yes.

PN1437.

MR McNALLY: And to some extent in written submissions when I have the transcript. We have a case to answer. I’ll put that another way. The employers have called a case. Whether we’ve got a case to answer or not is another matter.

PN1438.

VICE PRESIDENT WATSON: I’ll take it as a neutral comment.

PN1439.

MR McNALLY: So those would be addresses in reply which I had in mind, just putting in the written submissions next week.

PN1440.

VICE PRESIDENT WATSON: Yes. What do the other parties propose, Mr Shariff?

PN1441.

MR SHARIFF: Yes. Your Honour, as I understand it, we now have time this afternoon. I’d be more than happy to address on the employer claims, to the extent that it’s an efficient use of time, this afternoon, but I’ll need to gather my thoughts. In terms of effective utilisation of tomorrow, primarily in reply to Mr McNally’s case, one difficulty I have is that Mr McNally has indicated at least to me that what he only intends to do in oral address is take your Honours to the developments during the award modernisation process. And the balance of what he would wish to say, as I understand it – he will speak for himself – he wishes to put in written submissions.

PN1442.

That places me at least in a bit of a difficulty because I’d like to know fully how he puts his claim for each of the variations sought. We’ve heard some evidence over the course of the last day and a half about the coverage issue but there are of course other claims that have been propounded by the MUA, which we’ve heard very little about. So I labour under a difficulty because I want Mr McNally to nail his colours to the mast before I have to reply to his case.

PN1443.

VICE PRESIDENT WATSON: That might be after the written submissions he has foreshadowed.

PN1444.

MR SHARIFF: Yes, and I’m also very conscious that each of your Honours come from interstate. There are other parties here interstate and whilst I’m happy to use the time as effectively as I can this afternoon to at least outline the employer’s case for its variations, and to the extent I wish to supplement that I’d seek your Honour leaves to do so, but if we’re only just coming back tomorrow to have Mr McNally take us through the award modernisation developments - - -

PN1445.

MR McNALLY: I can do that this afternoon.

PN1446.

MR SHARIFF: Which, yes, I would be grateful for that. And, in any event, what I was going to say about that is I think that’s been addressed in the written submissions that have already been filed by the parties. In my brief discussions with the other parties, as I understand it, the two union intervenors or interested parties, don’t intend to say too much by way of oral supplement. I think Mr Jauncey and Mr Gardener wish to say something further to what has been said in writing but I’ll let them address on when they can – but I’m more than happy to utilise the time this afternoon.

PN1447.

VICE PRESIDENT WATSON: Yes. For your case.

PN1448.

MR SHARIFF: Yes.

PN1449.

VICE PRESIDENT WATSON: For your client’s applications. Are you more than happy to put any response to Mr McNally’s client’s applications in writing?

PN1450.

MR SHARIFF: I’d be happy to do that but I think the power of oral submission sometimes is lost. There are some, we would say, very powerful things we want to say in opposition to Mr McNally’s variations, and I can see whether this afternoon, in the swing of things, whether I can say some of those in summary. One thing I can certainly say in summary is that there’s no proper basis, as a matter of industrial principle, to determine coverage by reference to a geographical line. Now, there are some short points which I can make which I would wish to make, but then I would need to what further Mr McNally says.

PN1451.

VICE PRESIDENT WATSON: Well, either this afternoon or Mr McNally is going to say something orally. Perhaps after that.

PN1452.

MR SHARIFF: Yes. After that.

PN1453.

VICE PRESIDENT WATSON: With an ability to respond more fully in writing.

PN1454.

MR SHARIFF: Yes.

PN1455.

VICE PRESIDENT WATSON: So that everybody has a chance to make some oral submissions as well as written submissions.

PN1456.

MR SHARIFF: Yes.

PN1457.

VICE PRESIDENT WATSON: The alternative is we reconvene at some stage but I would be hoping that we could avoid that if that’s at all possible.

PN1458.

MR SHARIFF: Yes, which also raises the question as to whether tomorrow – I don’t know what – I think some of the other parties may want to utilise the time tomorrow.

PN1459.

VICE PRESIDENT WATSON: Yes.

PN1460.

MR SHARIFF: I’m conscious of that.

PN1461.

VICE PRESIDENT WATSON: Mr Jauncey, what’s your view?

PN1462.

MR JAUNCEY: Well, your Honour, we don’t have a case to run. We are just seeking to answer the case which is put by the MUA in terms of the variations which it proposes. The concern that I have is similar to that of Mr Shariff’s, and it’s this. If what is going to be put in support of the MUA’s case is partly outlined orally and partly included in written submissions, we will not know how put their full case this afternoon. I, for one, would certainly like to know the full case before we are required to respond to it, and not effectively have the case, or a substantial proportion of the case, ultimately put in reply as it were.

PN1463.

The difficulty is that we too see some advantage in oral submissions but the difficulty we have is the ability to make a submission until we know the case against us. I’m conscious that that leaves people in a difficult position in terms of travel but it’s the situation that we’re in, in terms of being able to reply. I don’t know, for instance, if Mr McNally - - -

PN1464.

VICE PRESIDENT WATSON: It might be your turn to travel.

PN1465.

MR JAUNCEY: Well, I’m not the one who has to travel of course, so it’s the burden on others that obviously arises. I’m not sure if Mr McNally is – given this afternoon, whether he might be in a better position to more fully state his case tomorrow, which would then alleviate some of the concerns.

PN1466.

MR SHARIFF: I must say that’s another alternative, which is to give Mr McNally time from now until tomorrow. One thing I’d suggested to him was if we reconvened at, say, noon tomorrow. Everyone having opportunity to consolidate their thoughts, reflecting on what’s fallen over the last few days, and then we all have an hour or 30 minute blocks to supplement. That’s another alternative if that gives Mr McNally – and subject to the convenience of the Commissioner, I understand difficulties with Kingsford Smith on a Friday afternoon but if that gives Mr McNally more time to address.

PN1467.

VICE PRESIDENT WATSON: Well, we might have assumed that today was going to be used with evidence, and we’re pretty well finished.

PN1468.

MR McNALLY: Could I say something?

PN1469.

VICE PRESIDENT WATSON: Yes, Mr McNally.

PN1470.

MR McNALLY: Your Honour I think referred to – we had a bit of a disadvantage in that we received information the day before the hearing started. Some of it I still haven’t read, so I need time to do all that. That’s why I’m suggesting what I’m suggesting. I think we could probably – I will finish this afternoon and then we don’t need tomorrow perhaps. I don’t know.

PN1471.

VICE PRESIDENT WATSON: Well, can you put the predominance of your case tomorrow if we were to adjourn now?

PN1472.

MR McNALLY: No, because I need to read the information I haven’t read and to read the transcript.

PN1473.

VICE PRESIDENT WATSON: This afternoon is not sufficient?

PN1474.

MR McNALLY: I haven’t got the transcript.

PN1475.

VICE PRESIDENT WATSON: Well, there’s not a lot on the transcript.

PN1476.

MR McNALLY: I’m sorry?

PN1477.

VICE PRESIDENT WATSON: There’s not a lot on the transcript that you’ll need to refer to.

PN1478.

MR SHARIFF: There were three questions put to some witnesses.

PN1479.

MR McNALLY: Well, I hope to read the transcript and probably show your Honour the contrary.

PN1480.

VICE PRESIDENT WATSON: Okay. Okay. So you’re saying that you can put some material of a - - -

PN1481.

MR McNALLY: Today.

PN1482.

VICE PRESIDENT WATSON: At some stage today or tomorrow.

PN1483.

MR McNALLY: Whatever assists.

PN1484.

VICE PRESIDENT WATSON: But then you’d still require another time to complete your submissions by reference to - - -

PN1485.

MR McNALLY: Written submissions.

PN1486.

VICE PRESIDENT WATSON: - - - the recent statements and the transcript.

PN1487.

MR McNALLY: If we need to speak to the written submissions we all put in, we can all go to Melbourne and do it down there one afternoon or one morning. It wouldn’t take long.

PN1488.

VICE PRESIDENT WATSON: Yes.

PN1489.

MR CRAWFORD: Your Honour - - -

PN1490.

VICE PRESIDENT WATSON: Mr Crawford, have you got a good idea?

PN1491.

MR CRAWFORD: No, probably not. It just relates to our evidence.

PN1492.

VICE PRESIDENT WATSON: Yes.

PN1493.

MR CRAWFORD: There are two financial reports. One from DP World and one from Qube, which I would like to tender. They’re publicly accessible documents.

PN1494.

VICE PRESIDENT WATSON: Yes. Yes.

PN1495.

MR SHARIFF: Your Honour, could I just ask Mr Crawford to identify the relevance of those documents.

PN1496.

MR CRAWFORD: The modern awards objective does refer to employer costs as one of the factors that the Commission must take into account in exercising its powers. My submission would essentially be along the lines that these reports reveal that both these employers are doing quite well obviously despite whatever is currently in the stevedoring award, so I would say it is relevant.

PN1497.

VICE PRESIDENT WATSON: It’s relevant to the employers’ applications?

PN1498.

MR CRAWFORD: Correct.

PN1499.

VICE PRESIDENT WATSON: Yes.

PN1500.

MR CRAWFORD: Which we are of course mainly just supporting the MUA.

PN1501.

VICE PRESIDENT WATSON: Yes, and have they been filed?

PN1502.

MR CRAWFORD: They haven’t, your Honour. Today is the first time I’ve basically seen it.

PN1503.

VICE PRESIDENT WATSON: Are you going to hand them up now?

PN1504.

MR CRAWFORD: I do only have one copy at the moment. As I indicated, it is publicly accessible. I’m happy to provide the internet details if other parties need it but it is relatively easy to find.

PN1505.

VICE PRESIDENT WATSON: Well, perhaps we’ll mark them and then you can provide the bench with copies, and any of the parties who need copies. You said DP World and?

PN1506.

MR CRAWFORD: Qube.

PN1507.

VICE PRESIDENT WATSON: Qube. We’ll mark the DP World annual report, is it? What year?

PN1508.

MR CRAWFORD: 2013. It’s headed, “Annual Report and Accounts 2013”.

PN1509.

VICE PRESIDENT WATSON: That will be exhibit C2.

EXHIBIT #C2 DP WORLD ANNUAL REPORT AND ACCOUNTS 2013

PN1510.

MR CRAWFORD: The other document is “Qube 2014 Annual Report and Notice of AGM”.

PN1511.

VICE PRESIDENT WATSON: That will be exhibit C3.

EXHIBIT #C3 QUBE ANNUAL REPORT AND NOTICE OF AGM 2014

PN1512.

MR CRAWFORD: Thank you.

PN1513.

VICE PRESIDENT WATSON: Well, perhaps we’ll adjourn until 2.00 pm today, and we will proceed with whatever we can proceed with at that time. We are now adjourned.

LUNCHEON ADJOURNMENT [12.40 PM]

RESUMED [2.06 PM]

PN1514.

VICE PRESIDENT WATSON: We have given some consideration to the timetabling of this matter, the matters that were discussed before the luncheon adjournment, and it is our intention to productively use the time that has been set down for the hearing of this matter. Once the matter of the evidence I think from your client, Mr Gardener, is resolved we propose to hear from Mr Shariff in relation to his submissions.

PN1515.

We then propose to hear the address from the MUA and the full details of the case and the matters that the MUA intends to rely upon. We would allow that to occur tomorrow morning, Mr McNally rather than this afternoon if that assists. We would also propose to allow an opportunity for a brief supplementary submission in writing at a subsequent date, but we think that the addresses on the matters should be made this week and also that will enable the other parties to make submissions, oral submissions in response before we adjourn tomorrow afternoon.

PN1516.

MR McNALLY: Thank you, your Honour.

PN1517.

VICE PRESIDENT WATSON: So where do we – yes, Mr Ferguson.

PN1518.

MR FERGUSON: We have one additional concern in that because the nature of the application has changed during these proceedings we are still to some extent coming to terms with the potential impact on the breadth of our membership flowing from that. Now, that’s something we are actively considering and we’re engaging with members over, but it might mean that we are not in a position to deal with our response in relation to the MUA’s case, and that’s the main issue that we are focused on in these proceedings. What we would ideally seek is an opportunity to make some further submissions, likely brief, in writing after tomorrow’s proceedings. We are content to do it on the papers. We don’t think we would need to supplement those in any oral submissions and we wouldn’t need more than a week to do that.

PN1519.

VICE PRESIDENT WATSON: Well, we propose to allow all parties to provide a written response to any supplementary written submissions from the MUA, so I suppose that provides you with that opportunity.

PN1520.

MR FERGUSON: That could be accommodated in that. It may go beyond just the supplementary submissions.

PN1521.

VICE PRESIDENT WATSON: Yes. Yes, thank you, Mr Ferguson.

PN1522.

MR FERGUSON: Thank you.

PN1523.

VICE PRESIDENT WATSON: Mr Gardener?

PN1524.

MR GARDENER: Your Honour, thank you for the opportunity to take instructions. In the witness statement of Mr Brevi he refers to a shed in paragraph 10 and then further on in his statement. I understand the position of the MUA is that if told he had to concede that M7 includes a photo – includes as part of the photo the shed, then there is no need to cross-examine Mr Brevi, and my instructions are that this photo does include the shed. Accordingly we ask that the statement of Mr Brevi be tendered.

PN1525.

VICE PRESIDENT WATSON: Yes, we will mark that statement, 17 numbered paragraphs. I have got what appears to be the same document, a signed version and an unsigned version.

PN1526.

MR GARDENER: Yes, there was originally filed an unsigned version.

EXHIBIT #G4 STATEMENT OF MR BREVI

PN1527.

MR GARDENER: Thank you, your Honour.

PN1528.

VICE PRESIDENT WATSON: Mr Shariff?

PN1529.

MR SHARIFF: Yes, thank you, your Honours. Your Honours, I might just provide to you now a bundle of cases which I will go to during the course of my address. There’s three separate bundles there, each consisting of ten cases.

PN1530.

VICE PRESIDENT WATSON: There may be some bitterness for someone’s client in getting all of this material back to Melbourne.

PN1531.

MR SHARIFF: Your Honours, I intend to address on the three variations which my client seek, and my understanding is that other than the MUA and the AMWU, Mr Crawford’s client – AWU, I am sorry – no other party opposes the variations sought by my client.

PN1532.

The starting position in assessing the variations proposed by my client is section 134 of the Act where – do your Honours have a copy of the outline of submissions, primary submissions that my client has filed, and perhaps it might be a convenient time to mark those dated 24 December 2014.

EXHIBIT #S9 OUTLINE OF SUBMISSIONS DATED 24/12/14

PN1533.

At paragraph 9 of those submissions we set out the relevant text of section 134 and note that what the Commission must ensure is that this modern award provides a – and I stress the words “fair and relevant” minimum safety net. Now, there are three limbs that are involved within the statutory text; the first that it is fair, the second that it’s relevant, and the third that it’s a minimum safety net. The modern awards objectives have to be assessed, we say, as against the award as it exists in its terms. It is not to be assessed by reference to whatever enterprise agreements the various parties have entered into within the businesses involved. The test is award focused. The question is whether it provides a fair relevant minimum safety net.

PN1534.

The task of assessing the award cannot be such that one elevates award standards to standards that employers and the union in the industry have come to agree to as part of their enterprise bargains. The question we say has to be an objective one. We say the facts that a particular entitlement contained within the award is the product of a historical deal or reflects a particular compromise made at a point in time does not make it fair, nor does it make it relevant, nor does it mean that in contemporary times it remains a minimum safety net.

PN1535.

All that reflects is a compact made within a different context, and it may be that those particular entitlements, the ones that we challenge, simply reflect a product of industrial history, which was uncontested, a product of constitutional history that no longer prevails. It may reflect outdated and irrelevant social mores where still aspects of it may in contemporary times be regarded as value-based discrimination, and in that regard I point to the differential that applies to Sunday penalties within the award as opposed to the Saturday rates, and I will come to that, but they’re just mere reflections that the task of the Commission cannot just be, as our opponents contend, that because it has been that it necessarily follows that it remains fair and relevant.

PN1536.

One of the remarkable things about the evidence that has been led in these proceedings is aside from the evidence of Mr Smith and Mr Munday, and we have questioned the weight of that evidence having regard to the objections we have made, there is not a single employee who has given evidence in the MUA case, or for that matter the AWU case, to come forward and give evidence to the effect that the variations sought by my client would in any way place them at a disadvantage. Not a single item of contradictory evidence has been presented. Not a single employee in these proceedings in answer to my client’s claims says that they will be worse off.

PN1537.

What we had sought to do in our primary case by reference both to the evidence and the submissions, and by reference to the tables that are attached to the submissions, is to invoke industrial principles of relativities and comparative justice to point out that the particular award in question here is out of step with virtually every other award bar some minor exceptions. We say it hasn’t really been an answer to those propositions by either reference to the evidence or by reference to any kind of guiding industrial principle.

PN1538.

VICE PRESIDENT WATSON: How far does that principle extend? I mean the contents of modern awards vary in many different ways. Was that so that they should all be made essentially uniform?

PN1539.

MR SHARIFF: No, but where there are, for the purpose of the argument that we are dealing with squarely, hours of work and penalties and loadings for shifts and weekend work, for taking hours of work, where there are said to be relevant differences between industries there are inherent value propositions that underlie them, and what we are seeking to do is to say extrapolate what those inherent valuate and propositions are, and test and expose to your Honours that whatever might have been the case in 1972 or in 1960 – doesn’t attack today. If one looks at contemporary industries today that the relevant differentials, at least in this award compared to other industry-based awards, don’t have any rational justification, and that’s the point.

PN1540.

I accept that it wouldn’t necessarily follow from what I am saying that you would need uniformity in every single condition; there would be differences, but the task is to identify what as a matter of principle is the relevant difference and to test whether that is actually a sound difference. As I say there are many reasons why over history people identify the difference, and we in contemporary times have to expose those and see whether they still stand up.

PN1541.

VICE PRESIDENT WATSON: In that connection are you going to address the recent Full Bench decision regarding the Public Service. I don’t know whether it’s the same context, but - - -

PN1542.

MR SHARIFF: I wasn’t going to address that because there’s a different statutory basis upon which the Public Service Enterprise, I think, Award was being examined by that recent Full Bench. It was under a different statutory framework to that which we are dealing with here, which is the four yearly review.

PN1543.

VICE PRESIDENT: Nevertheless there was a merit case argued and history, as I understand it, played a role in determination by the Full Bench.

PN1544.

MR SHARIFF: And my recollection, your Honour, is the conclusion that was reached by the Full Bench is that there may well be a reason to change public sector hours, but not at this time, and that kind of raises the types of observations that were made by the various Full Benches during the two yearly review, but the purpose of this process is to address more immediate issues of anomalies and technicalities and leave for a four yearly review broader questions of merit. In other words the Full Bench in the Public Service case wasn’t foreclosing the idea that it’s time for public sector hours to increase. My understanding, and it’s perhaps a matter about which I can provide a supplementary note, my understanding is that the Full Bench concluded that not at this time or not under the guise of this process that they had before them, but perhaps that’s something I can provide your Honour with a more fulsome answer on as part of the supplementary notes that are to be issued.

PN1545.

VICE PRESIDENT WATSON: Yes.

PN1546.

MR SHARIFF: Whatever might be the case, and I was now coming to address hours of work, whatever might have been the position in relation to public sector hours when one looks at why we have a 35 hour week in the stevedoring industry the starting point for that and the end point for that is the 1972 consent position which I provided your Honours with as part of the opening, and if I can invite your Honours to return to that and go to page 587, which I took your Honours to yesterday, halfway on the page. The justification given by the Commission at that time was simply that the parties had reached an amicable agreement and there was no warrant as a matter of restraint in those times to interfere with a conciliated outcome or an agreed outcome reached between the parties. So one doesn’t actually see what the logic and the rationale was for the Commission at that time agreeing, giving its imprimatur to a 35 hour week.

PN1547.

So whatever might be the position in the public sector or in other industries in this industry no justification is given by the Commission at that point in time other than it’s not appropriate to step in the way of an amicable settlement that has been reached. Now, we know that since 1972 in 1981 there was a metal trades case that established, at least for the purpose of that industry, a 38 hour week. We know that, and I refer to this at paragraph 30 of our submissions, that since 1983 all national wage cases since that time, since 1983, have operated on the basis of 38 hour week. We know from paragraph 32 of the submissions that in a report of the ILO it was indicated that of the 185 members of the ILO all but 12 prescribed 40 or more normal hours per week, and that’s in the kind of context of international standards, but we know that since 1972 the idea of full employment by reference to 38 hours per week isn’t isolated to the Australian jurisdiction alone, but it’s an international standard.

PN1548.

We also know that since March 2006 in this jurisdiction there has been a legislated standard of 38 hours plus reasonable additional hours ingrained in the primary industrial legislation, and that continues to be the case now. When your Honours are assessing whether it is a fair and relevant minimum standard for the award to continue to prescribe a 35 hour week your Honours might well ask yourselves if you were an employee in this industry what would an employee want. Would an employee want a 38 hour guarantee or something less, and here there are employers telling you, my clients are telling you, and no other employer is opposing it, that the employers want the award to prescribe a 38 hour week. There is not a single employee who has given evidence to say that they do not want it. The only parties saying that they don’t wish to have a 38 hour week are the MUA and the AWU.

PN1549.

VICE PRESIDENT WATSON: Aren’t they speaking on behalf of their members?

PN1550.

MR SHARIFF: There is no evidence of that.

PN1551.

COMMISSIONER ROE: There is an assumption - - -

PN1552.

MR SHARIFF: No. But if employees are going to – sorry, if the MUA wants to come along and say that that is no longer a position, well one would expect allowing for the fact that they are representative a survey or some kind of evidence of a probative nature to be brought forward to support the position that they advance. They haven’t done that. Whatever might be the case there the question is would employees prefer a 35 hour week or a 38 hour week, and the answer to that must be it must flow.

PN1553.

VICE PRESIDENT WATSON: I don’t follow that and I don’t follow the last sentence of paragraph 33 of your submissions. Doesn’t the effect of increasing the hours from 35 to 38 under the award for an employee, a hypothetical employee, who works under the terms of the award mean that they will be required to work three extra hours a week without receiving any extra pay?

PN1554.

MR SHARIFF: No. They will work an extra three hours and receive the extra three hours pay.

PN1555.

MR SHARIFF:

PN1556.

VICE PRESIDENT WATSON: It’s the same weekly rate, isn’t it?

PN1557.

MR SHARIFF: To the extent that it has flow on effects to an enterprise agreement if you are going to increase the hours - - -

PN1558.

VICE PRESIDENT WATSON: Does this stick to my hypothetical example of someone under the award? There might not be any in that category, but we are talking about the safety net and not under the agreement. Why isn’t my proposition correct, the weekly wage rate is not changing. That currently applies for 35 hours a week and if your client’s application is successful the employees will have to work another three hours and not receive any pay under the award.

PN1559.

MR SHARIFF: I would have to accept that. If there was no increase to the weekly wage rate in the award what your Honour puts to me I accept that, but what we are saying is that the flow on effects, this being the minimum standard and how it impacts upon enterprise bargaining, would obviously lead to an increased outcome for employees, that’s what’s negotiated.

PN1560.

DEPUTY PRESIDENT KOVACIC: In an award context, Mr Shariff, is the proposition that you are putting that for working the extra hours the award rate would naturally be to increase to reflect those additional three hours?

PN1561.

MR SHARIFF: If you’re looking at purely the hypothetical employee covered by the award I think I would have to accept that. For it to have that consequence I have to accept that. I can't gainsay that, that’s just a pure matter of logic.

PN1562.

VICE PRESIDENT WATSON: The award rate of pay calculated on an hourly basis would reduce.

PN1563.

MR SHARIFF: If there was no change to - - -

PN1564.

VICE PRESIDENT WATSON: Yes.

PN1565.

MR SHARIFF: Yes, I would have to accept that.

PN1566.

VICE PRESIDENT WATSON: Given that situation when you build in the notion of bargaining would there be any positive benefit to employees from that situation if the safety net changes in that way?

PN1567.

MR SHARIFF: Well, one can test that by what’s actually happening in bargaining, and we have heard some evidence that notwithstanding that 35 hours is currently the prescribed minimum standard in individual enterprises where there have been redundancies, et cetera, the parties have agreed to a lesser ordinary standard hours without an impact upon, as I understand the evidence that was given yesterday, without an impact on their pay in terms of the aggregate hours to be worked. There has been a reduction in the ordinary hours of work and that has been something that’s been negotiated between the parties at enterprises.

PN1568.

I accept that criticism. The point that we are making here is that there is an award that prescribes a 35 hour week and those hours of work are out of step with other awards and we don’t see what the proper justification for that is. There is no relevant difference between this award or the work, the relative type of work performed under this award and under other awards, but I accept what your Honours have put to me.

PN1569.

My instructions are, at least for the clients that I represent, that they would propose that if your Honours were to accept an increase in the standard hours of work by three hours that there ought to be a commensurate increase in the weekly rate.

PN1570.

COMMISSIONER ROE: But doesn’t that then create some issues about comparative rates between awards? The classifications in the awards have relationships between each other. You can look at many awards and you can trace the history of the rates and the relationships between them. If the rate in this award was to be increased that could potentially have some significant effects in terms of comparison with others and what would be the basis be for increasing the rate?

PN1571.

MR SHARIFF: Well, in fact – I’m sorry - - -

PN1572.

VICE PRESIDENT WATSON: I was just going to say the notion that the Commissioner talks about is the notion of properly fixed minimum rates - - -

PN1573.

MR SHARIFF: Yes.

PN1574.

VICE PRESIDENT WATSON: - - - and if there’s some increase not related to work value then those rates would no longer be properly fixed minimum rates which puts it out of kilter.

PN1575.

MR SHARIFF: But the justification here is in respect of almost the vast majority of awards they are already a 38 hour week. So the effect of this change is in fact to achieve what, Commissioner, you are talking about, because it’s to bring this award into step with those awards.

PN1576.

COMMISSIONER ROE: But I don’t think that’s the case. I think if you look at the actual rates, but apart from a more general point which is the ability to adjust minimum rates is based on other principles. They have to be properly fixed and we have to have regard to how it relates to other rates.

PN1577.

MR SHARIFF: Yes, and I am endeavouring to answer that point by saying that the comparison isn’t at the moment apples and apples, because the comparison at the moment is between the 35 hour week in this award and a 38 hour week in other awards, and so - - -

PN1578.

COMMISSIONER ROE: It has never been apples and apples and there has always been a disregard for the number of ordinary hours per week in the relevant award and a focus on the weekly rate to determine the appropriate work value comparison and the key classification and all of those things that we link through from the late 1980s, but has been reinforced through the award modernisation process and other processes ever since. So you have got a number of modern awards that have 35 hours, but the rates of pay didn’t align by virtue of the minimum rates adjusting process. The trades rate in this award and the trades rate in the oil award and the trades rate in the manufacturing award have a relationship between – there’s a relationship between them.

PN1579.

MR SHARIFF: I accept there might need to be an examination of that, but it doesn’t answer - our central thesis in support of our variation is that there still needs to be a justification as to why this industry has a 35 hour week.

PN1580.

VICE PRESIDENT WATSON: We understand you are making submissions about that question, but that’s a different question from your submission that there wouldn’t be any negative consequences for employees and the statement that an increase in the hours would be of benefit to them in the sense that they’re guaranteed additional paid hours of work.

PN1581.

MR SHARIFF: I think I have tried to answer that by saying in part the justification for the submission we made was by reference to flow on effects to enterprise agreements. I accept the criticism that has been made as against that and we have sought to ameliorate that through what I have proposed. Now, I accept what is being put to me, but that might have an impact on differentials as across other industries. We say that is a way to ameliorating the concern that your Honours have raised, but we still say that there is no justification in this award for this award to continue to have a 35 hour week. What I was going to further say about that matter is that what one can glean from the case that the MUA has put is basically that this industry is different because of the irregular shift work arrangements, which I will come to in a moment, but if one questions why is the stevedoring award different to other industries such that a 35 hour week is necessary for the purpose of this award to remain as a minimum safety net the justification can't be a 24/7 hour operation because other industries have that.

PN1582.

The justification can't be rapid technological change, which is another factor that’s propounded, but it can't be that because every other industry has that. It can't be international standards because I have taken your Honours to what they are, and in terms of the irregular shifts, which seems to be the real focal point of the debate, as Mr Huemmer’s evidence indicated every other industry has some form of irregularity involved in it. He gave some evidence – it’s accepted that the nature of the irregularity might manifest itself in a different way, but if your Honours examine the relevant contractors or the labour hire workers or the casual workers that Mr Huemmer talked about as being the mode of irregular operation in other industries they too are in that position. A casual worker is a classic example where they don’t know whether they’re going to work the next day. They might not even know on that day whether they are required to come into work, and yet in most awards the compensation provided to a casual worker is just the casual loading. There is no additional compensation provided due to the irregular nature of the work.

PN1583.

VICE PRESIDENT WATSON: Mr Shariff, I would be interested in what you say in relation to that type of comparison that you have just indicated by reference for example to the oil refining industry where there is not the notion of irregular shifts for normal full-time employees. There’s a history of a 35 hour week which continued in the modern award. There has been rapid change and closures of operations in Australia, et cetera, and companies exiting the area. Why is it appropriate for an industry such as stevedoring but not appropriate in an industry like that?

PN1584.

MR SHARIFF: Well it seems to me the logic, at least in this industry, the way it has been advanced in the evidence, is a preservation of jobs, the way as I understand it. Every industry might have its differences, but in this industry your Honours heard some evidence about the way that the industrial parties have entered into enterprise bargains, as by reference at least for full-time employees, an aggregate number of hours. The 35 hour week or its agreed reduction in enterprise agreements has essentially been about preserving a greater number of jobs. Indeed if one looks at what the position put by the parties was in 1972 to the Commission the concern was with redundancies and idle time, such that reducing the hours which had up until then been 40 hours to 35 would impact on a greater number of jobs.

PN1585.

As I said in opening whatever happened in 1972 of course was well before the advent of enterprise negotiations, and these types of arrangements have been agreed to by the parties individually at each enterprise to preserve jobs, and it’s to be commended, where they have been able to agree, and that shows the flexibility as one of the modern awards objectives indicates has been provided by enterprise bargaining. There may well be – your Honour may well be across the oil and refinery industry better than I am – there may well be individual differences in the oil and refinery industry, but in this industry apart from the irregularity of shifts the only other justification that seems to have been put forward is the preservation of jobs, and what we say about that is that that’s a matter that’s being addressed by enterprise bargains between the parties.

PN1586.

VICE PRESIDENT WATSON: I mainly mention it because it’s one of the awards in terms of modern awards that also has a 35 hour week.

PN1587.

MR SHARIFF: Yes, I think it’s one of the four or five – I think it might be five awards that has a 35 hour week.

PN1588.

COMMISSIONER ROE: But the risk of – I don’t want to distract you from where you are going, but just not take off – if you go to page 142 of Mr Huemmer’s report - - -

PN1589.

MR SHARIFF: Yes.

PN1590.

COMMISSIONER ROE: - - - you will see the work that he has done looking at the question of preferred average hours of work per week.

PN1591.

MR SHARIFF: Sorry, did you say at page 142, Commissioner?

PN1592.

COMMISSIONER ROE: It’s page 142, S1, of his witness statement, it’s page 28 of his report.

PN1593.

MR SHARIFF: I see. Yes.

PN1594.

COMMISSIONER ROE: Mr Huemmer uses this table to explain of course the actual hours that are worked, given that there is enterprise bargaining and there is overtime. The actual hours that are worked is not 35 in the industry, and of course it isn’t in other industries, the hours vary, but the preferred hours are significantly less, according to his work, in stevedoring than in other industries where shift work is very common; energy, refining, manufacturing, mining. What do you make of that?

PN1595.

MR SHARIFF: Well, we say that tends to support the proposition I put earlier, which is that what would an employee want to have as a prescribed minimum standard in this award, and the only kind of survey evidence before your Honours to that effect is 38 hours.

PN1596.

COMMISSIONER ROE: Yes, but this isn’t the minimum. This isn’t about preferred minimum. The minimum hours in mining isn’t 46.

PN1597.

MR SHARIFF: No. I accept that, but - - -

PN1598.

COMMISSIONER: It’s about what people are prepared to work knowing that of course often in these sorts of industries they are often required to work more than the minimum hours. That’s the common situation.

PN1599.

MR SHARIFF: I am trying to answer that by saying at least you have got evidence here that there’s employees who wish to work 38 hours. That’s what I would say about that. There’s evidence in support of that proposition.

PN1600.

COMMISSIONER ROE: Thank you.

PN1601.

MR SHARIFF: Kind of collapsing a few of the arguments that I wish to make, but this notion of irregularity being something unique to stevedoring also needs to be tested by reference to the sample roster that Mr Huemmer outlined, which he says was one of the most prevalent ones in the industry, and that’s at page 156 of 182, and, your Honours, we spent some time on that yesterday, and I am now I think really moving also into the topic about the shift penalty rates and weekend rates.

PN1602.

If one looks at the roster that’s set out there an employee who works to this roster knows, as Mr Huemmer – and we’re talking about rosters made pursuant essentially to enterprise agreements, because I will come back to the award. The award is essentially roster neutral. It doesn’t prescribe a form of roster at all, but if an employee was working to the type of roster that Mr Huemmer has outlined in this example, according to Mr Huemmer’s evidence the employee knows of this roster, subject to what panel they are on, well in advance. So the employee knows that in week one they are allocated to a day shift on a Monday, day shift on a Tuesday and a day shift on a Thursday. The only thing, according to the roster, the employee does not know is whether in fact they are going to come into work on that day. But they know that that is definitely a day if there is work there they have to work.

PN1603.

That in fact provides the employee with some degree of flexibility. It’s where the employee is allocated to an irregular shift, and if your Honours look at that say for example in taking this employee or this panel on week two, a Tuesday, that’s where the employee may not know whether the next day he or she is working a day shift, an afternoon shift or an evening shift. But the evidence is that they, according to the clause of the award - if I can take your Honour’s to that, that’s clause 18, and clause 18.14 – the award prescribes for there to be agreement between employer and employee, or the majority of employees in the union, as to rostering arrangements, including relevantly in relation to notification and cancellation of arrangements. So not only is the award roster neutral the award requires there to be a consensus between the relevant industrial parties as to the content of the roster.

PN1604.

So if the parties end up agreeing to the type of roster pursuant to the award, we’re talking about the hypothetical employee covered by the award, to the type of roster that Mr Huemmer sets out at page 156 it is open to the employer and employee to agree to relevant notification times they need. There is no real bite with that, we say, if the employee knows that they are definitely allocated to a day shift well in advance and that’s the time at which they’re going to work. To the extent that they are allocated to an irregular shift they, we say, are in really no different position to a casual employee or a contractor, labour hire employee, in any other industry.

PN1605.

So a casual employee say for example in the transport industry who is told the night before or the day of that they have to long haul over the course of a weekend is really in no different position, yet the differentials between penalties is much higher under this award than it is under the Transport Industry Award. The same with technicians under the Manufacturing Awards, et cetera, engaged by contractors. Mr Huemmer gave some evidence how in other industries really irregular pattern of work is picked up either by labour hire or contractors or casual labour, but the employee of the contractor or the employee of the labour hire company is in relevantly no different position than a person who might be assigned to an irregular shift pursuant to this roster.

PN1606.

COMMISSIONER ROE: I just can't follow your argument, and that’s why I am asking the question.

PN1607.

MR SHARIFF: That’s my fault.

PN1608.

COMMISSIONER ROE: No, you are being very articulate, but the flaw I see in your argument is that in the comparable awards which have 38 hour week as the minimum they’re not all the same but they all have rules about notice for change of shifts. None of them that I know of allow full-time workers to be rostered for work and then told that they’re not working, in that sort of – I mean there are some extremes, stand downs allowed, and there is some capacity to change shifts at shorter notices, there’s some exceptions of those sorts, but the general award provision is you get notice and if you’re on day shift you’re on day shift, if you’re on night shift you’re on night shift, you can't have something like an irregular shift. That’s my understanding in other comparable awards. This provision is much different and in minimum safety net terms the rates of pay are comparable, there is not some sort of big loading in terms of the minimum safety net wage.

PN1609.

MR SHARIFF: I think there are potentially two responses to your question, Commissioner. The first is there isn’t an absence of day, afternoon and night shift under this award. Nor is there an absence of employees working day, afternoon and night shift. In fact you know well in advance – if one just looks at the type of roster that might be made hypothetically under the award – you know well in advance that you’re assigned to a day shift or a night(sic) shift or an evening shift.

PN1610.

COMMISSIONER ROE: Where in the award does it say that?

PN1611.

MR SHARIFF: No, it doesn’t say that. What the award prescribes is day, afternoon and night shifts, but the award prescribes that with the consensus of the union or a majority of employees you can implement - - -

PN1612.

COMMISSIONER ROE: But that’s the difference you see.

PN1613.

MR SHARIFF: And I accept that part of it, which then brings me to the second answer to your question, which is really to scrutinise, well if one assumes, if one accepts for the purpose of the argument that there is some relevant difference between the stevedoring industry and other industries because of that reason does it justify the quantum of penalty that presently is included in the award? Does it justify in some cases a rate that is three times the rate that other employees are entitled to under the award? Really part of our thesis in this case has been to say, well why do they exist, why do the quantums exist and are the quantums justified? Does one really say that the relevant disability involved as a result of those arrangements, is the value of that three times that of other workers covered by other awards?

PN1614.

COMMISSIONER ROE: In considering that question and comparing to other employees I think a stevedoring employee would take cold comfort by having a comparison to labour hire and contracting employees in other industries. The relevant benchmark surely must include regular employees in other industries in manufacturing and these other industries where they don’t have rosters that say you might be rostered on that day if you are called upon to come in 3 pm the day before. I mean that roster we looked at yesterday was nothing more than a list of possible days on which you might be rostered to perform work, so they have got to make themselves available on those days subject to the exceptions. That is just simply not what commonly applies under awards applying to full-time employees.

PN1615.

MR SHARIFF: But there are also benefits that flow from that, such that if you are not assigned for work on that day and you can still work your 35 or in our case 38 hours you will get time off, and on these type of roster arrangements you do get blocks of time off.

PN1616.

COMMISSIONER ROE: You get the time off that you are not asked to work, but you don’t get a lot of notice for it and you will be rostered to work the annual hours that equate to 35 times 47 weeks.

PN1617.

MR SHARIFF: And which I think on the evidence of one of the witnesses yesterday, a Mr Nugent, it turns out that on average, at least in the last year, employees worked 179 days out of a 365 day year.

PN1618.

COMMISSIONER ROE: There is nothing remarkable about that. I mean that will vary. It will be similar in mining industry or manufacturing because shifts are longer than – longer shifts are often part of such rosters, and they vary.

PN1619.

MR SHARIFF: All right. But the proposition I put back to that is, well does that justify the quantum of the penalty; (1) does it justify the quantum of the penalty as is contained in the award, and secondly does it justify differential between the weekends, and thirdly does it justify differential between a Sunday and a Saturday. So at some point if your Honours are against me on the proposition that there are no essential relevant differences at a macro level between this award and other industries one still comes back to whether the quantum of penalty is appropriate, whether that is an appropriate safety net, and the difficulty we have with that is that when one looks at what was a determination to quantum that just simply reflects a historical compromise. There is no rhyme or reason to it other than that.

PN1620.

So that if one looks at my example of the truck driver who’s long hauling over the course of a weekend what essentially these framework or network of awards are saying is that the value of the work performed by that truck driver on a Saturday is 100 per cent less than that of a stevedoring employee. Now, even if one allows for irregular shift arrangement how can that be justified, on what principle, on what basis, and we say if the only answer to the justification of that is history one has to look at where was the quantification done and how was it done. That probably brings me to the bundle I have provided your Honours and - - -

PN1621.

VICE PRESIDENT WATSON: I just wonder before you do move on to those cases you’re essentially saying that your clients no longer consent to whatever might have happened in the past and whether they were around at the time or not, your clients now do not consent to the 35 hour week applying under the stevedoring award, but what conclusions or what basis do we have to ascertain the position in relation to other employers covered by the award?

PN1622.

MR SHARIFF: As best as we can tell the position as to the quantum of penalties that currently exist can be isolated to 1967. I hasten to add that a fair few of the employers that are currently in the industry - I think Patrick might, or an earlier manifestation of Patrick might be in a different category – didn’t exist back then I would have thought. That seems to us to be an unfair way of looking at it, because – let me – no other employer who’s affected by this award opposes the variations.

PN1623.

VICE PRESIDENT WATSON: But do any support it?

PN1624.

MR SHARIFF: Well that’s a matter that your Honours will have to put to each man, but none of them oppose it. For my purposes I am prepared to take a non-opposition as consent, especially when the alternative that’s put to me is - - -

PN1625.

VICE PRESIDENT WATSON: When they don’t say anything.

PN1626.

MR SHARIFF: Yes, but the withdrawal of consent in the past, to denude that of its industrial context constitutional history is, we say, a bit unfair, because at the relevant time that these penalties were agreed to the arrangements were entirely different. There was a centralisation of the allocation of labour. But in any event all I can say to that is there’s no opposition from the other employers and one has to examine what actually happened in the sequence of the making of these awards.

PN1627.

In the bundle I have provided to your Honours the first decision would be one from 1928 and if your Honours turn over to page – your Honours can see that there are a lot more pages written about these matters in 1928 than they are now, but if your Honours can turn to page 890 Beaby J(?) addressed the issue of rates for work outside ordinary hours and on page 892 came to the issue of appropriate penalties for shifts and said:

PN1628.

Evidence disclosed - - -

PN1629.

And I am reading from just below the table.

PN1630.

- - - that earlier days in some ports before the introduction of the shift system employees by agreement were paid time and a half for overtime between 6 pm and midnight and double time between midnight and 8 am, and this court at one stage, evidently on the assumption that night work was real overtime, awarded these relative rates. In other words night work was just paid as an overtime rate, but on this hearing the whole question has been exhaustively re-investigated and all the facts before me I am forced to the conclusion that a distinction should be made between real overtime and shift work. In most industries in which regular rotating shifts are worked workmen are paid extra rates ranging from 5 per cent to quarter time for rostered referring night shifts, but in this industry there is no regularity about the shifts, a man may work ordinary hours one day and be called on without notice to work a night shift on the next night. When starting night work he has no guarantee of a full shift. He cannot arrange his domestic affairs to fit in with any ordered routine work. His payment for his night work must be considered on an entirely different principle from those applied to regular shift workers. In this industry employers in past agreements have conceded in this court in past awards is always awarded much higher rates in night work whether real overtime or shift work. Notwithstanding the opposition of the Employees Federation, the acquiescence of employers and the Federation’s request for one rate for all work outside ordinary hours I think a distinction should be made. The man who after working ordinary hours continues on is entitled to more than he who starts work at a specified night hour after a day’s rest.

PN1631.

Et cetera. So in other words the introduction there of a differential rate for the first time in 1928, the purpose of it was to ensure that a person working on shift work wasn’t more greatly compensated than a person who was genuinely working overtime. The relevant principle was an employee who had worked during the day or during a particular shift and then was working overtime should be remunerated at a greater penalty than someone who is working an allocated shift.

PN1632.

What then happened, and I won’t take your Honours to every single one of those authorities in the bundle, but if I can take your Honours to the last in the bundle which is the decision from 1960 at page 9, this was now Ashburner J, under the heading “Shift work rates” – I think it might actually say 1954, the citation – at page 9 Ashburner J was dealing again with this issue:

PN1633.

The current award provides for penalty rates to be paid to men working outside ordinary hours, but makes no provision for shift work rates.

PN1634.

Just pausing there, what had happened in the industrial history between 1928 and 1960 was that shift rates were taken out, so one then reverted just to overtime rates, and the effect of Ashburner J’s decision here was to refuse the application to reintroduce shift rates.

PN1635.

So the position by 1960 then was there were only overtime rates, no shift rates, and then in 1967, which was the report I think I provided your Honours yesterday – I am sorry, your Honours, the citations on these aren’t very easy to read from the headnote, but I did hand up a copy of a decision yesterday and your Honours would have noted on page 244 that Justice Gallagher then gave effect to an award made by the consent of the parties that reintroduced shift work and reintroduced penalty rates for shift work, which as I pointed out have essentially remained the same in terms of quantification, but no reasons, and no reasons and no justification given because it was just a consent position.

PN1636.

So what we are left with is in 2015, some 50 years, almost 50 years after these penalty rates were introduced, there is at the moment no justification for the quantum of the penalty rates. So if for the purpose of the argument I accept everything that your Honours have put to me that, yes, stevedoring is different, what justifies the differential in the quantum, and does that require a value judgment to be made by the Commission that the value of work of stevedores working shift work is sometimes double and sometimes three times the value of work of employees in other industries.

PN1637.

VICE PRESIDENT WATSON: These are in relation to penalty rates.

PN1638.

MR SHARIFF: Yes.

PN1639.

VICE PRESIDENT WATSON: There is a history of arbitrated outcomes. So 1928 was an arbitrated outcome.

PN1640.

MR SHARIFF: Yes.

PN1641.

VICE PRESIDENT WATSON: I don’t know – you may know – how the shift work became overtime, whether that was an arbitrated result or consent arrangement, but one assumes it was an increase in the actual penalty being paid for shifts other than day work being regarded as overtime, and then the decision of Ashburner J in 1960 which looked at shift work rates consequent upon shift work being reintroduced appears to be an arbitrated outcome which comprehended the change from an overtime payment previously applied.

PN1642.

MR SHARIFF: Yes.

PN1643.

VICE PRESIDENT WATSON: So there’s an arbitrated history behind the penalty rates.

PN1644.

MR SHARIFF: My understanding is based on our examination of the 1960 award, is that the shift rate to the extent that shift rates had been arbitrated by that time, but the relevant shift rate was time and one-fifth for work performed before midnight and time and one-third for work performed after midnight. I am sorry, that was the claim – I am sorry, in the 1928 award the overtime rate for work performed before midnight was time and a half and for shift work for work performed before midnight was time and a quarter, and for work performed after midnight the overtime rate was double time, and for a shift work it was time and a half.

PN1645.

The relevant penalties that were then introduced by consent in 1967 don’t bear any resemblance to those types of rates, that is time and a quarter and time and a half, and really our penultimate proposition is really there is no justification for the current quantum, and then as a final proposition what we have put is that there can be no relevant distinction between day work on Saturday and Sunday and during the week – I am sorry, that should be a penultimate proposition – and then the final proposition is that there can be no relevant to difference to value of work on a Sunday and a Saturday, yet there is a differential that remains. The only, as we can see, and I know this has been debated in other cases, the only relevant distinction between Saturday rates and Sunday rates is because it’s Sunday having particular significance last century, or for part of last century, but that can no longer, we say, be maintained.

PN1646.

So what we seek from your Honours is a variation to the penalty rates applicable for shift work but during the week and the weekend in the form that we have outlined that brings them into line with what we say are comparable awards. If your Honours don’t accept us on that we seek at least your Honours to make a variation that gives effect to a distinction between the Sunday rate and the Saturday rate that actually equalises them to the Saturday rate as an alternative proposition.

PN1647.

The final variation that my clients have sought relates to the additional day in lieu and we have addressed that matter in our written submissions. I said probably everything I need to say about it in opening and there hasn’t really been any evidence put against it. As I said the fact is that the relevant prohibition that existed to working on the five closed port days no longer exists, and so the position now is that if an employee works on those five days they get their penalty 250 per cent and then 300 per cent, plus they get an additional day off in lieu.

PN1648.

That might have been a justification that existed at a time when work was prohibited on those days for various reasons, but we say it can no longer apply now. Unless there is anything further I can assist your Honours with those are our oral submissions to support those that we have provided in writing. So if your Honours want me to provide a supplementary note to answer some of the propositions that your Honours have raised - I think, Vice President, you have raised an issue with me about the public sector case and I would be prepared to provide a supplementary note on that and any further note in response to some of the questions that have been raised with me if I could have that leave.

PN1649.

VICE PRESIDENT WATSON: It needn’t be in writing, is it something you could address briefly tomorrow before we conclude?

PN1650.

MR SHARIFF: Yes, I will attempt to look at those matters tonight. I was going to seek your Honours’ indulgence for tomorrow to see if we could start at 11 am. I had I think raised that briefly with the other parties, but the arrangements were a moveable feast.

PN1651.

VICE PRESIDENT WATSON: Yes, you can certainly have leave to deal further with the questions that we have raised, but it may be just as easy to deal with it orally tomorrow at some stage. Yes, thank you, Mr Shariff.

PN1652.

MR SHARIFF: Yes, may it please your Honours.

PN1653.

VICE PRESIDENT WATSON: Do any other parties wish to make submissions in relation to Mr Shariff’s client’s application, if I could put it that way?

PN1654.

MR FERGUSON: If we can just make one - - -

PN1655.

VICE PRESIDENT WATSON: Yes, Mr Ferguson.

PN1656.

MR FERGUSON: - - - one brief issue. Ai Group has indicated our support for the proposed variations and we don’t intend to raise any additional submissions in support of that. I just want to clarify that in response to a question or a series of questions that came from the Bench in relation to whether that flows on to a resulting increase in minimum wages we wouldn’t at this point indicate any support for that sort of outcome now. If, and I don’t think any party in these proceedings are proposing a variation to minimum wages, but if that was something that the Bench was going to contemplate we would like the opportunity to consider that and address that point. It obviously has wider implications than just these proceedings.

PN1657.

VICE PRESIDENT WATSON: Yes, I think it came on the run.

PN1658.

MR FERGUSON: It did, and no doubt we will have views.

PN1659.

VICE PRESIDENT WATSON: No doubt. Thank you. It appears that the opposition from the MUA and the AWU, and I am not sure of the position of the TWU in relation to these matters, but they’re the only submissions that remain in relation to these applications. Mr Fagir?

PN1660.

MR FAGIR: The short answer is that we have said nothing and that was on the basis that we didn’t apprehend that we were entitled to be heard. I can say that as a general proposition the TWU opposes the application and considers that it has about the same about of merit as the MUA’s application.

PN1661.

VICE PRESIDENT WATSON: You’re not being deliberately negative. I

PN1662.

MR FAGIR: I might seek a very short indulgence tomorrow to say something about the broad proposition about the significance of the fact that a condition arose originally by consent. It will be a matter of one or two minutes and I can attach that to the end of our other submission.

PN1663.

VICE PRESIDENT WATSON: Yes, and you can follow Mr McNally in relation to that.

PN1664.

MR FAGIR: If the Commission pleases.

PN1665.

VICE PRESIDENT WATSON: Mr McNally, we can commence to hear from you now in relation to your own application or in opposition to the employers application or we can adjourn until tomorrow to hear from you.

PN1666.

MR McNALLY: That sounds a good idea, Your Honour.

PN1667.

VICE PRESIDENT WATSON: The latter. Yes. And the 11 am commencement time - - -

PN1668.

MR McNALLY: It makes it even more attractive.

PN1669.

VICE PRESIDENT WATSON: There appears to be consent to that proposition, it’s an irregular shift, so something is agreed, and to indicate that about 3 pm the following day seems to be appropriate. We will adjourn until 11 am tomorrow.

ADJOURNED UNTIL FRIDAY, 6 FEBRUARY 2015 [3.19 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PAUL SHEEHAN, SWORN [10.05 AM].............................................................. PN865

EXAMINATION-IN-CHIEF BY MR McNALLY [10.06 AM]........................... PN865

CROSS-EXAMINATION BY MR JAUNCEY [10.14 AM]................................ PN887

RE-EXAMINATION BY MR McNALLY [10.22 AM]....................................... PN923

THE WITNESS WITHDREW [10.22 AM]............................................................ PN927

JASON CAMPBELL, AFFIRMED [10.24 AM]................................................... PN935

EXAMINATION-IN-CHIEF BY MR McNALLY [10.24 AM]........................... PN935

CROSS-EXAMINATION BY MR GARDENER [10.28 AM]............................ PN960

THE WITNESS WITHDREW [10.43 AM].......................................................... PN1014

JAMIE NEWLYN, AFFIRMED [10.45 AM]...................................................... PN1016

EXAMINATION-IN-CHIEF BY MR McNALLY [10.45 AM]......................... PN1016

THE WITNESS WITHDREW [10.51 AM].......................................................... PN1036

JEFFREY MICHAEL CASSAR, SWORN [10.52 AM]..................................... PN1053

EXAMINATION-IN-CHIEF BY MR McNALLY [10.52 AM]......................... PN1053

CROSS-EXAMINATION BY MR GARDENER [10.53 AM].......................... PN1067

THE WITNESS WITHDREW [10.57 AM].......................................................... PN1082

DAMIAN BLAKE ARNOLD, AFFIRMED [11.05 AM]................................... PN1110

EXAMINATION-IN-CHIEF BY MR JAUNCEY [11.05 AM]......................... PN1110

CROSS-EXAMINATION BY MR McNALLY [11.06 AM].............................. PN1120

THE WITNESS WITHDREW [11.35 AM].......................................................... PN1261

KAI-YUAN SHUEH, AFFIRMED [11.37 AM]................................................. PN1263

EXAMINATION-IN-CHIEF BY MR JAUNCEY [11.37 AM]......................... PN1263

CROSS-EXAMINATION BY MR McNALLY [11.38 AM].............................. PN1272

THE WITNESS WITHDREW [11.44 AM].......................................................... PN1305

DAVID JOHN NASH, SWORN [11.54 AM]..................................................... PN1311

EXAMINATION-IN-CHIEF BY MR JAUNCEY [11.54 AM]......................... PN1311

CROSS-EXAMINATION BY MR McNALLY [11.55 AM].............................. PN1321

THE WITNESS WITHDREW [11.58 AM].......................................................... PN1338

ROSS DUNCAN, AFFIRMED [12.06 PM]........................................................ PN1360

EXAMINATION-IN-CHIEF BY MR GARDENER [12.06 PM]...................... PN1360

CROSS-EXAMINATION BY MR McNALLY [12.08 AM].............................. PN1370

RE-EXAMINATION BY MR GARDENER [12.12 PM]................................... PN1388

THE WITNESS WITHDREW [12.14 PM].......................................................... PN1391

PAUL NIEUWKERK, AFFIRMED [12.20 PM]................................................. PN1392

EXAMINATION-IN-CHIEF BY MR GARDENER [12.20 PM]...................... PN1392

CROSS-EXAMINATION BY MR McNALLY [12.22 PM].............................. PN1400

THE WITNESS WITHDREW [12.26 PM].......................................................... PN1425

EXHIBIT M4 STATEMENT OF PAUL SHEEHAN INCLUDING ANNEXURE, DATED 24/12/2014............................................................................................................................. PN885

EXHIBIT M5 STATEMENT OF JASON CAMPBELL, AS AMENDED, DATED 24/12/2014 PN957

EXHIBIT G1 EMAIL OF MR DUNCAN TO MR SMITH AND MR CAMPBELL WITH ATTACHED DRAFT MEMORANDUM OF UNDERSTANDING, DATED 27/03/2011............... PN1009

EXHIBIT M6 STATEMENT OF JAMIE NEWLYN, AS AMENDED, DATED 24/12/2014 PN1028

EXHIBIT M7 PHOTOCOPY OF PHOTOGRAPH OF MOBILE BULK LOADING PLANT IN PORT PIRIE........................................................................................................................... PN1035

EXHIBIT M8 STATEMENT OF JEFFREY PAUL CASSAR, WITH ATTACHMENTS, DATED 24/12/2014........................................................................................................................... PN1065

EXHIBIT M9 STATEMENT OF THOMAS MAYOR, WITH ATTACHMENTS, DATED 24/12/2014 PN1088

EXHIBIT M10 STATEMENT OF ADRIAN EVANS........................................ PN1090

EXHIBIT M11 STATEMENT OF KYLE McGLYNN....................................... PN1091

EXHIBIT F1 STATEMENT OF RAY WYATT DATED 02/02/2015................ PN1100

EXHIBIT F2 STATEMENT OF IAN SMITH DATED 03/02/2015................... PN1102

EXHIBIT F3 STATEMENT OF TIM DAWSON DATED 02/02/2015.............. PN1103

EXHIBIT F4 STATEMENT OF PETER BIAGINI, UNDATED....................... PN1104

EXHIBIT J1 STATEMENT OF DAMIAN BLAKE ARNOLD......................... PN1117

EXHIBIT J2 STATEMENT OF MR KAI-YUAN SHUEH................................ PN1269

EXHIBIT J3 STATEMENT OF DAVID JOHN NASH, UNSIGNED BUT ADOPTED ON 05/02/2015........................................................................................................................... PN1318

EXHIBIT J4 ONE BUNDLE OF DOCUMENTS COMPRISING TWO VOLUMES OF VARIOUS ENTERPRISE AGREEMENTS AND OTHER DOCUMENTS.................... PN1348

EXHIBIT G2 STATEMENT OF ROSS DUNCAN............................................ PN1367

EXHIBIT G3 STATEMENT OF PAUL NIEUWKERK.................................... PN1399

EXHIBIT C2 DP WORLD ANNUAL REPORT AND ACCOUNTS 2013...... PN1509

EXHIBIT C3 QUBE ANNUAL REPORT AND NOTICE OF AGM 2014...... PN1511

EXHIBIT G4 STATEMENT OF MR BREVI..................................................... PN1526

EXHIBIT S9 OUTLINE OF SUBMISSIONS DATED 24/12/14....................... PN1531

Fair Work Commission Transcripts

AM2014/90, Transcript of Proceedings [2015] FWCTrans 111 (10 March 2015)