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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051526‑1
DEPUTY PRESIDENT HAMILTON
C2015/1962
s.418 ‑
Application for an order that industrial action by employees or employers stop
etc.
Esso Australia Pty Ltd
and
The Australian Workers' Union
(C2015/1962)
Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011
(ODN AG2011/14869)
[AE890882 Print PR518998]]
Melbourne
11.11 AM, FRIDAY, 6 MARCH 2015
PN1
THE DEPUTY PRESIDENT: I'll take appearances, please.
PN2
MR PARRY: If your Honour pleases, I seek permission to appear for Esso Australia Pty Limited with my learned friend Mr Dalton.
PN3
THE DEPUTY PRESIDENT: Thanks.
PN4
MR J WARD: If your Honour pleases, Ward J, AWU Organiser for the site.
PN5
THE DEPUTY PRESIDENT: Terrific. Do you oppose permission to appear?
PN6
MR WARD: Yes.
PN7
THE DEPUTY PRESIDENT: On what basis?
PN8
MR WARD: We have no‑one else, sir.
PN9
THE DEPUTY PRESIDENT: All right, thanks.
PN10
MR PARRY: If the Commission pleases, I do indicate that I note from the listing that your Honour had proposed that the matter be listed for conference first and then for hearing. The application I make for permission to appear with Mr Dalton is in respect of the hearing. If your Honour does propose to go into conference, I indicate that Esso has no objection to that and we'll participate and cooperate.
PN11
THE DEPUTY PRESIDENT: All right.
PN12
MR PARRY: And I am happy to expand on the grounds that if we do get into the hearing, why our appearance satisfies the requirements of section 596.
PN13
THE DEPUTY PRESIDENT: Sure. All right. Well, that's a sensible suggestion, Mr Ward, shall we adjourn into conference?
PN14
MR WARD: Yes. Your Honour, we were advised at 8 am this morning that this matter was being heard at 11 am. We have some of our people arriving now. There's another two people that could be appearing as witnesses, we were wondering if we might be able to seek adjournment for one hour.
PN15
THE DEPUTY PRESIDENT: Well, we're not in an arbitration mode yet. Well, we're going to have a discussion in conference and I presume that can go ahead with you as the AWU delegate.
PN16
MR WARD: We'll do our best, your Honour.
PN17
THE DEPUTY PRESIDENT: All right, in that case we'll adjourn into conference.
PN18
MR PARRY: We'll take our cue from that, your Honour.
PN19
THE DEPUTY PRESIDENT: I don't know how long we'll be, Mr Parry.
PN20
MR PARRY: Like Elvis, we're leaving the building.
PN21
THE DEPUTY PRESIDENT: Elvis, I haven't heard the music yet.
OFF THE RECORD [10.14 AM]
ON THE RECORD [11.42 AM]
PN22
THE DEPUTY PRESIDENT: First of all, the issue of permission to appear, I will come to that. Do you press your objection to permission to appear?
PN23
MR WARD: No, your Honour.
PN24
THE DEPUTY PRESIDENT: No, okay, then pursuant to section 596 of the Act I grant permission for Mr Parry to appear given the complexity of the matter and the need to efficiently conduct proceedings. Mr Parry and Mr Ward, I've got a question for both of you which is this: I'm conscious of the need for Mr Ward to prepare and respond. The most efficient way to deal with that may be for you to present your case now in summary and then we'll adjourn for a period to enable Mr Ward to examine the witness statements and the submissions that were put and then respond to it at, say, 1 pm. And that is sufficient use of our time. Do you have a difficulty with that?
PN25
MR PARRY: No, I have no difficulty with that. I had proposed providing a brief opening before calling.
PN26
THE DEPUTY PRESIDENT: That would be useful as well.
PN27
MR PARRY: Yes.
PN28
THE DEPUTY PRESIDENT: An overview of your case.
PN29
MR PARRY: If it assists you and Mr Ward.
PN30
THE DEPUTY PRESIDENT: All right, emphasis on brief. Mr Ward, are you happy with that arrangement?
PN31
MR WARD: Yes, I am, your Honour.
PN32
THE DEPUTY PRESIDENT: All right, go ahead. Could the witnesses leave the room, please? Okay, all witnesses have left the room, excellent, thank you. Go ahead, Mr Parry.
PN33
MR PARRY: If your Honour pleases, this is an application under section 418 of the Act. We will be asserting, as the application makes clear, that there is industrial action that within the terms of section 418 is happening at present, is threatened, impending or probable and that whilst it's happening we apprehend that it will continue to happen. And further, that it is being organised by the AWU and its officers, delegates and so forth.
PN34
The industrial action that is the focus of this application is bans that were implemented at the Longford site on or about Monday, 2 March 2015. To follow the sequence through, as your Honour would appreciate, on 3 February the AWU gave notice to Esso of protected industrial action. The notice is attached to the application. Is your Honour in the practice of marking the documents such as this?
THE DEPUTY PRESIDENT: I don't, but if you want me to I will.
EXHIBIT #E1 NOTICE OF PROTECTED INDUSTRIAL ACTION 03/02/2015
PN36
MR PARRY: Your Honour will note from that document that there are a number of employee claim actions that were notified in respect of, firstly, all premises covered by the agreements. But there were also specific premises bans that were notified as well. There was and is at the bottom of exhibit U1E, a ban as described as, "An indefinite ban on the de‑isolation of equipment by employees covered by the agreements commencing at 12.01 am on Thursday, 12 February 2015.
PN37
Now the reference to the de‑isolation of equipment is consistent with one of the articles of industrial action referred to in the PABO.
PN38
THE DEPUTY PRESIDENT: In the what?
PN39
MR PARRY: The Protected Action Ballot Order. And the evidence of Mr Kristeff will be to the effect that the ban was introduced on 12 February and on 12 February and thereafter the employees at Longford commenced what Esso understood to be and what clearly the employees understood to be, a ban on the de‑isolation of equipment. That continued for almost a couple of weeks and then Esso, on or about 25 February, made alternative arrangements, and it involved appropriately qualified managerial staff to perform de‑isolations, and commenced doing that. So that after 26 February, managerial staff were performing the de‑isolation in lieu of employees and operators were performing what I can describe as air freeing, purging and leak testing. And after that work was performed, supervisors would step in and perform the de‑isolation work.
PN40
Now that continued, that arrangement, up until around Monday this week when operators began to advise supervisors they would not perform the air freeing or leak testing required to be performed before de‑isolation could occur. And that notification and the implementation of the non‑performance of those duties has led us to make this application and come before the Commission.
PN41
The position taken by the local delegates and Mr Davis, the AWU Victorian Branch Secretary, who has had conversations with Mr Kristeff, was to the effect that the bans on air freeing and leak testing and purging were to be read as part of the plan on the de‑isolation of equipment notified on 3 February.
PN42
The evidence of Mr Kristeff will be to the effect that ‑ and I have a statement of Mr Kristeff with some attachments, if I could hand that to the Commission and also to Mr Ward.
THE DEPUTY PRESIDENT: Thank you. I will mark that E2 on a provisional basis. I am sure it will be sworn later but at the moment it's just E2. The first one is E1, that's the notice.
EXHIBIT #E2 WITNESS STATEMENT OF MR JAMES KRISTEFF AND ATTACHMENTS
PN44
MR PARRY: Mr Kristeff is the maintenance superintendent of the Longford plants. His statement describes the operations of Esso in Victoria and the Longford plant. I am sure your Honour is well familiar with those, having the history with the matters that you do.
PN45
The important part of the evidence of Mr Kristeff goes to what the various documents and procedures that operate in respect of Longford provide for, and your Honour will see on the bottom of page 3 there is an operations integrity management system and there are various matters described in there in respect of work management. And the first attachment is the system of work management commencing at section 6.4. We set out relevant extracts of that in paragraphs 20 and onwards.
PN46
THE DEPUTY PRESIDENT: This is the manual, is it?
PN47
MR PARRY: No, that's the work management system which is the next one.
PN48
THE DEPUTY PRESIDENT: Okay, thank you.
PN49
MR PARRY: That is on page 5 and that contains, I think it is JK2 which is about 15 pages into the attachments, your Honour.
PN50
THE DEPUTY PRESIDENT: Fifteen pages into the attachments, okay.
PN51
MR PARRY: It's headed "Definitions" I think.
PN52
THE DEPUTY PRESIDENT: It's a long document.
PN53
MR PARRY: The first, 1.5 Definitions.
PN54
THE DEPUTY PRESIDENT: introduction. Yes, it's a very long document.
PN55
MR PARRY: It is. It has 1‑18 at the bottom.
PN56
THE DEPUTY PRESIDENT: Okay, just a moment. So it's the works management system at 6.4 and then 15 pages in there's what? JK2, is it?
PN57
MR PARRY: Yes JK2.
PN58
THE DEPUTY PRESIDENT: Okay, I've got JK2.
PN59
MR PARRY: JK2 is the important document in respect of these proceedings because it commences with definitions and we've set these out as best we can in the body of the document. But if your Honour is at the definitions, 1.5, your Honour will see an introduction which refers to:
PN60
These definitions are intended to provide an understanding of some key processes and terminology. Users of the work management system should seek understanding of any terminology processes and activities before executing work.
PN61
Set out therein are what are obviously clearly key processes and terminology which all employees are meant to understand and follow and, for present purposes, there has been reference to air freeing, which is a defined term which defines particular function. There is different areas. Reference to, importantly for our purposes, de‑isolations and that's on 120. Your Honour will note that's described as, "Unlocking and removing isolation valves, reconnecting systems, removal of lines and unlocking electrical switches to their normal operating state."
PN62
There is also a reference to equipment testing. There is a reference to leak testing and these definitions are generally set out in the body of the document. And Mr Kristeff will say that not only are these terms well understood and form part of the document, but they are part of the vernacular at Longford.
PN63
There's a definition section, as I've taken your Honour to. Also there are the particular ways that Esso require these functions to be performed. We've set out as much of these documents as we can. The statement of Mr Kristeff refers to 4‑84, well what we've done is include ‑ your Honour has the full manual and no doubt your Honour can refer to any part of that. What we have attached to the statement are extracts from the manual and at JK2 is chapter 1.5, as has been noted, and we've set out in the document‑ ‑ ‑
PN64
THE DEPUTY PRESIDENT: I won't look at the manual unless you tender it. I mean if it's all there I'll just use this unless there is something else I need to look at in the manual.
PN65
MR PARRY: We are not going to be taking your Honour to any other part of the manual.
PN66
THE DEPUTY PRESIDENT: It's not tendered so it's not before the Commission.
PN67
MR PARRY: No, it is before the Commission because it's there.
PN68
THE DEPUTY PRESIDENT: In a physical sense it is.
PN69
MR PARRY: In a physical sense but not a legal sense, your Honour is correct. The various parts of Mr Kristeff's statement, your Honour will note paragraph 29, 30 and 31 which is the nub of his evidence, which is that equipment testing is distinct from any required energy de‑isolation. Leak testing is distinct from any required energy de‑isolation. Air freezing, again distinct. So the position of Mr Kristeff, who is the responsible manager, was that when one notifies that there is to be a ban on de‑isolation, that's a well‑understood and accepted term at Esso. It's a term that is defined in various important documents.
PN70
It, as defined, does not include a broader range of other functions. Our position is that it does not include a function such as equipment testing, air fixing, leak testing or purging. And our position is that they are separate duties or functions not the subject of any ban that has been notified.
PN71
THE DEPUTY PRESIDENT: Are employees directed to comply with this manual and these definitions? So is de‑isolation an employer direction? I presume you would have training sessions and toolbox meetings. I mean if employers are directed to comply with a manual, whatever the name is. There may not be, I don't know. The audience is nodding.
PN72
MR PARRY: The only reason I hesitate is that the manual sets out a range of procedures and, for example, JK4, which is on page 4‑84, speaks of when one is reinstating facility systems and equipment. And that description, the introduction says:
PN73
This section describes the procedures and precautions to be followed when reinstating equipment and facilities and defines personnel responsibilities. The general sequence of events when reinstating equipment and facilities is as follows.
PN74
And then the Commission will note on 4‑84 that then there are various duties that must be performed, including the fifth dot point, removing energy isolations, which is manifestly what is de‑isolating.
PN75
Now when one uses language such as, "Procedures and precautions to be followed", and "Setting out the general sequence of events is as follows", we would submit that that is clearly a direction that these are to be the procedures that are to be followed.
PN76
THE DEPUTY PRESIDENT: I am not sure that a safety issue of this sort, I presume it's kind of stringent and if someone didn't follow the manual, there could be very serious safety consequences, could there not? Each of these steps, is it not, is based on some form of hazard calculation done with some care pursuant to the Act, whose name escapes me? I am just thinking aloud here. There's a statutory obligation on the employer to provide a safe workplace and this manual is the way an employer does it, is it not? That's the sequence of events. The name of the Act escapes me but I have it here. In any event we'll come back to that if necessary. I think that's the sequence of events?
PN77
MR PARRY: Are you referring to the Occupational Health and Safety Act?
PN78
THE DEPUTY PRESIDENT: There's a special one for this area.
PN79
MR PARRY: I think there's a special one for this area.
PN80
THE DEPUTY PRESIDENT: And I'm referring to the special one and there's a body, as I discovered in the last two days, called NOPSEMA.
PN81
MR WARD: Your Honour, NOPSEMA is the regulatory authority in offshore waters and onshore is WorkSafe Victoria and the major hazard unit which also has its own safety case.
PN82
THE DEPUTY PRESIDENT: Right, so it's the general Safety Act, is it?
PN83
MR WARD: No, there's two separate Acts and distinct. So it being the five kilometre mark offshore, so it becomes a different authority and that is NOPSEMA.
PN84
THE DEPUTY PRESIDENT: No, but the obligation on the employer to provide a safe workplace is the general Victorian WorkCover Act?
PN85
MR WARD: The Victorian Occupational Health and Safety Act.
PN86
THE DEPUTY PRESIDENT: Right, understood. Thanks for that.
PN87
MR WARD: Your Honour, while I'm on my feet, if you don't mind, just one matter ‑ for want of a better term ‑ procedural fairness. I note the company is seeking to have orders made against employees captured by this agreement, which includes Long Island Point. They're unaware of this, we would offer that we would have to have witnesses appear to describe their version of what their understanding of de‑isolation is. I note in Mr Kristeff's statement he refers to a conversation he had with Mr Davis, who is currently interstate. I've had a quick conversation with one of our delegates from Longford. If your Honour could see your way clear to grant an adjournment to Monday, our operators in the AWU would give a commitment that we would‑ ‑ ‑
PN88
THE DEPUTY PRESIDENT: Monday is a public holiday.
PN89
MR WARD: Is it?
PN90
THE DEPUTY PRESIDENT: I am afraid it's today, Mr Ward, if possible. There is also a time limit in the Act.
PN91
MR WARD: I understand but what I was prepared the offer was the issuing of an order or a direction or a recommendation in the meantime where our members would supervise suitably qualified staff de‑isolating equipment from now until‑ ‑ ‑
PN92
THE DEPUTY PRESIDENT: All right, so you raised a problem of a separate workplace.
PN93
MR WARD: Correct.
PN94
THE DEPUTY PRESIDENT: Okay, we'll deal with that later. Mr Parry has taken note of that and will give consideration to it. I'm sure we'll have a response at some stage, if he needs instructions we can have an adjournment on that.
PN95
MR PARRY: I will, your Honour, and I'll take those instructions as soon as possible. Your Honour, these are work management systems. Whilst I don't have a copy of the Occupational Health and Safety Act with me, it would be an essential part of the processes at a worksite such as Longford that there be such systems in place. There are such systems and they're required to be followed. That's our position.
PN96
Mr Kristeff's statement, having gone through these various procedures, then deals with industrial action that has been taken. And he sets out in his statement, paragraph 34, the various types of industrial action that were voted on and we have attached a copy of the notice that your Honour has marked as E1.
PN97
He will also give evidence as to following the implementation of the ban on the de‑isolation of equipment, such a ban was introduced. And your Honour will see from paragraph 38 that it had effects, as it was no doubt intended to have.
PN98
Esso proposed, as they are entitled to do, alternative arrangements to mitigate or ameliorate the effects of the ban and they did that by involving suitably qualified managerial staff to perform de‑isolations, leaving operators continuing to perform what they had been performing, being the equipment testing, air freeing, purging and leak testing. Now that arrangement enabled the de‑isolations to take place and then, on or about Monday of this week, operators began to advise their supervisors they would not perform these other duties which were required to be performed before de‑isolations.
PN99
THE DEPUTY PRESIDENT: This is paragraph 51, is it?
PN100
MR PARRY: I'm on paragraph 42 ‑ I am sorry, yes. Yes, paragraph 50 and 51. Esso met then with the local delegates and there were discussions and the position of the AWU was put that the de‑isolation ban included these other duties and advised Esso that all 81 members of the AWU were aligned to that position.
PN101
There was a break, there were discussions on 4 March. There was a call made to the AWU Victorian Branch Secretary, Mr Davis. There was a further discussion and Mr Davis said, as per paragraph 54, that it was the AWU's view that the ban on air‑freeing leak testing was part of the de‑isolation ban and various file notes are set out in support of that.
PN102
THE DEPUTY PRESIDENT: Most of that is not in contention, as I understand it, and I'm obviously willing to be corrected. What is in contention is the meaning of de‑isolation. I think that's almost an issue of fact, I don't know. Does it include leak testing and so on or not? That seems, as far as I can tell, to be just about the only issue between the parties, subject to this other site issue which I'm not sure about yet.
PN103
MR WARD: That's correct, your Honour.
PN104
THE DEPUTY PRESIDENT: Sorry?
PN105
MR WARD: That's correct, your Honour.
PN106
THE DEPUTY PRESIDENT: Right, so those are the two issues you face. One is de‑isolation, what does it mean? The other is this other site, which I don't know much about at this stage.
PN107
MR PARRY: I will get instructions on the other site. With regard to the concept of de‑isolation, our position is rather simply that's what it is defined as in the relevant documents. The employer has defined it. Those definitions are well known and presumably the union will know the terminology used on the site. And indeed that's what occurred after 12 February in accordance with the employer's understanding. What's happened this week is that has changed.
PN108
The other evidence that we will call is from Mr Trindade and that is a statement as to evidence that was given yesterday in the Commission.
THE DEPUTY PRESIDENT: I will mark that provisionally again exhibit E3.
EXHIBIT #E3 WITNESS STATEMENT OF DANIEL JOSEPH DOMINIC TRINDADE
PN110
THE DEPUTY PRESIDENT: That will be exhibit 3 provisionally marked again.
PN111
MR PARRY: Yes.
PN112
THE DEPUTY PRESIDENT: That's simply the one issue, isn't it? How de‑isolation was defined by union witnesses yesterday?
PN113
MR PARRY: Correct. Yes, your Honour. And again we say it is simply consistent with what occurs in the manual.
PN114
THE DEPUTY PRESIDENT: Okay.
PN115
MR PARRY: And that's our position. And it is used to support our position that there is not only an understanding by the employer but it's shared with the relevant unions.
PN116
THE DEPUTY PRESIDENT: So that is, in essence, your case then?
PN117
MR PARRY: That's, in essence, the case, yes. Well, more formally, it clearly involves ‑ because it's not covered by the definition of de‑isolation, it's unprotected industrial action. As unprotected industrial action, it's been organised. It's clearly being organised because the unions are aware of it and they have‑ ‑ ‑
PN118
THE DEPUTY PRESIDENT: There is no disagreement that it's been organised.
PN119
MR PARRY: Well I don't understand that to be the case.
PN120
THE DEPUTY PRESIDENT: Mr Ward just said that the only issue is de‑isolation, is it protected or not?
PN121
MR PARRY: Yes.
PN122
THE DEPUTY PRESIDENT: So all the requirements of section 418 are met bar one, which is this issue of whether it is protected or not. That is the issue between you and this issue of this other site.
PN123
MR PARRY: Yes.
PN124
THE DEPUTY PRESIDENT: Right, so one way we can go then is we can adjourn now and resume at 1.15? That gives you an hour, and we can swear the witnesses and have them cross‑examined by Mr Ward.
PN125
MR PARRY: If your Honour pleases.
PN126
MR WARD: Your Honour, before we go there, I'm wondering if we could explore the possibility of getting the regulator in the circumstance? The occupational health and safety regulator, WorkSafe Victoria, in particular their major hazard unit, to explain to your Honour its definition of de‑isolation in the context of a major hazard facility process.
PN127
THE DEPUTY PRESIDENT: Does it have one?
PN128
MR WARD: Yes.
PN129
THE DEPUTY PRESIDENT: All right, well that's your proposal. It's the same proposal that was put in the other proceedings or of a similar nature. Do you want to respond to that now or take instructions? Perhaps you need instructions.
PN130
MR PARRY: I will take instructions but that's really ‑ we are almost certain those instructions will be to oppose any adjournment. Ultimately we have put our documents before the Commission as to our understanding of it. I am not sure the Commission is going to be greatly assisted by some other person's definition of de‑isolation. The concept of de‑isolation is defined within our operations and as used by us and the employees. I am not sure that ultimately bringing in somebody else's view of it is going to really make any difference to the question your Honour is going to need to decide.
PN131
MR WARD: Your Honour, the regulator in question in this instance approves a licence to operate based on a safety case submission put by the company. Within that safety case it will detail specifically how it will safely manage and operate its plant. The regulator is very clear on its understanding of what a de‑isolation process would be. The implication being that if an order is given that changes a normal work practice at Longford, a major hazard facility, the regulator will have to be informed under the licensing process of a change of management, as has normally occurred for over 40 years at Longford. I think it is entirely relevant that the licence giver have a view in this instance.
PN132
THE DEPUTY PRESIDENT: All right, well we can return to this issue at 1.15, I suppose. Is there anything else we can usefully do? I don't think. So we'll see you back here at 1.15 and thank you very much.
SHORT ADJOURNMENT [12.15 PM]
RESUMED [1.18 PM]
PN133
THE DEPUTY PRESIDENT: So where are we? Cross‑examination of your witnesses, Mr Parry?
PN134
MR PARRY: If your Honour pleases, if there is nothing further I will call Mr Trindade.
PN135
MR WARD: Your Honour, I was under the understanding before the break that Mr Kristeff would be taking the stand.
PN136
THE DEPUTY PRESIDENT: I don't know, there was no order mentioned that I recall. Is it all right, do you have a difficulty? They can lead the case in the order they want, I think is the usual principle.
PN137
MR WARD: I am happy to check the transcript, but I think your Honour's words were, "You can take an adjournment to 1.15 and that will give you time to prepare to cross‑examine Mr Kristeff." That's what we've done. I don't think there's much detail we need to explore with Mr Trindade.
PN138
THE DEPUTY PRESIDENT: Do you need to cross‑examine him at all?
PN139
MR WARD: I might have one or two questions.
PN140
THE DEPUTY PRESIDENT: All right, that's fine. Go ahead, Mr Parry.
PN141
THE ASSOCIATE: Please state your full name and address.
MR TRINDADE: Daniel Joseph Dominic Trindade, Level 18, 333 Collins Street, Melbourne, Victoria, 3000.
<DANIEL JOSEPH DOMINIC TRINDADE, SWORN [1.19 PM]
EXAMINATION‑IN‑CHIEF BY MR PARRY [1.17 PM]
PN143
MR PARRY: If the Commission pleases, your full name is Daniel Joseph Dominic Trindade?‑‑‑Yes, it is.
PN144
Your business address is level 18, 333 Collins Street, Melbourne in the State of Victoria?‑‑‑Yes, it is.
PN145
You are a legal practitioner?‑‑‑Yes.
PN146
And you're a partner in the firm Clayton Utz?‑‑‑Yes, I am.
PN147
Mr Trindade, have you prepared a witness statement for these proceedings?‑‑‑I have, your Honour.
PN148
Do you have a copy of that before you?‑‑‑I don't have a copy before me. I do now.
PN149
That's a witness statement marked Exhibit E3 in these proceedings, Mr Trindade. Are the contents of that statement true and correct?‑‑‑They are in every particular.
PN150
If your Honour pleases, that's the evidence of Mr Trindade.
THE DEPUTY PRESIDENT: Thank you. Go ahead, Mr Ward.
CROSS‑EXAMINATION BY MR WARD [1.20 PM]
PN152
MR WARD: Mr Trindade, could I take you to paragraph 5 of your statement. During his examination‑in‑chief, Mr Patterson was asked by Mr Borenstein QC about what a de‑isolation was, have you got that?‑‑‑Yes.
*** DANIEL JOSEPH DOMINIC TRINDADE XXN MR WARD
PN153
To the best of your recollection, did you understand or did you hear Mr Borenstein QC ask whether or not Mr Patterson was familiar with the OIMS?‑‑‑I don't specifically recall him asking that.
PN154
THE DEPUTY PRESIDENT: Was familiar with what?
PN155
MR WARD: OIMS, the Esso Integrity Management System.
PN156
THE DEPUTY PRESIDENT: Thanks.
PN157
MR WARD: You don't recall that he did?‑‑‑I don't have a specific recollection either way.
PN158
So it would follow then that he did not ask Mr Patterson of a definition of air freeing, of blinding or that he went any further than actually just asking what a de‑isolation was, is that correct?‑‑‑He didn't ask any of those questions.
PN159
Sorry, he did?‑‑‑He didn't ask.
PN160
In paragraph 6 in the examination‑in‑chief of Mr Corless, Mr Borenstein QC once again addressed the topic of de‑isolations. To the best of your recollection did he discuss or mention whether or not Mr Corless understand what OIMS was?‑‑‑I don't specifically recall him asking that.
PN161
And therefore it follows that he did not ask Mr Corless about air freeing or definitions of blinding as well?‑‑‑I don't recall him asking any of those questions.
PN162
Do you recall if Mr Borenstein asked Mr Corless if he was an operator or an electrician?‑‑‑I don't believe he asked him either of those questions.
PN163
That's all, your Honour.
PN164
THE DEPUTY PRESIDENT: Thanks. Any re‑examination?
PN165
MR PARRY: No, your Honour.
THE DEPUTY PRESIDENT: Thanks for giving evidence, you are excused, Mr Trindade.
<THE WITNESS WITHDREW [1.22 PM]
PN167
THE DEPUTY PRESIDENT: The next witness.
PN168
MR PARRY: My learned junior will take Mr James Kristeff.
PN169
MR TRINDADE: I call James Kristeff.
PN170
THE ASSOCIATE: Please stand there and state your full name and address.
MR KRISTEFF: Jim Kristeff, (address supplied).
<JAMES KRISTEFF, SWORN [1.23 PM]
EXAMINATION‑IN‑CHIEF BY MR TRINDADE [1.22 PM]
PN172
MR TRINDADE: MR Kristeff, could you please state for the purposes of the transcript record your full name and work address?‑‑‑My full name is actually James John Kristeff. My work address is Garretts Road, Longford. The gas processing plant at Longford.
PN173
You are employed by Esso Australia as the maintenance superintendent at the Longford site?‑‑‑That is correct.
PN174
That's a position you have held for about four years?‑‑‑That is correct.
PN175
You have prepared a statement for the purposes of this proceeding?‑‑‑That is correct.
PN176
If the witness could be provided with a copy of that?‑‑‑Thank you.
PN177
I'd ask you just to check that that document that you've been provided is your statement along with the attachments that you refer to in your statement?‑‑‑Yes, it is.
PN178
Are the contents of your statement and its attachments true and correct, to the best of your knowledge?‑‑‑Yes, they are.
*** JAMES KRISTEFF XN MR TRINDADE
PN179
I note that that's been marked, your Honour.
PN180
THE DEPUTY PRESIDENT: Exhibit E2.
PN181
MR TRINDADE: Mr Kristeff, you say in your statement that you are very familiar with Esso's work systems and procedures at the Longford site. I take it that you include within that, the documented systems which you attach to your statement?‑‑‑That is correct.
PN182
So that includes the overarching system referred to as OIMS, O‑I‑M‑S?‑‑‑Yes.
PN183
And the work management system, which you attach a number of extracts from?‑‑‑That is correct.
PN184
These documents, are they made available to employees at the Longford site?‑‑‑Yes, they are. They are made available electronically and in hard copy manuals.
PN185
In terms of their status, is anything said by Esso management as to how the employees are to treat these documents?‑‑‑Yes, all our work management systems, our operating procedures that the operations and maintenance personnel work by are classed as critical documents and they're to follow those documents as they're written to the letter. Certain critical documents are actually marked "critical" specifically or procedures where operations or maintenance technicians use out in the field and then there's some normal procedures that aren't marked critical. But the intent is, that yes, that is ‑ they follow those.
PN186
Well the processes and the procedures that are the subject of your witness statement, which category do they fall into?‑‑‑As a critical document.
PN187
How is that communicated to employees?‑‑‑Via their initial induction and training when they first start with the company, and then they're on a training road map process for their Tech 1, Tech 2, and there's a refamiliarisation and a familiarisation of the manual as a part of that. And there are subsections of additional training that they take place in regards to permits, isolations on training days and so forth.
PN188
Yes?‑‑‑And also refresher electronic training.
*** JAMES KRISTEFF XN MR TRINDADE
PN189
Are you familiar with the expression "safety case"?‑‑‑Yes.
PN190
Could you tell his Honour what your understanding is of safety case insofar as it concerns the Longford site?‑‑‑The safety case actually documents all our potential risk scenarios for the site and references our mitigating actions or mitigating controls to mitigate those hazards that we have listed in our safety case. And a part of that safety case reference is our existing manuals and processes that we use, whether it be our work management system or procedures. And there's a wide range of manuals that would cover that.
PN191
So the safety case for Longford, when it refers to documented systems, does that include the OIMS and the WMS extracts of which you have taken us to in your statement?‑‑‑Yes, our OIMS system, base OIMS system is used as a supplemented or safety case of our regulator when they're viewing and issuing our safety case licence. References all our OIMS systems and how they fit into how our practices work and we run them how we how we run the facility in a safe manner. So all the documentation that we have there we have to prove that that actually affords us enough protection there to actually operate the facility in a safe manner.
PN192
Does that include the work management system?‑‑‑Yes, it does.
PN193
When you say the regulator, is the safety case a document that's provided to the regulator?‑‑‑The safety case is a document that the site builds and then is presented to the regulator for endorsement and the regulator, once that endorses that, allows us to operate the facility.
PN194
Yes, and we're talking about Longford in this case?‑‑‑Yes, through ‑ yes, Longford.
PN195
And the regulator for approving the safety case for the Longford site, do you know?‑‑‑It's WorkSafe.
PN196
It's WorkSafe?‑‑‑Yes.
PN197
THE DEPUTY PRESIDENT: That's the federal body, is it?
PN198
MR WARD: State body, your Honour. State body.
PN199
THE DEPUTY PRESIDENT: Victorian WorkSafe.
*** JAMES KRISTEFF XN MR TRINDADE
PN200
MR TRINDADE: Do you know what the position is in relation to the other mainland processing facility, the Long Island Point?‑‑‑Long Island Point has its separate safety case to Longford and it references the same processes that Longford does.
PN201
When you say the same processes, are the specific procedures in relation to work permits, isolation, de‑isolation procedures and testing and so on and so forth, the same for Long Island Point as they are under the WMS for Longford?‑‑‑Yes, they are.
PN202
No more questions.
PN203
THE DEPUTY PRESIDENT: Thanks. Any cross‑examination?
MR WARD: Thank you, your Honour.
CROSS‑EXAMINATION BY MR WARD [1.31 PM]
PN205
MR WARD: Just confirming, Mr Kristeff, that you are in fact a maintenance superintendent and have been since December 2010?‑‑‑That is correct, yes.
PN206
Prior to that, well you have 29 years work experience with this company at this site at Longford, that's correct?‑‑‑That is correct.
PN207
You've never been an operator have you, Mr Kristeff?‑‑‑ No, I've never been an operator.
PN208
You rose up our of the maintenance training?‑‑‑Correct.
PN209
So through tools, worked your way through?‑‑‑Yes.
PN210
Have you ever supervised operators?‑‑‑No, I have not.
PN211
So I take it then that you’ve never supervised a de‑isolation conducted by operators, have you?‑‑‑No, I have not.
*** JAMES KRISTEFF XXN MR WARD
PN212
If I was to put to you the scenario, Mr Kristeff, based on your experience as a maintenance supervisor, if an operator or an operations supervisor was to come to you in your capacity now and explain to you, or casually mention for that matter, that they wished or were about to undertake a de‑isolation of a level bridle(?) on GP11/12, the rich oil fractionation tower, would you know about the equipment that they were referring to?‑‑‑On the which equipment, sorry?
PN213
GP11/12 rich oil fractionation tower?‑‑‑Yes, the tower input RODROFF(?) gas plant 1, yes.
PN214
In gas plant 1, RODROFF; you'd be familiar with that. Now would you be familiar with what task ‑ if they described to you they were about to undertake a de‑isolation, would you be familiar with what task they were actually about to do?‑‑‑If they were going to do a de‑isolation, then they would be doing ‑ removing the locks and tags of equipment on the ICC and reinstating that piece of equipment.
PN215
When you say reinstate, can you please expand upon that for me?‑‑‑Well, they'd be manipulating the valves to put it back into service.
PN216
By putting it back into service, you mean that it would actually have some form of process flowing through it?‑‑Correct.
PN217
I am nearly finished here, Mr Kristeff, if I could just take you to your statement I think it is paragraph 53, where you refer to a discussion or a pending discussion with Mr Ben Davis, the AWU Victorian Branch Secretary, on 2 March. Have you got that?‑‑‑Getting close. Yes, I've got it here.
PN218
In your statement you say essentially you discuss three things. First you said 53A that, "Air‑freeing, purging and pressure testing, for example, leak testing, are not classified as de‑isolations." And you maintain that view?‑‑‑That's correct.
PN219
When you had that discussion. Can you tell me when it was, if you can recall, that you came to the view that air freeing, purging and pressure testing were not classified as de‑isolation?‑‑‑I've always had that view.
PN220
From day one as an employee as Longford you've always had that view?‑‑‑I've always had that view.
*** JAMES KRISTEFF XXN MR WARD
PN221
But a moment ago I thought you explained to me that if we went to the GP 11/12 the rich oil fractionation tower in gas plant 1 and an operator or that person's supervisor told you that they were going to conduct a de‑isolation, you would understand that to mean that it would be unlocking, taking tags off and reintroducing process flow?‑‑‑Yes, because you haven't said that ‑ yes, that's what I said, sorry.
PN222
But in familiar vernacular at Longford when people talk about de‑isolation, it actually includes air freeing, purging and pressure testing. I'm not asking about the book now?‑‑‑Not in mine and not from the operation supervisor, so.
PN223
I remind you, you are on oath, Mr Kristeff?‑‑‑Yes, not in my view I am saying.
PN224
So your view is or your position is for as long as you've been an employee you've known the understanding of de‑isolations to be separate from the understanding of air freeing, purging and pressure testing?‑‑‑And I've used the guidelines for definitions and stuff like that when they're available in the work management system to form that view.
PN225
The two other matters that you raised in conversation with Mr Davis were under B, you invited Mr Davis to consult with his members and delegates at Esso about the position that had been taken. That's relating to their declining to undertake de‑isolation?‑‑‑Yes, that's because we believed they weren't following the protocols of the protected action.
PN226
In C you say that Mr Davis advised that he would consult his delegates at Esso and presumably return a call to you?‑‑‑That is correct.
PN227
Did he return a call? I haven't read further?‑‑‑Yes, he did.
PN228
When he did return that call, what did he advise you?‑‑‑He said that the workforce are saying that it is protected action and he agrees it was protected action. And there was plenty of people behind that from a Longford perspective. They weren't going to change their mind on that and he said, "Where to from here?" Because he said, "Are you going to file a 418?" And I said, "I don't have authority to, around that ‑ this was a courtesy call to the guy, to Ben Davis.
PN229
Yes?‑‑‑As he requested before if there was going to be any escalations or anything to advise him so that he could work through any issues with his team prior.
*** JAMES KRISTEFF XXN MR WARD
PN230
Did you use the words ‑ I'm paraphrasing here and I'm happy to be enlightened ‑ did you say to Mr Davis that you would "escalate this matter to legal"?‑‑‑I said I would escalate this to HR and he said, "I know where this goes, it goes to legal and it becomes a 418."
PN231
Right, thank you. Did you ask Mr Davis if he was directing AWU members to deny your request or management's request to conduct de‑isolations?‑‑‑Did I ask him?
PN232
I will put this, did you ask Mr Davis during this telephone conversation if he, as an official of the AWU, was directing its members to deny management's request to conduct the de‑isolation?‑‑‑No.
PN233
One final question, in your view are there suitably qualified staff members at Longford, that is non‑union people, suitably qualified that would be available to conduct de‑isolations?‑‑‑Yes, there is.
PN234
Thank you, that's all, your Honour.
PN235
THE DEPUTY PRESIDENT: Thanks. Any re‑examination?
MR TRINDADE: Just one question, your Honour.
RE‑EXAMINATION BY MR TRINDADE [1.39 PM]
PN237
MR TRINDADE: Just to be clear, the evidence that you have given both in your statement and orally as to the documented procedures, do they apply to operators and maintenance employees alike?‑‑‑that's an operator function but it does ‑ maintenance people do do isolations and do do de‑isolations.
PN238
To be clear, in terms of the requirement to work in accordance with those procedures and the training at induction and also refresher training, is that directed at operators and maintenance employees?‑‑‑It is.
PN239
MR TRINDADE: No more questions.
PN240
THE DEPUTY PRESIDENT: Right, nothing else from anyone?
PN241
MR PARRY: That's the evidence.
THE DEPUTY PRESIDENT: Thank you very much for giving evidence, you are excused, Mr Kristeff.
<THE WITNESS WITHDREW [1.40 PM]
PN243
THE DEPUTY PRESIDENT: That completes the employer evidence?
PN244
MR PARRY: It does.
PN245
THE DEPUTY PRESIDENT: Thanks for that. Over to you, Mr Ward.
PN246
MR WARD: Your Honour, we'd like to call witness Robert Johnson. I am sorry, I don't have a prepared statement.
PN247
THE DEPUTY PRESIDENT: Johnson is spelt J‑o‑h‑n‑s‑o‑n?
PN248
MR WARD: I understand it's J‑o‑h‑n‑s‑o‑n but I will confirm that.
PN249
THE DEPUTY PRESIDENT: No, no, that's fine thanks, it's just for transcript purposes that's all. I prefer witnesses to be called by their proper name on transcript.
PN250
THE ASSOCIATE: Would you please stand there and state your full name and address.
MR JOHNSON: Robert David Johnson, (address supplied).
<ROBERT JOHNSON, SWORN [1.41 PM]
EXAMINATION‑IN‑CHIEF BY MR WARD [1.41 PM]
PN252
MR WARD: Mr Johnson, would you be able to tell the Commission how many years of service you've had at the Longford Gas Plant?‑‑‑Five years.
PN253
You are an operator, aren't you?‑‑‑Yes.
PN254
As distinct from being a maintenance person?‑‑‑Yes.
PN255
Have you done any work at Longford prior to commencing as an Esso employee?‑‑‑No.
*** ROBERT JOHNSON XN MR WARD
PN256
How many years of training or months of training would you have received prior to commencing employment as an operator?‑‑‑Well we trained, my tech one training was approximately two years.
PN257
Are you familiar with the ExxonMobil OIMS manual, operations, integrity management system work management manual?‑‑‑Yes.
PN258
Have you been trained in that?‑‑‑Yes.
PN259
Are you familiar with certain definitions?‑‑‑Yes.
PN260
If I was to ask you what was meant by air freeing, what would you say to that?‑‑‑Air freeing would be to remove air from a vessel or a piece of equipment prior to introducing hydrocarbons.
PN261
If I were to ask you what blinding means, what would you say to that?‑‑‑Blinding is a positive oscillation(?) that we use to prevent the ingress of hydrocarbons into a vessel or equipment.
PN262
Now in your five years working at Longford at an operator, have you ever conducted or participated in a de‑isolation process?‑‑‑Yes.
PN263
Do you understand it to be that air freeing, blinding are actually parts of the de‑isolation process?‑‑‑Yes.
PN264
And if an operator, a fellow operator or a‑ ‑ ‑
PN265
THE DEPUTY PRESIDENT: Was that a yes?‑‑‑Yes, sorry.
PN266
MR WARD: If a fellow operator or a supervisor was to come to you and ask you to conduct a de‑isolation, what would you take that to mean in the entirety of the term de‑isolation?‑‑‑If we were de‑isolating something it would mean it'd be going back into service or have ‑ well it would end up with a state with hydrocarbons in it.
*** ROBERT JOHNSON XN MR WARD
PN267
So if I was to ask you about a conversation that you had with a Mr Justin Ainsworth, a senior operations supervisor at Longford plant that took place on Tuesday, 3 March, where he instructed you or advised you that a de‑isolation needed to be performed on a level bridle on the GP 11/12 rich oil fractionation tower in gas plant one, are you able to verify or not whether that conversation actually took place?‑‑‑Yes.
PN268
Can you describe for me the sequence of events that took place after that request was made?‑‑‑We had to ‑ because there was two points on there that were an instrument de‑isolation, he told me he was going ‑ they wanted to de‑isolate.
PN269
THE DEPUTY PRESIDENT: Sorry, sir, you need to speak up it's a big court room?‑‑‑Sorry.
PN270
Go ahead?‑‑‑So they ‑ Justin said he would ‑ they were going to de‑isolate this level bridle. They had to use an instrument technician to do part of the de‑isolation because there were some reconnections so a permit had to be raised for that work to go ahead. He said that the instrument technician would do his part of the job.
PN271
MR WARD: Which was what?‑‑‑Which was reconnecting the glycol pots on the level bridle and then re‑glycoling them.
PN272
So physically bolting onto some equipment to the‑ ‑ ‑?‑‑‑To the level bridle.
PN273
To the level bridle?‑‑‑Yes.
PN274
And then?‑‑‑And then they re‑glycoled. They filled them up with glycoleum.
PN275
Filled them up with glycol?‑‑‑Yes.
PN276
Then Justin would remove the rest of the isolation points on that isolation. He then said that "I'll do that so that you can do the pressure test." And I said, "Well that needs to be done as part of the de‑isolation process."
PN277
Why do you say that? Why does it need to be done as part of the de‑isolation process? What would be the consequences if it wasn't?‑‑‑Well on a ‑ it could ‑ because it's been broken in containment, it could leak.
PN278
The pipe is apart?‑‑‑Yes, yes. You'd have a loss of containment when you put the piece of equipment back in service.
*** ROBERT JOHNSON XN MR WARD
PN279
So hydrocarbon goes into atmosphere?‑‑‑Correct.
PN280
Through the break in the pipe?‑‑‑Correct. Yes.
PN281
Now in this conversation with Mr Ainsworth, the senior operations supervisor, was there any discussion about who would perform the leak and pressure test?‑‑‑There was. He initially stated that he wanted me to do it and we ‑ well that's part of a de‑isolation which we have our‑ ‑ ‑
PN282
That's normally accepted practice?‑‑‑Yes.
PN283
In your view?‑‑‑Yes.
PN284
Is it?‑‑‑Yes.
PN285
MR PARRY: Well you can't.
PN286
MR WARD: I withdraw it.
PN287
MR PARRY: He can't answer that.
PN288
MR WARD: I don't know how to rephrase this, your Honour, I might move on with another question. Where did this de‑isolation, this request end up? Was it completed?‑‑‑It is. It states on the electronic permit the work system is in the completed state now.
PN289
So it can be returned to service. Does it have process flowing through it?‑‑‑Well it still hasn't had a leak test or pressure test done on that yet.
PN290
Because?‑‑‑Because it's part of de‑isolation process and I didn't de‑isolate it and it wasn't performed.
PN291
Your Honour, I'd like to hand up a document to the witness and I think it constitutes ‑ I am pretty sure it constitutes part of the work management manual that you have and that the other side have. The only difficulty in the okay, thank you.
*** ROBERT JOHNSON XN MR WARD
PN292
This is a photocopy of this manual. Mr Johnson, if I could take you to a section, 4.5 Isolating Systems and Equipment, and it's got a number at the bottom of the page which says 4‑36?
PN293
THE DEPUTY PRESIDENT: I think the one I've got is 4‑91. I've got "Leak Testing", not 4‑36. I've got 4.6 elsewhere, so I could find it in the attachments so I'll use that, all right?
PN294
MR WARD: Yes.
PN295
THE DEPUTY PRESIDENT: 4.36, just bear with me while I find it. I should have it in here. I have it. It's JK3 to the witness statement.
PN296
MR WARD: Mr Johnson doesn't appear to have it.
PN297
THE DEPUTY PRESIDENT: Just stay there and my associate ‑ don't put my associate out of a job, Mr Ward. I've got this if you want it, if you can open it at the right place.
PN298
MR WARD: That would be helpful. Yes.
PN299
THE DEPUTY PRESIDENT: Take that to Mr Ward, he'll open it at the right place.
PN300
MR WARD: I might as well give you this one.
PN301
THE DEPUTY PRESIDENT: Just show her where. 4‑36 he said. Everybody's got it, I think.
PN302
MR WARD: So just to refresh ourselves, section 4.5, isolating systems and equipment, is part of the ExxonMobil work management system. On this page at 4‑36 it has a section called "Scope" and it describes isolation activities. Do you see that there?‑‑‑Yes.
PN303
There's almost a sequential list of events that must take place during isolating systems and equipment, would you agree with that? They're bullet pointed there?‑‑‑Yes.
*** ROBERT JOHNSON XN MR WARD
PN304
If I was to put it to you, Mr Johnson, that if a de‑isolation was required of you, you would look at something like this, presumably, if you weren't familiar with the procedure and you were seeking guidance, and you would follow the exact reverse order of this scope. So, for example, once cleaning had been completed on the isolated vessel, to return it or de‑isolate it, the blinding would have to be taken away, would you agree with that?‑‑‑Yes.
PN305
That any broken containment, that is pipework that is separated, would have to be put back together, would you agree with that?‑‑‑Yes.
PN306
There is no hydrocarbon in vessels, so if it was normally used with a hydrocarbon process you would somehow reintroduce it, would you not?‑‑‑We'd air free it first.
PN307
Why would you do that? Why would you have to air free it first?‑‑‑Well, before you introduce hydrocarbon you have to air free it to prevent making an explosive atmosphere.
PN308
Because air and hydrocarbon at certain mixture levels‑ ‑ ‑?‑‑‑Are flammable.
PN309
Are flammable?‑‑‑Yes.
PN310
So it makes sense, does it not, that included in this scope is the implication or the implied reasoning that before you introduce hydrocarbon ‑ ‑ ‑
PN311
MR PARRY: You can't ask a witness something that's implied.
PN312
MR WARD: I withdraw it.
PN313
If hydrocarbon was reintroduced to the vessel, before you do that you would have to ensure that any drains were not open?‑‑‑That's correct.
PN314
Why would you do that?‑‑‑To prevent a loss of containment.
PN315
So it follows, just to reiterate, that this scope of isolation, the definition as contained by ExxonMobile's own work management manual, in reverse order would constitute what you know to be de‑isolation conducted at the Longford Gas Plant?
*** ROBERT JOHNSON XN MR WARD
PN316
THE DEPUTY PRESIDENT: That's a leading question.
PN317
MR WARD: I withdraw it.
PN318
THE DEPUTY PRESIDENT: You've got to ask him ‑ I'm not sure how to ask it in the neutral fashion.
PN319
MR WARD: Neither am I, your Honour.
PN320
THE DEPUTY PRESIDENT: I will allow the question. I can't think of anything else. It wasn't objected to, so go ahead.
PN321
MR WARD: Do you understand the question?‑‑‑Yes, that's yes.
PN322
Now if I could take you, in the same manual, might I ask for it.
PN323
THE DEPUTY PRESIDENT: What page?
PN324
MR WARD: 4‑84.
PN325
THE DEPUTY PRESIDENT: 484, Reinstating facility systems and equipment", 4.6.
PN326
MR WARD: DO you have that, Mr Johnson?‑‑‑No, not yet.
PN327
THE DEPUTY PRESIDENT: It's just being shown to me to check, thank you.
*** ROBERT JOHNSON XN MR WARD
PN328
MR WARD: I have to get there myself. In this section, Mr Johnson, there's the first bullet point under "Introduction" referring to "Recommission". And it describes, well it has a note which expands on the term "recommission". "Recommissioning is an activity that takes place throughout the reinstatement. Mechanical completion checks must be made before and after equipment testing, air freeing, leak testing and de‑isolation." In your view, are any of those terms used in that note ‑ and I'm specifically taking you to the word "reinstatement" ‑ any of these words, reinstatement, mechanical completion checks, equipment testing, air freeing, leak testing and de‑isolating, are they, for want of a better term, mutually exclusive? Or are they all part of the same recommissioning process?‑‑‑Yes.
PN329
Thank you, your Honour, that's all.
PN330
THE DEPUTY PRESIDENT: That's it?
PN331
MR WARD: Thanks.
THE DEPUTY PRESIDENT: Any cross‑examination?
CROSS‑EXAMINATION BY MR PARRY [1.56 PM]
PN333
MR PARRY: Mr Johnson, these manuals, the work management system manuals, the OIMS as it is described, they're documents that are provided to you by Esso, aren't they?‑‑‑Yes.
PN334
And Esso consider them to be critical documents?‑‑‑Yes, they're controlled frequently.
PN335
They train you up on those documents, don't they?‑‑‑We've had training, yes.
PN336
The position is that it's important that the processes set out therein be followed?‑‑‑Yes.
PN337
If you have any doubt about a process or a step, then you would go to the manuals and the documents, wouldn't you?‑‑‑Yes.
PN338
You don't have a power in your position as an operator to vary from what's in the manuals without clear approval from management, do you?‑‑‑That's correct.
PN339
You are a union member, I take it?‑‑‑Yes.
PN340
You are aware of the position of the union that all these functions you've talked about are part of a de‑isolation ban. That's the position of the union, isn't it?‑‑‑Yes.
*** ROBERT JOHNSON XXN MR PARRY
PN341
The position, were you aware that the ban on de‑isolation was implemented on 12 February or thereabouts?‑‑‑No, yes, I don't know the exact date, but yes.
PN342
Yes, it was about four weeks ago? Nearly four weeks ago, correct?‑‑‑Yes.
PN343
Mr Kristeff has given evidence that after that occurred, that the ban was implemented, that the position was that soon thereafter management started to perform de‑isolations?‑‑‑Yes.
PN344
And at the same time, I think you've described some tasks of blinding and air freeing and so forth, those are tasks that have to be performed before a de‑isolation can take place, correct?‑‑‑Yes.
PN345
After the ban was introduced on or about 12 February, the operators were still performing those tasks and after those tasks were performed, the supervisors would carry out a de‑isolation, wouldn't they?‑‑‑Operators wouldn't be performing blinding.
PN346
Who'd be performing the blinding then?‑‑‑Maintenance perform blinding.
PN347
I see, but with regard to the air freeing, that would be done by operations?‑‑‑Operations, yes.
PN348
Okay, and what happened earlier this week was that operators started to tell supervisors that they weren't going to be carrying out the activities such as air freeing or leak testing, didn't they?‑‑‑On isolation that the supervisors were performing.
PN349
Right?‑‑‑De‑isolation, that's correct, I'm sorry.
PN350
De‑isolations if the supervisors were going to perform the de‑isolations, then the operators weren't going to do the tasks that had to be carried out to allow the de‑isolations to occur, correct?‑‑‑The supervisors weren't performing the de‑isolation and so the air freeing was ‑ is all part of that process.
PN351
Well let's leave aside your view about whether it's all part. The position was that the operators were refusing from early this week to perform those duties of air freeing or purging, weren't they?‑‑‑We were still doing purging. We were still purging lots of vessels and pipe work in the plant.
*** ROBERT JOHNSON XXN MR PARRY
PN352
Which area do you work in particular, sorry?‑‑‑I'm a panel operator which we also have generic areas outside in the plant and I've been working on the gas plant one shutdown.
PN353
Were you working on Monday or Tuesday this week?‑‑‑Yes.
PN354
What I suggest to you, you've given evidence about a conversation with Mr Justin Ainsworth, and what I suggest to you that what that conversation indicates is that as far as Mr Ainsworth was concerned, he was a supervisor, correct?‑‑‑Yes.
PN355
He was going to perform the de‑isolation?‑‑‑Yes.
PN356
And he wanted you to perform the work that needed to be done for that to occur, didn't he?‑‑‑He wanted me ‑ he wanted to do the de‑isolation but he wanted me to do the pressure test.
PN357
The functions of purging, the functions of ‑ not bleeding because you say that's a maintenance job, the functions of air freeing, he wanted you to perform those?‑‑‑Yes.
PN358
And can I suggest to you the reason that he wanted you to perform those is because up to then the position had been that operators had been performing those functions to enable de‑isolations to occur, hadn't they?‑‑‑No.
PN359
Well I suggest‑ ‑ ‑?‑‑‑Not to my knowledge, no.
PN360
Not to your knowledge. Where Mr Kristeff's given unchallenged evidence to this Commission that that was the position, you are not going to say that Mr Kristeff was not correct?‑‑‑I can't testify to what other operators have done.
PN361
The position has been, I think as far as that particular de‑isolation that had to occur, that it hasn't occurred because that other work has not been done to enable it to occur?‑‑‑Which isolation?
PN362
The one you gave evidence about that Mr Ainsworth asked you to do?‑‑‑That de‑isolation has occurred.
PN363
That has occurred?‑‑‑Yes.
*** ROBERT JOHNSON XXN MR PARRY
PN364
I see?‑‑‑It's occurred and it's complete but the pressure test has not been done.
PN365
You've been taken to the manual and presumably you've looked fairly carefully through the manual in the knowledge that these proceedings were taking place?‑‑‑Sorry?
PN366
You've looked through the work management systems manual fairly carefully, haven't you?‑‑‑Yes.
PN367
You are aware there's a definition of de‑isolation in there?‑‑‑Yes.
PN368
Have you looked up the definition of isolation?‑‑‑I can't recall it but ‑ off the top of my head.
PN369
Isolation is a different procedure than de‑isolation, isn't it?‑‑‑Well, yes.
PN370
Yes, there's a number of different steps that have to be taken, isn't there?‑‑‑Well, they're in reverse order so they're different.
PN371
And the manual deals comprehensively with isolation, doesn't it?‑‑‑Yes.
PN372
You have been taken to 4‑84 which is ‑ I think this is all about commissioning or reinstating facility systems and equipment. Can we accept that reinstating facility systems and equipment is a far broader cohort of duties than de‑isolating?‑‑‑What ‑ I don't understand what you‑ ‑ ‑
PN373
Well you were taken to page 4‑84 and it's a heading, "Reinstating facility systems and equipment." Can we agree that the process of reinstating facility systems and equipment is a far broader process than de‑isolating?‑‑‑Than de‑isolating?
PN374
Yes?‑‑‑Reinstating is de‑isolating.
PN375
So your position is that when it says "reinstating facility systems and equipment" that is simply de‑isolating? Is that your position?‑‑‑It's all part of de‑isolation, yes.
*** ROBERT JOHNSON XXN MR PARRY
PN376
You see unfortunately your work management system doesn't say anything like that, does it?‑‑‑It doesn't say de‑isolating on that page anywhere, does it?
PN377
Well it does actually. You see in the note it says, "Recommissioning", and I quote, "Is an activity that takes place throughout the reinstatement. Mechanical completion checks must be made before and after equipment testing, air freeing, leak testing and de‑isolating, do you see that?‑‑‑Yes, yes.
PN378
So we can accept that reinstating facility systems and equipment is a far broader concept that de‑isolating, isn't it?‑‑‑Yes, it's part of de‑isolating, yes.
PN379
Your position is it's part of de‑isolating?‑‑‑Yes.
PN380
I have nothing further.
PN381
THE DEPUTY PRESIDENT: Thanks. Any re‑examination?
PN382
MR WARD: No, your Honour.
THE DEPUTY PRESIDENT: Thank you very much for giving evidence, you are excused.
<THE WITNESS WITHDREW [2.07 PM]
PN384
THE DEPUTY PRESIDENT: The next witness. How many witnesses to you have?
PN385
MR WARD: One more, your Honour.
PN386
THE DEPUTY PRESIDENT: Thanks.
PN387
MR WARD: Your Honour, we would like to call Robert Steed.
PN388
THE DEPUTY PRESIDENT: S‑T‑E‑E‑D?
PN389
MR WARD: D, correct.
PN390
THE ASSOCIATE: Could you please stand here and state your full name and address.
MR STEED: Robert Steed, (address supplied).
<ROBERT STEED, SWORN [2.10 PM]
EXAMINATION‑IN‑CHIEF BY MR WARD [2.10 PM]
PN392
THE DEPUTY PRESIDENT: Do you spell your name S‑t‑e‑e‑d?‑‑‑Correct.
PN393
MR WARD: Mr Steed, you are an operator or an operations technician at the Longford Gas Plant, is that correct?‑‑‑Correct.
PN394
How long have you been an operator at Longford?‑‑‑Eight years.
PN395
When you started eight years ago did you receive any training?‑‑‑Yes.
PN396
In operations, process operations?‑‑‑Yes.
PN397
Did you work at Longford at all prior to commencing employment with Esso?‑‑‑Yes, I did.
PN398
So you had some familiarity?‑‑‑Correct.
PN399
What role did you undertake there?‑‑‑I was a mechanical contractor.
PN400
For a contractor?‑‑‑Mm.
PN401
What sort of work would you undertake as a contractor?‑‑‑It was a hydraulics mechanic so we went from engines to pipework to turbines.
PN402
So as a contractor when you come on site are you required to have some sort of familiarity or understanding of various work practices such as something called de‑isolation?‑‑‑Yes.
*** ROBERT STEED XN MR WARD
PN403
Or isolation?‑‑‑Right.
PN404
So presumably as a mechanical contractor you could not work on something unless it was isolated?‑‑‑Correct.
PN405
Once it was worked on and repaired, it would be reintroduced to service?‑‑‑Yes.
PN406
Who would do that?‑‑‑Once our permit was closed out, the operations group would do that.
PN407
The operators would?‑‑‑Yes.
PN408
And you're now an operator who does that. You do de‑isolations don't you, Mr Steed?‑‑‑Yes.
PN409
Are you familiar with the OIMS manual, the work management manual?‑‑‑As best I can. It's complicated but.
PN410
You know of its existence?‑‑‑Yes.
PN411
Have you received any training in the OIMS system?‑‑‑Yes, a number of years ago.
PN412
Have you received any training in definitions contained within this work management manual?‑‑‑Not definitions, no.
PN413
If I was to ask you, Mr Steed, what air freeing is, would you be able to provide an answer to that?‑‑‑Yes, sure. That's just providing oxygen free environment in a piece of equipment so that it removes away the flammable sources.
PN414
So when would an operator conduct air freeing?‑‑‑Only during the de‑isolation process or recommissioning of a bit of equipment.
PN415
Are you familiar with the term blinding?‑‑‑Yes.
*** ROBERT STEED XN MR WARD
PN416
Would you be able to offer a definition, in your view, as to what that means?‑‑‑Blinding allows ‑ it's a positive isolation. It takes away any risk or mitigates all possibilities of any of the hydrocarbons or liquids entering a section of the equipment and therefore hot work cuts, modifications can happen inside that isolation.
PN417
If I was to ask you what normal operating state was, for example a vessel used in processing, what would that mean to you?‑‑‑It would mean it'd have pressure protection. It would be 100 per cent hydrocarbon full, no oxygen, full of process whether it's liquid, gas or vapour. Yes, fully pressured up.
PN418
So let's talk about de‑isolations and, indeed, isolations. I want to take you to a document. Your Honour, I don't know how we are going to do this. It's the same process again. I've got the manual. It's the same two pages. I don't have copies any more.
PN419
COUNSEL: I've got copies.
PN420
MR WARD: Thank you. I will start with 4‑36.
PN421
THE DEPUTY PRESIDENT: 4‑36.
PN422
MR WARD: Have you got that, Mr Steed?‑‑‑Yes.
PN423
It's headed up, "Section 4.5 Isolating Systems and Equipment" and it describes "scope" and there's a number of dot points there?‑‑‑Yes.
PN424
Is there anything controversial in that description about what constitutes an isolation?‑‑‑No.
PN425
Each one of those dot points? So if I was to say to you that before you conduct an isolation, you would have to, if there was any electricity or other energy sources connected to it you would have to isolate those?‑‑‑Yes.
PN426
You'd then have to drain and depressure it from any hydrocarbons that's still contained within that vessel, is that correct?‑‑‑Absolutely.
PN427
So it goes through each dot point. I don't need to go through each and every one. But would you agree that that this the scope of an isolation?‑‑‑Correct.
*** ROBERT STEED XN MR WARD
PN428
Now, if I asked you to describe for me a de‑isolation, what is the current custom and practice for de‑isolating equipment at Longford?‑‑‑Current customer and practice?
PN429
Does it bear any resemblance to your knowledge of an isolation, for example?‑‑‑It's basically the reversal of an isolation.
PN430
Thank you. But just for my benefit and the Commission's benefit hopefully, what is your view and understanding of the current custom and practice for equipment de‑isolation at Longford?‑‑‑De‑isolation involves the closing out of all permits against the piece of equipment that is isolated. All locks and tags are removed from the disciplines, so that's the trades. Their locks are put on the boxes to prevent the piece of equipment being de‑isolated whilst they are working on it. Then we move on to ‑ once we get the okay from our supervisors ‑ to perform the de‑isolation.
PN431
Yes?‑‑‑First things first we put the PSVs in service.
PN432
What are PSVs?‑‑‑It's a pressure protection device, so it can't be over‑pressurised. Or for whatever reason if the de‑isolation process was paused or stopped, the pressure protection is there at all times.
PN433
Yes?‑‑‑We would then air‑free the piece of equipment, by opening bleeders or putting the piece of equipment to close‑drain or flare, and we would purge that piece of equipment.
PN434
All right, and then?‑‑‑Then once the purging process had passed the gas testing requirements, we would then pressure test the equipment and that pressure testing involves raising it up in increments strategically and then doing leak tests at and on the pieces of equipment that are being worked on during that ‑ in that isolation.
PN435
Just on that point of incremental increases on pressure?‑‑‑Yes.
PN436
What is the purpose of that?‑‑‑The purpose of that is to do basically a low‑pressure test. Therefore you are not ‑ you can re‑isolate the piece of equipment if you find it at a lower stage.
*** ROBERT STEED XN MR WARD
PN437
So let's explore this: you are undertaking a process in, I think, the considered view of yourself is the normal custom and practice of operators who performance this function at Longford. You would de‑isolate in this manner with the view that ‑ ‑ ‑
PN438
MR PARRY: This is absolutely leading.
PN439
MR WARD: I withdraw, your Honour.
PN440
MR PARRY: The whole debate is about what de‑isolating ‑ not the raft of duties ‑ this raft of duties.
PN441
MR WARD: Your Honour, I was seeking to go to the employee's view of what is custom and practice in terms of de‑isolation.
PN442
Mr Steed, could I take you to the same ‑ the second‑page document you've got there, 484, section 4.6, Reinstating facility systems and equipment. Have you got that?‑‑‑Yes.
PN443
There's a section referred to an introduction and it has several bullet points. Could I ask you to read through, as reasonably as you can, each of those dot points or bullet points, and provide the Commission with a view as to whether any of those dot points have any resemblance to current custom and practice for de‑isolating at Longford?‑‑‑Okay the first dot point, the re‑commissioning with a note below it:
PN444
Recommissioning is an activity that takes place throughout the reinstatement. Mechanical completion checks must be made before and after equipment testing, air‑freeing and leak testing and de‑isolating.
PN445
Second dot point:
PN446
Equipment testing and air‑freeing and the leak testing and we remove ‑ ‑ ‑
PN447
THE DEPUTY PRESIDENT: I have read it. I don't need it to be read out to me?‑‑‑Thanks, okay.
PN448
MR WARD: So just to perhaps in an attempt to sharpen the question, are you able to offer a view on what is current custom and practice in terms of de‑isolating equipment at Longford, in comparison to the dot points listed here?‑‑‑All of them are relevant to our custom and practice.
*** ROBERT STEED XN MR WARD
PN449
Now, you have as the senior delegate for the AWU at Longford Plant Operations Group, you have I imagine, conversations from time to time with management?‑‑‑Yes.
PN450
Particularly about enterprise agreement negotiation?‑‑‑Yes.
PN451
Have management approached you and asked you to completely remove and conduct complete de‑isolations in the plant?‑‑‑Yes, on several occasions they've asked if we would do that.
PN452
What have you taken that to mean, when they've asked you to conduct a de‑isolation?‑‑‑They informed us that they would form a de‑isolation crew and that crew would performance the de‑isolations throughout the plant.
PN453
That crew would be made up of whom?‑‑‑Staff supervisors.
PN454
So non‑union personnel?‑‑‑Correct.
PN455
Would they be suitably qualified for the task of completing de‑isolations?‑‑‑We believe not. They're out of the industry for ‑ I think the newest is two years and up to 20 years that they've worked as an operator.
PN456
Do you think, Mr Steed, that given the requirements of the work management manual and the systems described in OIMS that these individuals would comply with the obligations of the company of its own policies and procedures?‑‑‑Yes, I believe they would comply.
PN457
So they could undertaken the de‑isolations in accordance with this manual?‑‑‑Yes.
PN458
All right. So you have these discussions with management at Longford about de‑isolations. Specifically, what do they ask you to do as the senior delegate for the AWU?‑‑‑They asked if they were going to receive any resistance around their members ‑ their de‑isolation crew ‑ performing de‑isolations. We said no, provided there was a handover process that was documented.
PN459
What is a handover process?‑‑‑A handover process is a detailed written description that we are legally bound by at the end of each shift to do. And that's a description of what's been performed; the de‑isolation or the isolation that's performed on the day. The ICC certificate, which is the isolation control certificate.
*** ROBERT STEED XN MR WARD
PN460
Is that a list of isolations on a particular vessel?‑‑‑Yes.
PN461
That is, locations of locks and tags, is that correct?‑‑‑Yes.
PN462
Right. Go on?‑‑‑That would be handed over and we'd be walked through the isolation that had been removed.
PN463
Yes?‑‑‑And, yes. So the understanding was that the de‑isolation crew was going to complete the de‑isolation from start to finish.
PN464
So just to be clear., management have approached you, the senior union delegate for the Australian Worker's Union and asked you (1) if there was going to be any resistance and (2) if they put de‑isolation crews into the plant, whether you would participate in the process?‑‑‑Yes.
PN465
And you answered?‑‑‑No.
PN466
On what grounds?‑‑‑That we would be responsible for the isolation. It's our role, it's our responsibility; care, custody and control of the areas that we work in and if we were present for the de‑isolation of these pieces of equipment, then responsibility would rely solely with us.
PN467
Right, and that has implications?‑‑‑It does.
PN468
Now, have there been any de‑isolations performed to date, during the current ban on de‑isolation of equipment at Longford?‑‑‑Yes, four to my knowledge.
PN469
Did they require any air‑freeing or de‑blinding?‑‑‑No. We didn't have any de‑blinding. We didn't' have any air‑freeing.
PN470
Who conduced those de‑isolations?‑‑‑Two of the de‑isolations were conducted by us. They were safety de‑isolations.
PN471
The operators?‑‑‑Correct.
PN472
The union members?‑‑‑Yes.
*** ROBERT STEED XN MR WARD
PN473
Correct?‑‑‑Yes.
PN474
All right?‑‑‑We conducted two of those de‑isolations around safety. They were glycol‑injection pumps.
PN475
Which was part of you undertaking, was it not?‑‑‑Yes.
PN476
As part of the notice?‑‑‑Yes, and they didn't require purging because they're a liquid equipment, liquid pumps.
PN477
So what would you have done if they did require purging or air‑freeing?‑‑‑We would have performed it.
PN478
This is you as the union delegate?‑‑‑Yes.
PN479
What would you have done?‑‑‑We would have purged pressure‑tested and put it back into service.
PN480
No, I beg your pardon. There's been four de‑isolations?‑‑‑Yes.
PN481
Since the ban has been in place?‑‑‑Mm‑hm.
PN482
You have indicated to us that none of those de‑isolations required air‑freeing?‑‑‑No.
PN483
But I'm asking you if each one of those four de‑isolations did require air‑freeing as the union delegate ‑ as one of them ‑ having a ban in place on de‑isolations, would you have gone ahead and done the de‑isolation?‑‑‑If it referred to safety, yes, we would have.
PN484
Very good. But if it didn't?‑‑‑If it didn't, no.
PN485
Right?‑‑‑No.
PN486
Now, Mr Steed, are you a panel operator or an outside field operator?‑‑‑Field operator.
*** ROBERT STEED XN MR WARD
PN487
And are you familiar with the Halibut Pig Receiver procedure?‑‑‑Yes, I am.
PN488
Why are you familiar with it?‑‑‑It's actually an outside area, so there's ‑ ‑ ‑
PN489
Yes, it's not ‑ a control‑room operator would never go there?‑‑‑Correct.
PN490
And there's a procedure for receiving what's known as a "pig" which for the Commission's benefit if they weren't already aware is used for the cleaning of the internals of a pipeline from offshore to onshore. In this case, the Halibut pipeline. Is that correct?‑‑‑Correct.
PN491
So when it lands at Longford inside the pipeline, there's a procedure for removing the actual pig outside of the inside of the pipe?‑‑‑Yes.
PN492
Can you describe, in shorthand, what that procedure involves?‑‑‑Confirmation that the pig has been received by a signal. We're notified. The Halibut receiver is isolated, so an isolation certificate is put in place.
PN493
That is the section of pipework, the Halibut pipework, where the pig actually stops at the end of it?‑‑‑Correct.
PN494
It is isolated?‑‑‑Yes. It's fully isolated, then we drain, de‑pressure, then we air‑free it.
PN495
Yes?‑‑‑And then the isolation is fully in place.
PN496
Right?‑‑‑So it's water‑washed, air‑freed and ready to hand over to maintenance.
PN497
Now, do you ever conduct what's common practice at Longford in your words, a de‑isolation of that pig receiver?‑‑‑Yes. We have to start the de‑isolation process when we hand it over to maintenance.
PN498
Can you, in shorthand, explain the de‑isolation process?‑‑‑The de‑isolation process is we put the PSV or pressure saving device ‑ what PSV stands for again ‑ pressure safety device. Yes, we put that back in service again. We air‑free the vessel once again, once it's been opened to atmosphere for the pig removal.
*** ROBERT STEED XN MR WARD
PN499
Can I just stop you there, Mr Steed. When you say you "air‑free it", do you require a separate permit for the air‑freeing function?‑‑‑No.
PN500
THE DEPUTY PRESIDENT: I'm sorry to interrupt. Where is this leading, Mr Ward?
PN501
MR WARD: This is a procedure I'm led to believe which specifically outlines concepts such as air‑freeing, as part of de‑isolation, and not exclusive to it.
PN502
THE DEPUTY PRESIDENT: All right. Well, I'm sure you can make that point with a few key questions. Go ahead.
PN503
MR WARD: Mr Steed, in respect of de‑isolation carried out on the Halibut Pig Receiver, in your view, is ‑ ‑ ‑
PN504
THE DEPUTY PRESIDENT: What functions does that include?
PN505
MR WARD: Yes, what functions does it include, the de‑isolation?‑‑‑The functions it includes is air‑freeing, purging and pressure‑testing. It's a critical procedure that we cannot deviate from.
PN506
Is that procedure referred to in the work management manual or procedures?‑‑‑It's referred to ‑ ‑ ‑
PN507
Does it have to comply with the OIMS?‑‑‑Absolutely.
PN508
Right, thank you. One final question, your Honour.
PN509
Mr Steed, you were approached, were you not, on 20 February by Head of Country for ExxonMobil, Mr Owen?‑‑‑Yes.
PN510
At the Longford Gas Plant and he approached you in your capacity as senior delegate, is that correct?‑‑‑Yes.
PN511
He wanted a conversation with you and bans were in place at the time, is that correct?‑‑‑Correct.
*** ROBERT STEED XN MR WARD
PN512
He wanted to have a conversation with you about lifting bans, is that correct?‑‑‑Correct.
PN513
Can you tell the Commission what he said to you?‑‑‑Commissioner, Mr Owen directly asked for the de‑isolation ban to be removed.
PN514
Why?‑‑‑So that we could perform de‑isolations in the plant.
PN515
What did you take that to mean?‑‑‑I took that to mean that he wanted the ban removed so the de‑isolations could be performed.
PN516
Just to be clear, Mr Steed, did he ask you that you would conduct air‑freeing, leak testing and all of the matters, recommissioning?‑‑‑No.
PN517
He just said de‑isolate?‑‑‑Correct.
PN518
Because ‑ what was the problem he was facing at that time?‑‑‑At that time, the isolations that were in place throughout the plant were holding up his shutdowns and his projects in place at the time.
PN519
What impact does the hold‑up of shutdowns have for Mr Owen's business?‑‑‑It just delays the shutdown schedule.
PN520
Does it affect supply?‑‑‑No.
PN521
All right, thank you. That's all, your Honour.
THE DEPUTY PRESIDENT: Cross‑examination?
CROSS‑EXAMINATION BY MR PARRY [2.31 PM]
PN523
MR PARRY: Mr Steed, you're a senior delegate with the AWU?‑‑‑Yes.
PN524
Your position is as senior delegate to advance the position of the union at Longford, I take it?‑‑‑Not advance it, no.
*** ROBERT STEED XXN MR PARRY
PN525
Not advance the position of the union? You represent the union on site, don't you?‑‑‑Correct.
PN526
And I suggest to you that you coming along here today, your position is to advance to the position of the union, isn't it?‑‑‑No, I'm here as an operator and a witness for the duties I conduct.
PN527
I suggest to you that as a senior delegate, one of your responsibilities as a senior delegate for the AWU is to advance the position of the AWU?‑‑‑No.
PN528
You don't see it that way?‑‑‑No.
PN529
Well, can I ask you, you were asked by my learned friend here about OIMS and your knowledge of it, and you said, "Well, as best as I can ‑ and I haven't looked at it for a number of years. I haven't had any training in the definitions." You know what OIMS are I take it?‑‑‑Yes.
PN530
Do you accept that they're a critical document on site?‑‑‑Yes.
PN531
Critical documents are ones that Esso would expect you to follow, is that correct?‑‑‑Yes.
PN532
They'd expect you to be aware of their terms, wouldn't they?‑‑‑Yes.
PN533
And if you were acting inconsistently with the terms of the OIMS, then you would expect to be disciplined, wouldn't you?‑‑‑If you deviated in any radical or ‑ ‑ ‑
PN534
Any radical?‑‑‑Yes, if you deviated in any radical form or whatever.
PN535
Well, what about a deviation not radical?‑‑‑The interpretation of the manual is long and varied, as is every manual. It's very hard to work to the letter of the law every day of the week.
PN536
It's hard to work to the letter of the law every day of the week?‑‑‑Correct.
PN537
If you don't work to the letter of the law and work inconsistently with the OIMS, wouldn't you accept that that's a serious matter?‑‑‑Yes.
*** ROBERT STEED XXN MR PARRY
PN538
The work management systems; you've been taken to some of the work management systems. What's your familiarity with them?‑‑‑Of work management systems? Yes, generally, today I've got a better knowledge than I had prior.
PN539
What, you haven't read them much before today?‑‑‑Yes, I read them all the time when the reference ‑ when I have to reference them for a particular procedure or task.
PN540
Do you accept the WMS is a critical document as well?‑‑‑Yes.
PN541
It's critical it be followed?‑‑‑Yes.
PN542
You've given evidence today about some definitions. You gave a definition of air‑freeing. Are you aware that air‑freeing is defined in the Work Management System?‑‑‑Yes.
PN543
Do you have any dispute that the definition in the work management system is the correct one?‑‑‑No, it's correct.
PN544
The union has never suggested that definition is not correct in that document, have they?‑‑‑No.
PN545
Neither have you?‑‑‑No.
PN546
And insofar as you've given a verbal version to the Commission, if I read out to you the definition of air‑freeing in the work management system, you would presumably tell me that the definition that's in the work management system is the one to be followed, wouldn't you?‑‑‑Yes.
PN547
And again, you've given a definition of blinding. Again, are you aware that there is a definition of blinding in the work management system?‑‑‑Yes.
PN548
Again, can I suggest to you insofar as you've given a definition to the Commission about what blinding is, if I was to read out to you the definition of blinding in the work management system, you'd presumably say, "Well, that is the correct definition"?‑‑‑Yes.
*** ROBERT STEED XXN MR PARRY
PN549
And were you aware that there is a definition of de‑isolation in the work management systems?‑‑‑Yes.
PN550
Again, can I ask the same question: insofar as you've given a definition of de‑isolations here today, can we accept that insofar as the work management system contains the definition, that is the correct definition of what de‑isolations are, isn't it?‑‑‑It's a contentious point at the moment.
PN551
It's a contentious point at the moment. Was it a contentious point six months ago?‑‑‑No, because it wasn't ‑ ‑ ‑
PN552
No, it wasn't a contentious point six months ago. Was it a contentious point in January?‑‑‑Yes.
PN553
Why was it a contentious point in January?‑‑‑There was a few issues around the de‑isolation process.
PN554
I see. Had the AWU written to Esso saying, "We don't accept the definitions in the manual"?‑‑‑No.
PN555
Are you telling this Commission that the AWU does not accept the correctness of parts of the work management system manual?‑‑‑No, I'm not saying that at all.
PN556
No. Indeed, your position, can I suggest, is that you accept that the work management system manual is necessary and must be followed?‑‑‑Yes.
PN557
Right. You've been taken today to section 484. I think you've been taken to ‑ I'm sorry, I withdraw that. You've been taken to isolations and can we accept that the manual, work management system manual deals in a fair bit of detail with isolating systems of equipment, doesn't it?‑‑‑Detail?
PN558
Yes?‑‑‑Clarify the detail?
PN559
Yes. 436, I think you've given some evidence about it?‑‑‑Yes.
PN560
Can we agree that there is a fair bit of detail about isolation, isolating systems and equipment?‑‑‑It's not complicated detail, no.
*** ROBERT STEED XXN MR PARRY
PN561
But can we accept that the isolation activities are fairly carefully defined in the manual, aren't they?‑‑‑Yes.
PN562
Were you aware of that?‑‑‑Yes.
PN563
I see. And, in fact, there's a number of pages set out thereafter on isolation and isolation control certificates, isn't there?‑‑‑Yes.
PN564
And presumably you would follow those carefully?‑‑‑That's our job.
PN565
That's the job and you were taken to Reinstating facility systems and equipment on page 484. Can we accept that reinstating facility systems and equipment is a broad concept ‑ a broad cohort of duties ‑ one of which is de‑isolating?‑‑‑No different to isolating.
PN566
Well, you didn't need to add that in, did you, because it is different than isolating, because they are different sections of the manual, aren't they?‑‑‑Yes.
PN567
They're a different set of procedures to be followed, aren't they?‑‑‑No.
PN568
They're different things, aren't they? Isolating and de‑isolating?‑‑‑Yes, but it's just a reversal of the isolating process.
PN569
Well, can you seriously say that if we go through every part of the detailed and complicated matters set out in equipment isolation and reinstatement, lock‑out, tag‑out; the various certificates that have to be obtained and so forth, all we need to do is then put, "Don't do this," or, "Do this in reverse"?‑‑‑No.
PN570
No, that's a bit simple, isn't it?‑‑‑I don't refer to the book every time I do it, if that's what you're asking.
PN571
No, I'm not asking that. I have nothing further.
PN572
THE DEPUTY PRESIDENT: Take a seat. Any re‑examination?
MR WARD: Yes, your Honour.
RE‑EXAMINATION BY MR WARD [2.39 PM]
*** ROBERT STEED RXN MR WARD
PN574
MR WARD: Mr Steed, if you are asked to conduct a de‑isolation, do you refer to a procedure to do it?‑‑‑No.
PN575
Why is that?‑‑‑We do them all the time ‑ unless it was a critical piece of equipment.
PN576
Then you would refer to a procedure?‑‑‑Correct.
PN577
When you conduct a de‑isolation, or for that matter, and isolation, do you refer to the Esso Australia Production Operations Work Management System manual?‑‑‑No.
PN578
When would you look at this manual?‑‑‑When a complication arose.
PN579
Right. So when you conduct an isolation and a de‑isolation, you conduct it in the manner that is normal, accepted custom and practice. Is that correct?
PN580
MR PARRY: This isn't ‑ ‑ ‑
PN581
THE DEPUTY PRESIDENT: Yes.
PN582
MR PARRY: Number one, it's re‑examination.
PN583
THE DEPUTY PRESIDENT: Yes, it is.
PN584
MR WARD: That's all, your Honour.
THE DEPUTY PRESIDENT: Thank you very much for giving your evidence, Mr Steed, you're excused.
<THE WITNESS WITHDREW [2.41 PM]
PN586
THE DEPUTY PRESIDENT: All right. Time for final submissions, I suppose. Sorry, doesn't that complete your evidence, Mr Ward?
PN587
MR WARD: Yes, it does.
PN588
THE DEPUTY PRESIDENT: No further evidence? No?
PN589
MR WARD: I beg your pardon, your Honour?
PN590
THE DEPUTY PRESIDENT: No further evidence?
PN591
MR WARD: No, that's it.
PN592
THE DEPUTY PRESIDENT: Thank you. Mr Parry.
PN593
MR PARRY: If the Commissioner pleases, the ‑ ‑ ‑
PN594
THE DEPUTY PRESIDENT: You have put a submission earlier and I did remember it. Feel free to say what you need to say. As I understand it, and Mr Ward can correct me, the issue in dispute now is simply whether or not the term "de‑isolation" includes air testing and those other functions. That's it, isn't it, Mr Ward?
PN595
MR WARD: Yes, your Honour.
PN596
THE DEPUTY PRESIDENT: No other issue?
PN597
MR WARD: The other question is in terms of an in‑perspective notice, how it may or may not apply to Long Island Point employees, given that they're captured by the same agreement and this same application.
PN598
THE DEPUTY PRESIDENT: Well, the AWU was served on behalf of itself and its members.
PN599
MR WARD: Yes,
PN600
THE DEPUTY PRESIDENT: So it includes this other site, doesn't it?
PN601
MR WARD: Well, it does and we would be concerned about procedural fairness given that operators ‑ members of ours working at Long Island Point ‑ would have their views about what is custom and practice in terms of de‑isolation and would like to provide that evidence. It hasn't been heard today and there's no opportunity for it to take place.
PN602
The application is flawed in that regards insofar as it captures a group that's not represented adequately.
PN603
THE DEPUTY PRESIDENT: All right. Well, that's your view and I'm sure we'll hear Esso's view in a second on that. Sorry to interrupt you, Mr Parry. I needed to clarify what the AWU's position was. So we've heard it now.
PN604
MR PARRY: Your Honour has, in our submission, accurately identified what we understand the issue to be. That is, whether the notice of protected industrial action covers the other duties we say that are identified in the evidence of Mr Kristeff. There is not a dispute that there is industrial action being taken place or that there is a ban implemented on these "other duties" as I will neutrally describe them. They are, we would say, equipment testing, air‑freeing and leak testing. Our position is that that industrial action is happening, is threatened and is being organised. Again, those issues are not in dispute.
PN605
The Commission will note that the statement of Mr Kristeff, along with the exhibit E2 ‑ exhibit E1 has the indefinite ban on the de‑isolation of equipment. Now, the term "de‑isolation of equipment" is a term that, we take the position, has a clear, defined and particular meaning within the context of the operations at Esso at Longford and, I will add, at Long Island Point. The concept of de‑isolation is firstly it's a defined concept within a document that is of critical importance to Esso. It is a defined concept in a document that is taught to Esso employees and is required to be followed by all employees. Mr Kristeff has given evidence about this in his statement. He has given evidence of the OIMS as they've been described, and the equipment ‑ I'm sorry, the WMSs.
PN606
Mr Trindade's evidence is consistent with the that. When the evidence is given by an AWU health and safety representative, a production technician yesterday, that evidence ‑ he was asked the question in‑chief, I take it, "What is de‑isolation?" And Mr Patterson said, and I quote, "De‑isolation is the removal of locks and tags to facilitate fuel gas to flow." Well, we agree, that is almost exactly the definition that appears in the WMS and the union ‑ ‑ ‑
PN607
THE DEPUTY PRESIDENT: This is at 120, is it? De‑isolations, the definitions document?
PN608
MR PARRY: I'm sorry, yes. Yes, 120. At it says there, and I quote:
PN609
Unlocking and moving isolation valves, reconnecting systems, removal of blinds and unlocking electrical switches to their normal operating stare.
PN610
And as the Commission will have noted, the concept of de‑isolation is a concept that is referred to at parts within the work Management system.
PN611
So when a union ‑ we take the position that the evidence of Mr Kristeff was that the ban was implemented on 12 February. That is, there was a ban on de‑isolation. It makes the evidence of Mr Steed about the conversation with senior Esso management understandable. That is, it was having an effect. We say that Mr Kristeff gave uncontested evidence that on 25 February operators were performing the discrete tasks that he described in ‑ I'm sorry, I've got the ‑ yes, he deals with this at 46 and onwards. They involved supervisors. The supervisors were to ‑ the operators ‑ I think it's paragraph 48 that's an important paragraph as far as we're concerned, and again that seems consistent with the evidence that's even been given by Mr Steed.
PN612
That is that after 26 February, Esso implemented an arrangement where managerial staff were performing the de‑isolation, but employees were performing the recommissioning work, equipment testing, air‑freeing and leak testing and then the supervisor stepped in to perform the de‑isolation, which we say was the de‑isolation being that which is defined in the work management system; that is, unlocking and moving isolation valves, reconnecting systems, removal of blinds and unlocking electrical switches to their normal operating state. Then the operator would step back in and remove, as it says in paragraph 48, "any temporary defeats of the form acceptance testing."
PN613
Now, that' position was the position up until early this week when, as Mr Johnson said ‑ gave an example of ‑ things changed. That is, the union, for some reason not particularly explained by the AWU, decided that the arrangements set out in paragraph 48 would not continue and that there would be a ban placed on the equipment testing, air‑freeing and leak testing. The practical effect of that ban was that the de‑isolations could not be performed by management.
PN614
Now, the notice of 3 February has to comply with section 414(6). It has to specify the nature of the action. Here it did so. It specified the nature of the action as a discrete duty, well set out and well understood at Esso in the context of the important and critical documents. Now, there are authorities with regard to this. Your Honour is no doubt familiar with the requirements and I think there's Telstra Full Bench decision. I'm happy to hand that up to your Honour if it assist.
PN615
THE DEPUTY PRESIDENT: All right, thanks.
PN616
MR PARRY: In particular, I think it's paragraph 12, the importance here, your Honour, is that the notice under section 414(6) is a notice to the employer. It's to put the employer on notice of what is to occur, the specifics of the industrial action. If one hands to an employer a notice which specifically refers to a duty which is defined in critical documents, which are well‑known and distributed to employees then it's fair and reasonable to assume the employer assumes that what comes within that are the words that are defined within the corporate documents.
PN617
Here, we say, it's clear the concept of de‑isolation is one that is defined and it does not include the other duties which were the subject of the further bans placed earlier in the week. So our position is that this is industrial action not within the section 414 notice. It is not protected and can be the subject of a section 418 order and indeed must be.
PN618
Now, there are some other issues ‑ ‑ ‑
PN619
THE DEPUTY PRESIDENT: Long Island Point.
PN620
MR PARRY: I'm sorry?
PN621
THE DEPUTY PRESIDENT: Long Island Point. Sorry, I may have put you out of sequence. You follow your own sequence of arguments.
PN622
MR PARRY: I was going to get too Long Island Point. Can I say, your Honour just said "it must be", that's correct. There is another section 418 order that your Honour has given a couple of weeks ago. Is the subject of an appeal next week which is not a matter to concern your Honour, but the existence of that other order is of no relevance to your jurisdiction or your powers under section 418.
PN623
I think, your Honour, regarding service, we take the position consistent with the VHIA case and in particular paragraph 25 of that decision, that here service of the 418 was effected on the AWU. That should be regarded by the Fair Work Commission as effective service of the 418 application on the AWU members, the subject of the proposed order. We say that's a warranted assumption, because there's a history of industrial representation by the AWU on site at both Longford and at Long Island Point, and here the AWU is the bargaining representative of these employees and has been so bargaining.
PN624
THE DEPUTY PRESIDENT: As I understand it, this is the manner of service that's been effected as long as anyone can remember. No‑one has given me a time when a different approach was taken.
PN625
MR PARRY: I can't assist your Honour with any exceptions to that.
PN626
THE DEPUTY PRESIDENT: No‑one has yet. I've asked a couple of times and no‑one has got an exception. Perhaps it means, if that submission is correct that a number of decisions are invalid in some way; for example, I don't know. I'm just thinking aloud as we speak.
PN627
MR PARRY: Well, there is a decision of a Full Bench which enables your Honour to be satisfied that there has been notice given to the employees ‑ ‑ ‑
PN628
THE DEPUTY PRESIDENT: This is the VHIA decision?
PN629
MR PARRY: Yes, the VHIA decision.
PN630
THE DEPUTY PRESIDENT: I have it, thanks. Yes, I follow what you are saying. Thanks for that.
PN631
MR PARRY: Now, if your Honour has any doubts about regularity or the requirement for some orders regarding substituted service, your Honour has that discretion under section ‑ rule 44. We, consistent with the VHIA case, don't submit that's necessary.
PN632
THE DEPUTY PRESIDENT: Sorry, are you suggesting I waive the requirement? Rule 44 you referred to?
PN633
MR PARRY: Rule 44 enables an order to be made via substituted service.
PN634
THE DEPUTY PRESIDENT: Are you suggesting that I do that or in the alternative or something? That would mean I didn't issue an order today, rather the service would be effected and then we ‑ well, it would mean a further hearing in relation.
PN635
MR PARRY: No, I don't think it would, your Honour.
PN636
THE DEPUTY PRESIDENT: You see, if service is already been effected, that's the end of it; however, the purpose of service is to give someone ‑ I see. Would it be a retrospectively effective substituted service order?
PN637
MR PARRY: We are only suggesting anything retrospective, your Honour. We are certainly not ‑yes, well, we primarily rely on paragraph 25 of the Full Bench decision in VHIA. We don't understand that that's been affected by any subsequent Full Bench decisions and there have been a couple of deliberations about this.
PN638
THE DEPUTY PRESIDENT: Well, it's consistent with what's going to be practice in this area.
PN639
MR PARRY: In this jurisdiction ‑ ‑‑
PN640
THE DEPUTY PRESIDENT: In relation to Esso, this is the way things have been done, as I understand it.
PN641
MR PARRY: There could not be a clearer case of a union here representative ‑ as the statement Mr Kristeff says, the 81 employees are all members of the AWU. We're not dealing here with a fragmented ‑ this is a closely organised cohort of employees and so we say we fit well within the VHIA case.
PN642
THE DEPUTY PRESIDENT: So that's your submission on Long Island and everything else?
PN643
MR PARRY: Well, Long Island ‑ can I say, we have called some evidence about Long Island. Mr Kristeff said there's an approved safety case at Long Island Point. It uses the same work management systems. So exactly the same procedures apply at Long Island as apply at Longford firstly.
PN644
Secondly, the industrial action that's being taken here is being taken by employees at Longford, but it is industrial action towards an agreement to replace the agreement that covers employees at Longford and at Long Island Point. Your Honour would be aware there is enterprise agreement covering Longford and Long Island Point. T
PN645
he intent of the industrial action protected or unprotected is clearly intended to replace that. The notified intention for the ban on de‑isolation of equipment in exhibit E1, is not confined to Longford employees. It is a ban that covers Long Island, Long Island Point and, indeed, the Esso ‑ I'm sorry, it certainly covers Longford and Long Island Point.
PN646
Now, our preferred position is that any order that your Honour might be minded to issue covers Long Island Point. We would not want to be back here running the same argument again when exactly the same circumstances apply. Our position is that there is no denial of natural justice. The AWU are here. These matters are inevitably heard with some degree of expedition and given the circumstances involved that is an appropriate way to proceed.
PN647
Ultimately, your Honour, it's a matter for you to define the industrial action. Section 418(3) gives you that option to define it as broadly as you would want. Now, we ‑ ‑ ‑
PN648
THE DEPUTY PRESIDENT: Now, two questions about the order. Period of time? Sorry, was there anything else before we got to the order?
PN649
MR PARRY: No.
PN650
THE DEPUTY PRESIDENT: I just don't want to forget the order. You are seeking 28 days, is it? What's the period of de‑isolation, if I could call it that. Is it two weeks? Say the ban on air‑testing et cetera is lifted in compliance with an order, assume that for a minute. Would the de‑isolation process take one week, two weeks?
PN651
I'm trying to fit the term of the order to what you claim to be the period in which the work must take place. It seems to me to be the logical way to deal with the issue of the term of the order. If you want to correct me, I'm happy, but ‑ ‑ ‑
PN652
MR PARRY: Well, we have put 28 days in the order. There have been a number of section 418s. We don't see that there is any great disadvantage in an order operating for 28 days. If your Honour would excuse me for a moment.
PN653
THE DEPUTY PRESIDENT: Of course.
PN654
MR PARRY: If matters go on the way they are, as of today there would not be until the end of April where the second gas plant could be "got up" as I use the expression. So we ask for 28 days.
PN655
THE DEPUTY PRESIDENT: All right. The only other comment I have is I think in 2.1(c) the name of the agreement has omitted the word "Gippsland". It's neither here nor there, but it's just something we noticed. I don't expect a submission on it.
PN656
MR PARRY: Your Honour, there is one other matter with regard to the order; that is the Harbour test includes a reference to equipment testing.
PN657
THE DEPUTY PRESIDENT: Yes.
PN658
MR PARRY: So hypothetically, if there could be a notice or there could be protected action taken in respect of equipment‑testing. The old form of the 418 orders used to have a general provision in there which said something like, "This order doesn't apply to protected industrial action," or something like that. Rather than that, we propose, given that this is an order more specific than most, that in 3.1 it commenced with, "Subject to 3.2," and then we insert "3.2" ‑ a new 3.2 which says, "for the purposes of this order, ‑ ‑ ‑
PN659
THE DEPUTY PRESIDENT: Hang on. Subject to 3.2, yes, and then 3.2 is what?
PN660
MR PARRY: "For the purposes of this order," ‑ ‑ ‑
PN661
THE DEPUTY PRESIDENT: Just a minute please. Go ahead.
PN662
MR PARRY: For the purposes of this order, industrial action excludes any ban on the performance of equipment testing where that ban is the subject of a proper notice of ‑
PN663
MR WARD: Just slow down.
PN664
MR PARRY: Perhaps I'll read it out for my learned friend's benefit, slowly. In fact I'll start again:
PN665
For the purposes of this order, industrial action excludes any ban on the performance of equipment testing where that ban is the subject of a proper notice of employee‑claim action.
PN666
THE DEPUTY PRESIDENT: Thank you. That's the last point?
PN667
MR PARRY: The order, I think, has in 5.1, the last ‑ there's reference to ‑ ‑ ‑
PN668
THE DEPUTY PRESIDENT: Equipment testing there, yes.
PN669
MR PARRY: Well, that's fine, because I think ‑ ‑ ‑
PN670
THE DEPUTY PRESIDENT: It's just a notice.
PN671
MR PARRY: It's just a notice, but ‑ and that
PN672
s fine, but I think just English‑wise, it says:
PN673
AWU members must not refuse to perform, or impose limitations or restriction on, ‑
PN674
THE DEPUTY PRESIDENT: Take out the word "of"?
PN675
MR PARRY: I think "of" should come out and "performance of and that bracket ‑ sorry, the comma should be deleted. Those are the only amendments and those are the orders that we seek, if your Honour pleases.
PN676
THE DEPUTY PRESIDENT: Thanks. Mr Ward?
PN677
MR WARD: Your Honour, we would say that the action that is happening at the moment is protected. We would also say that given that the notice was provided on 12 February and there was a time lapse between that date and management requesting our delegate to undertake certain aspects of the whole de‑isolation process, it was plainly clear to Longford management at that time when the notice was given that a ban on conducting de‑isolations was a ban on the whole process; they understood that.
PN678
It beggars belief that they would not understand the common custom and practice of a de‑isolation at Longford. To that extent, they sought refuge in legal advice and what is contained in their work management manual. And as luck would have it, they've fallen upon a definition that they've put before you today. A definition that is not actually used in practice.
PN679
We would say management always understood that the ban was as comprehensive as a ban that would prevent locks and tags being removed as was stated by Mr Patterson when questioned by Mr Borenstein yesterday. We'd also include the testing of that vessel through purging and pressure‑testing incrementally safely before it is returned to service.
PN680
They are now arguing, as far as I can make out in my very limited capacity, that, "No, that is not the case. Look at the words. The words are split into different aspects and we rely on those aspects for your Honour to make orders." If it was widely understood that different aspects prevailed at Longford, then certainly the notice given would have been much different. The ballot that took place would have been much different. It would have captured those aspects of air‑testing and blinding that have been covered.
PN681
I put it to you, your Honour, that the company fully understood the ban, the entirety of the ban, and has now sought assistance on meeting its production imperatives to the extent that its CEO or Head of Country, Mr Richard Owen, approached our senior delegate at Longford, pending some possible third‑party action through failure to supply and literally begged him to lift the ban on de‑isolations. He didn't say, "Will you conduct air‑leak testing? Will you remove blinds? Will you go through a sequence of events variously?" He actually used the terms "de‑isolation" as an all‑encompassing term.
PN682
Now, he can rely on his legal team's interpretation now, but the reality is all parties understand the intent of the ban, the conduct of that ban and we would say that there was no unprotected action taking place. We would also say that as the company alleges, it certainly wasn't an organised method.
PN683
I heard Mr Kristeff today give evidence that he'd never conducted de‑isolation and he relied on the knowledge contained within the manual or the description contained within the manual. He is not an operator. He doesn't supervise operators, but in answering questions put to him about a potential scenario relating to the de‑isolation of a level bridle on the GP11/12 rich oil fractionation tower, he clearly described the entirety of a de‑isolation.
PN684
We heard Mr Steed and Mr Johnson give evidence about what is common practice in relation to de‑isolation and it's a far different picture that they paint than what it described by Esso's legal team.
PN685
The only other thing I would touch on, your Honour, is the issue of Long Island Point. My much more learned friend has accurately described that a set of circumstances, both within the notice, within the alternate draft orders put to your Honour. We don't disagree with that. The proposition is that our members at that site do work differently than at Longford.
PN686
Our members were unaware of proceedings today. I am unaware of any responsibility of the AWU to inform them that they had to respond to a 418 in relation to a fundamental issue of de‑isolation, that the understanding of what de‑isolation is at Longford, otherwise we would have got them here and they would have had something to contribute to the evidence.
PN687
We say that's unfair. I'm not qualified to direct you to any part of the Act that would substantiate my argument, but I would ask your Honour to consider that position, if you're able to.
PN688
THE DEPUTY PRESIDENT: Can you name one occasion when Esso serves you, other than in the way it's done today?
PN689
MR WARD: No, I can't. Not personally, your Honour.
PN690
THE DEPUTY PRESIDENT: Nor can I.
PN691
MR WARD: Right. We are not seeking a separate service of notice.
PN692
THE DEPUTY PRESIDENT: What are you seeking?
PN693
MR WARD: The presence of our members at Long Island Point to contribute to this hearing so that they can contribute their evidence, given that any potential orders will impact on them.
PN694
THE DEPUTY PRESIDENT: Thanks.
PN695
MR WARD: That's all, your Honour. Thank you.
PN696
THE DEPUTY PRESIDENT: Thank you. Anything in reply?
PN697
MR PARRY: No, your Honour.
PN698
THE DEPUTY PRESIDENT: Nothing in reply? Nothing further from anybody? What do the option is say" "All done." All right, all done. Thank you very much. I'm in a position to give my decision now and will do so.
PN699
This is an application under section 418 of the Fair Work Act 2009 for an order that industrial action by employees, et cetera, as the heading states. It uses the word "et cetera", so I am able to do that.
PN700
The first issue is the question of service. There was some debate about this. A Full Bench of the Commission in VHIA v HSU [2008] 172 IR 20 129 discussed a decision of the Federal Court in the Transport Workers case.
PN701
At 25, the Commission said:
PN702
The members of the Court are here expressing the view that proper notice of the proceedings must be given to anyone who is likely to be bound by the order and that if an order is made there must be adequate provision for the order to be bought to their attention. Their Honours did not discard the possibility that these requirements could be met by notification to the union concerned. It is clear from the passage that it is a question of fact in any particular case whether the union adequately represents the interests of the employees in the relevant respects. In this case, there are a number of indications that the HSU did adequately represent the employees. The first is that the order is not binding upon employees generally, but only upon employees who are members of the HSU. It is to be inferred that the HSU had a ready and effective means of communication with its members. The second is that there was ample evidence before the Commissioner that the HSU was acting on behalf of its members. Indeed, it never suggested to the contrary to the Commissioner and there is no evidence before us to support such a suggestion. A copy of the draft orders sought by the Health Services was served on the HSU with the application. The Commissioner was entitled to conclude that service on the HSU was adequate service on the members of the HSU involved in the dispute. The terms of the order required the HSU to publish a notice giving details of the order on its web sites to advise its delegates of the order and to provide them with a copy of the same notice. These measures seemed to us to be adequate to bring the terms of the order to the attention of the HSU members concerned.
PN703
These observations seem squarely apposite to the present matter. In this matter, it seems to be the practice for some time of Esso to serve the AWU and for that to be service on the AWU's members.
PN704
Nobody has yet been able to find a decision‑ an instance ‑there this practice was not followed. It is certainly practice followed recently. In this case, the order seeks to bind the AWU and its officers and members. Not persons who are not members of the AWU. Given the context of this industry, this sector, its practices and manner of working in bargaining, in communication with employees and the like, it is clear that it can be inferred that service on the AWU constitutes service on its members, including at the separate site, Long Island Point.
PN705
Turning then to deal with the section 418 and its specific terms, it appears to be accepted that there are bans in place and those bans are those described in the application.
PN706
At paragraph 4.6 of the Form F14:
PN707
Employees have refused to performance equipment testing, air‑freeing and leak testing.
PN708
James Kristeff, in exhibit E2, gave evidence at paragraphs 48 onwards of the nature of the bans introduced; in particular at paragraph 50 he states that:
PN709
On 2 March 2015 operators began to advise their supervisors that they would not perform air‑freeing or leak testing required to be performed for de‑isolations.
PN710
I won't quote the remainder. It seems clear and it is not in contest that these bans on certain conduct are occurring.
PN711
In this case, a notice of protected industrial action was served on Esso Australia by the Australian Workers Union on 3 February 2015. This notice is contained in exhibit E1 at paragraph (e), where Esso is notified of:
PN712
an indefinite ban on the de‑isolation of equipment by employees covered by the agreements, commencing at 12.01 am on Thursday, 12 February 2015.
PN713
In this present matter, the AWU considers that the bans in (e) referred to on air‑testing, equipment testing, air‑freeing and leak testing as included within that paragraph. Esso disagrees.
PN714
Now, in interpreting paragraph (e), my attention was drawn to the Telstra Corporation v CEPU [2009] FWA 169; [2009] 190 IR 342 and in particular at paragraph 12. This is a decision of the Full Bench of the Commission. The sense of the submission put by Esso was that the purpose of the notice is to give them notice of the industrial action and its occurrence. Now, in this case the parties take a different view as to the meaning of the term.
PN715
Various phrases were used by the AWU to describe their understanding, including "custom and practice" and "the ordinary usage in the workplace." A number of phrases were used. The employer on the other hand relies on the definitions used in safety manuals produced by them in accordance with their extremely important obligations to provide a safe workplace. These obligations are in any sense critical. Their ability to function depends on implementation of proper safety procedures.
PN716
Extracts of those procedures were contained in the attachment to Mr Kristeff's statement in exhibit JK1, JK2 and JK3. At JK3, a number of definitions are recorded, including definitions of air‑freeing, blinding, de‑isolations and equipment testing. The evidence of Mr Kristeff was that these are critical documents that employees are trained in them at induction and elsewhere, and required to comply with them.
PN717
Some challenge was made to this by witnesses appearing for the AWU. Mr Johnson and Mr Steed did refer to instances of alleged use of terms such as de‑isolation in a manner which is inconsistent with those definitions. However, the evidence of Mr Johnson and Mr Steed was on occasion somewhat inconsistent. Both accepted they had to comply with a manual and accepted that it was of some importance that they comply with the manual, including with the definitions.
PN718
Their description of the alleged custom and practice or ordinary usage of the term "de‑isolation" was, at best, somewhat vague. It may be that on occasion terms are used in the workplace of a shorthand nature, which is quite understandable. That is, however, no substitute for critical documents on which the ability of Esso to operate its plants depends and on which safety of employees and the workplace as a whole depends.
PN719
In my view, the attachments referred to are appropriate definitions of terms and should be followed by me in this case. One difficulty with me not following them is the lack of a clear alternative set of definitions which is supported by the evidence. My attention was taken to other parts of the document, including 4‑36, 4.5, Isolating Systems and Equipment. Again, this seems to be something different to de‑isolation, a specific term.
PN720
Similarly, my attention was drawn to 4.6, Reinstating facility systems and equipment at 4.8(4). Again, this appears to be a different function. I note in particular under the heading Recommissioning, that a distinction is drawn between equipment testing, air‑freeing, leak testing and de‑isolating. They are not treated in that document as synonyms. The reverse is the case; they are separate concepts.
PN721
I also note the evidence of Mr Trindade in exhibit E3. Esso relied on the definitions of de‑isolation given by a Mr Patterson, a production technician on the Bream A Offshore platform and an AWU health and safety representative, and a Mr Corless. That evidence is consistent with the submissions put by Esso.
PN722
A number of other challenges were made to Mr Kristeff's evidence, including that he was not an operator and did not supervise operators. However, these documents also on his evidence apply to maintenance and it is clear he speaks with some authority on the issue of the importance of those documents. Indeed, his evidence to that effect was largely confirmed by the evidence of Mr Johnson and Mr Steed.
PN723
I accept the evidence of Mr Kristeff in preference to other evidence and I find that the term "de‑isolation" used in exhibit E1 at paragraph (e) has the meaning set out in the Esso safety documents, if I could call them that in a generic sense.
PN724
That means that the action taken, the bans instituted by the AWU and its members, are not protected industrial action as they have not been the subject of a notice to take protective industrial action. Therefore the requirement of section 418(1) is met.
PN725
Secondly, it is not contention that the other requirements of that section are met, including section 418(2). Esso made the application as a person affected.
PN726
I have had regard to all the submissions and evidence put to me. I reserve the right to publish further reasons for decision. In particular, while the circumstances of Long Island Point may be in some degree different, I am satisfied that the evidence given by Mr Kristeff is equally applicable to the work there; namely that the de‑isolation term has the same meaning used in the safety documents there as it does at Long Island Point.
PN727
On that issue there is no difference and I am not satisfied on the evidence put to me that there needs to be any variation on my findings in relation to that particular site. My findings have application to both sites.
PN728
I will therefore issue an order pursuant to section 418, which requires me to issue such an order if certain findings are made on the evidence before me. I will publish that order as soon as possible.
PN729
This matter stands adjourned.
ADJOURNED INDEFINITELY [3.30 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #E1 NOTICE OF PROTECTED INDUSTRIAL ACTION 03/02/2015 PN35
EXHIBIT #E2 WITNESS STATEMENT OF MR JAMES KRISTEFF AND ATTACHMENTS................................................................................................................................... PN43
EXHIBIT #E3 WITNESS STATEMENT OF DANIEL JOSEPH DOMINIC TRINDADE PN109
DANIEL JOSEPH DOMINIC TRINDADE, SWORN..................................... PN142
EXAMINATION‑IN‑CHIEF BY MR PARRY................................................. PN142
CROSS‑EXAMINATION BY MR WARD........................................................ PN151
THE WITNESS WITHDREW............................................................................ PN166
JAMES KRISTEFF, SWORN............................................................................. PN171
EXAMINATION‑IN‑CHIEF BY MR TRINDADE.......................................... PN171
CROSS‑EXAMINATION BY MR WARD........................................................ PN204
RE‑EXAMINATION BY MR TRINDADE....................................................... PN236
THE WITNESS WITHDREW............................................................................ PN242
ROBERT JOHNSON, SWORN........................................................................... PN251
EXAMINATION‑IN‑CHIEF BY MR WARD................................................... PN251
CROSS‑EXAMINATION BY MR PARRY...................................................... PN332
THE WITNESS WITHDREW............................................................................ PN383
ROBERT STEED, SWORN................................................................................ PN391
EXAMINATION‑IN‑CHIEF BY MR WARD................................................... PN391
CROSS‑EXAMINATION BY MR PARRY...................................................... PN522
RE‑EXAMINATION BY MR WARD................................................................ PN573
THE WITNESS WITHDREW............................................................................ PN585
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