C2015/1953, Transcript of Proceedings [2015] FWCTrans 220 (13 April 2015)

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s.418 - Application for an order that industrial action by employees or employers stop etc.

Offshore Marine Services Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010

PN1

THE COMMISSIONER: I'll take appearances.

PN2

MR N ELLERY: Yes, thank you, Commissioner. Ellery, initial N, and I appear with James Hume and I seek permission to appear on behalf of the applicant.

PN3

THE COMMISSIONER: Thanks, Mr Ellery. Any objection, Ms Palmer?

PN4

MS R PALMER: No, sir. Ruth Palmer, I appear on behalf of the respondent.

PN5

THE COMMISSIONER: Thank you. Good afternoon to both of you. Can you tell me where we're at with this application, Mr Ellery?

PN6

MR ELLERY: Yes, thanks, Commissioner. Commissioner, the basic elements of the application were obviously set out in the application that we filed and the position remains as set out there. So essentially our position and our case is that there is a crew change due on the two vessels on Tuesday and Wednesday of next week. There's been arrangements made for the aircraft from Karratha to Perth for those crew changes, which is set out in the application. That remains the plan.

PN7

In terms of today's proceedings, we propose to lead evidence from Mr Wakelin, who can give evidence about those matters, and we will be seeking orders under s 418. It's obviously open to you to make final orders or to make interim orders and we are happy to deal with that issue. But in terms of how the matter should progress today, our proposal would be that we put on our evidence, make our submissions and you determine whether or not there's the basis to make the orders that we seek or some other form of orders.

PN8

There is the other section 739 or the F10 that was filed by our client, which covers some of the same subject matters, you would be aware, and we are happy to deal with that by way of a conference today after the 418 issue is dealt with. I think that is not the proposal anyway, but that's our proposal. And we are happy for that to be dealt with through conference and subsequently in a hearing, if that's required. But we say there's not the urgency connected to that matter as there is in the 418 matter and we say under the 418 application the Commission is obliged to assess whether or not there is industrial action threatened or probable and pending and, if so, and we believe we will satisfy you that that is the case and you are obliged to make some form of order to stop that happening.

PN9

The 739 matter can be dealt with when it can be dealt with, but it's not as pressing, from our point of view.

PN10

THE COMMISSIONER: Well let's put that to one side and deal with the section 418 application. I haven't received any papers.

PN11

MR ELLERY: Yes, you'll just have an application.

PN12

THE COMMISSIONER: Yes, that's all?

PN13

MR ELLERY: Yes, and we've finalised this morning a statement from Mr Wakelin which would pose him to a test in the witness box and not hand it up. I haven't provided that to Ms Palmer yet, we've only just signed off on it just moments ago.

PN14

THE COMMISSIONER: You've given that to Ms Palmer?

PN15

MR ELLERY: No, I haven't given it to Ms Palmer, we've only just finalised that with Mr Wakelin some moments ago. Literally in the last half hour.

PN16

THE COMMISSIONER: I am having some difficulty with air‑condition here, that's all.

PN17

MR ELLERY: Sorry, I'll try and speak up.

PN18

THE COMMISSIONER: Do you intend making any submission, opening submission? Or just go straight to evidence?

PN19

MR ELLERY: I propose just to go straight to evidence, Commissioner, and then make some submissions based on the evidence rather than foreshadowing the evidence in my submissions, if that was acceptable to you?

PN20

THE COMMISSIONER: That's fine by me. Ms Palmer, will you need some to read that witness statement before you take the opportunity to cross-examine Mr Wakelin?

PN21

MS PALMER: Yes, I certainly will. I am in the difficult position that the relevant executive officer, Mr Doug Heath, is not in the country and not contactable for me to take instructions from him. So the MUA's proposal, I will foreshadow with you now, is that given that we are not in a position to defend the application, is that the applicant puts on their evidence in submissions today and then the matter is adjourned. It's a matter for you if you issue an interim order under section 420 and then the matter can be finally heard and determined whether or not a judicial final order under section 418 tomorrow or Monday, given that the crew change isn't due to happen until Tuesday or Wednesday.

PN22

THE COMMISSIONER: Mr Ellery, what do you say to that? Specifically in relation to Mr Wakelin's evidence, I am happy to receive that this morning. I am happy to adjourn to give Ms Palmer the opportunity to have a look at that, but she has indicated another proposed course of action. But obviously for me to make any decision, whether it's an interim order or a final order, I need to see some evidence.

PN23

MR ELLERY: Yes. No, I accept that, Commissioner. Well our proposal will be that we provide the evidence and make submissions about that and we would submit that you should make at least an interim order based on that, if not a final order. And then whether you were able to relist the matter to allow Ms Palmer to get instructions or do whatever else she needs to do to be able to respond, that's obviously a matter for you whether you want to relist it sometime next week or some other time. But we would submit that the appropriate course is, on receipt of our evidence, to make at the very least an interim order today. And we would be amenable to that order being for a limited period of time, for example. The specific threat of action that we allege is only on Tuesday and Wednesday of next week. So if that was a step that made it procedurally simple, then we have no difficulty with that. But we would submit that it is appropriate to make at least an interim order today if not a final order.

PN24

THE COMMISSIONER: What I will do is, I'll just take Mr Wakelin's evidence and what I will do is adjourn so I can read it as well. Thank you.

PN25

MR ELLERY: Thanks. I call Mark Wakelin.

<MARK JOHN WAKELIN, AFFIRMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.06 PM]

EXAMINATION-IN-CHIEF BY MR ELLERY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.07 PM]

PN26

MR ELLERY: Mr Wakelin, just once again for the record, you are the general manager, industrial relations and employee relations, at Skilled Offshore, Australia, Pty Limited?‑‑‑Yes.

PN27

Have you prepared a written witness statement for the purpose of these proceedings?‑‑‑Yes.

***牋牋牋� MARK JOHN WAKELIN牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 XN MR ELLERY

PN28

MR ELLERY: I wonder if I might provide a copy. Just for the record, Commissioner, I am providing a signed document to Mr Wakelin, the other copy I have given your associate is not signed. And I have just provided Ms Palmer a copy just now.

PN29

Mr Wakelin, can I confirm do you have in front of you a signed document which is a statement in your name which runs to 39 paragraphs?‑‑‑Yes.

PN30

And it has five attachments which consist of various emails or groups of emails?‑‑‑Yes.

PN31

Is that the statement you had prepared for the purpose of these proceedings?‑‑‑Yes, it is.

PN32

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

PN33

MR ELLERY: Commissioner, I would seek for that to be admitted as an exhibit.

PN34

THE COMMISSIONER: Mr Wakelin's witness statement will be marked as exhibit A1.

EXHIBIT #A1 STATEMENT OF MR WAKELIN

PN35

MR ELLERY: Commissioner, I didn't propose to ask any other questions of Mr Wakelin to expand on anything, in our view it's covered in the witness statement. So I am content to, I guess, have his evidence adjourned for now if that's the appropriate course?

PN36

THE COMMISSIONER: What I propose to do is just adjourn for 10 minutes to allow both myself and Ms Palmer to have a look at this evidence.

SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.08 PM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.17 PM]

PN37

THE COMMISSIONER: Ms Palmer.

PN38

MR ELLERY: I am sorry, Commissioner, but perhaps before we do that, there's one matter of detail I needed to just correct, if I may?

PN39

Mr Wakelin, in your statement at paragraph 25 you say that on 4 March you sent an email to Mr Cain and it's identified as attachment 3?‑‑‑Yes, yes.

PN40

When you go to attachment 3, is that the correct email?‑‑‑No, it's not.

PN41

Is it attachment 4?‑‑‑Correct, yes, the email referred to in paragraph 25 is attachment 4.

PN42

Then paragraph 27 you refer to an email that the Master of the Pilakis Aminee(?) received on 4 March, which is identified at paragraph 27 as being attachment 4, is then in fact attachment 3?‑‑‑Yes.

PN43

Thank you. Thanks, Commissioner, I just needed to clarify that and my apologies, that's my error.

PN44

THE COMMISSIONER: Ms Palmer, given what you said previously, are you in a position to cross-examine the witness?

PN45

MS PALMER: No, not really, sir. With great difficulty I could engage in some limited cross-examination but, as I'm sure you've noticed, the witness statement portends largely to conversations between Mr Wakelin, Mr Heath and Mr Cain. And Mr Heath is uncontactable at the moment. Even if I could cross-examine, we would like to bring responsive evidence from Mr Heath and possibly also Mr Cain to make our defence to this application. So again, I urge you to adjourn the matter for final hearing. If you are minded to make an interim order, then we would like to make some submissions to you about the terms of the interim order, particularly that they be directed only to the 17th, the crew changes on the 17th and the 18th. And we would also respectfully request that the final hearing occur before the 17th and the 18th subject to the Commission's availability, of course.

PN46

THE COMMISSIONER: Ms Palmer, do you understand from the employee's perspective whether they're going to leave the vessel on the 17th and the 18th?

PN47

MS PALMER: Whether they're going to leave the vessel?

PN48

THE COMMISSIONER: The vessel, yes.

PN49

MS PALMER: I believe so. I don't think there's any dispute about them leaving the vessel. My understanding is, and Mr Wakelin would be better able to answer this question, is that they will travel by helicopter from the vessel to Karratha and then the dispute is how they get from Karratha to Perth. So part of our concern about the use of the charter flights is that it might delay their departure from Karratha back to Perth and to reduce the amount of R&R time that they have between swings.

PN50

THE COMMISSIONER: I understand that that's what the witness is saying and that's what the application is, but the employees will leave the vessel, arrive at Karratha and, from the material, I am just trying to understand whether the employees are saying they're not prepared to take - your understanding is that they're not prepared to take the charter flights?

PN51

MS PALMER: That's my understanding and that's based on our view and the employees view that it's not a lawful instruction that they take the charter flights and I suppose that's the nub of the argument about whether or not this is an industrial action. And that's also a reason why we think it would be useful and appropriate to have the section 739 application dealt with jointly with the section 418 because that really goes to the proper interpretation of the agreement and whether the instruction that the employees take the charter vessel is lawful or not, which would then in turn decide the question of whether this is industrial action or not.

PN52

So our preference would be to adjourn today, issue section 420 orders, if you are minded to, that go only to the 17th and the 18th, and have a final hearing on the 418 application and the 739 application as a matter of urgency, because it seems not to be a useful use of the Commission's resources to deal with the application separately given that the answer to the 739 application will answer the 418 application.

PN53

THE COMMISSIONER: I am not entirely sure that's the position, but just tell me as a matter of practicality, if the employees carried out their threat that they're not prepared to take the chartered flight back to Perth, what would they do?

PN54

MS PALMER: I suppose they'd remain in Karratha until the dispute is resolved.

PN55

THE COMMISSIONER: You can see me shaking my head. How do these employees get from wherever they depart from to Karratha?

PN56

MS PALMER: From the vessel to Karratha?

PN57

THE COMMISSIONER: No, from whatever port it is, presumably it's Perth, how do they get from Perth up to Karratha?

PN58

MS PALMER: At the start of their swing? At the commencement of their swing? Again Mr Wakelin would be best placed to answer, but I assume by commercial flight. I mean my understanding is, and again Mr Wakelin might have to answer, I don't have Mr Heath here to instruct me, but my understanding is their usual practice is that they would fly from Perth to Karratha and Karratha back to Perth by way of a commercial flight and then engage in some other means of transport from Karratha to the vessel. So Perth is their home town and Karratha is the closest airport to the vessel.

PN59

THE COMMISSIONER: Let me put it the other way around then, if they were to catch a chartered flight from Perth to Karratha, using the preferred carrier from I think it is Polarcus, is that in dispute?

PN60

MS PALMER: I don't think that factual scenario has arisen but it would be in dispute on the same principles. The clause doesn't distinguish between the flight to and from the home port, so that hasn't arisen. But if it was to arise it would be the subject of the same dispute. The dispute is about the use of charter rather than commercial flights. I don't think it's material whether it's to Karratha or from Karratha. But I don't understand that there's any - I don't think we've had any indication from the applicant that they're intending to use the charter flight for that leg of the journey when they commence their swing. We'd have to hear from Mr Wakelin on their intentions there.

PN61

THE COMMISSIONER: Who is going to give me evidence from the union?

PN62

MS PALMER: Mr Heath.

PN63

THE COMMISSIONER: And is he going to give me evidence on the character of this chartered airline?

PN64

MS PALMER: I suppose he might, I mean I think he potentially need to give some evidence on the reasons why the employees are concerned about using the chartered flight, at least Mr Wakelin's evidence goes to that to some degree. You know, things like will they still have an in‑flight meal and there sort of seems to be an implication what's the problem, but I think that's not relevant to the terms of the clause, we say. The clause uses the words, "wherever possible and necessary", which is a much higher bar than "is it going to be equally comfortable?" So I think Mr Heath's evidence is important to go to the level of consultation that's occurred because consultation is one of the pre-conditions for the use of a charter flight rather than a commercial flight.

PN65

THE COMMISSIONER: Yes, I am trying to put aside the issue of the dispute in terms of the meaning of the particular clauses in the agreement.

PN66

MS PALMER: Right, okay, and what are the actual issues for the employees.

PN67

THE COMMISSIONER: What is the concerns of the employees and the union about a chartered flight as yet nobody knows anything about?

PN68

MS PALMER: My understanding is that one of the primary concerns is the potential for it to delay their return to Perth. So if you look at Mr Wakelin's email to Mr Cain, which is attachment 4, one of the reasons he gives for a charter flight being a preferred alternative is that it enables the entire crew to fly back to Perth together. My understanding is that the officers, though not our members, the officers have a longer handover with the replacement crew than our members. So what usually would happen is our members leave the vessel, go to Karratha, get on the next commercial flight, come home. The officers might get on a later commercial flight because of that longer handover.

PN69

If everyone is waiting for the same charter flight, then our members are left waiting in Karratha for officers to catch up with them for them all to catch the same charter flight. Obviously this would need to be a matter for evidence, but these are my instructions to date. So there's a potential for delay.

PN70

Obviously they're being paid a dead day and not accruing leave, which Mr Wakelin's statement touches on, and that's seen as their time. We're not on duty, we're not accruing leave, we should be at home with our family and this use of charter flights is potentially going to delay our return home. And then I suppose the secondary concern is the quality of the charter flights. And then I think that as a third thing, there's really just a feeling of why weren't we consulted about this. This isn't what the agreement says. Our employer isn't talking to us, they're not abiding by the terms of the agreement, those sorts of feelings.

PN71

THE COMMISSIONER: So at this stage we've got the unknown of whether there is going to be a delay?

PN72

MS PALMER: Yes.

PN73

THE COMMISSIONER: And I'm using your words here, a delay. It's unknown the standard of the aircraft.

PN74

MS PALMER: Yes.

PN75

THE COMMISSIONER: And the issue actually comes down to what is the meaning of what's contained in the agreement.

PN76

MS PALMER: Yes, yes, and has our employer abided by the agreement and have we been properly consulted? And, as you know, they're things that people feel strongly about, leaving aside the merits of the charter flight versus the commercial flight.

PN77

THE COMMISSIONER: All right, thank you.

PN78

Mr Wakelin, you are still a witness, it's just you haven't been cross-examined yet, but you can return to your seat?‑‑Thank you, sir.

<THE WITNESS WITHDREW牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.29 PM]

PN79

THE COMMISSIONER: Mr Ellery.

PN80

MR ELLERY: Thank you, Commissioner. Could I just deal with two initial issues that arise out of that exchange with Ms Palmer? The first is the question of whether the employees will be departing the vessels or not. That is covered in Mr Heath's email which is attached as attachment 2 to the statement of Mr Wakelin. It's the email of Doug Heath, 27 February where he says in the last paragraph, "We'll be instructing our members not to get off the Polarcus vessels until they are booked onto a commercial flight". So it's a pretty unambiguous statement. I know positions change, we've not heard any evidence about that, but the statement by Mr Heath is pretty clear.

PN81

THE COMMISSIONER: Well that's the reason why I put the question.

PN82

MR ELLERY: Yes. I wasn't sure whether you were drawing attention to that specifically or not, but in case you had missed it I wanted to make sure you were aware of it.

PN83

The other just brief observation I wanted to make, and it goes to the procedural issue, is about how this matter will be disposed of and the suggestion by MUA that it be resolved with the section 739 for example. It's certainly our submission that it's not the case that a 739 application would resolve or dispose of a section 418 application. Our position is very clear, that even if - which obviously we don't accept - but even if Skilled was in breach of the clause of the agreement in making the arrangements that have been made or allowing those arrangements by its client to be made, that would not mean that the action that is threatened by the employees and the union is not industrial action. And, you know, as a general principle the fact that an employer may be in breach of an agreement does not make a withdrawal of labour or a refusal to perform work no longer industrial action.

PN84

To give an illustration, if an employer directs and employee to perform a certain task, the employee or the union claim that under the agreement that task attracts a particular allowance and the employer says, "We don't agree, go and do that task", that remains a lawful instruction. Now if the employee says we're going to refuse to do that task and refuse to get on the plane, or refuse to do whatever else might be required, that's still industrial action.

PN85

There are obviously other mechanisms that the employee or the union can use to pursue that issue such as a dispute notification, such as a claim for a backpay, claim for breach of the agreement, et cetera, but the fact that they allege the employer's in breach of if in fact it's established that the employer was in breach, would not mean that their refusal to do the work was not industrial action. It would be industrial action, in our submission. So that's one of the reasons why our submission, it's appropriate and it's required, in our view, that the Commission needs to resolve the 418 matter and deal with that and the 739 matter can be dealt with in due course. But it's not logical and it's not necessary to resolve the 739 matter before you can resolve the 418 matter.

PN86

Commissioner, I wanted to make some brief submissions on the 418 issue then, if I may. But before I do that, I'm not sure if you have a copy of the agreement in front of you.

PN87

THE COMMISSIONER: I do.

PN88

MR ELLERY: You do, okay, I don't need to hand that up then. So just dealing with the basic jurisdictional issues which perhaps regrettably the Commission as currently constituted is very thoroughly familiar. Under section 418, as you are obviously aware, if it appears to you that industrial action - that would not be protected industrial action and there can't be any question here that any action be protected - then subsection (b) provides: "Is threatened, impending or probable", and subsection (c) provides: "Is being organised", the Commission must make an order that the action not occur and not be organised. And we submit that the evidence shows very clearly that industrial action here is threatened clearly unambiguously being threatened in writing as well as in communications verbally, it's impending or probable and we know when it's going to happen and where and it's being organised because it's obviously not just the employees in a frolic of their own, it's obviously the union acting in close concert with employees. And, according to Mr Heath, the union is directing the employees as to what they're going to be doing.

PN89

So that's the prerequisites under section 418 and we say that抯 very clearly satisfied on the evidence. And I will take you to the definition of industrial action shortly. Then, Commissioner, as you aware under section 420 you are generally required to determine an application within two days. As you are aware on our request that this matter was listed today, and section 422 provides that you may make or you are required to make an interim order and that you can't determine the matter fully within the period set out in section 421.

PN90

We also observe that section 589 of the Act allows you the power to make interim orders as well more generally. So we would submit that there's, in substance, a requirement that if you can't determine fully, that you issue an interim order to stop the action occurring next week.

PN91

Commissioner, I then just turn to the question of whether or not there is industrial action being threatened.

PN92

THE COMMISSIONER: Before you go to that point, Mr Ellery, you would agree with me that fairly I can't determine the matter in its finality because Ms Palmer hasn't had the opportunity to cross-examine that evidence. So it appears to me, if I am to make an order, it must be an interim order because there's just no fairness in making a final order without the respondent having the opportunity to cross-examine.

PN93

MR ELLERY: I accept that Ms Palmer has that difficulty and that's her fault or her responsibility that she has that difficulty, but I do observe that the application was filed and served on Monday night- - -

PN94

THE COMMISSIONER: I've gone through that scenario as well.

PN95

MR ELLERY: Yes.

PN96

THE COMMISSIONER: It's been three days.

PN97

MR ELLERY: Yes, which is a lot more than is normally provided for.

PN98

THE COMMISSIONER: Yes.

PN99

MR ELLERY: And so Ms Palmer's only very recently become aware of the matter, and I accept that.

PN100

THE COMMISSIONER: And the onus is upon the MUA and its officers to attend and give evidence.

PN101

MR ELLERY: Yes.

PN102

THE COMMISSIONER: I'm aware of that but I've got some reluctance, notwithstanding those particular two matters.

PN103

MR ELLERY: Yes, well I mean I don't think I can make any more of that. I make that observation. I don't take it any further on that point, Commissioner. As I've said at the outset, we certainly accept that it's open to you to make an interim order pending further resolution or however else you might dispose of the matter finally.

PN104

THE COMMISSIONER: Yes.

PN105

MR ELLERY: So if I can turn to section 19, just the definition of industrial action. Section 19(1) defines it to include, "Action of any of the following kinds", and it includes subparagraph (a) "The performance of work by an employee in a manner different from that in which it is customarily performed. Or the adoption of a practice in relation to work by an employee" - which is a broad concept, we say - "the result of which is a restriction or limitation on or a delay in the performance of the work." Subpara (b) talks about, "A ban, limitation or restriction on the performance of work by an employee, or on the acceptance or offering for work." And (c) it provides for, "A failure or refusal by employees to attend to work, or a failure or refusal to perform any work at all." The latter point probably doesn't arise here. And (d) doesn't apply. Obviously that's talking about lockouts.

PN106

We say very clearly that departing of vessels or embarking on an aircraft at Karratha Airport is normally the performance of work in the manner in which it was ordinarily performed. And the evidence of Mr Wakelin goes directly to that. So it's in evidence in his statement that - and I don't think there's any controversy about this ‑ these employees work on the two crew duty system, which is the common method of working in this industry. They are paid the entire time, so when they are working or not working they're also being paid. As Mr Wakelin addresses at clause 14.52 of the agreement, off duty commences the day after the employee leaves the vessel. So the natural consequences they still regard as on duty on the day they leave the vessel, which includes when they will be leaving the vessel, the helicopter flight from the vessel to Karratha and getting on the plane at Karratha and going back to Perth. So under the agreement this is defined as a period which is on duty. There's no issue with that.

PN107

Obviously at clause 32.10, as Mr Wakelin points out in his statement, regulates and provides for method of travel. It's not something that's left to the employee's own devices. It's provided for and regulated by the enterprise agreement. Again making it clear that this is part of the performance of work, the method of travel and the system of travel used to get back to Perth in this case.

PN108

Mr Wakelin also gives evidence, at paragraph 36, that it's a term of the contract of employment of the employees that they conduct themselves appropriately while on the flights and that they're covered by insurance arrangements while they're on those flights. So this is a very different situation, for example, for when somebody is paid to work when they're at a particular site and they're in their own time and left to their own devices when they're travelling to or from the site, such as if somebody was just working at a factory in the suburbs of Perth, for example, where there might be a debate about that not being part of their work of the performance of work. This is actions by the employees, conduct by employees that is closely regulated by the enterprise agreement. It's defined as being on duty and it's a normal performance of work. It's a regular pattern of work that they board these flights, whether they are commercial or charter flights, it's a normal part of their working pattern.

PN109

So we would submit there can't really be any dispute that getting off the vessel or getting onto the plane is part of the performance of work and what is threatened here is that they will refuse or fail to perform that part of their duties and that, we say, squarely falls within the definitions of industrial action in subsections 1(a), (b) and (c), with respect.

PN110

Commissioner, I don't think I can say much else about that. I mean there's no case law that can shed any further light on the situation. It's a pretty clear example of industrial action from our submission and, as I say, contrast that with somebody who is paid from the time they turn up at the site and clock on and clock off and then they're left to their own devices whether they get the bus home, walk home, ride home, that's their own business. That arguably might not be the performance of work, but this is not that situation. This is employees who, through their enterprise agreement, have sought to regulate the method of transport, and this is part of the normal pattern of their work and they're on duty, they're paid, they're covered by employment contract in terms of the way they conduct themselves during this time, there's really no question, we say, that this is part of the performance of work.

PN111

THE COMMISSIONER: Thank you, Mr Ellery. Ms Palmer, your opportunity to respond.

PN112

MS PALMER: Yes, thank you, sir. I am reluctant to make full submissions without having had an opportunity to cross‑examine and present our own evidence but I can certainly make some preliminary submissions. And I wonder if also I would like to object to some of the paragraphs in Mr Wakelin's statement. I don't know if you think it's appropriate for me to do that now or to wait until we're in cross-examination. It's up to you. It might be appropriate to do it now if you are making a decision about interim orders.

PN113

THE COMMISSIONER: Maybe in the interim if you put some, or detail those objections to those paragraphs in Mr Wakelin's evidence, just to save time. If you can do that before we get to the cross-examination.

PN114

MS PALMER: I can do that now if you like, sir?

PN115

THE COMMISSIONER: Right. If you could just indicate to Mr Ellery.

PN116

MS PALMER: So paragraphs 11 to 13 is really a matter for legal opinion. It's Mr Wakelin's construction of the terms of the agreement but obviously it's for the Commission to construe the agreement not the witness. The same complaint about paragraphs 35 and 37, that they are straying into the area of legal opinion and not just dealing with facts. Paragraph 34, Mr Wakelin's understanding of the MUA's objection, I don't think that is helpful. It's akin to hearsay. It's just his opinion about what the MAU's view is. That's all of the objections, thank you.

PN117

THE COMMISSIONER: Yes.

PN118

MS PALMER: So turning to this notion that this is industrial action because - and I'll paraphrase Mr Ellery - it's the normal performance of work. It's a regular part of the work. It's part of the normal working pattern. Obviously we say it's not part of the working pattern at all, it hasn't arisen, at least in the life of this agreement, that employees are being asked to board a charter flight rather than a commercial flight. That's not part of their normal working pattern and in fact the boarding of a charter flight would be different to the customer practice in this workplace because it's always been the commercial flight as the terms of the agreement provide. So this notion that it could be a departure from the normal performance of work is impossible when the normal performance of work has been to use commercial airlines.

PN119

We accept that the agreement regulates a method of travel. That's the bargain that was struck between the parties. That's what they have put into a registered enterprise agreement.

PN120

Clause 32.10 says that, "Fully serviced, economy fare commercial airlines will be used wherever possible." Wherever possible, which is strong language. It sets a high bar for the use of something other than a commercial airline because something other than a commercial airline can only be used where a commercial airline is not possible. And that's reflected also in subclause (a) that uses the term "necessary". "Charter aircraft will only be used when it's necessary."

PN121

There's nothing in the evidence of Mr Wakelin that indicates that it is not possible to use a commercial airline or that it's necessary to charter aircraft. In fact, quite the opposite. He talks about what's economically preferable. He talks about a preference based on the scheduling of crews, making sure that all the crews depart at the same time. That doesn't go anywhere near the standard required by clause 32.10. And it cannot be correct that the employer has signed up to this agreement and now seeks to effectively alter the terms of the agreement by just implementing a change. And then when the employee's say, "Hold on a minute, that's not what the agreement says", accusing them of taking industrial action.

PN122

I note and I know that you are more than aware that the parties are currently bargaining for a replacement to this agreement and we say that the appropriate way for the employer to introduce this change would be through the bargaining process.

PN123

THE COMMISSIONER: So you want me to deal with this sometime next year?

PN124

MS PALMER: I don't think that there's very much more I can say at this point. I think the other issue that needs to be dealt with is the question of whether there's been adequate consultation, but without any evidence from Mr Heath and Mr Cain it's difficult for me to make submissions about that.

PN125

The only thing I would add, sir, is if you are minded to make an interim order and following on from your comments to Mr Ellery, obviously we agree that there'll be a serious question of fairness if you would issue a final order today without the evidence having been closed for either party, then we would like to make some comments about the terms of the interim order.

PN126

THE COMMISSIONER: Yes. Ms Palmer, it is my intention to make an interim order and I'll just put it on the transcript, the necessity for me to say that it's in the public interest that that be done. It's actually put in the negative, but I am satisfied that it is not contrary to the public interest to make the order.

PN127

If I make the order, given what you have said about how this application should be paired with the 739 application, if I am to make an order, the Act provides that I can make an order until this matter is finally determined. Given that you've said that the two applications really deal with the same matter, I'll just put it to the parties that I'll make an interim order until the matter is finally determined.

PN128

But in saying that, it obviously goes beyond the 17th and the 18th and it's for a period up until this matter in the 739 application can be dealt with by way of conference and, if necessary, hearing. Now before I adopt that course of action I'll give you the opportunity to respond to that in the first instance.

PN129

MS PALMER: I mean I suppose our concern is that that could result in a fairly lengthy period of operation of the order. At this point there's nothing - - -

PN130

THE COMMISSIONER: I'm used to lengthy periods, Ms Palmer, in dealing with matters.

PN131

MS PALMER: At this point there's nothing to indicate that this issue is going to arise again beyond the 17th and 18th, so we don't see any need for the order to go beyond the 17th and 18th and we say that the order should be specifically directed to the flights on the 17th and the 18th. Who knows what will happen after that? It's possible that the applicant won't try to schedule any other charter flights. It's possible that the parties will confer that there will be conciliation. That the matter will resolve some other way. It's open to the applicant to bring another section 418 application if this particular factual scenario arises again, but there's nothing to indicate that that will occur or is likely to occur.

PN132

THE COMMISSIONER: I could be reading into the application, and I think it's consistent with Mr Wakelin's witness statement, that this will go on beyond the 17th and the 18th, but maybe I'll hear from Mr Ellery in relation to that.

PN133

MS PALMER: Sure. I mean I suppose that's why we would urge the Commission to list the final determination of the 418 and if you are minded to deal with them jointly, the 739, as soon as practicable.

PN134

THE COMMISSIONER: Thank you. Mr Ellery?

PN135

MR ELLERY: Thanks, Commissioner. I have taken instructions on that issue of what's going to happen after the 17th and the 18th and the answer is we don't actually know. We are not aware, as in my client is not aware of any plans to use charter flights versus commercial flights at a later date, but those plans may be made. Mr Wakelin gives evidence that it's the client Polarcus that has embarked on that course of action for next week so they don't control this, it's the client who controls this. So we honestly don't know whether or not it's likely to occur in the future or not. It certainly may occur and equally it may not. So it's just an uncertain position, I'm afraid.

PN136

THE COMMISSIONER: Right. In that case then, given the uncertainty it may be preferable that I do extend it only as far as the 17th and the 18th. In terms of actually dealing with this matter in its final form, it would appear to me that the best thing that can happen is that we set down a conference in the first instance in relation to the 739 application and see if the matter can be dealt with swiftly in relation to that, and it would seem to me if that matter can be resolved then it prevents maybe a reoccurrence of a section 418 application. Is that your view?

PN137

MR ELLERY: I mean it certainly may lead to that result. As I said earlier, our submission is that regardless of which way that matter goes, industrial action is still industrial action and it doesn't necessarily--

PN138

THE COMMISSIONER: What I don't want is just if I make an interim order say to the end of this month, that takes care of the 17th and the 18th.

PN139

MR ELLERY: Yes.

PN140

THE COMMISSIONER: The next swing arises, and I see a further application without actually dealing with the guts of it, which is the meaning and application of the provision in the agreement, I think if we can resolve that matter then, to be honest, there should be no - or hopefully there should be no repetition of the 418 application.

PN141

MR ELLERY: Yes. Thanks Commissioner, I understand that and I probably misunderstood your question or your observation before. Look, I'd agree with that and I would attest that it could be dealt with within, you know, approximately a month because we could have a conference, it might be resolved at conference. If it's not conferenced there'd be a hearing. We would anticipate leading evidence about, you know, the intentions of the parties when the clause was negotiated, for example. So it's not something we could do tomorrow I expect, but we could do it within a month I'd expect. And I agree to the observation that if that question was finally resolved for the 739 matter then it may - it may mean that the circumstances don't arise again. Yes.

PN142

THE COMMISSIONER: In relation to that, what's the likelihood of it being resolved at conference? That's the 739 application? I am just trying to program things here.

PN143

MR ELLERY: Yes. Well, on the face of it on the current position taking the parties not high, to be honest, and that's reflected in the strong language expressed in Mr Heath's emails, so I'm not sure that it's high because our client has taken a view and we say it's a proper and lawful view as to what that clause means. The union has a diametrically opposed view of what that clause means, it seems. So, your Honour, it would seem difficult. But conciliation can lead to surprising results, as we all know, and certainly my client's prepared to earnestly engage in that process and attempt to resolve it.

PN144

THE COMMISSIONER: Thank you. Ms Palmer?

PN145

MS PALMER: I am not sure what I can add, Commissioner. I think your suggestion is a good one, that there's an interim order perhaps directed only to the 17th and the 18th or perhaps to the end of the month and that a conciliation is listed as soon as practicable. And the MUA is in a position where once Mr Heath is back in the country we could be prepared for a hearing at very short notice on this matter, although I take on board Mr Ellery's comments that they may need some time to organise evidence about the intentions of the parties.

PN146

In terms of the prospects of it being resolved in conciliation, I think I probably agree with Mr Ellery's comments that at the moment the parties seem to have quite different views of the meaning of the agreement, but that's not to say that they couldn't come up with some other means of resolving this. I mean you've seen this happen before, perhaps some guidelines around the use of charter flights that are acceptable to both parties. Perhaps if the employees involved were in the conference and part of that process you just don't know what will happen there. I think it's still worthwhile.

PN147

THE COMMISSIONER: I've had the benefit yesterday, most probably the other parties haven't or you may have, that Mr Heath has got something like three weeks and then he goes on a month's leave.

PN148

MS PALMER: Yes, that's right.

PN149

THE COMMISSIONER: I don't want to intrude in his leave, but if this matter requires a hearing I'll set it down for - I don't particularly like doing it in his last week of employment, but if he's going to be a witness in the 739 application I'll set the matter down now - not now but advise you, I'll set it down in that last week before he goes on leave.

PN150

MS PALMER: That would be perfect from our view. The sooner the better is our view.

PN151

THE COMMISSIONER: Yes, which means that something like - I know it's approximately three weeks so I'll just set it down for then. And in between, I'm away most of next week, I'm of the view, given what I've read, that most probably I'll set down the hearing. Just issue directions. And then if the parties, particularly if they've had the benefit of the experience on the 17th and the 18th, a hearing may not eventuate and there may be conciliation between the parties. But if not, at least I'll deal with the matter in three weeks' time.

PN152

MS PALMER: Thank you.

PN153

THE COMMISSIONER: Mr Ellery?

PN154

MR ELLERY: Yes, we wouldn't have any difficulties with that course of action and certainly accept the need to accommodate Mr Heath's timing.

PN155

THE COMMISSIONER: Yes. All right, so I wondered if you could just remain here, Mr Ellery and Ms Palmer, and what I'll do is go out and draft the interim order, give you a copy of that draft so you've got the opportunity to comment on it and pick up any potential mistakes and then once that's been clarified I'll issue it finally. But, if necessary, we'll go back on transcript. So if you could just give us a moment to draft up that interim order, thank you.

SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [12.57 PM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [1.46 PM]

PN156

THE COMMISSIONER: For reason that have already been set out on transcript, the Commission is not able to determine this application within two days. As I am unable to determine the matter within two days, the Commission must issue an interim order.

PN157

I am satisfied that the interim order is not contrary to the public interest and, as a consequence of that, the interim order has been made.

PN158

The interim order continues until this application has been determined and given that this matter is intertwined with application C2015/1953, I wish to advise the parties that there will be a hearing in relation to that matter on 1 April and it is my intention to issue directions tomorrow in relation to that application.

PN159

Unless there is any other further issues, Mr Ellery and Ms Palmer, I will conclude this matter.

PN160

MR ELLERY: Nothing further, Commissioner.

PN161

MS PALMER: Just a question, if I may, so the hearing on 1 April is only in respect of the section 739 application?

PN162

THE COMMISSIONER: That's correct.

PN163

MS PALMER: And then presumably this application will be brought back on at some point after that is determined?

PN164

THE COMMISSIONER: Correct.

PN165

MS PALMER: Thank you.

PN166

THE COMMISSIONER: Right, thank you.

ADJOURNED UNTIL WEDNESDAY, 01 APRIL 2015 牋牋牋牋牋牋牋牋� [1.48 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARK JOHN WAKELIN, AFFIRMED............................................................. PN25

EXAMINATION-IN-CHIEF BY MR ELLERY................................................. PN25

EXHIBIT #A1 STATEMENT OF MR WAKELIN............................................ PN34

THE WITNESS WITHDREW.............................................................................. PN78

Fair Work Commission Transcripts

C2015/1953, Transcript of Proceedings [2015] FWCTrans 220 (13 April 2015)