C2015/3860, Transcript of Proceedings [2015] FWCTrans 425 (21 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052133

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VICE PRESIDENT WATSON

C2015/3860

s.739 - Application to deal with a dispute

Maritime Union of Australia, The

and

ASP Shipping Management Pty Ltd

(C2015/3860)

ASP Ship Management Pty Limited Seagoing Ratings Enterprise Agreement 2012

Melbourne

10.07 AM, THURSDAY, 2 JULY 2015

PN1

THE VICE PRESIDENT: Can I have the appearances please?

PN2

MR A HOWELL: Yes, your Honour. Howell, H-o-w-e-l-l, initial A, of counsel with Mr Jacka from the MUA. I seek permission to appear in the hearing. The principal grounds upon which we seek permission are that it would enable the matter to be more expeditiously dealt with, and in all the circumstances given we anticipate my friends will be seeking permission to be represented by counsel, in all the circumstances it would be appropriate for permission to be granted.

PN3

THE VICE PRESIDENT: Thank you, Mr Howell.

PN4

MR R MILLAR: Yes, if the Commission pleases, Millar initial R. I seek permission to appear on behalf of the respondent employer, ASP Ship Management Pty Limited. I do so on the grounds that my learned friend has indicated. The matter is one which would be dealt with more efficiently through representation by counsel, given that the matter involves the application of the dispute resolution powers of the Commission and the interpretation of the enterprise agreement. It's also a matter that will involve the cross‑examination of witnesses. These are matters, in my submission, that would be dealt with more efficiently through representation by counsel. In addition in the interests of fairness as both parties are similarly represented it would be a proper step for permission to be granted in both cases. If the Commission pleases.

PN5

THE VICE PRESIDENT: Thank you, Mr Millar. I consider that the matter will be able to be dealt with more efficiently if permission is granted, and I have regard to the material filed by the parties in this matter which I've had an opportunity to peruse. Permission is granted in each case.

PN6

Yes, Mr Howell?

PN7

MR HOWELL: Thank you, your Honour. Your Honour, the parties pursuant to some directions have filed their evidence in advance and have filed an outline of submissions in advance. Has your Honour had the opportunity to peruse those submissions?

PN8

THE VICE PRESIDENT: I have. Yes, I have.

PN9

MR HOWELL: Thank you, your Honour. Then I'll endeavour to be quite brief in opening. As the Commission appreciates, the respondent is in the business of supplying labour to ship owners who operate vessels in the Australian coastal trade and, in particular so far as these proceedings are concerned, BP. Until recently the respondent supplied labour to crew two of BP's vessels, the British Fidelity and the British Loyalty, both are tankers. These proceedings find their genesis in the decision by BP to withdraw the British Loyalty from the Australian coastal trade following the closure of one of BP's refineries in Queensland, the Bulwer refinery I understand to be somewhere around Brisbane.

PN10

The withdrawal of the vessel from the Australian coastal trade has meant the labour supplied by the respondent is of course no longer required, and consequently some 38 crew from the British Loyalty are no longer required by the respondent, or indeed the respondent no longer requires their job to be performed by anyone. Of those 38 employees 20 are integrated ratings, chief integrated ratings or cooks covered by the agreement pursuant to which this dispute is notified. That's the ASP Ship Management Pty Limited Seagoing Ratings Enterprise Agreement 2012, and your Honour will find a copy of it as IB1 to the statement of the assistant national secretary of the MUA, Mr Ian Bray.

PN11

Mr Bray has provided a statement to the Commission and it's the only statement we'll seek to lead in chief, and we may well need to lead some evidence in reply orally. But I can turn to that shortly, if the Commission pleases. Of these 20 employees there are presently some eight who are to be made compulsorily redundant and as I apprehend the evidence, your Honour will see four of those persons come from the British Loyalty but unusually four of them come from the British Fidelity, a ship which continues to be crewed by the respondent or by labour employed by the respondent.

PN12

I anticipate the evidence, your Honour, will show that the respondent was first given notice generally that there may be a change in BP's crewing requirements in or around mid-2014. The respondent however was not ultimately notified of the loss of the British Loyalty until on or around 13 March 2015. It was given notice at that time that it would no longer be required from late May 2015. Now at some point after 13 March - it's not entirely clear when but one would assume almost immediately, given the nature of things. Certainly however prior to 19 March the respondent determines that the loss of the British Loyalty means that the 38 positions are no longer required.

PN13

That, on the applicant's case, triggers two related but nonetheless separate obligations under the agreement. The first is the obligation to consult in relation to significant workplace change. Now the agreement itself has a consultation provision in clause 31. If the Commission has Mr Bray's statement handy. I don't think there's any dispute that IB1 is the relevant agreement. Clause 31 provides for consultation but as your Honour will immediately note - it's on page 34 of Mr Bray's statement - it does not in terms deal with consultation in relation to significant workplace change.

PN14

Can I ask the Commission if it has that agreement to then go to clause 6 which is on page 18 of Mr Bray's statement, and your Honour will see in part the explanation for why that consultation provision does not specifically deal with significant workplace change. In turn 6.1 says, "Subject to 6.2", which I should interpose and say is irrelevant, it deals with prohibited content, "this agreement incorporates the terms of" amongst other things "6.1(a) the Seagoing Industry Award 2010." Now might I hand up a copy of the award for the Commission's benefit.

PN15

Clause 8 of that award, your Honour - and I should say for my friend's assistance it's extracted - given I've only got two copies of the award - the relevant provision is actually extracted in the applicant's written outline at paragraph 12 on page 5 of the submissions. On the award that I've just handed to your Honour, your Honour will find it at clause 8.1 on page 9 of the printed award, and clause 8 headed "Consultation" and in particular 8.1, "Consultation in relation to workplace change". In my submission this agreement incorporates by reference pursuant to 6.1(a) clause 8 of the consultation and dispute resolution provision, in particular clause 8.1 for the purposes of consultation in relation to workplace change.

PN16

The second obligation that as I say is triggered upon a definite decision in relation to redundancies is the obligation provided for in clause 37.1 of the agreement, and might I ask the Commission to open that. It's at page 36 of Mr Bray's statement, notably the second and third full paragraphs, the second paragraph being at the bottom of page 36 of the statement and page 23 of the agreement, and over the page at page 37, the first paragraph at the top. The obligation being on the employer:

PN17

...to make every reasonable effort to redeploy the affected employee -

PN18

that would be, in my submission, any affected employee:

PN19

- to a current vacant position.

PN20

Notably that effort if ultimately unsuccessful as provided for in the third paragraph of 37.1 may result in notice of termination being provided. Broadly stated, the obligation to consult, one with which the Commission would be well familiar, has two central components. One is the obligation to notify of a definite decision, the other is to discuss the matters the subject of decision, and of course the obligation to discuss has three elements to it under the standard clause.

PN21

The first is the provision of all relevant information in relation to the decision, and the provision of that information and the subsequent discussions must be pursued and it must progress as quickly as reasonably practicable. And of course there's a duty to discuss and, as the authorities say, genuinely discuss the introduction of the change, the effects the changes are likely to have on employees and, importantly, measures to avert or mitigate the adverse effects.

PN22

Now I don't want to delay the matter any further by an unduly lengthy opening. I don't want to run the entire case in the opening. It's sufficient for present purposes to say that it's the MUA's case that the respondent has not met its obligation under the agreement to consult with each of the union and its employees, and it's important to emphasise that the obligation to consult is in relation to both employee representatives and employees. Secondly, we say the respondent has wrongly confined its consideration of redeployment pursuant to 37.1 to positions within the BP fleet, that is to say a limited part of the ASP's overall fleet of vessels.

PN23

Ultimately if the Commission accepts that the respondent has failed to consult as required by the agreement, in particular in relation to the method of selection and the selection of persons for the purposes of redundancy, for forced redundancy, in the exercise of the broad discretion vested in the Commission in relation to the resolution of disputes under clause 9 of the agreement, which of course we'll come to in due course, the Commission would grant the relief sought which is articulated in the written submissions, and in particular in a proposed order which is attached to the schedule to the submissions.

PN24

In substance what it purports to do is to restrain the respondent by order from implementing forced redundancies pending it conducting itself as it's required to, in my submission, by way of workplace consultation, having made every reasonable effort to redeploy into current vacancies as it is obliged to do under 37.1 and otherwise after having undertaken an expression of interest process to explore voluntary redundancies across its fleet.

PN25

Now I should say at the outset that that last element of what is sought, a voluntary redundancy exercise across its fleet, is not sought on the basis that it is something that directly arises from the language of the agreement. That is to say it's not in terms an obligation which the respondent has. Rather, we say it's something that in all the circumstances would provide a fair and just resolution to the dispute, particularly as your Honour will see in the evidence in light of some of the representations that have been made to the employees about the process that was to be followed.

PN26

In particular, representations that the respondent would pursue a voluntary redundancy process initially by reference to the BP fleet. If sufficient numbers were not garnered from the BP fleet itself, a voluntary redundancy expression of interest process would be extended across the fleet. As your Honour will hear ultimately in closing submissions those commitments, albeit not specifically made pursuant to terms of the agreement, were commitments nonetheless made as part of at least the initial consultation process required by the agreement.

PN27

The submission will ultimately be in the broad discretion conferred on the Commission in light of the connection with the obligation to consult imposed by the agreement, that is (a) a relevant consideration in the exercise of the discretion but also one which in my submission the Commission would find persuasive given fundamentally it's in the public interest and in the interests of harmonious industrial relations, a matter specifically required to be taken into account in the exercise of the Commission's functions under section 577 of the Act; and also one would say a fair and just outcome given the commitment to conduct the voluntary redundancy exercise was one that related to the consultation obligation in the agreement, indeed it arose from it.

PN28

Without any ado then I would seek to call the applicant's first witness. That's Mr Ian Bray, the assistant national secretary of the union. One thing I should foreshadow at the outset, your Honour, and this is not a criticism of anybody but the timetable has meant that the respondent's evidence was filed and served last Friday. Trying to get material in reply in the time available, given the nature of the workforce working on vessels and otherwise being dispersed around the place, has been challenging. So I might need to seek the Commission's indulgence to enable me to have a brief conference with someone who I've been able to identify for the first time this morning before I close the evidential case on behalf of the applicant. It shouldn't be long. It might well be able to be conveniently done at the morning adjournment, assuming the Commission is minded to take one. But I should just foreshadow that at the outset, your Honour.

PN29

THE VICE PRESIDENT: Very well, and Mr Bray is required for cross‑examination as well, Mr Millar?

PN30

MR MILLAR: Yes he is, your Honour.

PN31

THE VICE PRESIDENT: Yes, well it is convenient to call him now, Mr Bray.

PN32

MR HOWELL: Thank you, your Honour.

PN33

MR HOWELL: Thank you, your Honour. I call Mr Ian Bray. Excuse me, your Honour. Sorry, your Honour, I've just asked my client to secure a copy of his statement and the two statements that have been filed by the respondent, those of Mr Asome and Mr Jones.

PN34

THE VICE PRESIDENT: If you could remain standing, Mr Bray, while my associate administers the oath or affirmation.

PN35

THE ASSOCIATE: Could you please state your full name and address?

PN36

MR BRAY: Ian Christopher Bray (address supplied).

<IAN CHRISTOPHER BRAY, AFFIRMED [10.25 AM]

EXAMINATION-IN-CHIEF BY MR HOWELL [10.25 AM]

PN37

THE VICE PRESIDENT: Thank you Mr Bray.

PN38

Mr Howell?

PN39

MR HOWELL: Thank you, your Honour.

PN40

Mr Bray, can I have your full name please?‑‑‑Ian Christopher Bray.

PN41

And you are currently the assistant national secretary for the Maritime Union of Australia?‑‑‑Yes, that's correct.

PN42

You've prepared a statement for the purposes of these proceedings?‑‑‑I did.

PN43

Do you have a copy of it with you?‑‑‑I do.

PN44

Have you read it recently?‑‑‑I have.

PN45

And is it true and correct to the best of your knowledge and belief?‑‑‑It is.

PN46

I tender that statement, your Honour.

PN47

THE VICE PRESIDENT: That statement will be exhibit H1.

EXHIBIT #H1 WITNESS STATEMENT OF IAN CHRISTOPHER BRAY

PN48

MR HOWELL: Thank you, your Honour. Your Honour, as I say the evidence - that is the evidence‑in‑chief of this witness. I'll need to lead some evidence in reply orally which I apologise but may take some little time. I'll endeavour to do it as expeditiously as possible.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN49

Mr Bray, do you have a copy of the witness statement - actually I'll start with Mr Asome's statement. Do you have a copy of Mr Timothy John Asome's statement filed by the respondent in these proceedings?‑‑‑I do.

PN50

Thank you. Can I ask you to turn that statement open to paragraph 8. I'll just ask you to read that to yourself. Just let me know when you've done that, if you would?‑‑‑Yes, I've read it.

PN51

The last two sentences, the sentence commencing, "Ratings, stewards and cooks are not required", what if anything would you say in response to that?‑‑‑That would be correct. They're generally not required to have additional qualifications or tanker service.

PN52

And in relation to - yes, that will do. Paragraphs 10 to 14 of Mr Asome's statement describe the negotiation process for the agreement. What if any role did you have on behalf of the MUA in relation to the negotiation of the agreement?‑‑‑I led those negotiations for the MUA.

PN53

Can you just read paragraph 12 to yourself for a moment?‑‑‑I've read it.

PN54

Firstly what do you say, if anything, to the observation that the new redundancy clause was inserted in response to the MUA's claim?‑‑‑That's a correct statement. The previous agreements, ASP agreements, MUA agreements, did not have any redundancy clause in them and it was one of those claims where we were seeking assurances and certainty regarding times of redundancy.

PN55

And had you had any experience in a practical sense of redundancies amongst the workforce of ASP over the course of your time as an MUA official?‑‑‑Not directly, but I was aware of them in terms of I think the Vigsness somewhere round about 2008 or nine, somewhere probably around there. Maybe 10. So - but the branches ultimately led those discussions.

PN56

Sorry, excuse me one moment. Sorry, your Honour, before we go any further I should ask other potential witnesses to leave. I won't be dealing with anything which has been touched upon so far.

PN57

MR MILLAR: Mr Asome is also here and Mr Jones. I'll need one of them to stay, probably Mr Jones for instructions. But I mean if you're cross‑examining on his - or sorry, if you're leading evidence concerning the witness statement then it's a matter for you. I'm happy for him to go out.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN58

MR HOWELL: I think he should go out.

PN59

MR MILLAR: Okay.

PN60

MR HOWELL: Sorry, your Honour, I'm just ensuring that all of the potential witnesses are outside before the evidence gets too much into it.

PN61

THE VICE PRESIDENT: Yes.

PN62

MR HOWELL: Thank you, your Honour.

PN63

MR MILLAR: Your Honour, I should just ask that Mr Jones remain in the room for instructions.

PN64

MR HOWELL: Now Mr Bray you mentioned some experience with the Vigsness, tell me if I get this wrong, is that V‑i‑g‑s‑n‑e‑t as far as you're aware, Vigsnet?‑‑‑No, no, Vigsness. So V‑i‑g‑n‑e‑s‑s I believe it was.

PN65

Vigsness, and what was that?‑‑‑I believe that was a general cargo carrier, more specifically would have been under the bulk carrier fleet.

PN66

And what can you recall about how that redundancy process was undertaken?

PN67

MR MILLAR: Well, your Honour, before my friend leads that evidence perhaps the issue should be established as to what knowledge this witness has of that issue. He said before that he had no direct involvement. It sounded to me rather as if he may be drawing upon institutional knowledge within the union, if I can put it that way. If it's not direct knowledge then I'll make an objection to the evidence being led.

PN68

MR HOWELL: I'm content to deal with that.

PN69

Mr Bray, leave aside what you might have heard amongst colleagues for one moment, what was your personal involvement in the redundancy process, if any, associated with the Vigsness?‑‑‑Nothing directly. I believe it was before my time being appointed as a casual appointee to assistant national secretary. I was however an official of the union as - acting as assistant branch secretary of the Western Australian branch at that particular time.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN70

All right, leave aside the Vigsness for one moment, do you have any personal and direct knowledge of a redundancy process that was conducted at or amongst the ASP fleet?‑‑‑I do.

PN71

And what was your personal involvement, in relation to which vessel?‑‑‑There has been a number of redundancies required through the Rio Tinto schedule and there has been redundancies required through the Lindsay Clark, which was I think 2013 from memory. So I have had probably two or three occasions where we've had to deal with redundancy.

PN72

All right. Now let's start with the Rio Tinto vessel that you mentioned. Do you recall what the vessel was?‑‑‑Not specifically. I think it might have been the River Torrens, I think from memory.

PN73

And what, if anything, can you recall of the process that was adopted - well firstly, what gave rise to the redundancies?‑‑‑The vessel was departing the coast. It was being replaced by another vessel but not with a requirement with manning to the scale of the Torrens. The Torrens was an old coal burner so it required additional personnel to feed the fires. The vessel that replaced it was a more conventional vessel subject to better technology, less manning.

PN74

All right, and what do you recall about how that redundancy process proceeded?‑‑‑Well, obviously the discussions firstly was about the number of people that would be required to man the new vessel so we determined those numbers. It was agreed that those numbers would come out of employees that were on the vessel that would be departing the coast. It was then on a case with the numbers that would be left over where else they could be transferred to within the fleet if possible.

PN75

Can I get you to stop there? When you say the fleet, what are we talking about there?‑‑‑All of ASP vessels regardless of which schedule they're covered by under the agreement.

PN76

All right. Sorry, I interrupted you. You were describing the process across the fleet?‑‑‑And then obviously if we - if there was still redundancy or positions of redundancy required it would then go to forced redundancy.

PN77

And where did it get to in that process?

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN78

MR MILLAR: Your Honour, I'm concerned about the relevance of this line of questioning. It's all terribly interesting to find out the historical background to other disputes involving other employees on other vessels.

PN79

THE VICE PRESIDENT: What's the relevance, Mr Howell?

PN80

MR HOWELL: Your Honour, it's part of the backdrop in which the 2012 agreement was negotiated, for a start, which will no doubt have been known to both parties.

PN81

THE VICE PRESIDENT: I'll allow the questions.

PN82

MR HOWELL: May it please.

PN83

So again, where did you get to in that process in dealing with the redundancies from the - - -?‑‑‑On that particular occasion all positions were - redundancy positions were filled voluntarily.

PN84

And you say filled voluntarily; do you recall were they filled amongst - sorry, I'll withdraw that and try and ask it in a less leading way. Were they all within the same employer or other employers, or do you recall?‑‑‑All within the same employer.

PN85

All right. Now the next vessel that you mentioned was the Lindsay Clark and do you recall - firstly what happened in relation to the Lindsay Clark?‑‑‑The Lindsay Clark - Alcoa being the ship owner had made a decision - the vessel was due to go to dry dock. It was its I believe the 25th year dry dock which is quite an extensive dry dock in terms of expense, time, et cetera, et cetera. Given the age of the vessel they'd made a determination that it was probably easy to either sell or scrap the vessel, so they'd made a determination that the vessel would be departing the coast and discussions were had at that time about replacement. However no replacement has been introduced to the coastal trade.

PN86

And what, if anything, do you recall happened to the existing workforce?‑‑‑Again there was a situation where there would be redundancies required and again the process was followed. Voluntary first and then if they wouldn't be - if we couldn't fulfill the numbers there would be - it would go to volunteers in the broader ASP fleet and then obviously if they still couldn't be filled it would go to forced redundancy.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN87

Sorry, just so I understand. You said volunteers first then if not enough volunteers, volunteers in the broader fleet. The first step, what was the first step?‑‑‑Okay, sorry. The first step would be volunteers within the Alcoa schedule. So there's two vessels under the Alcoa schedule, the Lindsay Clark at the time and the Portland. If voluntary redundancies couldn't be taken and met by the crews of those two vessels it would then extend to the broader fleet, being the Rio Tinto and tanker fleet.

PN88

You've mentioned two occasions; are you aware of any other occasion where some different process has been followed?‑‑‑No.

PN89

Can I ask you to read paragraph 14 of Mr Asome's statement to yourself?‑‑‑I've read it.

PN90

What if anything do you say in response to paragraph 14?‑‑‑Essentially I believe what Mr Asome is saying in that particular part of his statement is that he's saying that there's a genuine barrier in terms of transferability from one vessel to another, specifically being probably tanker employees being transferred to another schedule on the basis of salary, on the basis of salary. That's correct in terms of quantum however the ASP still required a transferability clause in the agreement on the basis that they would seek flexibilities within the operation to be able to transfer employees from one vessel to another, irrelevant of what schedule that vessel operated under.

PN91

And so far as you're aware what happens if someone voluntarily goes from a higher paid position to a lower paid position?‑‑‑Ordinarily they'd remain on the same salary.

PN92

This is to say if they voluntarily transfer?‑‑‑Voluntarily, no. They would probably take the salary - it's always negotiated. The agreement says you can't take a reduction so - but the reason why that was put in there was so the transferability wouldn't be done in terms of punitive measure.

PN93

Now can I ask you to go to paragraph 18 of Mr Asome's statement. Just read that to yourself and you'll see in the latter part of that paragraph he's responding to something which is said in paragraphs 8 to 12 of your statement?‑‑‑I've read it.

PN94

In relation to the second-last sentence:

PN95

I did not agree at that meeting that ASP would undertake any particular redundancy process.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN96

What if anything would you say in response to that?‑‑‑I would say that's not correct. As Tim - or Mr Asome and I weren't the only people in the room at that particular time, there were plenty other people that would substantiate that discussions along the lines of redundancy, should it be required - we didn't see it as a big event at the time. The union's position was we still believed that there was potential work for the British Loyalty or a replacement vessel coming out of Kwinana. So really the discussion in terms of redundancy was rather abstract in the event "Well, if we get to redundancy it will be as we have done in the past, volunteers out of the fleet. It would be then volunteers from the broader fleet and then should we still not fill the required numbers it would then go to forced redundancies back within the tanker fleet." There was no objections. In fact quite consistent with ASP's position and every time we've had to deal with the unfortunate issue of redundancy, the intent has always been between the parties to try to minimise that impact. I don't believe that there was any difference in the discussion on the 9th of December. But I don't agree with his statement that there wasn't a discussion along those lines, and in fact the view of the people sitting in the room at the time, probably other than Mr - probably other than the company was that the intent of the discussion was that we would follow that process.

PN97

And by that process, what do you mean?‑‑‑The process being voluntary within the tanker fleet, voluntary then within the broader fleet and should the numbers not be filled it would then go back to the nature of forced redundancies within the tanker fleet on a first on, last off basis.

PN98

And having read paragraph 20 of Mr Asome's, is there anything in your statement you wish to change?‑‑‑No.

PN99

Can I then ask you to go to paragraph 26 - I beg your pardon, paragraph 25?‑‑‑Sorry, just before you do, I don't have a copy of my statement. I've got a copy of the - - -

PN100

Sorry, your Honour.

PN101

THE WITNESS: The reason why - just there may be one change that I want to make and that is - but it - - -

PN102

MR HOWELL: Well, let's deal with it in stages first?‑‑‑But it will be the date.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN103

All right, well let's just deal with it in stages first. The question I was asking you about was paragraph 18 of Mr Asome which refers to paragraph 8 to 12 of your statement. I'd better make it clear for the record. Just have a look at eight to 12 of your statement and see if there's anything you wanted to change?‑‑‑No.

PN104

Thank you, and you mentioned a date. I apprehend I think I might know what that is. Can I ask you to go to - I don't think this is actually a controversial date so if your Honour will bear with me I might just speak to my friend about this.

PN105

Can I ask you to go to paragraph 28 of your statement. You mentioned a date. That might need correcting?‑‑‑Yes, I believe that was the 29th of May not the 28th.

PN106

So do I take it then paragraph 28 should read, "On about 29 May"?‑‑‑Correct.

PN107

May I ask your Honour to make that correction?

PN108

THE VICE PRESIDENT: Yes.

PN109

MR HOWELL: Thank you, your Honour.

PN110

If we can go back to paragraph 25 of Mr Asome's statement then?‑‑‑Yes.

PN111

Again can you read that to yourself please?‑‑‑I've read it.

PN112

Thank you. So firstly five lines down you'll see - sorry, I withdraw that. Three lines down you'll see the sentence commencing, "Most of the comments". What if anything do you say to that?‑‑‑I think that's fairly accurate. The view still remained at that particular time that we believed that there was potentially a future role for the British Loyalty running out of Kwinana for BP, given that there was 700,000 tonne of cargo being carried by foreign‑manned vessels in what we consider cabotage cargo, and if the British Loyalty couldn't be redeployed there we still believed that the ask from BP would be for a replacement vessel for the British Loyalty manned by the crew of the British Loyalty. So again we still weren't seeing redundancy as the first and only option.

PN113

Nonetheless do you recall - actually I withdraw that. Can I get you to look at the next sentence commencing, "I refer"? What if anything do you say to that?‑‑‑Correct. It's - - -

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN114

Then can I ask you to look at the next sentence, the next two sentences, "Either at this meeting" and the next sentence, "I said we would consider it". Firstly, what if anything would you say to the observation that Mr Asome had said, "We would consider it"?‑‑‑I don't believe that that's the case. If you refer back to the meeting on the 9th of December I believe that they'd already gone into the process of considering, and the intent would be as described.

PN115

All right, and having read paragraph 25 is there anything in paragraph 21 of your statement - or I should say paragraphs 21 through to 24 of your statement that you would change?‑‑‑I don't wish to change anything in my statement.

PN116

Can I get you to read paragraph 27 of Mr Asome's statement?‑‑‑I've read it.

PN117

Thank you. Going back to the second sentence and commencing in the third line, "Initially ASP was willing to explore the idea" and what if anything do you say to that?‑‑‑I don't believe explore - our view was that we'd had an agreement in principle on how the redundancy process would be carried out in the event redundancies were required.

PN118

And what if anything do you say to the next sentence, "ASP was advised"?‑‑‑I have a view and I'd say - I won't go to my view but I would say based on the comment there it seems to me quite clear that we were going down one path where we believed we had an agreement on the redundancy process and ASP's clients, Alcoa, Rio Tinto and BP have run third party interference.

MOBILE PHONE RINGING LOUDLY [10.53 AM]

PN119

MR HOWELL: Sorry, your Honour, I'm not quite sure - it wasn't mine.

PN120

Now at paragraph 28 you'll see Mr Asome referring to considerations - sorry, I withdraw that - considering selections for forced redundancies. What if any discussions do you recall having been had about how the respondent would go about considering selections for redundancy?‑‑‑Yes, I can't recall the exact date that we were informed that voluntary redundancy would be - or was being removed in terms of an offer to extend it to the broader fleet. But in terms of paragraph 28 I would say that's the case but I would also add there that I don't believe that the union agreed, because we brought the matter for conciliation before Fair Work Australia. I think we attended two conferences in that time.

PN121

Well, take that in stages then. Actually I ll leave that and we'll go to paragraph 29. Can you just have a read of paragraph 29 to yourself?‑‑‑I've read it.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN122

You'll see he there says:

PN123

We presented a list of ratings, cooks, stewards employed on the two BP vessels and discussed with Ian Bray who should be selected for redundancies.

PN124

What if anything do you say to Mr Asome's evidence that they discussed with you who should be selected for redundancy?‑‑‑I don't deny a list was presented with names on, probably more names than the required amount of redundancies. However in that discussion as well we made it very clear that the union, any official of the union would never be comfortable in terms of discussing investigations and names as quite often it puts us in conflict with one member over another. Again I'd say that we still - although those things were discussed it doesn't mean we reached agreement, on the basis we initiated a dispute.

PN125

And in terms of the discussions that you did have were there any discussions about how the persons were going to be selected?‑‑‑I believe there was. Again voluntarily out of the tanker fleet and then I believe at this particular time this was when it was clear that the voluntary process wouldn't be extended to the broader fleet and therefore it was going to go to forced redundancy if we couldn't fill the positions voluntarily out of the tanker fleet, being the British Loyalty and Fidelity. Again we don't - we didn't agree and then the discussions were more around, my recollection was about that they'd had discussions with the clients and the clients weren t buying into voluntary redundancy at a broader level.

PN126

Now can I get you to go to paragraph - sorry, firstly before we leave paragraph 29, the last sentence, the last two sentences, what if anything do you say to that evidence?‑‑‑I would say that we generally have a good relationship with ASP. We generally have a cooperative relationship with ASP. However I wouldn't say that they rely on us to communicate with the employees. We would still expect the employer to be consulting with their own employees in regard to serious matters or any matters for that matter pertaining to the employment relationship.

PN127

Now can I get you to go to paragraph 33. Just read that to yourself?‑‑‑I've read it.

PN128

What if anything do you say in response to that evidence?‑‑‑I think the historical evidence would be to the contrary on the basis that we'd raised objections to the process once we learnt that the voluntary redundancy process wouldn't be broadened. I would say that there was no consultation on that as a definitive decision that had been made and really they weren't taking into account anything that we might - that we had to or any views that we had on that matter. I would also say again that the evidence probably supports the fact that we hadn't - we didn't believe that we had been consulted. The vessel took industrial action on which a 418 was sought and granted by Fair Work Australia.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN129

And do you know what that was done, that is to say why - - -On the basis that the crew didn't believe that they had been consulted.

PN130

And on what basis do you say that? How do you know that's what the crew was thinking?‑‑‑That's what they put in writing.

PN131

Let me ask you squarely did you raise any concern that ASP was not consulting?‑‑‑No, I probably just disputed the process on the basis that there was no consultation period. We believed that the intent was we were going down a path of voluntary, extended voluntary, back into forced if required. Basically we were thrown straight into dispute the process after it was announced that the voluntary wouldn't be extended to the broader fleet.

PN132

All right, can I get you to open Mr Jones' statement please and can I get you to go to paragraph 21?‑‑‑I've read it.

PN133

You've already dealt with this to some extent but having read paragraph 21 is there anything in your evidence you want to change?‑‑‑No.

PN134

Can I get you to go to paragraph 23. Just read 23 and 24 to yourself?‑‑‑I've read it.

PN135

Can I get you to go to the fifth line down. Towards the end you'll see, "I said that we want". What if anything do you say to the evidence that the discussion was about the tender of a barge in Fremantle?‑‑‑Which paragraph again? Twenty?

PN136

23?‑‑‑23?

PN137

So the sixth line down?‑‑‑Yes. Yes.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN138

So you'll see at the end of it - I think I said fifth. I apologise. You'll see at the sixth line at the end it says, "I said that we want". What do you say to the evidence - what if anything, I should say, do you say to the evidence that the discussion involved a barge in Fremantle?‑‑‑There was discussion about - as we quite often do, we discuss many issues when we meet. There seems to be plenty of things to talk about. There definitely was a discussion about a barge in Fremantle. I'd even add that there was other work that ASP were being sought after at that time. We did discuss the possibility over both sides - my recollection was both sides realised that none of that work would potentially be online by the time redundancies would occur if the timeline held out that people believed it would. You've got to remember it was February and no announcement had been made yet. So as - we were exploring all opportunities. I believe ASP were, to minimise the impact of redundancy should it occur. But at that particular time the position wasn't different for us. We still believed that redundancies was a last resort on the basis we still believed that there was future work for the British Loyalty or a replacement vessel on the coast.

PN139

And paragraph 24 the first sentence, what do you say to Mr Jones' evidence that the discussion was about the impact of the closure of the Bulwer refinery generally and not about any particular redundancy process?‑‑‑Again I think that's relatively correct on the basis as I've just stated. We weren't throwing redundancies out front. We were trying to put them to the very back. Our view as that even though the Bulwer refinery was closing, which is what BP were linking the necessity of the British Loyalty to leave the coast, we were saying that there's 900,000 tonne of cargo under cabotage provision that could be carried by the Loyalty or a replacement vessel out of Kwinana. I don't think that there's anything - I think that's a fair comment that he's made in his statement.

PN140

And can I then get you to go to paragraph - sorry, your Honour, I'm trying to cut it down as best.

PN141

Can I get you to go to 33 please. So at paragraphs 31 and 32 Mr Jones is talking about a meeting on 26 March?‑‑‑Yes, I recall that meeting.

PN142

Can I get you to go then firstly to PJ3. This is the third annexure to Mr Jones' statement. Just see if you can recognise that document?‑‑‑That's the question and answer sheet?

PN143

Yes. Have you seen that before?‑‑‑I have.

PN144

And Mr Jones says it was handed out at this meeting on 26 March. What if anything do you say to that?‑‑‑It was certainly present there so I'll take it that that was the day it was handed out.

PN145

Now can I get you to go back to paragraph 32. You'll see the sixth line down the sentence commencing, "I used the word seek". Mr Jones is making some comment on the question and answer document. What I wanted to ask is do you recall him having said any words consistent with what he here describes as having been his intention in the use of the word "seek" in the meeting on the 26th?‑‑‑No.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN146

And the next sentence, "I did not give any commitment", what if anything do you say in response to that evidence?‑‑‑I would say that we believed that there was a commitment given along those lines of scheduled vessels first for voluntary, broader voluntary, and then back into forced redundancy if there was still a requirement.

PN147

I understand you say that was your understanding. What did he say, to the best of your recollection?‑‑‑No. I believed that there was a commitment to it.

PN148

Do you recall the words used?‑‑‑The 26th - - -

PN149

I withdraw the question and I ll move on. It s dealt with in your statement. I should simply say, having read paragraph 32, is there anything in your statement that you would change?‑‑‑No, I don t believe so.

PN150

Can you just read that to yourself. It s the last sentence in particular I want you to direct your attention to. Do you have any recollection of him saying said those words?‑‑‑I don t have a recollection.

PN151

Can you go to paragraph 36 of Mr Jones?‑‑‑I ve read it.

PN152

Having read his response to your paragraph 23, is there anything in your evidence you would change?‑‑‑No.

PN153

Now, can you go to paragraph 37?‑‑‑I ve read it.

PN154

All right. Having read that, I ll then ask you to go to PJ6 and for your Honour s benefit, you ll see this is referred to in paragraphs 40 and 43 of Mr Jones but can I just get you to go to PJ6 for me, Mr Bray?‑‑‑I have it.

PN155

The first page is a table. When was the first time you recall having seen this document?‑‑‑The first time I ve seen this document is under disclosure in this particular case, as evidence. That s it. I ve never seen it.

PN156

Was it ever shown to you before these proceedings were commenced?‑‑‑No.

PN157

Were you ever in any meeting shown it and asked to comment on it?‑‑‑Certainly not.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN158

Can I get you to go to the next page. Have you ever seen that before?‑‑‑Are you talking about the - - -

PN159

Sorry, I ll withdraw the question. Have you ever seen that table, the list of names on the left-hand side? It s a large table occupying most of the page. Have you it s the second page of PJ6?‑‑‑No.

PN160

Prior to it being put in evidence in these proceedings, had you ever seen that before?‑‑‑No.

PN161

Was it ever discussed with you prior to the commencement of these proceedings?‑‑‑M mm?

PN162

This document?‑‑‑No.

PN163

I ll get you to go back to paragraph 37 of Mr Jones. The first sentence the second sentence, says:

PN164

A number of issues in relation to redundancies were discussed, including a process for selecting candidates for forced redundancy.

PN165

What, if anything, did the company say to you was its intention at that stage about the selection of persons for forced redundancy?‑‑‑They didn t really say. I m just trying to recall the meeting. That meeting was held in the Victorian branch of the MUA. There was discussions regarding redundancy. There was discussions in terms of what we were proposing of last-on/first-off. However, again there was a number of names that exceeded the required number of positions and, again, really we didn t go into the individuals or the names; we went into trying to knock into touch, if you like, or reduce the number of positions. My understanding of that meeting, we further discussed, as an example, there was three chief integrated ratings that had put in an expression for redundancy where there had only been two positions identified. The union put the position to the company on that particular occasion, well, why wouldn t you accept the three and then train one of the younger integrated ratings up to a chief integrated rating. That would reduce forced by one if we could do that. We discussed the potential of creating a cadetship which was agreed to on that particular day, further reducing potentially the number of forced redundancies by one. We didn t go into any great detail about the names. There was a list produced but we didn t go into any great details about the names on the list at that specific time.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN166

What about how they were going to select from amongst that list, was that discussed at all?‑‑‑No, I don t believe it was discussed.

PN167

Now, can I get you to go to paragraph 45. Just read that one to yourself?‑‑‑I ve read it.

PN168

Now, the second sentence, Mr Jones says:

PN169

I explained the selection process to Ian and he was initially unhappy about the selection process.

PN170

What, if anything, do you say to that?‑‑‑Well, I would say slightly more than unhappy.

PN171

What do you mean?‑‑‑It s the first time that I even knew that there was a selection criteria that had been put in place.

PN172

What made you unhappy about that?‑‑‑Well, the fact that we hadn t been consulted about it and, again, it s an emotional thing dealing with forced redundancies and, you know, again there s a bit of emotion in that when you re having to deal with it. You re put on the spot and then all of a sudden you re talking about a process of people that had been earmarked for forced redundancy, and then all of a sudden you find that the decision has been made and people have made those decisions based on some kind of criteria you didn t know about. I don t believe I was more angry because the crew that were involved hadn t been consulted about the selection criteria.

PN173

Can I just stop there. How do you know they hadn t been?‑‑‑If I was the first to hear about it, I can guarantee that the crew hadn t. I d made a very broad assumption but I don t believe I d be wrong.

PN174

The next sentence:

PN175

As the discussion progressed I felt that Ian and I were on the same page.

*** IAN CHRISTOPHER BRAY XN MR HOWELL

PN176

What, if anything, do you say to that evidence?‑‑‑I would say that there was discussion about the names. I would say that I pointed out a few areas where I completely disagreed, thinking pretty much thinking on your feet at the time over the telephone, when you ve just found out that there is a selection criteria. I would say that although those names are there I don t believe that agreement was reached. If they re the names that the company picked, again, I m not really interested in going into any great detail on names because I can t win pitching one member against another. It s just not the intent of what we would do. Having said that, there was a list and, having said that, I believe that the list was changed based on some of the discussions that I had put to Phil. However, the issue still remained in dispute and was still on record in Fair Work Australia.

PN177

Can I get you to go to paragraph 51. What do you say about the first sentence, that:

PN178

Mr Bray had not raised any concern about lack of consultation.

PN179

?‑‑‑Well, I would say based on the conversation we had on 29 May, I think it was quite clear that I wasn t too happy with the fact that we hadn t been consulted.

PN180

Can you just have a look at the last paragraph for me. Paragraph 53?‑‑‑I ve read it.

PN181

Are you aware of firstly, are you aware of whether or not the Federal Secretary has had any discussions?‑‑‑I don t believe he would have.

PN182

Why do you hold that belief?‑‑‑Because I m my understanding of the dispute resolution procedure, it s on board, you try to resolve it. There s a step-out process like every other dispute procedure. I think it says in there, from memory, that the branch secretary once it gets to the level of a branch, it then goes to the national secretary who may appoint I m not a branch, and I m delegated by the national secretary to deal with ASP on national issues.

PN183

Yes. Thank you. That s the end of the questions.

PN184

THE VICE PRESIDENT: Mr Millar.

CROSS-EXAMINATION BY MR MILLAR [11.24 AM]

PN185

MR MILLAR: Yes. Thank you, your Honour. Mr Bray, you have your witness statement there?‑‑‑I do.

PN186

Now, I ll take you to paragraph 7 to start with. You had said there that you attended a consultative meeting in December last year, and at that meeting you were told that there was every prospect that the British Loyalty would leave the Australian coastal trade. That s correct?‑‑‑Correct.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN187

That was about six months before it actually happened?‑‑‑That would be about right, yes.

PN188

Now, even before that date you would be aware, having read Mr Asome s statement, that there had been meetings with the employees who were affected, where the prospect of this occurring had been flagged. You re aware of that?‑‑‑I understand that ASP may have said to them that BP would be reviewing the operation.

PN189

Well, in fact, it was a bit more than that. The evidence of Mr Asome is at paragraph 16, and you have his statement there, I think that:

PN190

On 30 July 2014 Philip Jones and I visited the British Loyalty whilst it was docked in Sydney. I said to the employees on board that BP had announced it was closing its Bulwer refinery and that there was a possibility that this would impact on the future of the British Loyalty, but no announcement had been made by BP. I said an announcement would be due in the first quarter of 2015.

PN191

That was some what five months or so before the discussion that you ve given evidence about in December 2014?‑‑‑That s correct.

PN192

So the employees had been told about the prospect of this occurring some months earlier. That s correct?

PN193

MR HOWELL: I object. It s really a submission. He hasn t established that the witness was in any of these meetings or had any discussions, observed any, heard any.

PN194

MR MILLAR: If my friend is saying that this witness knows nothing about any alleged lack of consultation with the employees, I m perfectly happy to leave it on that basis because the silence from the union on this suggestion that has been made today about a lack of consultation with the employees, has been deafening. There are no witnesses that have been called to make out this contention. All we have is what Mr Bray has said. So I m putting to him some of the evidence that the respondent will call to show that the employees were in the loop from an early stage. If the witness has no knowledge about the consultation with the employees, I m happy to move on.

PN195

THE VICE PRESIDENT: Well, I ll allow the question.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN196

MR MILLAR: You are aware, are you, Mr Bray or tell me if you re not aware that there had been discussions with the employees about the prospect of the British Loyalty leaving the coastal trade from as early as July 2014?‑‑‑No, that s not correct.

PN197

You re not aware of that?‑‑‑No, that s not correct. The first I was aware probably made aware somewhere around about possibly September through to obviously conversations and a bit of angst going on around the place, possibly as a result of meetings held and briefings held by the company. It was on that basis, around about that time where we contacted and said, Let s do a consultative review of the EBA where that matter can be dealt with, amongst other things.

PN198

So even before the December 2014 meeting that you ve referred to in paragraph 7, you were aware from discussions with the company of the prospect of the British Loyalty leaving the coastal trade, and the prospect of redundancies as a result. You would agree with that?‑‑‑Not necessarily, no. It was as a result of people ringing up members ringing up from the ships. However, we were aware that the tanker trade is in a precarious position, given the decisions being made by oil majors to shut down refineries around the country. But there was no consultation or direct dialogue to my knowledge between myself or the company, until around about September where we said we need to sit down and have a discussion about it.

PN199

Okay. So around about September?‑‑‑Correct.

PN200

Now, you haven t referred to that in your witness statement, have you?‑‑‑No.

PN201

So there s discussions in September. Those discussions have become more formal as the year progressed, leading up to the discussions in September 2014 that you have referred to in the statement. That s correct?‑‑‑Correct.

PN202

Then in your statement at paragraph 12, you ve said that:

PN203

The union and employee representatives understood ASP had agreed that voluntary redundancies would be put in the first instance to seafarers engaged in the BP fleet, to an expression of interest. Then if there was any shortfall

PN204

going to the end

PN205

would be offered to seafarers and other vessels in the rest of the fleet.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN206

There was never any agreement to that effect, was there?‑‑‑Our belief is there was.

PN207

Well, it was never put in writing, was it? You d agree with that?‑‑‑Not at that particular time. On 9 December again, I ll take you back to what I said earlier, and that is that the union weren t putting redundancies at the forefront in December because we believed that there was possible work for the British Loyalty or a replacement vessel running out of Kwinana.

PN208

I think in your evidence earlier, you said this was all in the abstract because this was a and I think you used the word abstract because the announcement hadn t at that stage been made and there were other prospects perhaps that it might be averted. That s right?‑‑‑Yes, that s correct, yes.

PN209

So I m asking you though about the use of the word agreed that you had understood that ASP had agreed to what you had said in paragraph 12, but you have agreed that this was all discussion in the abstract. There was nothing definite at that time?‑‑‑It was based on the discussion at the time where ASP made it quite clear through those conversations that they didn t believe that there would be a problem with that process should we get to that stage. We weren t hanging our hat on it, on the basis that at that time we didn t believe that that was the most major event. Our resources and concentration and time was being focused on trying to retain the vessel in whatever capacity.

PN210

You were hoping that all of this would end up going nowhere because the jobs might be saved?‑‑‑Correct.

PN211

You had expressed your views on what you hoped would happen if the jobs were lost but there was no deal done at that point. You would agree with that?‑‑‑I believed that the process in terms of ASP were under no illusion that we were going after the retention of the vessel or the replacement. Secondary to that, as a last resort, if redundancies occurred, I honestly believe that at that particular time that ASP certainly had no problem with what we were proposing.

PN212

You had made your views known but ASP had never, at any stage, said, Deal done . You hadn t shaken hands on it?‑‑‑I m stating that at that meeting in front of members, and other people other than myself, several in the room, that the other people in the room also believed that the intent on - - -

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN213

Well, hang on, if I can just pull you up there. If you can tell us what you know; not what you re saying other people who aren t being called know?‑‑‑Yes. Yes. I m just saying we left that room with ASP stating that they didn t have a problem with what we were proposing as a redundancy process, should we get there.

PN214

What were the words that were used by the ASP representatives that gave you that impression that an agreement had been reached?‑‑‑I believe that they said that they would go down that path. Again, it was just in the context of minimising any nobody wanted to have forced redundancies. It was again in that context that they said we wouldn t have a problem with going down that path.

PN215

But they actually said, We wouldn t have a problem in going down that path ?‑‑‑I can t recall the exact words but - - -

PN216

That was the hope that you had but and they hadn t closed off that prospect but what I m trying to pin down is how it is that you say that a deal had been done at that point. Why you believe that ASP had agreed?‑‑‑Because and I believe it was Tim Asome said that they would be happy to go down that path. It was we were left under no illusion that that was exactly where they were going to go. We believed we had an agreement on intent.

PN217

An agreement on intent. An agreement that ASP was prepared to look at that and talk further if the need arose. Is that what you re saying?‑‑‑No. We believed that that would be the process.

PN218

Well, I put it to you that there wasn t a deal that was done at that point, and that Mr Asome s evidence at paragraph 18 is the accurate account of the outcome of the 9 December meeting. He says:

PN219

I did not agree at that meeting that ASP would undertake any particular redundancy process. I did not make any commitments to the redundancy process to the effect set out in paragraph 12 of Bray s statement.

PN220

That is correct, isn t it?‑‑‑I put - - -

PN221

MR HOWELL: Which part of it is correct? It s a very wrapped up proposition.

PN222

MR MILLAR: Okay.

PN223

MR HOWELL: If I can assist your Honour. If there s a wrapped up proposition which is agreed or disagreed.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN224

MR MILLAR: Well, okay, well, I ll go through each step. It is correct that he did not agree at the meeting that ASP would undertake any particular redundancy process?‑‑‑Disagree.

PN225

It s correct that he did not make any commitments as to the redundancy process to the effect set out in paragraph 12?‑‑‑Disagree.

PN226

Paragraph 12 of your statement. Your basis for disagreeing is that you say that there was some sort of commitment in the abstract, that other people who aren t being called could verify to say that ASP was happy to go down that path.

PN227

MR HOWELL: I object. That s not the effect of his evidence. If you want to put a proposition but that s not it should be fairly put. That s not his evidence.

PN228

MR MILLAR: Okay. Well, I ll rephrase the question. You re saying the basis of your belief that ASP had agreed that the process in paragraph 12 would be followed, is that ASP was prepared to go down that path, although you re not sure what words were used?‑‑‑No, they were more than happy. The words were they were more than happy to go down that path. That s why I believed there was an agreement.

PN229

More than happy to go down that path. Now, that was not something that you formalised at that time or any later time?‑‑‑It wasn t formalised then because, as I say, our priority was trying to retain the vessel or a replacement vessel.

PN230

So even from your mindset at that time it was all very conditional and hopefully would never arise?‑‑‑Well, I believed that we had got the agreement there. We didn t need to focus on whether we would be in dispute over a redundancy. It allowed us to it freed up the time to go after and try and retain the vessel and/or go after a replacement vessel.

PN231

Now, then, at paragraph 19 of his statement, Mr Asome says that on 23 February Mr Jones and he visited the British Loyalty and updated the employees. Were you aware of that meeting taking place?‑‑‑Look, I may well have been. I can t recall. I may well have been advised that Tim Asome doesn t always tell me where he goes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN232

But you ve given evidence today that you believed that the employees hadn t been adequately consulted through this process, and you said at one point the crew put it in writing. What were you referring to there?‑‑‑That would be well after the whatever date is in his statement there because at that point by his own statement no announcement had been made so how could they be talking about a redundancy.

PN233

I understand that. I m just asking you about your evidence. You said the crew put it in writing about lack of consultation. What are you talking about?‑‑‑The crew put it in writing. I believe they put it in writing over lack of consultation, somewhere probably around about and I m flying blind here but it would be somewhere around about - - -

PN234

Okay. Well, I m not asking you to fly blind. If you don t know - - -?‑‑‑Well, but I wouldn t be too far out. Somewhere around about 9 to 11 April they would have put it in writing that they don t believe that they had been consulted.

PN235

Is that something that you ve attached to your witness statement?‑‑‑No, it s not.

PN236

No. You also said about the question of lack of consultation with the crew, that you had made a very broad assumption but I don t believe I would be wrong . Do you remember saying that earlier?‑‑‑In relation to what question?

PN237

The alleged lack of consultation with the crew about the redundancy process?‑‑‑I m not - - -

PN238

MR HOWELL: I object. It wasn t that. The question that was answered was not that general. It was about a more specific proposition directed towards a specific part of Mr Jones evidence, quite deliberately so. When your Honour sees the evidence actually, your Honour, I can deal with this perhaps in a way which will assist my friend, if the witness steps outside. The issue about consultation insofar as it s in dispute I think can be meaningfully narrowed, which might shorten the cross-examination in this respect.

PN239

MR MILLAR: Well, I m happy to do anything that might narrow the issues, your Honour. It s worth hearing what my friend says, with respect.

PN240

THE VICE PRESIDENT: Might the witness wait outside for a short time.

<THE WITNESS WITHDREW [11.42 AM]

PN241

MR HOWELL: Thank you.

PN242

THE VICE PRESIDENT: Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN243

MR HOWELL: Thank you, your Honour. The proposition which was addressed in the question was targeted towards that part of Mr Jones evidence and Mr Asome s evidence, and it was done in both. It related to the selection criteria of the people for forced redundancy. There is no complaint and will be no complaint that there was general discussion about the desire to avoid forced redundancy and general discussion about the voluntary redundancy process.

PN244

The vice comes from the specific obligation that is cast about the duty, (a), to notify and, (b), to discuss, including the provision of all relevant information. In this respect, all relevant information includes the selection criteria for those would be forcibly made redundant. Your Honour will see nowhere in the evidence that those selection criteria were ever discussed with anybody.

PN245

They were certainly never notified in writing, as is the requirement of the clause, and your Honour would recall I took Mr Bray specifically to PJ6, which is the matrix which Mr Jones created, and then applied, between 11 May and 19 May, without anyone apparently having been spoken to about it at all; certainly no employee. That s the vice, with respect to the obligation to consult. Your Honour will see in my friend s evidence an email that Mr Bray sends on 2 June in which he specifically raises complaint about the lack of consultation in relation to that aspect of the redundancy process, specifically the forced redundancy process.

PN246

Your Honour will recall on 29 May the evidence of Mr Bray about the discussion he had with Mr Jones on 29 May. There s an email which follows, which is in my friend s evidence, which is to be found at PJ9. You will see two-thirds of the way down the page specifically a complaint about a lack of consultation in relation to the selection criteria and the application of those selection criteria. So to the extent that there was a complaint about consultation, that s it s nature.

PN247

That s where the issue lies. I don t know if that will assist my friend in narrowing the scope of cross-examination about consultation but that s the nature of it. That s the nature of the complaint. That s where the issue is.

PN248

MR MILLAR: Your Honour, it does assist because, as I understand what my friend has said, the attack that s made on the consultation process isn t a generalised attack upon the failure to consult over the introduction of change and the prospect of redundancies, and that s a concession, if I can say, quite properly made, because there was extensive consultation on any view. But it is a more focused complaint that s made by the applicant concerning consultation over selection criteria.

PN249

Now, it will be my submission in due course that consultation over selection criteria is not something that s called for under the award. But even if it were, the consequence of that at best if there has been a failure to consult in terms of the award and the agreement, would be a loss of the genuine redundancy protection for an unfair dismissal if that s where the argument is going, but none of this makes it an issue that arises, in my submission, under the agreement. That s all for development in due course but the - - -

PN250

THE VICE PRESIDENT: Are you ready to recommence the cross-examination?

PN251

MR MILLAR: I m ready to recommence the cross-examination on that basis.

PN252

THE VICE PRESIDENT: We will get Mr Bray back.

PN253

MR MILLAR: Yes, thank you, your Honour.

PN254

MR HOWELL: Thank you, your Honour.

<IAN CHRISTOPHER BRAY, RECALLED ON FORMER AFFIRMATION [11.47 AM]

CROSS-EXAMINATION BY MR MILLAR, CONTINUING [11.47 AM]

PN255

MR MILLAR: Thank you, your Honour. Mr Bray, can I return to your witness statement at paragraph 13 on page 3, you ve referred to a further meeting conducted on 27 February. You d agree that at that meeting there was continuing consultation about the prospect of redundancies occurring. You would agree with that?‑‑‑I would agree that there was discussions regarding the British Loyalty and I would agree that part of that would have been a discussion about redundancy, however, again, still not at the forefront. No announcement had been made by BP.

PN256

But the ground was well and truly prepared at that point for bad news?‑‑‑No, I think it was at that meeting where both Tim and sorry Mr Asome and Mr Jones said they would be expecting an announcement of the review sometime in March, and the news was likely not to be good. That was pretty much what was discussed at that meeting. Then they explained what would be the requirement if the news was not good in the fact that BP would have to give two months notice to release the vessel.

PN257

In fact, well, the word I put to you before indications were that the news would not be good - - -?‑‑‑Yes.

PN258

- - - is what you ve said in your statement?‑‑‑Correct. Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN259

There was no commitment at that meeting made by the company to do anything other than to consider all options raised by the MUA or the employees. You d agree with that?‑‑‑Sorry, could you repeat that?

PN260

Well, Mr Asome says at paragraph 20 of his statement and I should pause at that point. I think the company has that meeting as being on 25 February, instead of the 27th?‑‑‑I will go with the company s 25th.

PN261

Very good. He says at the end of paragraph 20 or halfway through:

PN262

I did not agree at this meeting to a proposal from Ian Bray that redundancies extend beyond the BP vessels. I believe the possibility was raised but neither Phil nor I gave any commitment at this meeting to ASP following a particular redundancy process.

PN263

If I can pause at that point. Do you suggest that there had been a commitment given at that meeting to follow a particular process?‑‑‑No. I believe the commitment was given on 9 December.

PN264

Did you raise that on 25 February to say, well, hang on, we ve already done a deal here, we ve already locked in a process. Did you say that?‑‑‑Well, we reconfirmed what we believed would be the redundancy process, yes.

PN265

It s correct, isn t it, that neither representative of the company gave any commitment to ASP following a process. All that they agreed to do was consider all options raised by the MUA or the employees?‑‑‑It s quite possible at that meeting because I believe when we were discussing it, in terms of outlining the actual conversation and the redundancy process, I think there was a rider from us as well, where I said we ll cross that bridge when we get to it, but again not being concerned on the basis, I believe, that we had the redundancy process locked away. There was certainly no refuting the process at the meeting either.

PN266

Now, then at paragraph 14 of your statement you raise I refer to raising objections to the British Loyalty being taken out of service. Ultimately that was an issue for BP, wasn t it?‑‑‑Yes.

PN267

Discussion the discussions that occurred at that meeting about redundancies did not result in any deal being done. It was just a discussion about where the process was headed. Would you agree with that?‑‑‑I agree with that, yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN268

Yes. Then at paragraph 15 you ve got a statement:

PN269

Both Phil and Tim said words to the effect of, Ian, we are okay with your proposal. We want to minimise the number of redundancies.

PN270

You ve got that as a quote so you re fairly sure of the words that they used, are you?‑‑‑Correct.

PN271

And, what, you made a note of that at the time?‑‑‑Yes.

PN272

You did?‑‑‑I didn t no, I didn t make a note.

PN273

Well - - -?‑‑‑I made a mental note but - - -

PN274

You made a mental note?‑‑‑Yes. Yes.

PN275

You didn t make a paper note?‑‑‑I don t think I don t believe that either side took notes, from recollection.

PN276

No, but there s only one side that s putting up a verbatim quote which is then - - -

PN277

MR HOWELL: Well, I object. It s not a verbatim quote.

PN278

MR MILLAR: I was going to go on to say, which is then prefaced by words to the effect of . Neither of them said those words, did they?‑‑‑Yes.

PN279

Well, you say they both said it. What? Together? Separately?‑‑‑No. No. I believe it was Mr Jones that said it and, to elaborate, the proposal being the proposal being, firstly, that we wanted to pursue one of the reasons why we discussed with ASP the issue about the cargos in going after the cargos out at Kwinana for BP, was obviously we wanted to make sure that we weren t doing anything out of step either in terms of client relationships with ASP and BP, on the basis we didn t want to damage that relationship. So should a vessel be made available to take those cargos, we wanted to obviously it would be in our interests to see ASP man those ships.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN280

But, again, at that meeting you were everyone was keen on exploring the prospects of this not occurring, this not being necessary. We want to minimise the number of redundancies, you say is - - -?‑‑‑Redundancy being the last option, yes, that s correct.

PN281

The reference to where you say, Ian, we re okay with your proposal, I think you re now saying it was Mr Jones who said that?‑‑‑Correct.

PN282

So where you say during the meeting both Phil and Tim words what you re now saying is during the meeting Phil said words to the effect of?‑‑‑Yes. Correct.

PN283

Now, Ian, we re okay with your proposal. There was no discussion at that meeting, I think you agreed before, as to a specific process to be followed. It was simply discussion about where the prospects of redundancy were headed. Do you agree with that?‑‑‑Yes, I would agree with that.

PN284

Any suggestion that, Ian, we re okay with your proposal could really only mean that the company was okay to have further discussions about where the process was going. You would agree with that?‑‑‑Yes, I would agree with that on the basis just to clarify what I agree with, and that would be I agree that the company were okay to put redundancy as the last option because they understood quite clearly the union was going after retaining the Loyalty or getting a replacement vessel. I believe that s why they would have been okay with it, on the basis that redundancy would have been the last option in terms of those discussions.

PN285

Now, again, this is all still in the abstract because the notice hadn t been received. But the notice was received a few weeks later on 19 March. That s what you ve referred to at paragraph 16. Mr Asome refers to the notification having been pinned to the notice board on board the vessel. He says that at paragraph 23 of his statement. Was that your understanding as to the employees being told about that?‑‑‑I believe that s the case, yes.

PN286

That s conventionally the way the company communicates with the employees, isn t it?‑‑‑I m not aware what the process is in terms of protocol for them notifying the crew. Whether they ve got their own emails or not.

PN287

Well, the crew aren t necessarily all email savvy. The usual process is for a notice to be put on the notice board. You would agree with that?‑‑‑You d be surprised, our members, some of them think that they invented email.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN288

I m sure that s the case but it s not the case with everyone. It could be hit and miss if you rely on emails?‑‑‑To be honest, the reason why I m saying that, I m not being obstructive to you in any way. I don t know from one company to another what their direct process is with their members, and there s many different ways to do it on ships, you know. I couldn t say for sure but, look, I m quite happy to say that it went through the master. Whether that s the normal process, I don t know. I don t know how they discuss their crewing arrangements, their flight details or any of those things, which I would have just assumed not that I ve ever gone into it that they would talk directly to the employee in those matters. So I couldn t answer but I m happy to say it went through the master.

PN289

You got your two months notice though?‑‑‑Yes.

PN290

That notification showed a willingness to consult on where the process was going. You would agree with that?‑‑‑I would say it s issuing notice.

PN291

Well, it ends with saying:

PN292

I will be in contact with you to discuss the next steps.

PN293

That was pretty clearly flagging that there would be ongoing discussions about this?‑‑‑Yes.

PN294

Then at paragraph 18 and 19, you refer to teeing up a meeting on board the British Loyalty, which you then referred to at paragraph 20. At that meeting there was discussion about the process to be followed with the prospect of redundancies. You would agree with that?‑‑‑At some point, yes.

PN295

Mr Asome says in his statement at paragraph 25 about this meeting on board the Loyalty, that:

PN296

Either at this meeting or in discussions around that time, Ian Bray asked whether redundancies could be extended beyond the BP vessels to the broader seagoing fleet. I said we would consider it but did not give any commitment that this would occur.

PN297

Do you remember him saying that?‑‑‑No, I believed it was more a direct discussion about how it would roll out. Again, there was a lot of things discussed at the meeting. Certainly one of them again we would have been, and no doubt did, push the issue again in terms of the process we felt would be most appropriate.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN298

The process that you thought would be most appropriate so you were airing your views as to what that process should be, but you weren t saying, hang on, we ve done a deal on this, we were locked in from last December on what the process would be. You never said that?‑‑‑Probably not, no.

PN299

Mr Asome s evidence is that he said:

PN300

We would consider it but did not give any commitment that this would occur. ASP had given some consideration to this possibility prior to the meeting but significant further consideration was given following feedback from employees and the MUA at this meeting, and in light of the fact that it was becoming apparent that there would be insufficient volunteers for redundancy from the two BP vessels.

PN301

Mr Asome didn t at any stage go further than that than say they would consider going beyond the BP vessels to seek voluntary redundancies from the broader fleet. He didn t ever say that, did he?‑‑‑They were very positive in terms of the process, saying that s the way they would go. Again, with the intent of minimising forced redundancy. They certainly didn t disagree with what we put forward.

PN302

But he certainly didn t give any commitment that what you were seeking would occur? Again, you didn t shake hands on a deal being done at that point?‑‑‑No. No. But certainly the intent in terms of the direction was still there, it still remained.

PN303

Well, when you say the intent, what I m putting to you is that you had made known what you thought should happen, and the company had agreed to take that into account, but it hadn t expressed its conclusion on the way the process was to operate. Would you agree with that?‑‑‑Well, what I m putting to you is that right from the period of 9 December, right the way through until the 26th of whatever date it was we met on the ship, I m putting to you that we believed that we d had a process in place from that date. We believed that the company the company weren t objecting. They were not objecting at all. We believed that we had an agreed process to deal with the element of redundancy.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN304

Again, even at this point you were still hoping that the point was all in the abstract because you were holding out that there were other operational possibilities that might allow the employees to continue on. That s right?‑‑‑We were certainly running out of options at this point. Things were getting a little bit skinny. But one of the outcomes out of that meeting and I don t think it s in any of the witness statements is the fact that ASP agreed to approach BP on our behalf because there had been no consultation with them either, in terms of employees that were operating their vessel.

PN305

You thought that this was a bad operational decision for BP, and you weren t satisfied that there was a sufficient business case for it. That s what you re saying?‑‑‑Agreed.

PN306

That s right. You would ultimately agree though that, well, it wasn t a decision to be made between you and ASP as to whether the British Loyalty would continue to sail, and the employees would continue to be needed. You agree with that?‑‑‑Yes, I do agree with that.

PN307

Now, at the end of paragraph 22 you say:

PN308

Neither Tim or Phil disagreed with my proposal.

PN309

That was your proposal that, well, the parties should continue to look at how the employees could continue in employment?‑‑‑Sorry, where are you?

PN310

The end of paragraph 22?‑‑‑Of mine or Mr Asome s.

PN311

Your statement?‑‑‑Sorry.

PN312

Sorry. The end of paragraph 22 of your statement:

PN313

Neither Tim or Phil disagreed with my proposal.

PN314

?‑‑‑Correct.

PN315

You re not saying that they agreed with it either. You just said your piece and the discussion moved on. That s right?‑‑‑Well, no, it wouldn t be a discussion if it was only one way. It was they obviously were involved in the discussion.

PN316

They were involved in the discussion?‑‑‑Yes. Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN317

There s no doubt that this was two-way, but what I m putting to you is the double negative that you ve expressed in your statement is perhaps not as helpful as a positive assertion as to what was said?‑‑‑I think it was a positive assertion on the basis the crew came out of the meeting quite content again, saying that they believed that things were in hand.

PN318

There s no doubt that you would - - -?‑‑‑They re not here to answer that; I m speaking on their behalf, I guess.

PN319

Well, we might come to that in due course but when you say:

PN320

Neither Tim or Phil disagreed with my proposal

PN321

what I m putting to you is that, well, you were given a hearing. You were allowed to put your views but there was nothing said that indicated that the company agreed with this proposition. Do you agree with that?‑‑‑No, I don t agree with that. I believe that the company were quite happy to continue going down the redundancy path, if that s where we got to, based on that process. They never once said they objected. They never once said they disagreed.

PN322

But what I m putting to you is that they never actually said that they did agree?‑‑‑Well, I d put it back to you that if they re not saying they disagree and they re saying that they re working with us, I put it to you that they re working to agree.

PN323

So you can t expand on what you ve said here:

PN324

Neither Tim or Phil disagreed with my proposal

PN325

to tell me anything that was actually said on behalf of the company that made you think - - -?‑‑‑Not the exact words, I can t, because it was a very fluent conversation and it was a very emotional conversation because we had a number of ASP employees in the room that were about to potentially lose their jobs. They re not easy conversations to have.

PN326

Now, you then go onto say in paragraph 23 that you had a conversation sometime in April and with Mr Jones, where he said that all redundancies come out of the BP fleet. That s right. Now, it s a pretty significant conversation, isn t it, when you re told that but you don t recall exactly when it was, just sometime in April?‑‑‑Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN327

And you, again, you didn t make a note of it?‑‑‑Could have been driving a car, you know. I don t know. But it was certainly around April that we had that discussion. It was an informal discussion.

PN328

You could have been driving a car. Well, tell us what your recollection of that conversation - - -?‑‑‑I don t recall, mate, when I took the phone call. That s what I m saying to you.

PN329

So you don t even recall where you were? The circumstances when this discussion took place?‑‑‑Not at all. I don t recall.

PN330

We ve just got to take your word for it that it happened even though we don t know when it was, where you were?‑‑‑I m under oath.

PN331

But you, again, are able to recollect with clarity the effect of what was said?‑‑‑I ll explain it this way. I have had in the past 12 months probably over 100 conversations with Mr Jones on the telephone. I ll put it to you this way even further, we have a very, very good relationship. It may have been informal. It may have been a heads up. It was just that was the time that I recall I didn t take notes on the basis I believe Phil when he tells me something, and it was on the basis that they couldn t deliver in terms of extending the voluntary process to the broader fleet.

PN332

Well, what Mr Jones says about that conversation is that paragraph 36 he says that you said to him words to the effect of, What about going to the rest of the fleet with voluntary redundancies? And he said ASP did not agree to this and he then explained to you the reasons as to why that wasn t a feasible option. Do you remember him running through with you why that wasn t a feasible option?‑‑‑Where are you referring to, sorry?

PN333

Paragraph 36 of Mr Jones statement, page 6?‑‑‑Yes, I have 36.

PN334

He says that you asked about going to the rest of the fleet, and then he briefly explained the reasons as to why that wasn t a feasible option. Do you remember him running through that with you?‑‑‑Yes, I do. I know the reasons why.

PN335

Okay. And what did he say to you?‑‑‑Basically that the clients were pushing back. It was not agreed by the clients.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN336

And he says that he disagrees that you said words to the effect of, This is not what we agreed . My question to you is this: that you didn t tell him, at that point, that this is not what we agreed. That didn t happen, did it?‑‑‑I believe it did.

PN337

And the reason why that wasn t put to Mr Jones in that discussion is because there had been no agreement reached on that point. What do you say to that?‑‑‑I disagree.

PN338

Now, then at paragraph 24 you refer to continuing to have discussions with Phil Jones in relation to the British Loyalty and proposed redundancies. You gave an estimate before, 100 phone conversations with Mr Jones over the last year?‑‑‑That s a figure.

PN339

And a lot of emails as well?‑‑‑Yes.

PN340

There s a close working relationship there; you d agree with that?‑‑‑Yes.

PN341

And you would agree with the proposition that Mr Asome advances in his statement that I m sorry, your Honour. You agree with the proposition in Mr Asome s statement at paragraph 29:

PN342

Ian Bray and the MUA generally have a strong role in ASP s workplace and often ASP will communicate with its employees through the MUA.

PN343

Pause at that point. That s an accurate reflection of the relationship?‑‑‑No. It s a good relationship, but I wouldn t say that they communicate with their employees through the MUA. I d say it d be part of the process. I wouldn t say it s solely reliant ‑ ‑ ‑

PN344

It s not the only way that it communicates with the employees, but it is a way?‑‑‑It is a way, yes, I d agree with that.

PN345

And the MUA is generally pretty happy to be a conduit in that way, for the communication with the employees?‑‑‑Yes.

PN346

Now, at paragraph 24, you ve referred to having continuing discussions with Philip Jones but no acceptable outcome could be reached. And by that I take it you are saying that well, no agreement was reached between you and the company as to the way forward?‑‑‑Correct.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN347

Now, then Mr Asome, at paragraph 29, refers to a meeting that took place on 6 May over breakfast?‑‑‑Yes.

PN348

You recall that meeting?‑‑‑6 May. Yes, I do.

PN349

You recall the meeting but I don t think you ve actually referred to it in your witness statement, have you?‑‑‑I don t know.

PN350

Well, let s have a look at your witness statement. You go from the meetings in April or March to a discussion some time in April and then you go to the union filing a dispute notification?‑‑‑On the 7th, yes.

PN351

On 7 May?‑‑‑Correct.

PN352

But before we get to that point, there were a number of discussions, including the very significant meeting on 6 May, where there was discussion between you, Mr Jones and Mr Asome about the redundancy process. Do you remember that meeting?‑‑‑I m trying very hard to.

PN353

Well, let s give you some help in remembering it. Mr Asome says, at paragraph 29, that:

PN354

We discussed the redundancy process. We said there were about 10 volunteers for redundancy at that stage and there would need to be forced redundancies.

PN355

Do you remember being told that?‑‑‑Yes, I do. But I don t know if it was on 6 May, at that particular meeting. There was a number of discussions around that from this point on.

PN356

But this was all before the dispute was notified in the Commission; do you agree with that?‑‑‑There would have been a discussion before the dispute was notified. Yes.

PN357

So even before you notified of the dispute notification you had had a discussion where you went over the list of employees to discuss who should be selected for redundancy?‑‑‑No, I don t agree with that.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN358

Well, do you recollect being presented with a list of all ratings, books and stewards employed on the two BP vessels and a discussion about who would be selected for redundancy?‑‑‑Yes, I do.

PN359

You do remember that?‑‑‑I do. Yes.

PN360

We advised Ian a list of employees whom ASP intended to select. The discussion was detailed. You d agree with that?‑‑‑I do. Again, there was more employees names than positions required, and, again, the reason why I don t agree with the statement is on the basis I m not going to sit and discuss one member over another in terms of redundancy because it s a no win/win it s a lose/lose situation for us based on one member against another.

PN361

You ve got to serve members interests and it s put you in a difficult spot?‑‑‑Correct. Correct.

PN362

But, there was still a discussion where you went through the list of names; you d agree with that?‑‑‑Correct.

PN363

And you were told, at that meeting, that there would be no redundancies from outside the BP fleet?‑‑‑Correct.

PN364

And then following that you notified the dispute in the Commission?‑‑‑Correct.

PN365

That's right. Now, that meeting on 6 May was then followed by some further discussions in the week or so that followed, and you then referred, in paragraph 27, to correspondence stating that only BP vessels will be included in the redundancy process; that's correct?‑‑‑Correct.

PN366

Now, that 13 May letter provided a very detailed analysis of the company s position; would you agree with that?‑‑‑I m just going to have a look and refresh my memory, if that s all right.

PN367

IB5. Have you got that there?‑‑‑I m just still looking for it. You got the page number?

PN368

Sixty-nine?‑‑‑Yes.

PN369

And you remember receiving that?‑‑‑I do.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN370

And that provided, particularly on page 2, a detailed analysis of the reasons why ASP had reached its decision. Do you remember receiving that?‑‑‑I don t remember it, but that doesn t mean I didn t receive it.

PN371

Well, you ve referred, in paragraph 27, to receiving the correspondence. Did you receive that and, you know, put in a phone call to Mr Jones to talk about it further?‑‑‑Well, I would say we ve had discussion about it. Yes.

PN372

And you don t refer to those discussions in your statement other than well, the next point is 29 May, a couple of weeks later, when you received a phone call from Mr Jones, but you didn t pick up the phone and talk through these issues that are described in that letter?‑‑‑The I guess, the issue for us, at that particular time, was it was being made quite clear by ASP, they had nowhere to go. The clients had said that the expanded voluntary redundancy across the entire fleet was not an option. I accepted that ASP were caught in the middle between their employees and their clients. It doesn t mean I agreed with it.

PN373

Now, just returning to the 6 May meeting, just going back to that breakfast meeting, Mr Jones gives, at paragraph 37, a more detailed account as to what took place at that meeting. So we have Mr Asome saying about that meeting that there was a discussion about the redundancy process and the discussion was detailed, but Mr Jones goes on to say:

PN374

A number of issues in relation to the redundancies were discussed including the process for selecting candidates for forced redundancies.

PN375

You d agree that that was under discussion at the meeting?‑‑‑I d say all the options would have been discussed. Yes.

PN376

And he goes on to say:

PN377

Amongst other things it was discussed that the individuals could be selected for redundancy based on last on first off and a number of names were proposed.

PN378

I pause at that point. The last on first off suggestion was yours, wasn t it?‑‑‑It would have been the third tier, if you like, in a redundancy process. Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN379

But that was your suggestion. It wasn t as if the company was saying, you know, we kind of like the last on first off principle. That was something that you came up with? You d agree with that?‑‑‑As the third tier of a redundancy process. Yes.

PN380

Well, just so I understand what you mean by that, what, first being voluntary redundancies?‑‑‑Correct.

PN381

And then second, what, going to the fleet?‑‑‑Correct. Yes, voluntary through the fleet.

PN382

And then third ‑ ‑ ‑?‑‑‑If force was required, last on first off. Yes.

PN383

And last on first off for the BP fleet?‑‑‑Yes. Yes, correct.

PN384

Yes. And you would agree that there was also discussion at that meeting about other ways that candidates could be selected for redundancy?‑‑‑As I said there was a number of options discussed at the time.

PN385

And there was discussion ‑ ‑ ‑?‑‑‑At more than one meeting as well.

PN386

And discussion concerning Mr Stevens, the integrated rating, who had previously expressed interest in a cadetship?‑‑‑There s two things that I disagree with with this particular paragraph, and one is: I don t believe that we talk about last on first off. And the reason why I say that is because the names that were put forward at a later date weren t reflective of last on first off. It didn t occur, so I m not sure whether there was any agreement reached or any discussion on people who would be last on first off. Length of service was discussed. I don t believe that it was done in those words, last on first off. And, secondly ‑ ‑ ‑

PN387

Well, if ‑ ‑ ‑?‑‑‑I just want to point out though.

PN388

Okay. Yes?‑‑‑Because I recall talking about the possibility of training into new positions to minimise redundancy. Not names. I wasn t even aware, at this particular time that Stevens, I think it is, David Stevens, was interested in. All I was after was some young seafarer being given an opportunity to train up into another position.

PN389

Now, if we can just go back to the last on first off issue. You said that that was then canvassed in a later email. That would be your email to Mr Jones and Mr Asome on 2 June, would it not, which I think is an attachment ‑ ‑ ‑?‑‑‑Yes, I think it is. Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN390

I m not sure if it s an attachment to your statement, but it s certainly an attachment to Mr Jones. You have his statement there, attachment PJ9?‑‑‑Hang on.

PN391

It s an email from you dated 2 June?‑‑‑Correct.

PN392

And it s quite a long email. It covers quite a few issues but towards the end of that you re flagging the possibility of a different form of selection criteria for redundancy. Do you agree with that?‑‑‑I don t know, I m just trying to find are you saying my email?

PN393

Well, your email from you, 2 June, have you got that, PJ9?‑‑‑I m just looking for it. Hang on.

PN394

It s a I think it s about a four-pager three pages?‑‑‑Yes, I have it now.

PN395

And you ll see at the end of the second page?‑‑‑Yes.

PN396

You say this:

PN397

I wish to note that if a position of last on first off was adopted by the company the names would have been as follows.

PN398

?‑‑‑If it had been adopted.

PN399

If it had been adopted?‑‑‑Correct. Yes.

PN400

All I m putting to you is that last on first off was essentially your idea and you wanted the company to think about using that basis for selecting the employees; do you agree with that?‑‑‑Correct, as the third tier of a process.

PN401

Okay. And, in fact, you went through and made the process even simpler by highlighting those names that came up on both your preferred approach and the company s preferred approach; you d agree with that?‑‑‑Yes.

PN402

Well, you ve said bold names appear on both sets of eight names?‑‑‑I ve said I agree.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN403

Yes. Now, then going back to the meeting in May the breakfast meeting, I think it was 6 May, Mr Jones says that he sent an email to you following that meeting on 6 May, which is attached to PJ4. Have you got PJ4 there? PJ4 is in fact two emails: there s the first email that he sent at 12.22 pm, and then there s another one he sent in the evening, 6.23 just making some corrections. But the earlier email, the one sent around lunch time on the 6th, was one that set out a summary of what was discussed at your meeting that morning, and he says, and this is at the top of the second page of PJ4:

PN404

I have attached a further copy of the potential redundancies for the British Loyalty as discussed with you this morning.

PN405

So you d agree that that was under discussion, the prospective redundancies?‑‑‑Yes.

PN406

And the spreadsheet is self-explanatory. The highlighted employees are those who have least service on the tankers. The employees in red are those who have expressed an interest in accepting a redundancy. And then he runs through the redundancies, those that are potentially to be selected by the redundancies in his dot points below; you d agree with that?‑‑‑Under dot point 4?

PN407

Dot point 4:

PN408

We require 14 redundancies from the IRs potentially

PN409

And he sets out who they might potentially be?‑‑‑He does.

PN410

And he attaches a list, it s just a black and white print, but obviously the copy that you would have had on your screen would have been colour coded to make sense of it, which shared with you the company s thoughts on who was likely to be made redundant; you d agree with that?‑‑‑Correct.

PN411

And you had also had discussions that morning about how the company had gone about that process of choosing people for redundancy; you d agree with that?‑‑‑Correct.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN412

Now, then following that meeting we covered the dispute notification that was lodged and then the detailed letter on 13 May. At paragraph 42 of Mr Jones statement he refers to a meeting on 15 May, which, again, I don t think you ve referred to in your statement, but a meeting at which Mr Jones says:

PN413

We discussed the forced redundancies and potential candidates and tried to resolve areas of disagreement or concern raised by the MUA.

PN414

Do you remember that meeting? I m looking at paragraph 42 of Mr Jones statement?‑‑‑I remember that meeting.

PN415

You recollect that meeting. And that s a fair statement as to what occurred at that meeting; discussion about the forced redundancies and potential candidates?‑‑‑No, again, I don t believe we discussed the potential candidates.

PN416

And your reason for sensitivity on that it is obvious that, as I said before, you ve got a membership to serve, and you don t want to be seen to be playing favourites or putting some of your members ahead of others?‑‑‑Yes.

PN417

That s effectively what you re saying?‑‑‑Yes.

PN418

But you would agree that the company shared with you what it was proposing to do, and opened that up for discussion at that meeting.

PN419

MR HOWELL: I object. And the reason I m objecting is in light of what I d said earlier about the nature of the complaint here, with respect to consultation, that proposition ought be put more particularly, with respect, if it s going to be of assistance to the Commission. An answer to that general proposition, on one view, would be entirely consistent with what s been discussed up until this point, but what happens thereafter, on the evidence and the chronology, becomes important. It s why I say there should be some more precision to the question because it s potentially misleading.

PN420

MR MILLAR: I m not sure how I can be more precise on that, your Honour, but I ll try and see if this meets with my friend s approval. There was a meeting on 15 May where the company discussed with you, David Cushion, Matt Leach and Mick Carr pause at that point all MUA officials?‑‑‑Correct.

PN421

Discussed with you ‑ ‑ ‑?‑‑‑Sorry, Matt Leach is not an official.

PN422

Matt Leach is?‑‑‑He was relieving in office. Matt Leach is an employee of ASP that was employed on the British Fidelity, I believe it is.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN423

Okay. So there was a discussion about the forced redundancies, the involuntary redundancies. I ll pause at that point. You d agree with that?‑‑‑There was discussion over the number, the quantum.

PN424

Was there also discussion about the potential candidates, about the names?‑‑‑No, I don t believe that there was discussion about the names.

PN425

Well, you d agree with me that you were in the loop on who the names were?‑‑‑Yes. I was aware of the names that they were putting forward, but, again, I didn t buy into the names on the basis my recollection of this meeting, in terms of what was discussed, there was a number of things on the agenda: the first one was, again, I think it was a Rio Tinto MOU for the vessel in terms of capturing the operational requirements of the operational caterer on board the ships. So there was which was something we needed to lock down. There was discussion about commercially this is why Matt Leach was only in there for part of it because there was discussions about commercially sensitive information in regards to the company going after new work, et cetera, et cetera. There was a discussion again, and I think this is where we really got the traction in reducing some of the numbers down from 12 or 13, whatever the numbers were, down to eight or nine on the basis of the chief integrated rating. Allowing that all three chief integrated ratings to go because they were prepared to volunteer training somebody up; a cadetship. And that s why I know that Phillips wasn t really identified sorry, not Phillips, Stevens, Dave Stevens wasn t identified until after that meeting. So, but I know what you re getting at. What I m saying is, yes, there was lists of names. In terms of who, no; in terms of we were still trying to, even at that point, still trying to reduce the number of potential forced redundancies that we knew we would end up in dispute about.

PN426

And not only were there lists of names you came up with your own list of names, in that later email that I took you to on 2 June, of who would go if they applied last on first off?‑‑‑Yes. That was after we got that list and we done some analysis of that list. Not to that point, and really all we were doing was going to dates, not even names. We would look at a date on the column and go, yes, okay, cross-reference to whoever it was, and that s how we came with the list of names. But that was done after that meeting. It wasn t done at that meeting.

PN427

Now, just returning to Mr Jones statement, paragraph 42, with that meeting there was an attempt, do you agree, to try to resolve areas of disagreement or concern raised by the MUA concerning forced redundancies and potential candidates; would you agree with that?‑‑‑There was an attempt to try to reduce the number from the from whatever it was, the 12 or 14 to as many a reduction as we possibly could achieve.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN428

Now, then in your statement you refer, at paragraph 28, to the phone call that you received from Phil Jones, and you said, at that time, there should be no forced redundancies. There should be reciprocal redundancies in the broader fleet, only after you ve done that can there be forced redundancies. Again, that was a couple of weeks after you d already had the discussions that I ve just taken to, on 15 May and the earlier one on 6 May, about the way employees would be selected for forced redundancies; do you agree with that?‑‑‑Sorry, can you repeat that?

PN429

Sure. Paragraph 28, you ve referred to the phone on 29 May?‑‑‑Yes.

PN430

And on this date you ve said, well, there should be no forced redundancies and there should be reciprocal redundancies in the broader fleet. But you re saying that after you ve already had the conversations on a number of occasions about the way in which employees will be selected for redundancies?‑‑‑Yes. Let me clarify what I said in the previous question, and that was, we had that meeting, and we were intending to reduce the amount of numbers that would be highlighted for forced redundancy knowing that that s where we would be having the dispute.

PN431

And you knew by this stage that the other clients at Rio Tinto and Alcoa weren t going to wear having to fund redundancies; you d agree with that?‑‑‑What, agree that they I don t agree with Rio Tinto and Alcoa, no. I m aware that they were pushing back, but my relationship, in terms of an agreement - if I had a relationship, or the union had a relationship with Alcoa/Rio Tinto, we d do the collective agreement with them.

PN432

And you d agree though that what you were proposing about going to the broader fleet had a whole lot of practical problems?‑‑‑No doubt. No doubt.

PN433

That you were potentially asking well, BP to pay for redundancies of people who had never actually worked for them; do you agree with that? That s effectively what you re asking for?‑‑‑In a reciprocated approach, but irrespective my relationship is not with BP, Rio Tinto or the other gang, Alcoa, my relationship s with ASP.

PN434

And you d also agree that what you were asking was for ASP to go to the full fleet; the likelihood is that, well, it ll be the long-serving employees with many years of service who ll be putting their hands up, and who will be seeking redundancies when their jobs are actually continuing. That was pretty much what you were asking for?‑‑‑No, we re asking for volunteers. I got no idea on who would put their hand up, but I know that there would be look, there was some people, and this had been discussed between the management and ourselves, in terms of the Portland, I believe it was, where people knew that there d be redundancies. As for the length of service, I ve got no idea.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN435

And questions of, you know, who was to pay for this approach and the quantum of the expense involved they were all other people s problems. It wasn t something that you needed to buy into?‑‑‑Not my concern. My relationship under the agreement is with ASP.

PN436

Now, then on 29 May you received the email from Mr Jones at PJ7 which have you got that there, PJ7?‑‑‑Just finding it.

PN437

Latest redundancies attached?‑‑‑I have it. Yes.

PN438

And Mr Jones evidence will be that, well, during that afternoon of the 29th he had a telephone conference with you to discuss the candidates selected for redundancy. You remember that discussion?‑‑‑I do.

PN439

And that s the one that you ve referred to in paragraph 28?‑‑‑Correct.

PN440

Twenty-eight of your statement. So you both agreed that there was a discussion that afternoon, and you say, well, you were maintaining the line that, well, there should be no forced redundancies and there should be reciprocal redundancies in the broader fleet and only after that you can go to forced redundancies?‑‑‑Correct.

PN441

But you agree, do you not, that you were told that, well, a decision has already been made. We re looking at forced redundancies and this is the selection process that we re proposing? Do you agree that that s what was discussed?‑‑‑I agree that that s along the lines of that. Yes.

PN442

Well, you ve, in fact, said pretty much exactly that at paragraph 30 of your statement:

PN443

We then discussed the crew members identified for forced redundancy. Details concerning the severance package and the selection criteria for forced redundancy.

PN444

?‑‑‑Sorry, where are you now?

PN445

Paragraph 30 of your statement?‑‑‑Okay.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN446

So you agree that the selection criteria was actively discussed in that meeting, in that telephone call on 29 May?‑‑‑It was. Yes.

PN447

Yes. And Mr Jones says that he explained the process to you and you were initially unhappy about it and I m not sure if it was in relation to that or another discussion where you said, you know, unhappy was an understatement, but ‑ ‑ ‑?‑‑‑Pretty much there.

PN448

Pretty much there. You were pretty unenthusiastic about the whole issue?‑‑‑Very unenthusiastic.

PN449

But you then went on and had a discussion about the selection process; about the criteria to be used. And Mr Jones essentially says that, well, you know, by the end of it he thought you and he were on the same page. Can you see why he would have thought that?‑‑‑I could see that, again, in terms of the conversation where I identified a number of people that had been listed for redundancy that I believed, if you had a decent look at it, would not be correct. I wouldn t say that we re on the same page. I don t believe that we still maintained that company employment means going across the fleet in accordance with the agreement, not schedule to schedule. But I do agree that we did discuss names, at that particular point, and we did discuss the selection criteria because it was the first time that it had been brought to our attention that there was one.

PN450

No-one s suggesting to you, Mr Bray, that you should have been, you know, enthusiastic about the prospect of some of your members facing redundancy, but you were involved in discussions about the process and about the selection criteria to be applied, given the unhappy reality that there would have to be forced redundancies?‑‑‑Yes, I ve just confirmed that.

PN451

And the conversation concluded, Mr Jones says, by you advising him that you d contact the MUA members on the Fidelity regarding the discussion. Do you recollect leaving things on that basis?‑‑‑Sorry, could you repeat that?

PN452

Yes. In 45, how things were left was that you said you d contact the MUA members on the Fidelity regarding the discussion?‑‑‑Correct.

PN453

And then, arising out of that discussion with you, Mr Jones says, one candidate that scored higher in the selection matrix assessment was selected for forced redundancy over a candidate with a lower score. Arising from your discussion, Mr Jones says, is a decision to place more emphasis on the period of service of a particular candidate. Can you remember that discussion taking place?‑‑‑I do recall that discussion. Yes.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN454

Yes. So arising out of your discussion with Mr Jones was some tweaking of the selection process, do you agree with that?‑‑‑There would have been some amendments. Yes.

PN455

Yes. And that was then set out in the emails that were exchanged between you and Mr Jones that he s attached, PJ8, which is the final summary of redundancies. You see that, PJ8?‑‑‑Hang on. I m just getting there.

PN456

And that followed from a discussion that you d had with him on 29 May. And it was after that discussion with Mr Jones on 29 May, that you sent your lengthy email on 2 June that I ve already taken you to. You d agree with that?‑‑‑I agree with the timeline. Yes.

PN457

Well, Mr Jones evidence is that:

PN458

On 2 June I received an email from Ian Bray concerning a discussion on 29 May.

PN459

?‑‑‑He did.

PN460

So he ties it back to the discussion on that day. Then he sent a reply to you on 4 June setting out his response to be the matters discussed, and that s behind PJ10?‑‑‑Correct.

PN461

And you ll see there that there s a statement of the selection process and I ll just take you through very quickly a couple of key points. It s said, half-way through:

PN462

As you know ASP and the MUA have had a number of meetings and we have discussed the selection process.

PN463

Pause at that point. You d agree with that proposition?‑‑‑Where are you, sorry?

PN464

This is the email of 4 June from Phil Jones to you cc'd a number of others, and it s about a dozen lines down:

PN465

You have raised issues with the transparency of the selection process.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN466

You see that?‑‑‑Correct. Yes, got that.

PN467

As you know ASP and the MUA have had a number of meetings and we have discussed the selection process. Pause at that point. You agree that that s an accurate statement? You ve had a number of meetings and discussed the selection process?‑‑‑We had a number of meetings, correct.

PN468

And discussed the selection process?‑‑‑More to the point of forced. I wouldn t say it was an agreed process.

PN469

Okay. He then goes on to say:

PN470

I confirm that each employee from the BP fleet was scored against the following criteria

PN471

And he sets out some eight different criteria that were the basis of the scoring for each employee?‑‑‑He does.

PN472

Yes. And then he provides a list of the eight employees who d been identified?‑‑‑He does.

PN473

But, again, once you descend into discussion of the individuals concerned I think your evidence earlier is that, you know, you re rather uncomfortable about doing so; you d agree with that?‑‑‑Very uncomfortable.

PN474

And I think your actual statement and your evidence earlier was no union official is ever comfortable about discussing individuals for redundancy, and that remains your position?‑‑‑Correct.

PN475

But you agree that the company did share with you the selection criteria; the basis of choosing the individuals for redundancy; you d agree with that?‑‑‑I ll agree with it on the basis of the date that I received that email. I ll agree with it on the basis that the first time I heard of it was 29 May. Prior to 29 May I don t agree to that at all.

PN476

And ‑ ‑ ‑?‑‑‑In terms of the selection criteria, I apologise.

PN477

And you didn t reply to that email on 4 June, did you?‑‑‑No, I don t believe I did.

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN478

But as at that date you certainly had full details disclosed to you as to the reasons why the company was looking at redundancies and the basis of selecting people?‑‑‑From that date, yes.

PN479

Yes. To get into the more detailed specifics of actually applying those criteria and coming up with individuals was something that really was for the company to do and you didn t want to go there; you d agree with that?‑‑‑I would say that the whether that s the view of the company that s I don t know. I can t answer that.

PN480

Well, the application of the selection criteria, it s all about a decision to be made by the company rather than something ‑ ‑ ‑?‑‑‑No, I don t believe that s the case at all. I think the what we have a problem with is identifying individuals, but we d certainly we believe that we should have been consulted over the, and had input into, whatever the selection criteria was to be.

PN481

Okay. But when it came to actually applying the selection criteria I think you re saying that, well, you didn t want to get involved with that. That would pit you with member against member, that s really for the company to do?‑‑‑No, no, on the basis individual s names we don t want to go there. On the basis of selection criteria we would certainly seek an input. I mean, I think we ve been before Fair Work Australia on a number of occasions over disputing processes of selection criterias, et cetera, et cetera.

PN482

Okay. And what I m putting to you is that the company did seek that input from you and did involve you in the discussions about the selection criteria?‑‑‑No, I don t believe they did. I don t believe they did.

PN483

And the discussions that the company had engaged in resulted in you coming up with a different form of selection criteria, last on first off?‑‑‑No, no, the union s long it s no secret, the union s had a policy where there s forced redundancy of last on first off, and the reason why the union goes there, is because that is the easiest way and probably, as far as the union is concerned, the most easiest way to not be involved in conflict between two individual members. It s just it s there, it s done. But I have to say normally when the union does it as well it s endorsed by the membership on a particular job, wherever it might be.

PN484

Yes. Thank you, your Honour. Nothing further.

PN485

THE VICE PRESIDENT: Mr Howell?

*** IAN CHRISTOPHER BRAY XXN MR MILLAR

PN486

MR HOWELL: Your Honour, I note the time. I don t think I ll be very long, by way of reply. I m in your Honour s hands.

PN487

THE VICE PRESIDENT: Yes. Well, you can re-examine now.

PN488

MR HOWELL: Thank you, your Honour.

RE-EXAMINATION BY MR HOWELL [1.02 PM]

PN489

MR HOWELL: You were asked some questions about paragraph 29 of Mr Asome s statement. Can I just ask you to go to that, please. And particularly you were asked some questions about the last two sentences?‑‑‑Sorry. Yes.

PN490

The question was asked of you, the MUA is happy with that, and I think your answer was, Well, generally, yes , but I think your answer included that you d expect the company to consult with employees directly. You recall that evidence?‑‑‑I do.

PN491

The question I want to ask you arises from that. Did anyone from ASP, in the course of the discussions that you had with them, say to you, We re going to talk to you , the MUA, and treat that as though we re talking to the employees. ?‑‑‑No.

PN492

Can I ask you then about I m sorry, I ll withdraw that. You were asked a series of questions based on a meeting that you attended, aboard the British Loyalty on 26 March 2015. It s the meeting where, to assist your recollection, it s the meeting where Mr Jones produced a question and answer discussion paper for the first time?‑‑‑Yes, I recall the meeting.

PN493

You were asked a series of questions about what was said and what was not said. The question I want to ask arises from those questions. Can I ask you to turn up the question and answer document from Mr Jones statement, which is PJ3?‑‑‑Okay. Yes.

PN494

MR MILLAR: I didn t cross-examine on that.

PN495

MR HOWELL: No, you asked him questions about what happened on 26 March and you asked him what was said, and I m asking a question arising out of that. So, I want you to have a look at the question in the middle of the page:

*** IAN CHRISTOPHER BRAY RXN MR HOWELL

PN496

How will the redundancies be offered?

PN497

See that. Just read that to yourself?‑‑‑I ve read it.

PN498

Can I get you to go over the page.

PN499

MR MILLAR: Well, I do object to this, your Honour. It s either an issue that doesn t arise, because I didn t take the witness to this, or if it does arise, then the witness is being led to the answer.

PN500

MR HOWELL: No. Sorry, my friend doesn t know what the questions is yet.

PN501

MR MILLAR: Well, I ve got a pretty good idea and it suffers from, I think, both of those vices.

PN502

THE VICE PRESIDENT: We ll let it go for the moment. I intend to apply some latitude to this.

PN503

MR HOWELL: Thank you, your Honour. You ll see the one, two, three - fourth bolded question down from the top of the page:

PN504

What happens if ASP does not get the required numbers from the tanker fleet?

PN505

Just read that to yourself?‑‑‑Yes.

PN506

Do you recall I think this is not controversial, this was provided to everybody on the meeting on 26 March?‑‑‑It was present on the 26th, yes.

PN507

From what you recall of having been said by the company, and I m not asking about this document, I m asking of what was said, to the extent you recall what was said by the company on 26 March, do you recall anything having been said, which was inconsistent with what I ve just taken you to in PJ3?‑‑‑No.

PN508

Now, you were asked some questions about the conversation that you had with Mr Jones on 29 May and you were taken to Mr Jones statement about that, in particular, you were taken to paragraph 45, and the passage which says:

*** IAN CHRISTOPHER BRAY RXN MR HOWELL

PN509

The conversations concluded by Ian advising me that he would contact the MUA members on the British Fidelity regarding our discussion.

PN510

This is the discussion which you ve described in your evidence that s already been canvassed in some detail. I don t intend to go there again. The question arises from that, did you go back to the members of the Fidelity and have a discussions after your discussion with Mr Jones?‑‑‑I did.

PN511

In the course of that discussion, did you discuss the selection criteria with your members that was discussed with you by Mr Jones in the telephone call on 29 May?‑‑‑I reported back on the detail of the meeting and the selection criteria was raised with the delegates on board.

PN512

And what, if anything, did they say about that?‑‑‑They weren t happy at all.

PN513

MR MILLAR: Your Honour, this is clearly going to a hearsay submission. If the witness is giving an account of the views of other people who are not being called to give evidence.

PN514

THE VICE PRESIDENT: It s what they said. I think your question related to what they said to Mr Bray, which is not hearsay.

PN515

MR MILLAR: Well, if it s going to the substance of the views of the employees as to the adequacy of consultation, and I think that s where it s headed, then, in my submission, that s really evidence that can only be given by those individuals.

PN516

THE VICE PRESIDENT: Well, it can only be direct evidence of what is said to Mr Bray.

PN517

MR MILLAR: Yes. And it s been ‑ ‑ ‑

PN518

THE VICE PRESIDENT: And if it s sought to go beyond that it d be a question of weight, wouldn t it?

PN519

MR MILLAR: Well it seems to be elicited for a classic hearsay purpose which is to verify that the employees, who are apparently dissatisfied about the consultation, or haven t been ‑ ‑ ‑

*** IAN CHRISTOPHER BRAY RXN MR HOWELL

PN520

THE VICE PRESIDENT: I d rather deal with that matter as a matter of weight rather than excluding the evidence about in answer to this question.

PN521

MR MILLAR: If your Honour pleases.

PN522

MR HOWELL: Thank you, your Honour. I should say paragraph 31 of my client s statement, Mr Bray s statement, actually deals with this, and no objection was taken to it. It s been admitted. But suffice it to say I ll ask the question. What, if anything so, I ll take a step back, you discussed with the persons you spoke to from the Fidelity, the selection criteria. I think you used the words reporting back ?‑‑‑I reported back.

PN523

Do you remember who you spoke to?‑‑‑Simon Oates was the delegate at the time.

PN524

And what did he say as far as you can recall when you referred to selection criteria?‑‑‑Well, it was fairly colourful but to get to the point it was that s the first that they had heard of any selection criteria. They didn t even know one existed.

PN525

Yes. Thank you, your Honour. That s the re-examination.

PN526

THE VICE PRESIDENT: Thank you for your evidence, Mr Bray, you can step down?‑‑‑Thank you.

<THE WITNESS WITHDREW [1.10 PM]

PN527

THE VICE PRESIDENT: That evidence obviously took longer than I had anticipated. I may not be alone in that, and I do have another matter listed for 2.30 this afternoon. What I propose to do is take a shortened luncheon adjournment and sit between 1.45 and 2.30. If the matter is not completed in that timeframe, I can reconvene later this afternoon at 4 pm and we can sit until the matter is completed or there s an adjournment to another time. Due to another cancellation of the listing, I also have some time tomorrow morning, but perhaps the parties can give that some thought over the luncheon adjournment.

PN528

MR HOWELL: Thank you, your Honour.

PN529

THE VICE PRESIDENT: We ll reconvene at 1.45.

SHORT ADJOURNMENT [1.11 PM]

RESUMED [1.47 PM]

*** IAN CHRISTOPHER BRAY RXN MR HOWELL

PN530

THE VICE PRESIDENT: Mr Howell.

PN531

MR HOWELL: Thank you, your Honour. Your Honour, as foreshadowed at the outset this morning, we have - I have been able to identify one of the employees from the British Loyalty vessel who is able to give some evidence orally in reply today. It's a very short compass. I don't recall there having been any directions about evidence in reply as to timing.

PN532

THE VICE PRESIDENT: Yes.

PN533

MR HOWELL: But as I wasn't involved in the earlier procedural programming so I am going from recollections. To the extent that it comes late, in my respectful submission the material was served on us on Friday last, the submissions were served on Monday last, and we have been endeavouring to try and secure instructions. It's the first time I've had a chance to speak to the witnesses today, literally in the last 20 minutes.

PN534

It's evidence which is plainly relevant. It will be replying to some of the material that is in Mr Jones's statement, and that is all. It goes to what at least one of the employees was told, keeping in mind the obligation under clause 8 of the Seagoing Award, incorporated by clause 6.1(a) about notification of decisions and information in relation to those decisions being central to the complaint here in relation to consultation.

PN535

THE VICE PRESIDENT: Have you had any discussions with Mr Millar about when the matter might be able to be concluded?

PN536

MR HOWELL: I have very little optimism about it being practically - even sitting late, within reason, practically concluding this afternoon. What I had proposed to my friend, really in order to ensure that he wasn't caught on the hop, was that we would - if the matter were to go over, I am unfortunately, due to a personal commitment, not able to appear tomorrow - and it's one that I can't get out of, otherwise I would. What might be a more expeditious process, rather than leading evidence orally again, would be if the matter were to go over we could do a short statement, serve it on my friend, to the extent there was going to be cross-examination arising out of it he would then have a proper opportunity to deal with it.

PN537

Ordinarily one wouldn't want to do that, given the evidence is likely to only be of relatively short compass in any event. But, as I say, in the circumstances where we are, where in practical terms it's not likely that the matter would finish this afternoon in any event. In my respectful submission it would be a more procedurally fair process, I'm speaking for my friend here, for him to have notice of what is to be the subject of the evidence and have an opportunity to obtain instructions from the client about it.

PN538

THE VICE PRESIDENT: Yes. Very well. If the matter is not going to be concluded today, then that does open up the type of options that you have foreshadowed. I think it is necessary to ensure that Mr Millar has notice of the evidence that is given so that he's in a position to get instructions and cross-examine. Do you have a preference as to the procedure from here, Mr Millar?

PN539

MR MILLAR: I do, your Honour. And, your Honour, my client strenuously opposes the MUA being given leave, if leave be sought, to adduce further evidence. And it is opposed for three reasons. Firstly, your Honour, this is not evidence that arises on the application. As I understand what my friend is proposing to do, he is going to call evidence from an individual employee who is going to bear out the suggestion that the employees weren't sufficiently consulted over the introduction of change. I think that is what is being said.

PN540

Your Honour, nowhere in the notification of dispute will you find the dispute that is before the Commission identified in such wide terms. It is simply not an issue which was raised in the notification, it is not an issue which has passed through the steps that are necessary to pass through before the matter ends up being resolved in this place. And if the applicant wants to have a debate about consultation, then it is going to need to pass through the steps of dispute resolution at the workplace level before elevating it to the Commission. It is simply not something that is before us in - - -

PN541

THE VICE PRESIDENT: The employee might not be at the workplace anymore.

PN542

MR MILLAR: It is certainly not, in my submission, a part of the notification before the Commission. But there are two other reasons, your Honour. Directions are issued for a reason and the orderly conduct of proceedings, in accordance with directions, is an important way of ensuring procedural fairness is extended to the parties. My client was put to considerable disadvantage by the haste with which this matter had to be brought on before the Commission at the MUA's insistence. My client, nevertheless, filed its affidavit - or its statement material, evidentiary material, on Friday and its outline of submissions on Monday, as I understand it. There was provision for the filing of reply material.

PN543

And the reason why we are running behind time today is that the union didn't comply with the direction for the filing of reply material before the hearing and has instead come along and adduced the reply material orally. Okay to the extent that it was necessary to do so in order to respond to my client's affidavit material, perhaps some leeway can be given. But what is now sought is to go further than simply putting the content of my client's material to the witnesses, but in fact is looking to call an entirely new witness, whose name we don't even know, the content of whose evidence hasn't been put into a witness statement. And clearly the directions required that that should have been done. The directions are made for a reason and prima facie one expects compliance with those directions in order to ensure the orderly conduct of proceedings before the Commission.

PN544

The third - - -

PN545

THE VICE PRESIDENT: I don't think your client complied with the direction that might have been one of the factors.

PN546

MR MILLAR: Well, your Honour, we received the material, I think, on Monday of last week. The applicant was late in filing material. We did the best we could to get the material in before the end of the week. But we are now effectively almost another week on. And it is not as if we are talking about late filed material, we are talking about material that has never been filed at all by the applicant. We are not on notice as to what it is that is that is being proposed.

PN547

But to the extent that we know something about what is being proposed, your Honour, my third reason for objecting to the admission of this material is this: it's not reply material, your Honour, it's not reply material. It's not in reply to what my client has filed. My friend can sit there and say, well, yes, I'm going to tie it in to a paragraph in one of your witness statements. Your Honour, the Commission should have none of it because what the applicant is seeking to do is to extend beyond the present notification of dispute to have it morph into something entirely different from what should have been determined before the Commission.

PN548

What was before the Commission was an argument about, as we understand it, the need to go to voluntary redundancies on a fleet-wide basis. It is abundantly clear that that is not, in my submission, something that is a matter that arises under the agreement. The union instead says, okay, well in fact it's about consultation. It's now abundantly clear that there has been an abundance of consultation in this case. This is not an employer that has proceeded off on a kneejerk reaction and implemented redundancies without putting people on notice as to what has happened. So the union has changed its stance again and said, well in fact we've got a complaint about whether the individual employees have been adequately consulted.

PN549

Your Honour, it is a strange world that we live in if the union in this case is saying, well in fact the close relationship between the union and the company is such that the employees are the real victims here because they have been frozen out of it, the company has been dealing with the union. Very strange application for the union to make. But if the union wants to pursue that line of reasoning then they have to do so by way of a notification of dispute that covers that territory and properly and regularly enlivens the jurisdiction of the Commission for determination. If the Commission pleases.

PN550

MR HOWELL: Your Honour, can I - - -

PN551

THE VICE PRESIDENT: The question about consultation was dealt with in the union's outline of submissions.

PN552

MR MILLAR: But not - not in the notification, your Honour, and not in this way, not in the way it's now sought to be put. I think they realised that the evidence - - -

PN553

THE VICE PRESIDENT: I am looking at paragraph 13.1 of the union's outline. And I accept that it's a live issue as to what is the jurisdiction of the Commission, what is proper characterisation of the dispute, and they are issues that you have put in issue in the submissions. But it would appear that - correct me if I'm wrong - that what Mr Howell has described goes to what is mentioned in paragraph 13.1.

PN554

MR MILLAR: Well, your Honour, they can't pull themselves up by the bootstraps in that way. The submissions can't rise above the notification of dispute, and the dispute is not one that extends to this issue. The notification is - and the steps before the notification was taken - don't engage this as an issue. The only reason we're having this debate is the union is groping around to find something to go on and the consultation with employees is what they have decided gives them the best hope of an argument.

PN555

Your Honour, that's not the case that my client came here to answer. That's not the notification of dispute. And the fact that there is passing reference to the employees in the submissions isn't enough to have this matter determined by the Commission. But even if it were, even if it were enough, your Honour, then they should have been upfront and put that evidence before the Commission. This case is not merely a matter of academic interest for my client. Whilst the implementation of redundancies remains in limbo and whilst employees are being paid, this is costing my client a considerable sum for every day that the process drags on. What an adjournment would mean, and my friend's application for further evidence and his unavailability tomorrow is meaning that, well, reality is it's going to have to be completed on another day. Every day in the meantime operates to the benefit of his clients and to the detriment of mine.

PN556

THE VICE PRESIDENT: Why is that?

PN557

MR MILLAR: Well, because they're going to - there's not going to be an implementation of the redundancy decision, at least until the - I think it's 15 July. At the moment the employees remain on the payroll and for many employees who have positive leave balances that leave is gradually being run down. But as employees exhaust their leave entitlements there is a question that arises as to, well, who is meeting the liability of the employees on a daily basis. And as matters stand, it is the respondent, ASP, that is going to meet that cost.

PN558

Now, the significance of the 15th, just bear with me - well, your Honour, my client has given an undertaking that it won't implement the redundancies until 17 July, to allow this process to be played out. But of course if we end up adjourning off into the never-never then that date is going to be imperilled.

PN559

THE VICE PRESIDENT: Why is the date being imperilled if there's a request to extend the undertaking until the matter is determined?

PN560

MR MILLAR: Well, that will cost my client a considerable sum.

PN561

THE VICE PRESIDENT: Well, if it agreed to extend the undertaking.

PN562

MR MILLAR: We can agree to do so - - -

PN563

THE VICE PRESIDENT: No. You can also disagree, can't you, that's my point.

PN564

MR MILLAR: Well we can, we can disagree. But in the meantime, whilst this matter is unresolved, then well there is the prospect of my client being exposed to additional expense. My client doesn't want an adjournment. My preference, your Honour - and I know your Honour has another matter shortly and of course this debate, whilst important, is eating into available. It's my client's preference to finish today, no matter what. That we should, subject to the Commission's convenience, simply sit until the evidence is in and then if submissions have to be put in writing and filed after today then so be it.

PN565

I have two witnesses, hopefully their cross-examination isn't going to be protracted, we can all see what the issues are between the parties, I think.

PN566

THE VICE PRESIDENT: Well, if the evidence-in-chief of the other witnesses given now - and I note you have three bases for opposing it being admitted at all - and your cross-examination is adjourned until 4 pm, at which time you could then lead your evidence and we could complete the cross-examination of all of the witnesses today. That is something that you believe is feasible.

PN567

MR MILLAR: Well, it's not ideal, but yes it's feasible, your Honour.

PN568

THE VICE PRESIDENT: And is that not feasible for you, Mr Howell? I haven't asked you whether that's a preference.

PN569

MR HOWELL: No, I understand. Is it feasible? Yes, it's feasible. That is to say it could be done, but that is still - doesn't deal with the substance of the problem if ultimately the case, in terms of submissions, aren't going to be dealt with today.

PN570

THE VICE PRESIDENT: Well, given the outlines, are the submissions going to be lengthy and can they be done by way of supplementary written submissions?

PN571

MR HOWELL: Would your Honour bear with me for one moment. That could be done. It actually might - come to think of it, it might actually be of assistance, given there's a jurisdictional question. So they tend to be a little bit more verbose and it would be helpful with written submissions.

PN572

THE VICE PRESIDENT: Yes. Well, I note Mr Millar's point about the relevance of the evidence you foreshadow. I don't propose to come to a concluded view as to that relevance at this stage and I think the preferable course would be to allow you to lead that evidence, allow an adjournment to enable Mr Millar to get instructions before cross-examining, and attempt to complete the evidence later this afternoon, and then we can talk about an appropriate timetable for filing supplementary written submissions based on the completed evidence today.

PN573

MR HOWELL: May it please.

PN574

THE VICE PRESIDENT: So perhaps you can call your witness.

PN575

MR HOWELL: Thank you, your Honour. I call Mr Glenn Philip Smart.

<GLENN PHILIP SMART, SWORN [2.07 PM]

EXAMINATION-IN-CHIEF BY MR HOWELL [2.07 PM]

PN576

THE VICE PRESIDENT: Thank you. Please be seated.

PN577

MR HOWELL: Might I hand the witness a document. For the Commission's benefit it's the statement filed in the proceeding by Mr Philip Alan Jones on behalf of the respondent. Mr Smart, I will come to the document I've just handed you in one moment. But firstly, what is your current occupation?‑‑‑Seafarer.

PN578

And who are you employed by?‑‑‑ASP.

*** GLENN PHILIP SMART XN MR HOWELL

PN579

How long have you been employed by ASP?‑‑‑Three years and three months.

PN580

As at April and May 2015, what position did you hold?‑‑‑Integrated rating.

PN581

And what vessel were you attached to?‑‑‑British Loyalty.

PN582

And how long have you been attached to the British Loyalty?‑‑‑Three years, three months.

PN583

I take it that's the entirety of your service?‑‑‑Yes.

PN584

Now, have you had the opportunity to read the document that I've just handed to you before you came into the witness box?‑‑‑Yes.

PN585

It's the statement of Mr Philip Alan Jones?‑‑‑Yes.

PN586

I am just going to ask you some questions about that. Firstly, can I ask you to turn to tab 2 of Mr Jones's statement. You will see it's an email from a Tony Rowe, dated 19 March 2015?‑‑‑Yes.

PN587

Have you seen a document like this before?‑‑‑I have, yes.

PN588

And when did you see that?‑‑‑19 March.

PN589

And how did you come to see that?‑‑‑Email. Personal email.

PN590

Can I ask you then to go to PJ3, that's the next annexure?‑‑‑Yes.

PN591

And have you seen this document before you saw Mr Jones's statement?‑‑‑Yes.

PN592

And when did you see it?‑‑‑Without knowing the exact date, it was some time in April.

PN593

Were you on duty as at 26 March 2015?‑‑‑No.

*** GLENN PHILIP SMART XN MR HOWELL

PN594

All right. How did you come to have possession of - - -?‑‑‑Of this, when I rejoined the vessel in April, this was handed to me by fellow crew members that were on board when the document was first handed to them.

PN595

All right. And it was read at the time?‑‑‑Yes.

PN596

Can I ask you to go to the second page. You see approximately one-third of the way down a bolded heading which says,

PN597

What happens if ASP does not -

PN598

Do you see that?‑‑‑Yes.

PN599

Could you read that to yourself for a minute?‑‑‑Yes.

PN600

What did you understand that to mean when you read it for the first time?‑‑‑Being that if the required number for voluntary redundancies were not reached on the tanker fleet, that voluntary redundancies would then be offered throughout the broader fleet, the broader ASP fleet.

PN601

Now - sorry, I will just hand the witness another document. Thank you. I am just handing the witness a copy of exhibit H1, the statement of Mr Bray. Can I ask you, please, to turn to page 69?‑‑‑Yes.

PN602

Did you ever receive a copy of a letter like that from the company?‑‑‑No.

PN603

You can close that document now. Can I ask you to go back to Mr Jones's statement, the first document I showed you. Can you just read to yourself, please, paragraphs 40 to 43 on page 7?‑‑‑Yes.

PN604

As at May 2015, or at any time in May 2015 I should say?‑‑‑Yes.

PN605

What, if anything, did the company say to you about the generation of selection criteria for the determination of the selection of persons who would be made forcibly redundant?‑‑‑There was none.

PN606

Just clarify that. Did they give you anything in writing about it?‑‑‑No.

*** GLENN PHILIP SMART XN MR HOWELL

PN607

Did they say anything to you about it - - -?‑‑‑No.

PN608

As best you can recall?‑‑‑No, not that I can recall.

PN609

May I ask you to go then, please, to PJ6?‑‑‑Yes.

PN610

Before seeing Mr Jones's statement filed in these proceedings, have you ever seen the first page of PJ6 before?‑‑‑No.

PN611

Did the company ever give you a copy of it?‑‑‑No.

PN612

Can I ask you to go to the next page of PJ6, which is a large table?‑‑‑Yes.

PN613

And had you ever seen this document before you saw Mr Jones's statement?‑‑‑No.

PN614

I will get you to look at the first line of that large table on the second page of PJ6?‑‑‑Yes.

PN615

The reference to the name "Smart"?‑‑‑Yes.

PN616

Did you have any input into - - -?‑‑‑No.

PN617

Any of the numbers recorded there on this table?‑‑‑No.

PN618

Can I get you to go to the next page on PJ6. Now, prior to seeing this document attached to Mr Jones's statement, had the company ever given you a copy of this document?‑‑‑No.

PN619

You will see, in the tables on the right hand side of the page under the heading "Redundancies" the name "Smart"?‑‑‑Yes.

PN620

As at 19 May 2015 had the company advised you that you were going to be made forcibly redundant?‑‑‑No.

*** GLENN PHILIP SMART XN MR HOWELL

PN621

So had they - firstly, had they notified you that they were intending to make you forcibly redundant?‑‑‑No.

PN622

Did they invite your views on whether or not you ought be made forcibly redundant?‑‑‑No.

PN623

Can I ask you to go back to PJ3, that's the question and answer document?‑‑‑Yes.

PN624

I already took you to a question on the second page of that document. Did the company ever give you anything in writing that said anything different to what is on that question that I took you to on the second page?‑‑‑No.

PN625

Did it ever say anything, to the best of your recollection, at any meeting, that was different to what is said there and the question,

PN626

What happens if ASP does not get the required numbers from the tanker fleet?

PN627

On the second page of PJ3?‑‑‑No.

PN628

Yes. That's the evidence of this witness.

PN629

THE VICE PRESIDENT: Mr Smart, I think as you would have heard before, your cross-examination will need to be deferred until later this afternoon. I think it's appropriate to say that Mr Smart should not discuss his evidence with anybody in the interim period. So if you can take some care not to do that and I would propose to adjourn now until 4 pm this afternoon. We will now adjourn.

<THE WITNESS WITHDREW [2.17 PM]

SHORT ADJOURNMENT [2.18 PM]

RESUMED [4.01 PM]

PN630

THE VICE PRESIDENT: Mr Smart, if you can return to the witness box please.

<GLENN PHILIP SMART, RECALLED ON FORMER OATH [4.01 PM]

CROSS-EXAMINATION BY MR MILLAR [4.01 PM]

*** GLENN PHILIP SMART XXN MR MILLAR

PN631

THE VICE PRESIDENT: You understand you are bound by the affirmation you gave for this proceeding?‑‑‑Yes.

PN632

Mr Millar.

PN633

MR MILLAR: Thank you, your Honour. Mr Smart, your evidence is that you attended the meeting on 30 July 2014, which was the meeting on the British Loyalty in Sydney where Mr Asome and Mr Jones attended and advised that BP had said that the British Loyalty was likely to be withdrawn from trade or you weren't there?‑‑‑I don't recall that, no.

PN634

You don't recall being there, okay?‑‑‑Not in 2014. No.

PN635

When did you hear that the British Loyalty was likely to be withdrawn?‑‑‑On the day that BP announced the Bulwer Refinery closure I was actually due off that day and it flashed up on the television screen that the refinery may close. Within minutes the captain of the vessel came down to the recreation room and informed us that he just heard and that there's a possibility the British Loyalty will be finished in the first half of the following year.

PN636

Okay. So the master of the vessel came down, told everyone what was going on?‑‑‑Yes.

PN637

And that - and you then heard from the MUA, I take it?‑‑‑I was - yes, I paid off that day.

PN638

Yes?‑‑‑Kept in touch with the ship. And there wasn't really a great deal of information about it as it was obviously fairly fresh.

PN639

Yes. And so when - that was when the actual announcement was made, was that when they gave two months - - -?‑‑‑No. That was just the announcement of the refinery closure.

PN640

Sorry. I'm with you. Yes. Okay. And then when did you actually - or did you have any meetings with Mr Asome or Mr Jones about the issue?‑‑‑Specifically about that issue?

PN641

Yes?‑‑‑Not from my recollection.

*** GLENN PHILIP SMART XXN MR MILLAR

PN642

You have had meetings with them?‑‑‑Yes.

PN643

You know Mr Jones, when have you seen him before?‑‑‑I've seen him - met him before at various meetings and on board the vessel.

PN644

And in those meetings on board the vessel has the impact of the departure of the British Loyalty been discussed?‑‑‑Yes.

PN645

Yes. And that has been discussed more that once?‑‑‑Yes.

PN646

And that has been the subject of discussions about, well, the process that will be followed by the company with the possibility of redundancies, voluntary and involuntary. Is that what has been discussed?‑‑‑Not on board the vessel while I've been on board, no.

PN647

What had been the discussions when you have been on board?‑‑‑It's just been about the possibility of the vessel going and the uncertainty of when that may happen, if that may happen in fact.

PN648

Okay. And are you able to say how many times, for a start, Mr Jones has been involved in those discussions?‑‑‑While I've been on board I think, from memory, maybe one or two.

PN649

Okay. And there have been other meetings that you have missed, apparently?‑‑‑Yes, that's correct.

PN650

Where you haven't been on board for one reason for another?‑‑‑Yes.

PN651

But you've known about those meetings, you've been told about meetings that have occurred, even if you haven't been on board, that's right?‑‑‑Yes.

PN652

And if you haven't been on board, well, you have been told by the MUA about what has been - what has happened at those meetings, is that right?‑‑‑Yes.

PN653

Yes. And you have no doubt been kept in the loop by your colleagues on board the vessel as to what has been happening?‑‑‑Yes.

*** GLENN PHILIP SMART XXN MR MILLAR

PN654

And you gave evidence earlier that you received an email on 19 March this year which was the expression of interest for voluntary redundancies?‑‑‑Yes.

PN655

Now, might the witness be provided with a copy of that. It's attachment PJ2. You might - no, you don't have that from earlier.

PN656

ASSOCIATE: The statement - - -

PN657

MR MILLAR: The whole - yes, the whole thing. Maybe you could open it at the right page, PJ2. I can - have you got it? Okay. Sorry, Mr Smart. You will see that document PJ2, that's the one you identified earlier. And when you received that on 19 March you - well, you knew that it was - you knew that that was coming?‑‑‑Yes.

PN658

And the fact that it was coming is something that, well, the company had already effectively told you about because you knew that the departure of the British Loyalty was going to result in expressions of interest being invited for voluntary redundancy; you knew that?‑‑‑Yes.

PN659

Yes?‑‑‑I didn't find out from the company that this was coming though.

PN660

Okay. How did you come out?‑‑‑This had actually arrived with a couple of other members. I think the process may have been along the lines of alphabetical order where X amount at the start of the alphabet were given this and I actually received phone calls from other guys to say that it had been received.

PN661

When you say given this, did you not receive a copy of this by email?‑‑‑I did. I did.

PN662

Yes?‑‑‑Yes.

PN663

But, sorry, you were you saying that you had already heard from others that they had received it?‑‑‑Yes. I think they may have received it the day or two days beforehand, the same.

PN664

Okay. Do you check your emails every day?‑‑‑Yes.

PN665

Now, when you received this, you read through it carefully?‑‑‑Yes.

*** GLENN PHILIP SMART XXN MR MILLAR

PN666

And you will see that part of the way down the letter there is a - at the end of the first paragraph,

PN667

This is the final confirmation of what we already knew, however it does not take away the sadness that the vessel is to go.

PN668

For you that was also the case, wasn't it, this was the confirmation of what you already knew?‑‑‑Yes.

PN669

You knew this was coming. Then halfway through the next paragraph,

PN670

Contained within the attachment are details of your specific entitlements to redundancy.

PN671

You received details as to what you'd get if you put your hand up?‑‑‑Yes.

PN672

Then it says,

PN673

We have had a couple of meetings held on board the vessels to discuss this matter and we plan to have further meetings on board to discuss your concerns.

PN674

If I pause at that point. Had you been at those meetings?‑‑‑No, not on board the vessel.

PN675

And they were - you had missed those meetings because - well, I will go back a point. Did you know that those meetings were to occur?‑‑‑I found out fairly close to the dates.

PN676

But because you were not rostered on at that time you missed the meetings?‑‑‑Yes.

PN677

Yes. Now, you would have read that. Did you then think, "Gee, I better get on to Phil Jones and find out what I had missed out on"?‑‑‑No.

*** GLENN PHILIP SMART XXN MR MILLAR

PN678

And why didn't you do that?‑‑‑Because we actually - well, I used the guys on board the ship, who were - would have attended the meetings, to find out what had happened.

PN679

Okay. And so you had spoken to them and said, "Look, what happened at these meetings"?‑‑‑Yes.

PN680

But you didn't ever send an email response or get on to Phil Jones on his phone number that's set out below and say, "Look, you know, sorry, I seem to have slipped through the cracks." Didn't ever say that?‑‑‑No.

PN681

And you will see the next sentence then says,

PN682

Should you have any specific questions, please contact the HR department to discuss any further issues in a confidential matter.

PN683

Did you do that - - -?‑‑‑No.

PN684

Did you get on to the HR department - and why didn't you?‑‑‑Because I knew that these were sent out to every employee so it was just a process.

PN685

Okay. But you knew that if you did have any issues that there was a person to speak to in HR and you had the details?‑‑‑Yes.

PN686

Yes. And then you will see that it goes on to say,

PN687

So that you may fully consider your position, I have attached an estimate of your redundancy package for your consideration.

PN688

The package that was attached did allow you to fully consider your position?‑‑‑Yes.

PN689

Yes. And that was something you then proceeded to do, to see if that was of any interest to you?‑‑‑I knew straight away that it was of no interest, the redundancy.

PN690

Okay. And there's a recommendation that you consult a family member or a financial advisor before making a decision. Is that something that you did?‑‑‑A family member, yes.

*** GLENN PHILIP SMART XXN MR MILLAR

PN691

Yes. Okay. Now, you joined the company, did you say, three years, three months ago?‑‑‑February 2012.

PN692

When did you join the MUA?‑‑‑The start of 1996.

PN693

Okay. So you've been in the maritime industry for a period before this employer?‑‑‑Yes.

PN694

And in fact when you started in the maritime industry one of the first things you did was join the MUA, is that right?‑‑‑Yes.

PN695

And you have been a member continuously ever since?‑‑‑Yes.

PN696

So when you started with the company three years and three months ago, with ASP, you were already a longstanding member of the MUA and they continued to be your industrial and employment mouthpiece?‑‑‑Yes.

PN697

Is that a fair observation?‑‑‑Yes.

PN698

Yes. And when you had dealings on industrial matters with management, it was always your preference, was it, that the MUA do the talking on your behalf?‑‑‑If - depending on the issue. If it was something that could be handled at a ship board level, we would rather handle at a ship board level.

PN699

Sure. But industrial matters, matters of employment law, were matters that would have gone through the MUA to act on your behalf, is that right?‑‑‑Yes.

PN700

Yes. And the - so the MUA had acted, for example, on your behalf in all industrial negotiations since your time - since the commencement of your employment?‑‑‑Yes.

PN701

Including the negotiations on the enterprise agreement?‑‑‑Yes.

PN702

Yes. Thank you, your Honour. Nothing further.

PN703

MR HOWELL: Nothing arising.

*** GLENN PHILIP SMART XXN MR MILLAR

PN704

THE VICE PRESIDENT: Thank you for your evidence, Mr Smart, you can step down.

<THE WITNESS WITHDREW [4.15 PM]

PN705

THE VICE PRESIDENT: That concludes your evidence, Mr Howell?

PN706

MR HOWELL: Save for one matter. Different members of the Commission have different preferences in this respect but I should see what your Honour would prefer. It's the Seagoing Industry Award 2010, I can either tender it or simply take it as an instrument. A matter for your Honour.

PN707

THE VICE PRESIDENT: I don't think that needs to be an exhibit.

PN708

MR HOWELL: May it please.

PN709

THE VICE PRESIDENT: Mr Millar.

PN710

MR MILLAR: Yes. Thank you, your Honour. Your Honour, I don't intend to open. I will call Philip Jones.

PN711

THE VICE PRESIDENT: Mr Jones.

<PHILIP ALAN JONES, AFFIRMED [4.16 PM]

EXAMINATION-IN-CHIEF BY MR MILLAR [4.16 PM]

PN712

THE VICE PRESIDENT: Yes. Thank you, Mr Jones, please be seated. Mr Millar.

PN713

MR MILLAR: Mr Jones, could you state your full name, address, and occupation to his Honour?‑‑‑Yes. Philip Alan Jones (address supplied). I'm the IR/HR manager for ASP Ship Management.

PN714

Have you prepared a witness statement for use in this proceeding?‑‑‑Yes.

PN715

Is that a witness statement of 53 paragraphs dated 26 June 2015 with 10 attachments?‑‑‑I will just check it. Yes.

*** PHILIP ALAN JONES XN MR MILLAR

PN716

Are the contents of that statement true and correct in every particular?‑‑‑Yes.

PN717

Do you adopt the contents of that statement in your evidence today?‑‑‑Yes, I do.

PN718

I will tender that, your Honour.

PN719

THE VICE PRESIDENT: That statement, together with the attachments, will be exhibit M1.

EXHIBIT #M1 STATEMENT OF PHILIP ALAN JONES DATED 26/06/2015, 53 PARAGRAPHS WITH 10 ATTACHMENTS

PN720

MR MILLAR: Your Honour, there is just one matter I wish to pursue which arises from paragraph 28 of the statement.

PN721

THE VICE PRESIDENT: Yes.

PN722

MR MILLAR: Paragraph 28, Mr Jones, you will see, is a reference to as at today's date, which is presumably the date of the statement of 26 June,

PN723

ASP is continuing to pay the affected employees.

PN724

That was the case at the time of the making of the statement - I'm sorry,

PN725

The affected employees out of accrued leave entitlements to those employees with a positive accrual.

PN726

Has anything changed in the period since then and will anything change in the near future with that payment obligation?‑‑‑No, we continued to pay all employees whether they ve got an accrued leave balance or not.

PN727

Do all employees have an accrued leave balance?‑‑‑No.

PN728

Is that changing (indistinct) time goes by?‑‑‑As each - each day goes by, their - the value of the payments we were making was around $2500 to those employees that don t have accrued leave.

*** PHILIP ALAN JONES XN MR MILLAR

PN729

Okay, and how do you arrive at that figure of $2500?‑‑‑I ve taken basically the affected employees in relation to involuntary redundancies and what their leave ratio is, and multiplied that by their daily rate to come up with that sum.

PN730

The only other matter is, we ve had some evidence today which relates to some earlier redundancies or alleged redundancies within the organisation. You've been in court and heard the evidence that was given by Mr Bray. You heard the evidence that was given concerning a vessel known as the River Torrens?‑‑‑Yes, I did.

PN731

Do you know anything about the arrangements concerning that vessel?

PN732

MR HOWELL: Objection.

PN733

THE VICE PRESIDENT: Just hold on.

PN734

MR HOWELL: Well, then I withdraw the objection.

PN735

THE VICE PRESIDENT: Yes.

PN736

MR MILLAR: What s your understanding of when that occurred?‑‑‑It was well before my time at ASP. I ve no idea to be honest.

PN737

And there was also another vessel that was referred to, the Lindsay Clark. Do you know anything about the arrangements concerning that vessel?‑‑‑I know about the Lindsay Clark. I started after that ship had finished that was dealing with some of the results of I suppose of the finishing-up of that vessel where we - it actually called for expressions of interest and never went through because we with those expressions of interest because we gained another ship and we were able to redeploy people from the Lindsay Clark into the fleet, into that particular ship.

PN738

So just so I understand were there any redundancies that resulted from that?‑‑‑No.

PN739

Yes, thank you, your Honour.

PN740

THE VICE PRESIDENT: Mr Howell?

CROSS-EXAMINATION BY MR HOWELL [4.21 PM]

*** PHILIP ALAN JONES XXN MR HOWELL

PN741

MR HOWELL: Thank you. Sir, if I understand your last answer in relation to the Lindsay Clark, there was to be a voluntary redundancy process but it wasn t ultimately necessary because another vessel was secured and you could redeploy?‑‑‑Yes.

PN742

Right. Now, you commenced employment with the respondent with ASP, if I understand your evidence correctly, in 2014 February 2014?‑‑‑That s correct.

PN743

And prior to that you hadn t had experience in the maritime industry, is that right?‑‑‑No.

PN744

You came from Coca Cola wasn t it?‑‑‑Coca Cola and the construction industry.

PN745

Thank you. Now, you had primary responsibility for bear with me for one moment. I ll make sure I get it right. Primary responsibility on behalf of ASP for the redundancy process that occurred in relation to the loss of the British Loyalty?‑‑‑Yes.

PN746

You commenced in 2014, so I take it self-evidently, you didn t have any involvement with negotiations of the 2012 agreement?‑‑‑No.

PN747

Now, did you review the agreement when you were considering how to approach the redundancy process for the loss of the British Loyalty?‑‑‑Yes.

PN748

Did you review clause 8 of the Seagoing Industry Award in that process?‑‑‑From the Seagoing I m not sure. No, probably not.

PN749

All right. Did you consider clause 31 of the agreement which relates to workplace consultation? Do you want a copy of the agreement?‑‑‑Yeah, that d be good.

PN750

That s Exhibit H1, IB1, your Honour.

PN751

THE VICE PRESIDENT: Certainly.

PN752

MR HOWELL: Now, clause 31, you ll find at page 34. Do you see that?‑‑‑Yes.

PN753

Did you consider the consultation obligation under clause 31?‑‑‑Yes, I did.

*** PHILIP ALAN JONES XXN MR HOWELL

PN754

And what did you understand the reference in the first sentence to be? This clause is to be read in conjunction with clause 8. Clause 8 of what?‑‑‑Clause 8 of this agreement.

PN755

And I go to clause 8 of this agreement and I will ask you to think about that answer?‑‑‑And it talks about duration.

PN756

Yes?‑‑‑No relevance whatsoever.

PN757

No. Did you have a look at 6.1?‑‑‑(Indistinct) with the awards.

PN758

Including the Seagoing Industry Award?‑‑‑Yes. I know it exists and refer to it but - - -

PN759

Did you consider whether clause 8 might be the clause 8 that s been referred to?‑‑‑No, I didn t.

PN760

And clause 31? Nonetheless, as you say you didn t have regard to clause 8 of the Seagoing Industry Award and contemplating what in relation to workplace change here?
---No.

PN761

To be fair, did you consider the workplace change provision the model workplace change provision that you find in the Fair Work Act, did you give consideration to that?‑‑‑Yes.

PN762

That s something that you had regard to was it?‑‑‑Yes.

PN763

All right. And you understood that that was what applied to this agreement, is that right?‑‑‑The consultation process, yes.

PN764

All right. Now, the decision of BP to formally notify sorry, I withdraw that. The decision of BP to withdraw the British Loyalty was formally notified to ASP on the 13 March. Yes?‑‑‑Yes, I believe so.

PN765

And the first communication that you have with the MUA or the employees, if I understand your evidence, is on the 19 March?‑‑‑About the vessel departing or?

*** PHILIP ALAN JONES XXN MR HOWELL

PN766

About the notification of the British Loyalty ceasing?‑‑‑Ceasing, that would be correct, I think, yes.

PN767

I think it s at 26 of your evidence that your Honour see. And please don t misunderstand me. I m not suggesting that you hadn t had discussions at a higher level of generality?‑‑‑Yes, okay.

PN768

And prior to that but this is before the formal announcement?‑‑‑Sure.

PN769

And I will come to those in a moment?‑‑‑Okay.

PN770

But in terms of the formal notification to employees that BP s made a decision, the vessel is going to go, your first communication with people is on the 19 March?‑‑‑Yes. Tim Asome would have sent I believe Tim Asome sent that notification out, not myself. I had sent sorry, Tim sent some information to me but then was responsible for sending it out. I didn t send anything directly to the ships about the finishing of the ship.

PN771

Are you sure about that?‑‑‑I could be wrong but - - -

PN772

Have a look at have you still got Mr Bray s statement there?‑‑‑Yes.

PN773

And I think we might be at cross-purposes, so just to be fair to you. If you have a look at page 53. This is IB2, of Mr Bray s statement, Exhibit H1 ?‑‑‑The page on is that page 52?

PN774

Fifty-three?‑‑‑Fifty-three. Yes.

PN775

Right. So, firstly, there s your email to Mr Bray, Mr Wardell and Mr Byrne. That s at the top of the page?‑‑‑Yes.

PN776

Now, if I understand your earlier evidence correctly, Mr Asome sent an email earlier in time. That s the one that you see (indistinct) of that page is that right?‑‑‑Yes.

PN777

So Mr Asome sends an email to the Masters directly?‑‑‑Yes.

*** PHILIP ALAN JONES XXN MR HOWELL

PN778

But in so far as and that s simply a notification to the Masters that the vessel was going to finish up?‑‑‑That s correct.

PN779

Or the vessel, I should say, was going to finish up?‑‑‑The vessel, yes.

PN780

And your email is to the unions notifying of the process?
---That s correct.

PN781

And the first thing you do what you say is We ve commenced sending out expressions of interest for voluntary redundancy. ?‑‑‑That s correct.

PN782

And now you knew, under the agreement, that there was no obligation to carry out a voluntary redundancy exercise?‑‑‑Sorry?

PN783

Under the agreement, you know, don t you that there s no express obligation to carry out a voluntary redundancy exercise?‑‑‑Yes, that s right.

PN784

You know they didn t have to go through that expression of interest process?‑‑‑No, we didn t.

PN785

Now, see I want to suggest to you, you did that because you d been having discussions with the MUA about a voluntary redundancy process. Leave aside the extent of it a redundancy process if this eventuality arose for some months?‑‑‑That s correct, yes.

PN786

And look, there was nothing unusual about that. The ASP and MUA have a fairly good working relationship, you d agree?‑‑‑Yes, I agree.

PN787

And you generally have that working relationship generally enables things to be resolved by agreement?‑‑‑On most occasions.

PN788

I m not suggesting it s always the way but, generally, it s a healthy constructive working relationship?‑‑‑Yes.

PN789

Now, and again by way of illustration ASP have been a general heads-up sorry, I ll withdraw that. It s not very helpful. You d been advised that the Bulwer Refinery was going to close. That notification comes through in or around mid-2014?‑‑‑Yes, something like that. In about June, I think, we heard.

*** PHILIP ALAN JONES XXN MR HOWELL

PN790

And verifies that it may there d be a possibility that that would have a consequence for the British Loyalty in the future?‑‑‑Sorry, in May?

PN791

No, no. Back in - - - ?‑‑‑It may have a consequence sorry.

PN792

May have a consequence?‑‑‑Okay, yes. Yes.

PN793

Right. Now, having received that general notification you speak to the MUA about it?‑‑‑Yes, I did.

PN794

And those discussions commence in the latter part of 2014?
---They probably started about the time that we heard from BP that the Bulwer Refinery was closing. So it was obviously quite topical.

PN795

No doubt. And in the course of those discussions, when you re discussing again at a high level of generality what s likely to happen in the future the position of ASP was always to try and minimise the redundancies?‑‑‑Absolutely.

PN796

Indeed, that s always the way that you approach that sort of issue when it arises?‑‑‑Yes.

PN797

Now, you had a meeting, for example, with Mr Bray and a number of other union officials, a consultative committee meeting in December of 2014?‑‑‑That s correct.

PN798

You ve given some evidence about that. At that meeting you discuss (a) again we ll leave aside the detail for one moment. You discuss a voluntary redundancy process?‑‑‑The voluntary redundancy process was discussed.

PN799

Yes. And I want to suggest to you that what was discussed was a two-stage process. The union suggested a two-stage process, voluntary redundancies within the BP fleet and if that didn t secure sufficient numbers one would go to the ASP fleet more generally?‑‑‑The MUA did suggest that.

PN800

And that was discussed?‑‑‑Well, it was suggested by the MUA. There wasn t a lot of discussion about it.

*** PHILIP ALAN JONES XXN MR HOWELL

PN801

Right. Now, but again at that stage I m talking December 2014. It s not wrong to say that the MUA s principal focus here was well, look redundancy is a second-tier issue, we re focusing upon the capacity of securing other BP work or other work for the employers who might be displaced?‑‑‑Yes.

PN802

Now, I want to suggest to you leave aside whether it s a one or a two-stage voluntary redundancy process. In December 2014 you would agree, wouldn t you, that the company had agreed that it would undertake a voluntary redundancy process in the event that British Loyalty was lost in the future?‑‑‑Yes.

PN803

The next meeting which is described in the evidence where this issue is discussed is well, actually, I ll withdraw that. I ll come back to the meeting of December 2014. You ll bear with me for one moment. Both you and Mr Asome were at the meeting in December of 2014?‑‑‑Yes, we were.

PN804

And, again, you ve already accepted this but Mr Bray had raised the two-stage voluntary redundancy process the BP fleet and then the ASP fleet more generally?‑‑‑Yes, he did.

PN805

I want to suggest to you that one of the things that you heard Mr Asome say in the course of that meeting was, If there s a solution we ll fix it. ?‑‑‑Ah no.

PN806

If that s a solution we ll fix it. ?‑‑‑No, not in those words. No.

PN807

He said words to the effect of, If that s the solution that s the aim. ?‑‑‑No.

PN808

And I want to suggest to you that he said, Well, we re more than happy to go down that path. ?‑‑‑No.

PN809

But, nonetheless, you do accept don t you that there was an agreement that you would at least go down a voluntary redundancy process at that meeting in December?‑‑‑A voluntary redundancy process, yes.

PN810

And I want to suggest to you that what was agreed was that you would go down the two-stage voluntary redundancy process which Mr Bray had raised?‑‑‑No, there was never any commitment made at that meeting to go down that process.

PN811

But there was a commitment to go down a voluntary redundancy process?‑‑‑Yes.

*** PHILIP ALAN JONES XXN MR HOWELL

PN812

Now, the next meeting where this is discussed and the evidence is the 23 February 2015?‑‑‑Mm'hm.

PN813

And, again, this is before the announcement of BP on 13 March?‑‑‑Mm'hm.

PN814

Again, you re meeting with the MUA. You and Mr Asome are meeting with Mr Bray?‑‑‑That s correct.

PN815

A number of issues are discussed in the course of that meeting?‑‑‑Yes, they were.

PN816

That included the issue of voluntary redundancies in the event that the British Loyalty was lost?‑‑‑There was discussions around numerous things and one of those things was the voluntary redundancy process for the British Loyalty.

PN817

And, again, there was discussion around the two-stage voluntary redundancy process. If I use the expression two-stage - - - ?‑‑‑Okay.

PN818

- - - voluntary redundancy process, please understand I m talking about the BP fleet in the first instance if unsuccessful the ASP wide?‑‑‑Ian always raised that.

PN819

Right?‑‑‑Okay?

PN820

And, again, I want to suggest to you that one of the things that you had said to Mr Bray in the course of that meeting was, We want to minimise redundancies. ?‑‑‑I did.

PN821

And I also want to suggest to you that you had said words to the effect of, We re okay with your proposal. ?‑‑‑No, I didn t.

PN822

But, again, you don t deny that you already have an agreement to undertake a voluntary redundancy process?‑‑‑Yes.

PN823

And, again, what words do you recall having said, when Mr Bray raised the two-stage voluntary redundancy process?
---That that was something that may be considered that we couldn t have any guarantees around that process. So there was never any commitment to it. We would always look at it and we d always keep our options open.

*** PHILIP ALAN JONES XXN MR HOWELL

PN824

All right - - - ?‑‑‑But the minimisation of - - -

PN825

But you don t say that in your statement?‑‑‑- - - redundancies, sorry was around at the time. We were in heavy negotiations for the Fremantle barge and other business. That was the primary reason for that meeting in Perth with Ian Bray and the discussion around the British Loyalty was a secondary discussion. We were aiming to try and I suppose get the best possible position for us to get the BP barge in Fremantle which would then, we would hopefully, or potentially offset any redundancies that may well have to be forced from the fleet.

PN826

Right. And, indeed, you weren t just looking at BP work in order to try and facilitate that sort of redeployment. You were looking at all sorts of new work?‑‑‑There was there was some trans-shipper projects up in the North-west that we were also looking at.

PN827

And they weren t BP fleet?‑‑‑No, they weren t.

PN828

They were with somebody else?‑‑‑They were with another organisation.

PN829

And you would have looked to redeploy them if you had secured that additional work?‑‑‑Absolutely. Absolutely.

PN830

Now, the decision of BP is notified on 13 March. The first written communication to anybody employee and the MUA on 19 March, and what you describe in your email to employees and in the email to the MUA is the commencement of a voluntary redundancy process. Yes?‑‑‑Yes.

PN831

And you did that because you had an agreement with the MUA about it?‑‑‑Because that was part of the discussion with the MUA but that that s what we would venture down the path of.

PN832

Well, you had agreement with the MUA you were going to do a voluntary redundancy process?‑‑‑That we were going to send out that information, yes.

PN833

That is to say do an expression of interest for voluntary redundancy. Yes?‑‑‑That s correct.

*** PHILIP ALAN JONES XXN MR HOWELL

PN834

And I want to suggest to you is that the agreement you had at that time is that you d go through a two-stage voluntary redundancy process going to the BP fleet first and then to the broader ASP fleet. Do you accept that or not?‑‑‑No, we did not agree to that.

PN835

Now, the next meeting well, I should say the first meeting that occurs after the formal notification by BP is on the 26 March. Yes?‑‑‑Yes.

PN836

And it s a meeting which is held on the Loyalty?‑‑‑That s correct.

PN837

Right. And you describe this in paragraphs 31 and 32, one of the things which you did in the lead-up to that meeting was prepare a question and answer document. Yes?‑‑‑Yes.

PN838

And you did that based on the discussions that you had had with, amongst others, the MUA and the employees in those discussions that you d had over the course of late 2014 and early 2015?‑‑‑Yes. That s correct.

PN839

And, no doubt, what s recorded in the question and answer document would reflect what you had said to people when they raised questions over the course of December 2014 through to the notification of the decision?‑‑‑Most of the time leading up to that we were taken down along the questions so we could put that document together and some of those would have been based on the discussion that occurred around those questions put by the employees.

PN840

All right. Now, at the meeting on the British Loyalty on the 26 March you hand out a copy of the question and answer discussion paper?‑‑‑I did.

PN841

Yes. And the MUA was given a copy?‑‑‑Yes, Ian was given a copy.

PN842

And is there a discussion which occurs on the day?‑‑‑Yes, there was. Yes.

PN843

And what you had said was consistent with what was in your question and answer document?‑‑‑Yes, there wasn t any discussion around the Q and A document. There were a number of other questions that we would answer in relation to the crew and what their concerns were.

PN844

Right?‑‑‑Like, specifically about the Q and A document.

*** PHILIP ALAN JONES XXN MR HOWELL

PN845

All right. Now, paragraph 32 of your statement. The first sentence, second sentence you refer to the question and answer discussion paper. You refer in the third sentence to something you say in the question and answer paper and then you say you provide some commentary on what you ve said in that paper. Yes?‑‑‑Yes.

PN846

Can I ask you to go to that s PJ3?‑‑‑Yes.

PN847

This is you the person principally responsible for the redundancy process telling the employees what you think they need to know?‑‑‑Yes.

PN848

You say on the first page in answer to the proposed question, What will happen to the crew currently on the British Loyalty? Staff at British Loyalty are not employed by BP. APSN is your employer. British contractor to be better managed. It s your responsibility to manage the crew after the British Loyalty have departed?‑‑‑That s correct.

PN849

How the redundancies be offered. So again here we re talking about voluntary redundancies offered?‑‑‑Yes.

PN850

By now everyone affected by the change should have received an email detailing the redundancy offer. Offers in the first instance are to be circulated throughout the tanker fleet. Any further discussion will only take place after the tanker fleet have been exhausted?‑‑‑That s correct.

PN851

Is that what you re telling employees on the 26 March?‑‑‑Yes.

PN852

Over the page. What happens about a third of the way down What happens if ASP does not get the required numbers for the tanker fleet? We ll then seek to offer expressions of interest to the broader group, however the net result of the redundancies must remain within budget for the British Loyalty. I want to suggest to you that you are plainly telling people, that you are going to undertake a consultation. Sorry, I ll withdraw that. A voluntary redundancy process across the ASP fleet, if you don t get sufficient numbers out of the BP fleet voluntary redundancy expression of interest process do you accept it or not?‑‑‑No. No.

PN853

Indeed, you re not only selling them that that s what you re going to do, you re also telling them the limits that operate by saying that the net result of the redundancies must remain within the budget for the British Loyalty. You re telling them that we re going to do it and, in essence, you re saying that there are some limitations about how we can do that, presumably to play down expectations. But nonetheless, you re telling them that that s what you re going to do. Do you accept that or not?‑‑‑No.

*** PHILIP ALAN JONES XXN MR HOWELL

PN854

Now, nonetheless, you d accept wouldn t you that employees could well understand what you have written in that Q and A document as a commitment to undertake that exercise. Yes?‑‑‑No. There was discussion from the guys in relation to going to the broader fleet and the discussion around that was there would considerations for the client so Alcoa, Rio Tinto and BP would need to be consulting in relation to that.

PN855

All right. Well, you don t say that you said that in paragraph 32 of your affidavit, do you?‑‑‑No. But that was talked about at the meeting.

PN856

See, I want to suggest to you if that had happened you would have put that in your affidavit. It didn t happen. It s a convenient answer that you re giving now?‑‑‑No. It s not a convenient answer whatsoever.

PN857

Now, indeed, I want to suggest to you you didn t say anything of that kind at the meeting on the 26 March, do you accept that or not?‑‑‑No.

PN858

Now, what you did say to people on 26 March was entirely consistent with what you put in your question and answer discussion paper?‑‑‑No, it s not.

PN859

The question and answer discussion paper you also give to persons on the British Fidelity, yes?‑‑‑Yes.

PN860

At a meeting which I think happened on the 14 April. I think you described that in paragraph 35?‑‑‑Possibly 14 April yes.

PN861

Yes. Now, the British Fidelity is still in your fleet isn t it?‑‑‑Yes.

PN862

The positions on the British Fidelity still exist?‑‑‑Yes.

PN863

You re conducting a voluntary redundancy process across the two vessels?‑‑‑Yes.

PN864

And you re doing that because that was the agreement you had with the union?‑‑‑Yes.

PN865

And, again, that was the first of the two-step process that you d agree would be undertaken in your discussions with the union over the course of 2014 and 2015?‑‑‑No, it wasn t.

*** PHILIP ALAN JONES XXN MR HOWELL

PN866

Now, can I get you to go to paragraph 40 of your affidavit? Paragraph 40 the week commencing the 11 May, you start preparing up a selection matrix?‑‑‑Mm'hm.

PN867

The selection matrix is the first page of PJ6, isn t it?‑‑‑Yes, it is.

PN868

Right. So you create it on or around the 11 May or some time in that week?‑‑‑Yes.

PN869

And then you apply it in some discussions with managers on the 19 May?‑‑‑That s correct.

PN870

And you hadn t disclosed that to you haven t supplied a copy of that document to the MUA at that stage?‑‑‑No.

PN871

Indeed, you hadn t actually discussed the selection criteria that you were going to apply as reflected in PJ6 between the 11 May and the 19 May, had you?‑‑‑With the MUA?

PN872

Yes?‑‑‑No.

PN873

And, indeed, you didn t give a copy of PJ6 to the employees?‑‑‑No.

PN874

And in so far as individual employees who might be affected are concerned, you hadn t had any direct discussion with them about the selection criteria for forced redundancies, had you?‑‑‑No.

PN875

So by the time we get to the end of the 19 May after your discussion with Mr Asome, Mr Rowe and Mr Norang, referred to in paragraph 43, you have created the selection process, you have created the selection criteria, you have applied them and you have selected the people for redundancy. Yes?‑‑‑Yes.

PN876

That s what you then communicate to Mr Bray by your email referred to in paragraph 44?‑‑‑That s correct.

PN877

And his reaction sorry, I should I ll withdraw that. You then have a telephone conversation with Mr Bray?‑‑‑Yes.

*** PHILIP ALAN JONES XXN MR HOWELL

PN878

On the Friday 29 May, yes?‑‑‑Yes.

PN879

His reaction is you describe it as unhappy incensed would perhaps be a more accurate word, would you accept?‑‑‑No, not really.

PN880

Suffice it to say - - - ?‑‑‑He wasn t happy.

PN881

- - - caviled with - sorry?‑‑‑He wasn t happy. But he wasn t incensed.

PN882

All right. Well, suffice it to say you haven t caviled with what Mr Bray has said in paragraphs 28, 29, 30 of his affidavit. If you want to have a look by all means go ahead?‑‑‑Which paragraphs again?

PN883

It s on page 8 28, 29, 30. Thirty is perhaps where it really starts?‑‑‑So 28 am I going to 28 May?

PN884

Yes?‑‑‑Okay, 28, 29 and 30.

PN885

Yes, so start with 30 is probably the easiest way?‑‑‑Okay.

PN886

And he describes having discussed various matters, including the selection criteria and you tell Mr Bray that there s eight or possibly nine who are going to be forced redundant?‑‑‑That s correct.

PN887

In addition to voluntary redundancies. You tell him about the selection criteria and he says this is the first time we ve heard about it, the union and the crew haven t been consulted. He said that to you?‑‑‑He said that that was the first time he d heard about it because it was the first time he d heard about it.

PN888

It was the first time he d heard about it?‑‑‑Yes.

PN889

And your response was as described here by Mr Bray. We believe the process is fair. And his response was, Fuck off, Bill. You re expecting us to cop forced redundancies at the back of a selection criteria that the crew and the union haven t been consulted about. No transparencies and skippers are choosing who stays and goes. Yes?‑‑‑I - - -

*** PHILIP ALAN JONES XXN MR HOWELL

PN890

Words to that effect?‑‑‑Words to that effect but I don t believe they re the words he used.

PN891

Well, suffice it to say - - - ?‑‑‑He and I have a fairly good communication process and I would I don t recall those words.

PN892

Suffice it to say it was obvious to you, wasn t it that he was raising a concern about the inadequacy of consultation about selection criteria?‑‑‑It was probably more of a concern to him around the selection criteria because he did ask a number of questions about it, who was involved, and I explained to him who was involved. I also explained that it was sent out to all the Masters and we continued the conversation. I mean there wasn t he wasn t that incensed that he just hung up and refused to talk about the process.

PN893

I didn t suggest he had, did I?‑‑‑No, but if he was that incensed I don t think he would have carried on the conversation.

PN894

Right. Suffice it to say and I ll ask the question again if you could attend to the question I asked this time?‑‑‑Yes.

PN895

You understood he was raising a concern about the lack of consultation to do with the selection criteria?‑‑‑About the consultation in relation to selection criteria if that could be drawn out of his comments in relation to the first time he saw it then yes.

PN896

Well, you just accepted, when I took you to the words?‑‑‑Mm.

PN897

You have just accepted that he said words to the effect of this is the first time we ve heard about the selection criteria. The union and the crew haven t been consulted. That s a complaint?‑‑‑Oh, sorry the union haven t been consulted. Yes.

PN898

Well, the union - - - ?‑‑‑That s the first time he heard about it.

PN899

The union and the crew haven t been consulted. That s what he says to you. That s the first thing he says to you when you say - - - ?‑‑‑I don t believe Ian referred to the crew nor about the MUA. Most of our discussions occur with the MUA.

*** PHILIP ALAN JONES XXN MR HOWELL

PN900

Right. You say you don t recall it having happened. It s quite possible you said the union and the crew haven t been consulted?‑‑‑Possibly.

PN901

Well, it was true wasn t it?‑‑‑Well, yes. We hadn t talked to him about that process, no.

PN902

Right. Now, again, he then sends you an email a couple of days later on the 2 June and you attach a copy of that to your affidavit, yes?‑‑‑Is that - - -

PN903

It s at PJ9?‑‑‑Yes.

PN904

Now, here Mr Bray s articulating at some length the discussion process as he sees it. Can I ask you to go to the second page?‑‑‑Yes.

PN905

You ll see in the middle of the page there s a number of names?‑‑‑Yes.

PN906

And immediately underneath it he says, Discussions are held regarding the nature of who the company and identified as employees likely to be forced into redundancy and what criteria have been used to make these selections. We note that the MUA I m assuming there should be a neither in there We note that the MUA or any of the ratings employed by ASP I think there should be a had there?
--- Had yes.

PN907

Consulted or participated any discussions with ASP regarding the company selection criteria. We further note there s no selection criteria in the EBA. It s self-evident?‑‑‑Yes.

PN908

He s complaining about the lack of consultation. Yes?‑‑‑Yes.

PN909

Indeed, I think you acknowledged almost as much in your response which is at PJ10, middle of the page, you raised issues with the transferees here in the selection process?
---Yes, I do.

PN910

Yes. Again, you understood that he was raising a complaint about lack of consultation around the selection criteria?
---Yes.

*** PHILIP ALAN JONES XXN MR HOWELL

PN911

Can I get you to go to paragraph 51 of your statement?‑‑‑Of my statement?

PN912

Yes?‑‑‑Yes.

PN913

Just read it to yourself for a sec?‑‑‑Yes.

PN914

I want to suggest to you well, firstly to be fair to you, do you want to qualify your second sentence in paragraph 51?‑‑‑Sorry, well in Ian s letter there was mention of his concerns in relation to the transparency and in the document.

PN915

And his discussion with you?‑‑‑And in his discussion with me.

PN916

Right. So it s wrong to say well, to be fair I ll withdraw that. It s over-statement to say that you were not notified, nor were you aware at any stage that the MUA had an issue with the consultation?‑‑‑Well, it was incorrect.

PN917

Right. Can I ask you then to please go to sorry, do you still have Exhibit H1? Mr Bray s statement there?‑‑‑I ve got Ian s statement here.

PN918

Excellent?‑‑‑That s the one.

PN919

All right. So, I ll get you to hang on to that for one second. Paragraph 41 of your statement you refer to a letter dated 13 May?‑‑‑Yes.

PN920

I just want to confirm that the letter that you re referring to, and I should say it s a letter that you sent to the MUA?‑‑‑Yes.

PN921

The letter that you re referring to is IB5 of Mr Bray s statement which you ll find at Exhibit 69 of Mr Bray s statement?‑‑‑Sorry, I m just looking up at mine.

PN922

You re right?‑‑‑So what page? Sixty-nine?

PN923

Sixty-nine?‑‑‑Yes.

PN924

That s the letter?‑‑‑That s the letter. Yes.

*** PHILIP ALAN JONES XXN MR HOWELL

PN925

All right. So the position that ASP s adopting is, I think, sufficiently summarised in the fourth last paragraph on that page, 14 May MUA notified of dispute . I think that should be the 7 May. Notified a dispute in the Commission. ?‑‑‑So that should be 7th.

PN926

Yes. It d be difficult for it to be the 14th if your letter is the 13th?‑‑‑Yes.

PN927

Suffice to say, 7 May MUA notified dispute to the Fair Work Commission in respect of this process. MUA contends the ASP is obliged to consider redundancies and potential redeployment opportunities in a fleet by basis not just to the two BP vessels. ASP denies that there s any such obligation. Yes?‑‑‑Yes.

PN928

Now that s the position ASP has maintained throughout?‑‑‑Yes.

PN929

And just to be clear about that ASP maintains the view that, firstly, it s not required to consider sorry, I withdraw that. It s not required by the agreement to consider voluntary redundancy processes across the ASP fleet?‑‑‑That s correct.

PN930

Indeed, it s not required to undertake a voluntary redundancy process at all, is it?‑‑‑No.

PN931

And the fact that you undertook the voluntary redundancy process at all was as a consequence of the consultation you undertook with the MUA prior to the formal notification of the decision of BP?‑‑‑Yes.

PN932

It was an incident of that consultation?‑‑‑Sorry?

PN933

It was an incident of that consultation?‑‑‑Yes.

PN934

It was a product of that consultation?‑‑‑Mm.

PN935

And, I should say, ASP also maintains the view that clause 37.1 of the agreement, the redeployment obligation?‑‑‑Yes.

PN936

Does not require you to consider redeployment across the fleet?‑‑‑That s correct.

*** PHILIP ALAN JONES XXN MR HOWELL

PN937

Right. They re two separate things. I just wanted to make sure that I understood that ASP maintains that position in relation to both those questions, that is to say the voluntary redundancy process and the redeployment. You would accept, though, wouldn t you that redeployment - - - ?‑‑‑Sorry, redeployment across the fleet if there were vacancies.

PN938

So you do accept that redeployment is something required to be done leave aside vacancies for one moment. The clause 37.1 plainly refers to currently vacant positions?‑‑‑Yes. That s right. Currently vacant positions.

PN939

Yes. Leave aside currently vacant for one moment. You would accept, wouldn t you, that the reference to positions means positions across the ASP fleet?‑‑‑Yes. It s more broader than that. But in relation to I mean you I think you strive for impossible to maintain people s employment and not make them redundant.

PN940

Right. Nonetheless, that s not what you say in this letter here, is it, on the 13 May. ASP advises this is the bottom paragraph, ASP advises that redundancy/redeployment will not be considered on a fleet-wide basis. So do I take it that you do accept that a redeployment?‑‑‑Probably poor wording to be honest. Consider redundancies but the potential of redeployment opportunities if there s a vacancy within our fleet and there was and we moved a cook from the tanker to a vacant cook position on the Portland, rather than make him redundant.

PN941

So you accept, do I take it then, if you had followed through on what the union will say was a commitment that you gave to pursue expressions of interest on a voluntary redundancy basis across the fleet if - there s a factual question for the Commission ultimately to determine. If you did that and it resulted in people accepting voluntary redundancies or expressing interest in voluntary redundancy and you could match them, in terms of cost, there could have been redeployment opportunities?‑‑‑So all the moons align, is what you re saying, to effect those redundancies.

PN942

Well - - - ?‑‑‑It would be - - -

PN943

Managing is the out of the possible , isn t it?‑‑‑It would be a very difficult and long process to achieve that and one that I m not sure that we d ever actually succeed in.

PN944

Well, I want to suggest to you, and if you don t know because you ve only been there since 2014 so be it?‑‑‑Yes.

*** PHILIP ALAN JONES XXN MR HOWELL

PN945

I want to suggest to you in the past, the MUA and ASP had agreed in circumstances of redundancy to adopt the two-stage voluntary redundancy process that the union was urging upon ASP this time round?‑‑‑In my discussions with people within ASP at a more senior level than I no, that is not the case.

PN946

Nonetheless, you have no personal experience of that?‑‑‑No.

PN947

Now, again, I appreciate you say it would be difficult but it is possible, is it not, for ASP to have undertaken a voluntary redundancy process across the fleet and have had a cost and true outcome?‑‑‑Not taking into consideration the views of our clients.

PN948

Well, that square that away for one moment?‑‑‑So if that doesn t matter and they all agree. Is that what you re saying?

PN949

What I m saying to you is and attend to the question that I m asking?‑‑‑Yes.

PN950

It is possible for you to redeploy someone from a tanker to a non-tanker vessel and have a cost-mutual voluntary redundancy process?‑‑‑No.

PN951

Why not?‑‑‑Not looking at it single and like that. There are a number of other factors that need to be taken into consideration.

PN952

Firstly, you represented to your fleet by your question and answer discussion that that was something which could be done. And I ve already taken you to PJ3?‑‑‑That we would try we would try to do.

PN953

Right. And that s because it s possible. I m not suggesting it s easy but it s possible?‑‑‑Yes.

PN954

Thank you. I should also say you d accept, wouldn t you, that just because you undertake a voluntary redundancy expression of interest process doesn t necessarily mean the process will produce someone that the company would be prepared to accept on a voluntary redundancy basis?‑‑‑No, that s true.

PN955

Right. So, in other words, you still maintain control over the process?‑‑‑Yes.

PN956

Yes, those are the questions.

PN957

THE VICE PRESIDENT: Mr Millar?

*** PHILIP ALAN JONES XXN MR HOWELL

RE-EXAMINATION BY MR MILLAR [5.04 PM]

PN958

MR MILLAR: Mr Jones, in cross-examination, it was put to you that the need for BP, Rio Tinto, and Alcoa to be consulted about the redundancies hadn t actually been included in your witness statement. Do you remember that being put to you?‑‑‑Yes.

PN959

Can I take you to paragraph 33?‑‑‑I did notice that after I answered the question.

PN960

What do you say in paragraph 33 about the need to consult with BP, Rio Tinto and Alcoa?‑‑‑Thirty-three that during the meeting Ian Bray said that he disagreed with the departure of the British Loyalty and its effect on the Australian coastal trade. And I refer to paragraph 20 of Bray s statement and do not recall Ian Bray saying to me that he was disappointed, that the crew had not been consulted but I also recall Ian making comments regarding the redundancy processes, seeking voluntary redundancies from the broader ASP fleet. In response, I said words to the effect that this will need to be addressed at the relevant time BP, Rio Tinto and Alcoa will need to be consulted about the redundancies.

PN961

Had those consultations been undertaken at the time of the Q and A discussion paper?‑‑‑No, they hadn t.

PN962

Thank you, your Honour. Nothing further.

PN963

THE VICE PRESIDENT: Thank you for your evidence, Mr Jones, you can step down.

<THE WITNESS WITHDREW [5.06 PM]

PN964

MR MILLAR: Your Honour, I ll call Timothy Asome please. Is he outside?

PN965

ASSOCIATE: Yes.

PN966

MR MILLAR: If you signal to him. Yes.

PN967

THE VICE PRESIDENT: Mr Asome, if you can come to the witness box, please.

PN968

ASSOCIATE: Please state your full name and address?

*** PHILIP ALAN JONES RXN MR MILLAR

PN969

MR ASOME: Timothy John Asome. (Address provided.)

<TIMOTHY JOHN ASOME, SWORN [5.06 PM]

PN970

THE VICE PRESIDENT: Thank you, Mr Asome?‑‑‑Thank you.

PN971

Please be seated. Mr Millar?

EXAMINATION-IN-CHIEF BY MR MILLAR [5.06 PM]

PN972

MR MILLAR: Now, could you state your full name, address, and occupation to the Commission?‑‑‑Timothy John Asome. I m the General Manager of ASP Ship Management and I live at (address provided) Victoria.

PN973

Have you prepared a witness statement for use in this proceeding?‑‑‑Yes.

PN974

Is that a witness statement of 36 paragraphs dated 26 June 2015 with five attachments?‑‑‑Yes.

PN975

Are the contents of that statement true and correct in every particular?‑‑‑Yes.

PN976

Do you adopt the contents of that statement in your evidence today?‑‑‑Yes.

PN977

I ll tender that, your Honour.

PN978

THE VICE PRESIDENT: Exhibit M2.

EXHIBIT #M2 WITNESS STATEMENT OF TIMOTHY JOHN ALSOME DATED 26 JUNE 2015

PN979

MR MILLAR: Now, some evidence has been given today, Mr Asome, concerning some earlier prospective redundancies or actual redundancies involving ASP. There was some suggestion concerning redundancies on a vessel called the River Torrens. Are you familiar with that issue?‑‑‑I m familiar with the vessel but I m not familiar with the process, no.

PN980

What was the timing of that issue? When did that happen?
---May be early 2000 s. It potentially could have even been before then.

*** TIMOTHY JOHN ASOME XN MR MILLAR

PN981

Were you employed by the company at that time?‑‑‑No.

PN982

And there was also some evidence given concerning another vessel. The Lindsay Clark, an Alcoa vessel. Are you familiar with that issue?‑‑‑Yes.

PN983

Yes. Can you explain to the Commission what your knowledge is of that issue and whether there were redundancies involved?‑‑‑The vessel was removed from coastal trading and the vessel was actually sold to scrap and then the vessel was disposed of. There was a redundancy process that began for that vessel but ASP acquired or took on the management of another vessel and the personnel transferred to, if you like, within the fleet. So from my understanding there were no actual redundancies.

PN984

And are you able to recollect the timing of that - approximately?‑‑‑I would have said approximately 2012.

PN985

Thank you, your Honour. Nothing further.

PN986

THE VICE PRESIDENT: Mr Howell?

CROSS-EXAMINATION BY MR HOWELL [5.10 PM]

PN987

MR HOWELL: Would your Honour bear with me for one moment?

PN988

THE VICE PRESIDENT: Yes.

PN989

MR HOWELL: All right. Thank you. Mr Asome, can I ask you to go to paragraph 6 of your affidavit for me? Do I understand that to mean that ASP doesn t make provision for redundancies at all?‑‑‑That is correct. In redundancies, yes.

PN990

Now, in essence your client bears all the risk as you said?‑‑‑That s correct.

PN991

Now, just so I understand, unless you re all on the same page here the clauses in your BIMCO agreement the shipment agreement which you attach at DA1?‑‑‑Mm.

PN992

Firstly, if you go to page number one of the terms the definitions?‑‑‑Yes.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN993

I m talking here about severance costs?‑‑‑Yes.

PN994

About two-thirds of the way down the page?‑‑‑Yes.

PN995

And the clause which I think you re referring to in your paragraph 6 is at page 13. So at page 12 we see clause 22, entitled, Termination starting , and then we have, over the page on page 13, paragraph H . H seems to be a qualifier of paragraph G , but nonetheless, H(ii) is that what we re talking about?‑‑‑That s correct.

PN996

So, indeed, one of the things you are obliged to do that is, when I say you , ASP one of the things ASP is obliged to do is to use their reasonable endeavours to minimise severance costs?‑‑‑Mm'hm.

PN997

One of the things you re obliged to do under your BIMCO agreement is to try and redeploy so as to avoid a severance cost, do you accept that?‑‑‑Yes.

PN998

And clause if I could get you to go back to your affidavit for a moment? Paragraph 8, you ll see about slightly below halfway through that paragraph, Rating stewards and cooks ?‑‑‑Mm'hm.

PN999

And last sentence says, Clients also wish to retain the benefit of a stable crew. Yes?‑‑‑Correct, yes.

PN1000

That s something acknowledged in the agreement, the subject of this dispute. It s acknowledged, expressly, in the agreement, isn t it, but nonetheless under your BIMCO agreement you have, as the manager, an absolute discretion to allocate available manpower as you considered to be fair and reasonable, don t you?‑‑‑Yes.

PN1001

So that for the Commission s benefit is page 5, clause 8. Is that right? Have a look if you wouldn t mind?‑‑‑Yes.

PN1002

So 8(a), this is essentially, your obligation that is to say ASP s obligation?‑‑‑Mm'hm.

PN1003

No doubt you d consult but deployment of available resources, including manpower is in ASP s absolute discretion?‑‑‑Perhaps I can offer - - -

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1004

Well, I haven t asked you a question I m sorry my friend Mr Asome if something in reply comes up my friend gets to ask the question?‑‑‑Okay.

PN1005

Sorry, your Honour, I m endeavouring to cut this down as we go. All right. Paragraph 22 of your statement, this is when ASP is first notified of the final decision of BP to withdraw the British Loyalty. Yes?‑‑‑Yes.

PN1006

And you had been discussing you, meaning ASP had been discussing with the MUA the potential for that to occur for some little time?‑‑‑That s correct.

PN1007

Indeed, from late 2014 onwards?‑‑‑Yes. Mid 2014. Yes.

PN1008

Mid to late 2014, onwards?‑‑‑Yes.

PN1009

All right. And those discussions included, for example, a meeting that you attended on the 9 December 2014 a consultative committee meeting attended by a number of members of the MUA, yourself and Mr Jones, voluntary redundancies in the event that the British Loyalty was lost was discussed?‑‑‑We discussed at that meeting that fundamentally the MUA were not happy with the vessel being removed. I do not recall discussing specifically about the redundancy process at that meeting.

PN1010

All right. Well, let s just take that say just firstly, the MUA s position in the discussions in this meeting, was, Well, there shouldn t be any redundancies. We should be able to secure other work. Yes?‑‑‑Yes.

PN1011

And that was the principal focus of their position at that stage?‑‑‑Correct.

PN1012

But I want to suggest to you that there was discussion about voluntary redundancies in the event that that was not a successful approach. Do you agree with that?‑‑‑It may have been discussed at about voluntary going down the path of looking for volunteers, yes.

PN1013

Indeed, Mr Bray was always raising a need to go through a voluntary redundancy process, wasn t he, when this issue about the potential loss of the Loyalty came up?‑‑‑Yes. We looked at volunteers, yes.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1014

Indeed, I want to suggest to you that at this meeting in December of 2014, the company agreed to undertake a voluntary redundancy process. Leave aside the details for one moment. In this discussion in December 2014, I want to put to you that the company did agree that it would undertake a voluntary redundancy process in the event it was necessary should the Loyalty be lost?‑‑‑Yes. Yes, that is true.

PN1015

So it was discussed?‑‑‑Well yes okay, it was discussed at that meeting. It was not a major part of that meeting, certainly. It was fundamentally a meeting about a review of the whole across the whole fleet and this issue of the Loyalty potentially going was discussed.

PN1016

All right. And, indeed, there was an agreement about a voluntary redundancy process?‑‑‑Around that time it would have been discussed, yes.

PN1017

Well, that wasn t the question I asked you Mr Asome. What I put to you before which you accepted was that there was an agreement at this meeting that voluntary redundancy would be pursued in the event that the Loyalty was lost. Do you accept that or not?‑‑‑Yes.

PN1018

And I want to suggest to you that what was accepted, as the voluntary redundancy process that would be adopted, again in the event that the Loyalty was lost, no decision having been made at this point was the two-stage voluntary redundancy process that the MUA was urging on you?‑‑‑I m sorry. Could you repeat the question?

PN1019

Sorry. It s getting late and I m mumbling. I want to suggest to you that the voluntary redundancy process that was agreed in this December 2014 meeting was a two-stage voluntary redundancy process which would involve BP fleet first, absent there being enough volunteers in that process you d go to the fleet more broadly. Do you accept that?‑‑‑I don t think we got to that level of detail. We discussed about looking for volunteers.

PN1020

Right. Well, I want to suggest to you that what you had said in response to Mr Bray raising this two-stage voluntary redundancy process was if that s a solution then that s what we ll do to fix it?‑‑‑I don t think that was said at that time.

PN1021

And one of the things that you had said was, We re more than happy to go down that path. ?‑‑‑We were looking for solutions, effectively, to our problem. So, looking for volunteers was certainly the track that we were looking at.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1022

All right. And, again yes. Again, the next time this comes up in the evidence is at a meeting I withdraw that. The next time there s discussion between the company and the MUA on the evidence is on 25 February 2015 so we re now in the early new year again, no decision having been made by BP at this point. Yes?‑‑‑Correct.

PN1023

And, again, I want to suggest to you that this is at a meeting between yourself, Mr Jones and Mr Bray in Perth. You discussed a range of issues at that meeting?‑‑‑Yes. Again, we discussed most predominantly was this issue around the MUA not being satisfied that the vessel was going to be out of work.

PN1024

Indeed trying to secure other work?‑‑‑Absolutely, yes. That s correct.

PN1025

And no doubt that would have been the company s primary objective at the time as well?‑‑‑Yes. Absolutely. Yes.

PN1026

Redundancy very much a second tier consideration?‑‑‑Yes, that s correct.

PN1027

But nonetheless one which was considered?‑‑‑Correct.

PN1028

And, again, what was being considered was a voluntary redundancy process that had two stages to it. The first consideration being amongst the fleet, absent sufficient volunteers, ASP fleet more generally?‑‑‑From my recollection, no. We discussed that there would be a call for volunteers.

PN1029

So do you say it was not discussed at all?‑‑‑No. We discussed redundancies but we discussed about the call for volunteers first.

PN1030

The call for volunteers for redundancies?‑‑‑Correct.

PN1031

And I m suggesting to you that what Mr Bray had said in that meeting was volunteers within the BP fleet, if that doesn t secure sufficient volunteers, volunteers in the ASP fleet more generally. That was what Mr Bray had raised?‑‑‑Okay.

PN1032

Was that right or wrong?‑‑‑I don t believe that was correct. I believed it was discussed about calling for volunteers.

PN1033

Can you go to paragraph 20 of your affidavit?‑‑‑Yes.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1034

You say here that the possibility was raised. That s the two-stage voluntary process that Mr Bray s described in evidence?‑‑‑Yes.

PN1035

So do you accept it was discussed?‑‑‑I accept that we discussed redundancies but I don t believe that we discussed about extending it beyond a voluntary process at that stage.

PN1036

Indeed, it was all about a voluntary process at that stage?‑‑‑Correct. We were looking for volunteers. We didn t know what we would get.

PN1037

Of course and, indeed, the MUA s position was, Don t get any forced redundancies. Explore volunteers within the BP fleet and in the ASP fleet more generally if you don t get sufficient numbers. ?‑‑‑No. I don t believe so. No, we discussed about volunteers that we were looking for across the BP fleet or I don t believe that we discussed it beyond that.

PN1038

All right. Now, we then have the decision on the 13 March, which you describe at paragraph 22 and the first meeting which occurs thereafter is on the 26 March. Can I just before we get to the 26 March can I just ask you about one other thing that s in your evidence. Paragraph 24 you say a letter was sent to ASP employees. You see that? On the 20 March?‑‑‑Correct, yes.

PN1039

Mr Jones was the one who was principally responsible for communicating about the loss of the Loyalty?‑‑‑No, Mr Jones was not responsible for that.

PN1040

Well, bear with me for a moment. Just make sure we re not at cross-purposes. So at paragraph 15 of your statement you say Phillip Jones the current IR and HR Manager of ASP had primary responsibility for the consultation of redundancy process?‑‑‑The redundancy process, yes.

PN1041

Consultation?‑‑‑The contract in regards to the handback of the vessel.

PN1042

I beg your pardon. Sorry. We are at cross-purposes. What I m talking about here is what you ve said at paragraph 24?‑‑‑Mm'hm.

PN1043

And what we re describing here is ASP sending employees on the two BP vessels a letter formally notifying them of the change?‑‑‑Mm'hm.

PN1044

Mr Jones was the one principally responsible for that sort of communication?‑‑‑Yes.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1045

The reason I ask is nowhere else in the evidence do we see a reference to a letter dated the 20 March. I want to suggest to you that what was communicated with employees was an email a personal email which outlined their forecast redundancy payout and an expression of interest for a voluntary redundancy which was sent on the 19 March. Is that possible?‑‑‑I don t recall. I m sorry. I d have to have a look.

PN1046

All right. I m happy to show it to you. It s Mr Jones s statement, I m just really trying to clarify something which is it seems to be a bit of an anomaly in the evidence?‑‑‑Yes.

PN1047

It s Exhibit M1.

PN1048

THE VICE PRESIDENT: The witness can have my copy but what page is it?

PN1049

MR HOWELL: It s definitely P2. Sorry, that should be PJ2. Is that what you re referring to?

PN1050

THE VICE PRESIDENT: You ve got to find the attachment to PJ2?‑‑‑Sorry. Right. PJ2.

PN1051

MR HOWELL: So, in paragraph 24 you refer to a letter dated 20 March formally notifying them of changes which were occurring and seeking expressions of interest of voluntary redundancy. Mr Jones attaches at PJ2 an email which is an expression of interest for voluntary redundancy and attaches a schedule. And I understand his evidence to be that that was sent to everybody personally on the 19th. Is that what you re referring to?‑‑‑Yes. I would say so, yes.

PN1052

All right. Thank you. Again, if you go to paragraph 25 of your affidavit, you refer to a meeting that you attended on the 26 March. Again, this is where you re discussing voluntary redundancy processes. Yes?‑‑‑Yes. We do.

PN1053

And you re now discussing them after the BP notification?
---Correct.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1054

And, again, the MUA is saying in its communications to ASP voluntary redundancy process through the BP fleet first and then if sufficient volunteers aren t identified through the ASP fleet more generally?‑‑‑I don t think we ve said that. What we talked about at that meeting was really two-fold. Again, there was a lot of talk about the fact that the MUA disagreed with the vessel being taken off the coast. Secondly, to that when we talked about redundancies which was effectively a clear part (b), shall I say of our conversation. We talked about redundancies and then we asked, effectively, around that process of which it was around that time that it was put to us about going outside of the BP fleet and looking to the broader fleet. We would like to be able to do that, effectively, but we had to seek, effectively, some guidance on that and have a look at whether we could do that or not.

PN1055

Well, I want to suggest to you that the communication which was made to employees and the MUA at that stage was that If ASP does not get the required numbers from the tanker fleet, they ll seek to offer expressions of interest to the broader group, however, the net result of the redundancies must remain within the budget for the British Loyalty. That s what ASP was saying to its employees at the time?‑‑‑That would be right, yes.

PN1056

And that s clearly a commitment that you will undertake the order of redundancy voluntary redundancy exercise. Do you accept that or not?‑‑‑I think that we would seek to to try and get those volunteers from outside of the BP fleet.

PN1057

Do you honestly think that the members who the individual seafarers who are receiving that question and answer document are drawing the fine distinction that you re drawing by the use of the word seek ?‑‑‑What we did was we went down to the vessel to discuss with them about redundancies and we were looking for what they re opinion was in regards to these things. So we were asked a multitude of questions, effectively, for us to go away and to look at. And it was at that time that we were asked to look at that particular issue.

PN1058

Can I get you to go to paragraph 29 of your affidavit, please? The last two sentences you describe the nature of the relationship between ASP and the MUA. No doubt it s a healthy and productive working relationship?‑‑‑I think it s perfectly adequate, yes.

PN1059

No doubt there s conflict from time to time but it s a constructive one?‑‑‑Yes, generally, yes.

PN1060

But nonetheless you would accept, wouldn t you that the MUA can t always speak on behalf of its members, potentially if there s a conflict between members for example?‑‑‑Well, that s a good question. Generally speaking I would expect a conversation that I would be having with the MUA officials to be the position of the members, generally, shall I say. There is always an exception to the rule.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1061

Indeed, that seems to be how the company has approached its communications in relation to the loss of the British Loyalty. You ve spoken to the MUA and treated that as though you were communicating with the employees. Is that a fair assessment?‑‑‑Yes, I think there was there was a large degree of what we said to the officials that we believed would be transferred on to the ship.

PN1062

Suffice to say there was never an agreement amongst yourselves that the MUA sorry, I ll withdraw that. It wouldn t matter if there were in any event. I ll leave that. Paragraph 32, you say, I was involved in assessing employees from the BP vessels for forced redundancy against the criteria developed by Mr Jones. In paragraph 28 you say, Redundancy process for the BP vessels continued throughout April 2015 involving ASP assessing expressions of interest for voluntary redundancy and considering selections for forced redundancies.

PN1063

If the selection criteria for forced redundancies was not created until much later in May, would you accept that your date of April 2015, at least in so far as it s talking about the selection of persons for compulsory redundancy could well be wrong?‑‑‑No. I could ve said that we had just started to discuss that process certainly by then because it was certainly clear well and truly by that stage - certainly, mid-May. I mean it was March that we were getting indications that we were not getting the volunteers that we had hoped to get.

PN1064

I think we might be at cross-purposes. There s no doubt that yourself, Mr Jones and Mr Bray had discussions for want of a better word describe it as a high level of generality about how one might go down the path of forced redundancies?‑‑‑Yes.

PN1065

What I m suggesting to you, though, is the actual criteria that the company would use to select the persons who would be forcibly redundant was not discussed with the MUA for starters?‑‑‑Yes.

PN1066

And, in other words, you re agreeing with the proposition that I m putting that the specific selection criteria were not the subject of discussion with the MUA so far as you re aware?‑‑‑If it certainly was not finalised the the forced redundancies was not finalised until we had gone through this selection criteria. And when I say finalise , a position that we had that we had then taken out to discuss further with the MUA.

PN1067

Right. So, as I understand it, the evidence of the company is there was some high level discussions about how with any of it, how you might go about the selection of persons for the redundancy. The company then creates its own criteria and applies those criteria and then tells the MUA, These are the people we ve selected. ?‑‑‑Yes.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1068

Right. Can I get you to go to paragraph 33 for one moment? You say, At no stage during the process did Ian Bray or any other representative or any employee raise with me a concern that ASP was not consulting. Do you see that?‑‑‑Yes.

PN1069

You were copied into an email that was sent by Mr Bray and dated 2 June of this year. Do you recall that?‑‑‑Not the contents of the email, no.

PN1070

All right. Have you still got Mr Jones s statement there with you?‑‑‑I m not sure what I ve got actually. I have IB1, which it d be just the agreement.

PN1071

That s the agreement?‑‑‑No, I don t have it, I m sorry.

PN1072

All right. I ll see if I can get a clean copy provided to you and again, it s only PJ9 that I needed. So, firstly, the first page of the PJ9 is the front page of the email. You see that s 2 June 2015 to you from Ian Bray. I should say to you and Mr Jones. You recall this email?‑‑‑Yes.

PN1073

You received it?‑‑‑Yes.

PN1074

You read it?‑‑‑Yes.

PN1075

Can I get you to go to page two? See in the middle of the page there s a whole lot of names in the tabular form?‑‑‑Mm'hm.

PN1076

Would you look at the short passage underneath, saying Discussions were held. ?‑‑‑Yes. Discussions were - - -

PN1077

Just read that to yourself?‑‑‑Yes. Okay.

PN1078

Can I get you to come back to paragraph 33 of your affidavit?‑‑‑Yes.

PN1079

I want to suggest, is there anything in that you want to qualify? In light of having read what I just took you to?
---Ian says that there was a disagreement, effectively, shall I say in regards to being consulted about that.

*** TIMOTHY JOHN ASOME XXN MR HOWELL

PN1080

Well, it s plain that he s raising concerns about a lack of consultation around the selection criteria. You d accept that?‑‑‑Okay, yes.

PN1081

Thank you. Yes, nothing further.

PN1082

THE VICE PRESIDENT: Mr Millar?

PN1083

MR MILLAR: Just two very quick matters, your Honour.

RE-EXAMINATION BY MR MILLAR [5.38 PM]

PN1084

MR MILLAR: If you hark back some time, Mr Asome, to early on in your evidence. You were asked some questions concerning the BIMCO agreement and if you can recollect there was a point at which you mentioned to Mr Howell that there was a matter you wanted to address and my friend very kindly pointed out that if we wanted to expand upon that then it was my job to ask you about it, to give you that opportunity. Can you recollect now what it is that you were going to refer to?

PN1085

MR HOWELL: I object. The question in that form clearly has no relevance. The question has to be non-leading and has to be in some way directed towards a relevant question. I ve no idea what he was going to say at that point.

PN1086

THE VICE PRESIDENT: I ll allow the question.

PN1087

MR HOWELL: May it please, your Honour.

PN1088

MR MILLAR: Thank you, your Honour?‑‑‑Within that section of the BIMCO it talks about an item in box 20 where it talks about stating severance costs and item 20 within the BIMCO for the British Loyalty actually refers to reference to the enterprise agreement and says that the severance costs sheet or whatever is outlined in the enterprise agreement.

PN1089

Okay. Thank you. Now, you were also asked some questions at the end of the cross-examination about whether the issue of consultation had been raised with you in the manner in which you describe in your witness statement, whether the content of your witness statement was correct. Had any issue concerning consultation been to your knowledge raised with a Master of the vessel and then escalated up?‑‑‑No.

*** TIMOTHY JOHN ASOME RXN MR MILLAR

PN1090

Thank you, your Honour. Nothing further.

PN1091

THE VICE PRESIDENT: Thank you for your evidence, Mr Asome. You can step down.

<THE WITNESS WITHDREW [5.40 PM]

PN1092

MR MILLAR: Your Honour, that is the case for the respondent. There remains submissions, as I indicated earlier, I would be content to have the written submissions that have been filed constitute the submissions, but to be supplemented by any further submissions that the parties wish to make. I shouldn t have thought it would take terribly long to do so although - - -

PN1093

THE VICE PRESIDENT: Well, Mr Howell might go first. How long do you need, Mr Howell?

PN1094

MR MILLAR: Yes.

PN1095

MR HOWELL: If your Honour will bear with me for one moment? I wouldn t anticipate long but I d better not make a promise I can t keep. It can be done by the end of next week if that assists.

PN1096

THE VICE PRESIDENT: Can t be done by close of business, Wednesday?

PN1097

MR HOWELL: It ll have to be, yes.

PN1098

THE VICE PRESIDENT: And perhaps till Monday the following week, for you, Mr Millar?

PN1099

MR MILLAR: Yes, your Honour, thank you.

PN1100

THE VICE PRESIDENT: And you can have the final word, perhaps by close of business on the Wednesday.

PN1101

MR HOWELL: Yes, your Honour.

PN1102

THE VICE PRESIDENT: It might be the - - -

PN1103

MR HOWELL: 15th.

PN1104

THE VICE PRESIDENT: It might be the 15th.

PN1105

MR MILLAR: Yes, the 15th. Yes.

PN1106

THE VICE PRESIDENT: Yes. Well, if those dates are understood I won t make directions to that effect but I propose to consider the written submissions when they re filed. If I consider that it s necessary to convene a short hearing, even by video to ask any questions I will determine that but otherwise I will look at determining the matter on the basis of the written material.

PN1107

MR MILLAR: Thank you, your Honour.

PN1108

THE VICE PRESIDENT: I ll now adjourn.

PN1109

MR HOWELL: Thank you, your Honour.

ADJOURNED INDEFINITELY [5.43 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

IAN CHRISTOPHER BRAY, AFFIRMED........................................................ PN36

EXAMINATION-IN-CHIEF BY MR HOWELL................................................ PN36

EXHIBIT #H1 WITNESS STATEMENT OF IAN CHRISTOPHER BRAY. PN47

CROSS-EXAMINATION BY MR MILLAR.................................................... PN184

THE WITNESS WITHDREW............................................................................ PN240

IAN CHRISTOPHER BRAY, RECALLED ON FORMER AFFIRMATION PN254

CROSS-EXAMINATION BY MR MILLAR, CONTINUING....................... PN254

RE-EXAMINATION BY MR HOWELL.......................................................... PN488

THE WITNESS WITHDREW............................................................................ PN526

GLENN PHILIP SMART, SWORN................................................................... PN575

EXAMINATION-IN-CHIEF BY MR HOWELL.............................................. PN575

THE WITNESS WITHDREW............................................................................ PN629

GLENN PHILIP SMART, RECALLED ON FORMER OATH.................... PN630

CROSS-EXAMINATION BY MR MILLAR.................................................... PN630

THE WITNESS WITHDREW............................................................................ PN704

PHILIP ALAN JONES, AFFIRMED................................................................. PN711

EXAMINATION-IN-CHIEF BY MR MILLAR............................................... PN711

EXHIBIT #M1 STATEMENT OF PHILIP ALAN JONES DATED 26/06/2015, 53 PARAGRAPHS WITH 10 ATTACHMENTS................................................................................ PN719

CROSS-EXAMINATION BY MR HOWELL................................................... PN740

RE-EXAMINATION BY MR MILLAR............................................................ PN957

THE WITNESS WITHDREW............................................................................ PN963

TIMOTHY JOHN ASOME, SWORN................................................................. PN969

EXAMINATION-IN-CHIEF BY MR MILLAR............................................... PN971

EXHIBIT #M2 WITNESS STATEMENT OF TIMOTHY JOHN ALSOME DATED 26 JUNE 2015................................................................................................................................. PN978

CROSS-EXAMINATION BY MR HOWELL................................................... PN986

RE-EXAMINATION BY MR MILLAR.......................................................... PN1083

THE WITNESS WITHDREW.......................................................................... PN1091