C2015/4570, Transcript of Proceedings [2015] FWCTrans 432 (21 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052129

---

COMMISSIONER CAMBRIDGE

C2015/4570

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

Teekay Shipping (Australia) Pty Ltd

and

Maritime Union of Australia, The

(C2015/4570)

Sydney

2.09 PM, TUESDAY, 7 JULY 2015

Continued from 6/07/2015

PN307

THE COMMISSIONER: Good afternoon. Mr Crawshaw?

PN308

MR CRAWSHAW: Yes, Commissioner. The position is this - I think I gave you his name yesterday. I may not have - the counsellor who has been down in Devonport seeing the individual crew members is named Gavin Kelso. We have arranged with him that he will be available to be rung up in the near future to give future. We haven't been able to get a statement from him. Mr Bolwell, who is instructing me, has spoken to him for a short time this morning, but at that time Mr Kelso had not finished his task down there in terms of seeing all nine of the relevant crew members.

PN309

We have just contacted him and although he is available to speak to us by telephone, unfortunately he was called back on the ship because a crisis emerged of a mental health nature with one of the crew members who, I gather, has been taken off the ship; but Mr Kelso found himself still on the ship and the ship has actually been moved, which is a process that is going to take a couple of hours as he understands it.

PN310

He has found himself on the ship without his notes and his laptop computer, so it's going to make it more difficult to give the evidence; more difficult than it already was. There are two solutions to that - well, there are three ways it can be approached. We can go ahead with the telephone call and ask him to do his best from memory. We could adjourn the matter for two hours, hoping that by that time he was off the ship and got access to his notes. The third thing we could do - and this merges with an application I wanted to make, anyway - is to adjourn it until tomorrow in Devonport.

PN311

When I say it merges with an application I wanted to make, anyway, I wanted to signal this from the outset rather than after Mr Kelso gave his evidence. My learned friend made submissions yesterday suggesting that he is going to take forensic advantage from the fact that the employees are not able to attend the Commission and give evidence or make submissions.

PN312

In those circumstances, independent of the Mr Kelso matter, we would ask you to proceed down to Devonport so that the employees are in a position of being able to give evidence or at least make submissions to you on an individual basis while they have to maintain their place on the ship, for the reasons set out in their email to you. It's a unique situation where the employees just can't be here. This Commission is in a position - I don't know what the Commissioner's commitments are, but, putting commitments aside, the idea of this Commission is that it can travel to work sites when necessary and in those circumstances we ask you to do that.

PN313

Our preference is that you do that and we get the evidence from Mr Kelso tomorrow or whenever you're able to make it directly, but obviously we're in the Commission's hands in relation to any ruling you might make on that. If that application is rejected, then we'll do our best with Mr Kelso this afternoon.

PN314

THE COMMISSIONER: Mr Meehan?

PN315

MR MEEHAN: I oppose the application to adjourn the matter until tomorrow. Any of the employee respondents could have applied to give evidence by phone yesterday. The sorts of issues - and I'm going to come to this point about particularising what the evidence might be, because, as things presently stand, we have no idea what Mr Kelso might say and we have had no notice of what it is that the employees might now want to say tomorrow that they couldn't have said yesterday.

PN316

The Commission would need to balance its consideration of the application with this: that the vessel has been booked to sail at 1 am tomorrow morning in Devonport. Linesmen have been booked. A pilot has been booked - - -

PN317

MR CRAWSHAW: Well, I object to my friend giving evidence from the bar table.

PN318

MR MEEHAN: All right. I can call Mr Whiteside. There is no difficulty with that - or Mr Bateson. They are both here - if that is controversial. Let me put it this way: this is the evidence I anticipate can be given, if that is what's required. Two tugs have been booked. My instructions are that the vessel is in the course of being moved from one berth to another in the port of Devonport. My instructions are that's likely to take about an hour. It's obviously not going to be a precise thing, but that was under way, on my instructions, just before these proceedings commenced when I took those instructions, so that's under way.

PN319

Principally, Commissioner, the matter was stood over yesterday under objection so Mr Kelso could give evidence today. He has been afforded an indulgence in providing that evidence by telephone. It's not suggested that he couldn't have flown to Sydney to give that evidence, whereas the suggestion now is the parties should fly to Devonport to meet his circumstances and that of the crew. They are the reasons I oppose it.

PN320

I don't really need to labour the point, Commissioner, that this is an application of an urgent nature. The Commission knows what my client's case is and that is that there is unprotected industrial action happening and that requires, in my respectful submission, an expeditious hearing balancing questions of procedural fairness which were dealt with yesterday and resulted in the matter being stood over until today.

PN321

MR CRAWSHAW: Mr Kelso couldn't come to Sydney today. He is still carrying out the task. Mr Whiteside said he was doing it on behalf of the company.

PN322

THE COMMISSIONER: Yes, I understand all of that. I am not inclined to grant the application for any further adjournment of the matter. I think I will have to proceed on with what was the third option and that is contacting Mr Kelso and getting his evidence as best we can this afternoon. I think we have got a number for him that we can dial and try and get him on the line now.

PN323

THE ASSOCIATE: Please state your full name and address.

PN324

MR KELSO: My name is Gavin Paul Kelso and I live at (address supplied).

<GAVIN PAUL KELSO, AFFIRMED [2.19 PM]

EXAMINATION-IN-CHIEF BY MR CRAWSHAW [2.20 PM]

PN325

THE COMMISSIONER: Mr Kelso, it is the Commissioner speaking, but you are going to be asked some questions firstly by Mr Crawshaw from the MUA?‑‑‑Yes.

PN326

MR CRAWSHAW: At the risk of repetition, Mr Kelso, can I ask you what is your full name?‑‑‑My full name is Gavin Paul Kelso.

PN327

And your address?‑‑‑(Address supplied).

PN328

Who is your employer?‑‑‑I work for Hunterlink Recovery Services.

PN329

In what position do you work there?‑‑‑I am the manager.

PN330

How long have you held that position?‑‑‑Approximately two months, since my former manager passed away. Prior to that, I was the program coordinator and had been for the last four years.

PN331

Can you tell me what your qualifications are?‑‑‑My qualifications are I have a bachelor degree in social science and I hold a postgraduate certificate in social health. I have numerous diplomas in mental health and community services, and drug and alcohol.

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN332

Are you a member of any professional associations?‑‑‑I'm a member of the Australian Counselling Association.

PN333

You're presently in Devonport?‑‑‑Yes. I'm actually on board the Alexander Spirit at the moment.

PN334

Can you just tell me, before we go to what you've been doing in Devonport previously - - -?‑‑‑Yes.

PN335

What are the present circumstances by which you came to be aboard the Alexander Spirit at the moment?‑‑‑One of the crew had a pretty serious breakdown earlier today and I came on board to assist him, and to provide some intervention and assist him with his breakdown.

PN336

Is that one of the crew that you had already counselled?‑‑‑Yes. I've had numerous - I had a number of phone calls with him and counselled him yesterday.

PN337

I'll come to that in a minute. Can I just ask you this: how long have you been in Devonport?‑‑‑I arrived in Devonport yesterday morning at approximately 9 am, 10 am.

PN338

Have you had the chance to see all the crew that are members of the MUA since then?‑‑‑Yes, I have.

PN339

Is that nine in total?‑‑‑I believe so, yes.

PN340

When did you finish that task?‑‑‑Approximately about an hour and a half ago.

PN341

Did you take notes when you were counselling those crew members?‑‑‑Yes, I did.

PN342

Where are those notes now?‑‑‑Those notes are back with my belongings, back on shore.

PN343

You haven't got access to them at the moment?‑‑‑Not presently, no.

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN344

Do you know when you will get access to them at the moment?‑‑‑I would imagine as soon as it's (1) safe to get off the vessel as we berthed and (2) when I'm no longer needed on board. I still have a few things I need to wrap up here before I hop off.

PN345

Right?‑‑‑So I can't give an exact time, but I'm pretty sure I'll be off at approximately 4 or 5 o'clock this afternoon.

PN346

What is the ship doing at the moment?‑‑‑They have just changed locations from one side of the harbour to the other.

PN347

Do you know what purpose that is for?‑‑‑No. I'm unsure of the reason for that. I think, from what I've heard, it was to - so they could free up the shipping, so that other vessels can get in.

PN348

What I'm going to ask you now is to the best of your memory go through your conversations and observations about the mental health of the employees when you were counselling them?‑‑‑Sure.

PN349

Doing the best you can from memory?‑‑‑Yes. That will be fine.

PN350

First of all, are you in a position to identify the employees?‑‑‑No, I'm not, I'm sorry. I haven't been given permission or their consent to divulge their identifications.

PN351

Okay. I don't know whether you remember them in the sequence in which you saw them. Are you able to remember that?‑‑‑Yes, I am. I've got a pretty good idea of - you know, I've got things written on my calendar, appointment times and whatnot, so I think I'll be fine to - - -

PN352

All right?‑‑‑Yes.

PN353

Well, let's identify them as crew member number 1, 2, 3. Like that?‑‑‑Yes.

PN354

Depending on the time they came in the chronological sequence?‑‑‑Yes.

PN355

Can you tell us about crew member number 1?‑‑‑Yes. He was the first person and I think - - -

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN356

Can I just suggest this to you. If you don't want to identify them - I don't know what a gender neutral term is, but just say "the crew member" rather than he or she, because there are female crew members?‑‑‑Sure. Yes, okay. The crew member that first came to see me, it was indicated that he was under the most distress. That's why they got that crew member in first. From the moment that he first walked in the room, he was very overwhelmed, very stressed, you know. He had recently been crying. He sat down. You know, he engaged very well with me. His demeanour was very low. His mood was very low. He explained what had happened and - - -

PN357

Can you tell us what he said to you?‑‑‑Yes, he said that they were given very short notice on - they were sailing to Singapore and then from Singapore they were - they would no longer have jobs. The jobs were to be given to foreign workers and so he had a lot of mixed feelings about that, you know. He was distraught and distressed about the prospect of his family situation, so in regards to having a mortgage and his wife is pregnant with their first child, so he was quite concerned about that; how he was going to provide and the stress that that was going to cause them. Then he became - you know, when he spoke about a foreign crew coming on board, that seemed to irritate him. He was quite, sort of, angry about that. Then he said that he was upset that it happened so quickly and that he had had no communication off anyone other than two gentlemen that came on board the vessel. I'm not sure what day that was. They were from Teekay - I think they were from Teekay.

PN358

Did he say anything about his ability to work or concentrate or anything of that nature?‑‑‑Yes, he said that. He said that he was currently doing a lot of things to try and stay busy. However, he was really concerned about his ability to perform the job and said that he can't keep his mind on the job. He mentioned that he had had some pretty concerning thoughts about the prospect of where his life was heading. He also said that at certain stages he had thought about suicide, so that was quite sort of concerning. As a result of that, there have been further developments that have happened since then.

PN359

What have they been?‑‑‑This is why I was actually - I came on board today. This same crew member had another breakdown this morning and displayed a range of emotions from anger to being upset, so up and down like that, and so I came on this morning and, you know, he clearly wanted to be off the vessel because he didn't think that he was safe to be on the vessel. I think, more to the point, sailing to Singapore. I've spoken with someone from HR, from the company, and it was agreed that the best course of action was to get him off the vessel and that that's - we're sort of in the middle of trying to organise that now.

PN360

Is he still on the vessel?‑‑‑Yes, he is. He's in a fair state of mind now. However, that has been up and down in the last 24 hours quite severely.

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN361

Okay?‑‑‑I think just being on the vessel itself is, you know - well, not only do I think this, I'm actually stating this, that just being on the vessel itself, he's finding it very hard to be of a positive state of mind to why we're still here, so - - -

PN362

All right. Is there anything else you want to say about that crew member?‑‑‑No, only other than that, you know, he has been very willing in any type of discussions we have had. He has been very open. He has been as honest as he can be and the company have - or Teekay have agreed to do whatever they can to assist to get him off.

PN363

Can I move on to the next crew member you saw. We'll call that crew member number 2?‑‑‑Yes.

PN364

Can you tell us what your interaction with that crew member was?‑‑‑Yes. That crew member was quite distressed, as well. Very distressed. I had spoken to that crew member the night before while I was still up in Newcastle, so I've had a bit of a brief understanding of what they were going through and just, I guess, throughout the - I spoke to that crew member for an hour throughout that time. They broke down repeatedly. Just very emotional and very anxious about the prospect of, you know, what the future held due to having mortgage repayments. This particular person was caring for parents - elderly parents - and also had a teenage son that was dependent. Basically it was around family commitments and financial commitments, and that particular crew member was in their 50s and was quite concerned about the prospect of getting re‑employed, so that I guess added to the anxiousness of her state of mind. They also, you know, have stated that they didn't feel very safe to actually travel to Singapore given that, you know, they were up and down at this particular moment and going to Singapore - you know, how they felt two or three days into the journey with very, sort of, little support there for them. I guess from my point of view, the assessment sort of I made then was, you know, when people are talking about, you know, feeling overwhelmed and, you know, find it very hard to sort of concentrate on their job - I guess fatigue is quite a sort of serious concern around a seafarer's mental wellness, so I guess the fact that this person had divulged that they, you know, felt unsafe throughout that journey, you know, I thought that was of concern, too.

PN365

Did you form any assessment as to the capacity to carry out duties in a safe manner for that crew member?‑‑‑Look, I've seen this person today and they're carrying out their duties fine. I guess in relation to - and this is by their own statement - how they go at two days at sea when they're into sort of a long journey, that's a different story. I have some serious concerns about their wellbeing while doing that journey to Singapore.

PN366

You saw that crew member yesterday and again today?‑‑‑Yes.

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN367

Going back to yesterday, can you tell us about the third crew member you saw?‑‑‑The third crew member, they had quite a big concern for the other crew members. In regard to themselves, this person was quite financially secure and therefore didn't have any of the anxiety that comes with the prospect of losing a job regarding their financial status. They were sort of quite financially comfortable and, you know - initially this person had said that they weren't sleeping very well when they had first heard the news and that was due to not knowing what the future held, and I guess having to think about what the future holds. However, you know, I don't have the same concern as I do with the other two crew members for this person. They were in quite a sort of positive state of mind and, you know, they were more worried about the other crew members than about their own wellbeing, so I had no concerns over this person's mental ability to carry out their job.

PN368

How many other crew members did you see yesterday?‑‑‑There five all‑up yesterday.

PN369

Can we come to the next one, the fourth one you saw?‑‑‑Yes.

PN370

I think there are similar details as to what you've done with the others about - - -?‑‑‑Yes. The fourth crew member was very similar to the third crew member. They had been sort of quite up and down in regard to, you know, the emotions that they were sort of going through. Sort of bouncing in between, feeling I guess a little bit upset with the way it was handled; lack of communication. That's what this person had stated. However, you know, they were in a financially secure position, as well, and they felt okay. They were again just concerned for the other crew members, of their status.

PN371

We come to the fifth one, the last one, you saw yesterday?‑‑‑That was the fifth person then, I think.

PN372

I think that was the fourth?‑‑‑Fourth? Sorry, my recollection and what I've got in the calendar here, I only saw four yesterday.

PN373

Okay?‑‑‑Yes.

PN374

So you saw the fifth one today. Is that right?‑‑‑Yes, first thing this morning.

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN375

What were your observations and insights there?‑‑‑Look, this person had general concern over his financial status. He was quite worried about that and, you know, I guess there was a level of anxiety this person was experiencing due to not knowing what their future financial status or employment is going to be. However, this person had quite a bit of experience in the industry and had experienced things like this before. He was - this person was quite emotionally sound and I had no concerns about him being able to experience - carry out his job. I think the anxiety that he was experiencing was to be expected and, you know, my assessment regarding his sleep and his eating habits, and able to debrief, that was all above board.

PN376

You saw the sixth one after him or her?‑‑‑Yes. Again, this person had, you know - I think it's fair to say that everyone has had pretty poor sleeping habits, especially in the first few days. This person certainly reiterated that, that his sleep was a bit all over the place and waking up throughout the night concerned and worried. However, this person has become quite sort of stable regarding the future prospects due to this person being quite financially secure. Again, this person was quite concerned about the wellbeing of everyone else and was quite sort of proactive in trying to help other people. I certainly got the impression from this person that, you know - and as well with some other people that, you know, they were all trying to look after each other and this particular person divulged some information which I've pretty much talked about regarding other people, and his concerns there. He was more concerned about, you know, everyone there. Like a family, they pretty much called themselves.

PN377

Now, can you tell us about the next crew member. This would be the seventh crew member you saw?‑‑‑Yes. The seventh crew member I saw today - it was just before lunch. That was the last person before I came on board. This person was very stressed, as well, and quite agitated when he was talking. He was sort of bouncing from, you know, being emotionally upset to angry in regard to what has happened. He had a mortgage. He took out a mortgage eight months ago and he also has - he has got one young child, I think, of about five months. Just under sort of a large amount of stress with, you know, how he is going to provide for his family. This particular crew member stated he was concerned about his ability to perform his job properly and the prospect of having no support once they were sailing to Singapore. Like I said, he was highly emotional and he was quite upset, as well, about the lack of communication they had received. I guess, you know, the interventions we did there were around a bit of anger management and stress management, yes.

PN378

You said that was the last person you saw before coming on the ship. Have you seen two other crew members on the ship, have you?‑‑‑I spoke to another person when I first got on board and I've actually had a couple of talks with that particular person - particular crew member. He was much the same as a couple of the others. He was very stressed and upset about what has happened. However, in a good state of mind to do his job properly. The other person I saw was the first person in question who I've spent a considerable amount of time with.

*** GAVIN PAUL KELSO XN MR CRAWSHAW

PN379

On my account, that's only eight you have seen then?‑‑‑Yes, that would be correct.

PN380

So is there one of the crew members that you're yet to see?‑‑‑If there are nine, yes. I'm actually - I haven't got - no‑one has given me a count of how many people I am seeing. It has been - I guess people have just been more or less lining up and being ferried to me. I've been told that there are still some engineers and some officers that would like to speak to me. I guess that will happen this afternoon.

PN381

That is all the questions I have for you, Mr Kelso?‑‑‑Yes.

PN382

THE COMMISSIONER: Mr Meehan, do you have any cross‑examination of Mr Kelso?

PN383

MR MEEHAN: I do. Thank you, Commissioner.

CROSS-EXAMINATION BY MR MEEHAN [2.47 PM]

PN384

MR MEEHAN: Mr Kelso, my name is Simon Meehan. I am counsel for Teekay Shipping (Australia)?‑‑‑Yes.

PN385

I'd like to ask you some questions?‑‑‑Sure, Mr Meehan.

PN386

Do you know a Mr Steve Bertram?‑‑‑Yes, I do. I've been in contact with Steve.

PN387

You contacted him, did you not, last night via email just before 10 pm?‑‑‑Yes.

PN388

And the purpose of that email, am I right, was to update Mr Bertram on what had taken place by way of your counselling of those employees you had met up until about 8 o'clock yesterday?‑‑‑It was a very brief overview of that. The intention of the email was to let Steve know that I was actually there, what type of assistance I was providing and that - yes, pretty much letting him know that, you know, I'm there and if, you know, there's anything that I need to know, you know, it was - yes.

PN389

Ordinarily, if you were here, I would show you a copy of the email. I'm going to read it out to you?‑‑‑Yes.

PN390

Before I do, might I hand a copy to the Commission?

*** GAVIN PAUL KELSO XXN MR MEEHAN

PN391

THE COMMISSIONER: Yes.

PN392

MR MEEHAN: The purpose for me reading it out is for you to confirm that it is your email. It says:

PN393

Hi Steve, I saw employees back‑to‑back all afternoon until about 2000 hours. I will be doing the same tomorrow morning. As you could expect, their main issues are regarding the prospect of losing their job. Some are considerably more affected than others. My main focus has been on dealing with the anxiety and disgruntlement. The real challenge here is on shifting their individual attitude. In other words, "Do I want to be part of the problem or part of the solution?"

PN394

After completing the individual sessions, I recommend that I address the crew as a group on board to discuss some positive based solutions on moving forward. Also on how to look after and support each other. I anticipate that I will have seen the whole crew, including the master, by tomorrow evening. After such time or during the course of the day, I'm happy to discuss whatever it is you need from me verbally or by way of report regarding assessments, observations and outcomes. Regards, Gav.

PN395

?‑‑‑Sure.

PN396

Does that, to your recollection, record what you said in your email?‑‑‑Yes, absolutely.

PN397

I tender the email, Commissioner.

PN398

THE COMMISSIONER: Is there any objection?

PN399

MR CRAWSHAW: No.

PN400

THE COMMISSIONER: The document is tendered and admitted without objection. This becomes exhibit 5. Exhibit 5 is described as a copy of email, dated 6 July 2015, from Kelso to Bertram.

EXHIBIT #5 COPY OF EMAIL FROM MR KELSO TO MR BERTRAM DATED 06/07/2015

*** GAVIN PAUL KELSO XXN MR MEEHAN

PN401

MR MEEHAN: That email, am I right, covered the four crew members about who you counselled yesterday and about whom you have given evidence today?‑‑‑Yes.

PN402

It doesn't cover the crew members who you met today?‑‑‑No.

PN403

I just want to backtrack on your qualifications. I think you said you had a bachelor in social science?‑‑‑Yes.

PN404

And graduate certificates in social health. Is that right?‑‑‑Yes.

PN405

And mental health?‑‑‑Yes.

PN406

Is that a certificate in mental health?‑‑‑A diploma.

PN407

A diploma?‑‑‑Yes.

PN408

Diplomas in community services and drug and alcohol. Is it counselling?‑‑‑Yes.

PN409

You're not a psychologist?‑‑‑No.

PN410

You're not a psychiatrist?‑‑‑No.

PN411

Your principal professional practice is as a counsellor. Is that right?‑‑‑As in my title, what I do or our business?

PN412

Essentially what your profession involves is principally counselling employees?‑‑‑Yes. Providing support services, I think would be a better terminology. It's not always about counselling. I mean, that's one aspect of what we do, but - yes, support services, I think would be a broader range.

PN413

All right?‑‑‑Counselling is certainly one of those things.

PN414

When you gave evidence about crew member number 1 - - -?‑‑‑Yes.

PN415

- - - I think your evidence was he clearly wanted to be off the vessel?‑‑‑Yes.

*** GAVIN PAUL KELSO XXN MR MEEHAN

PN416

And you spoke to someone from the company's human resources department?‑‑‑Yes.

PN417

Was that Mr Bertram?‑‑‑Yes.

PN418

I think you said he agreed to get him off the vessel?‑‑‑Yes.

PN419

Your understanding, am I right, is that crew member number 1 will be, upon his request, removed from the vessel?‑‑‑Yes.

PN420

Leaving aside crew member number 1, did any of the other crew members express any difficulty in going about their tasks for the purpose of moving the ship between the berths in Devonport?‑‑‑Can you repeat that again, please?

PN421

Did any of the other crew members express any concern to you about carrying out the tasks they needed to do to move the vessel from the berths within Devonport?‑‑‑No, sorry.

PN422

Did any of the crew members, leaving aside crew member number 1, actually say to you that they didn't believe they could carry out any of their tasks?‑‑‑No, they didn't say that. They said that they had concerns about keeping their mind on the job.

PN423

You gave some evidence that a number of crew members had various degrees of anxiety relating to not knowing what their future holds?‑‑‑Yes.

PN424

Perhaps I'll go back a step. Mr Kelso, have you occasionally had experience in counselling employees in other industries where there is a possibility or indeed probability of job losses?‑‑‑Yes.

PN425

What I want to know is are the observations you've made about some of the crew members in terms of their anxiety about their future, observations that it's common you find amongst any employees who are facing a prospect of losing one's job?‑‑‑There definitely are similar traits, yes.

PN426

Can I just ask in terms of the order in which employees came to meet you and who actually came to meet you from amongst the ratings, how was that organised?‑‑‑For the transport or - - -

*** GAVIN PAUL KELSO XXN MR MEEHAN

PN427

No, I put that rather badly. I think we've agreed that there were eight crew members you have counselled from amongst the ratings?‑‑‑Yes.

PN428

I don't think it's contentious that there are nine ratings that are affected. What I want to know is how was it that the ratings knew to come and see you, if they wanted to see you?‑‑‑To my knowledge, they had requested to come and see me.

PN429

To your knowledge, is there anyone amongst the ratings who has requested to see you but has not yet been availed of that opportunity?‑‑‑No.

PN430

Nothing further, Commissioner.

PN431

THE COMMISSIONER: Are there any further questions from you, Mr Crawshaw?

RE-EXAMINATION BY MR CRAWSHAW [2.58 PM]

PN432

MR CRAWSHAW: Just one further question from me, Mr Kelso. When did you find out that the vessel was going to be moving between berths in Devonport?‑‑‑When I was actually on board.

PN433

So that's today?‑‑‑Yes.

PN434

At about midday?‑‑‑Yes.

PN435

Thank you.

PN436

THE COMMISSIONER: This is the Commissioner, Mr Kelso. Thank you very much for giving your evidence in this sort of rather difficult fashion. You are released and discharged. We are going to hang up the telephone, but can I just express my appreciation for the evidence that you have given and the difficulty we have put you to. So, thank you very much for doing that?‑‑‑Thank you, Commissioner. My pleasure.

<THE WITNESS WITHDREW [2.59 PM]

PN437

THE COMMISSIONER: Mr Crawshaw?

*** GAVIN PAUL KELSO RXN MR CRAWSHAW

PN438

MR CRAWSHAW: Given the refusal of my earlier application about going to Devonport, that is all the evidence we have.

PN439

THE COMMISSIONER: Thank you. Do the parties want to make some oral submissions now?

PN440

MR MEEHAN: If it pleases the Commission.

PN441

THE COMMISSIONER: Yes, Mr Meehan.

PN442

MR MEEHAN: Commissioner, we have seen that the grounds upon which the application is advanced are that industrial action is happening and it is being organised, and it is industrial action that is not protected industrial action. The industrial action, it is submitted, involves a ban upon the - or restriction on the performance of work by employees who are members of the crew on the vessel and who are employed as ratings and the caterer and cook, which engages section 19(1)(b) of the Act. Also a refusal to perform work, which engages section 19(1)(c) of the Act.

PN443

I want to come to the evidence which makes good those propositions. May I first indicate that if the Commission concludes that there is industrial action happening, it's plain in my submission that it would not be and is not protected industrial action because it is industrial action that is occurring during the nominal period of the relevant enterprise agreement; therefore, could not meet the common requirements for protection which is set out in section 413(6) of the Act, read together with section 417 of the Act.

PN444

Can I move directly to the evidence. Mr Whiteside, of course, gave evidence. Teekay (Australia) is the technical manager of the vessel, the Alexander Spirit, and the employer of the crew on the vessel. Teekay Shipping (Australia) is not the owner of the vessel. It is owned by a related corporation of Teekay; namely, Alexander Spirit LLC. What is important is that Teekay does not have commercial control of the vessel, in that the Alexander Spirit is the subject of a charter party pursuant to which the vessel is time chartered to Caltex Australia Petroleum Pty Ltd. That time charter runs until 2019.

PN445

The Commission will see that in annexure SW3, which is an email from Mr Parmeter, the managing director of Teekay Shipping (Australia), to the master of the vessel. The employees employed by Teekay as ratings and the caterer and cook are covered by, as I have said, an in term enterprise agreement; namely Teekay Shipping (Australia) Pty Ltd Seagoing Ratings Enterprise Agreement 2011, the nominal expiry date of which is 7 October 2015. As I have earlier submitted, the statutory implication of that agreement being in term is that any industrial action that is found to be happening, threatened, impending or probable would not be protected industrial action.

PN446

The vessel berthed in Devonport at 8 pm last Wednesday, 1 July. It discharged a cargo of petroleum. The direction for the vessel issued by the master on 25 June 2015 was to proceed to Singapore for hull cleaning after completion of discharge at Devonport. The Commission will see that direction in SW1, which is an email from Mr Strickland. On Wednesday, 1 July, at 12 20, there was an email request by the crew of the vessel to David Parmeter. The Commission will see in SW2 - and might I invite the Commission to turn to that - the email entitled "Request from crew on Alexander Spirit to David Parmeter":

PN447

Hi Captain, Would you please forward this request to David Parmeter: Good evening, David. We, the crew aboard the Alexander, would like to request out of courtesy that confirmation be given to us in writing that we will be returning from Singapore after the hull clean with the vessel and resuming our Australian trade. Would you please provide this confirmation by 9 am tomorrow morning prior to our expected departure, 2 July 2015. Would you please also forward this confirmation to Paul Garrett, our Sydney branch official.

PN448

May I just pause there to submit that the crew knew and understood then that vessel was proceeding to Singapore for the hull cleaning. There was no suggestion that there was any concern held by any member of the crew for their health or safety by reason of the requirement to sail to Singapore. On the morning of Thursday, 2 July, Mr Parmeter sent an email to the master with a request that the message contained in that be passed on to the crew. The Commission will see that in SW3.

PN449

Can I just pause there to indicate that Mr Parameter there sought to point out that the vessel is at all times under the commercial control of Caltex and, as I indicated earlier, he mentioned there that the vessel was on a time charter to Caltex. It runs until 2019. Directly engaging on the email from the crew, he says in the penultimate sentence:

PN450

Teekay is in discussions with Caltex to establish the future plans for the vessel after the hull clean. As soon as we have a definite answer, we will communicate that to the sea staff on the vessel and the unions.

PN451

The vessel was then scheduled to sale to Singapore last Thursday, 2 July, at 10 am. That was to be a 13‑day journey and the Commission sees that in paragraph 11 of Mr Whiteside's statement.

PN452

Then, might I invite the Commission to turn to SW4. This is an important communication. It is communication made by email just prior to the scheduled sailing time for Singapore, subject heading "Alexander Spirit, MUA crew refusing to sail." Now, this email is from the master of the vessel to Grant Hardy from Teekay and Mr Bateson from Teekay:

PN453

Good day, Grant. As spoken earlier at 9.25 local time, the MUA delegate Andrew Poynter and the CIR

PN454

I pause there, that would be chief integrated rating,

PN455

Stuart King, approached me and said "As there is no definitive answer from Teekay regarding the fate of the ship, they are refusing to sail." I have passed on the email that Teekay, David Parmeter, had sent to me to them. I asked for the refusal to sail in an email from them at this time. The delegate a few minutes later, 9.35 am local time, informed me that he was not prepared to do this at the present time and that he was verbally informing me of their refusal to sail the ship.

PN456

In my submission, that is proof of refusal by MUA members to sail the vessel. Importantly, it is also proof of the reason being advanced by the MUA through its delegate, Mr Poynter; namely, there is no definitive answer from Teekay regarding the fate of the ship.

PN457

On 2 July, Caltex Australia wrote to Teekay Corporation; Teekay Corporation being a party to the charter party which I've earlier referred to. That letter is behind SW6. That letter is significant in that it reveals Caltex invoking what's described therein as rider clause 3.22 of the charter party to request a change to the crewing nationality matrix on the vessel, specifically Caltex request that the current crew of the Alexander Spirit be replaced by an international crew.

PN458

Then there is a rationale set out, which I don't need to trouble the Commission with, and in the third paragraph Caltex states that it has carefully assessed a number of options with regard to the future of the vessel, the remainder of the charter party, and determined that the most cost-effective option is to deploy the Alexander Spirit on international routes, and then passing over the parenthesised wording "with an international crew". That records a decision by Caltex in reliance on the terms of the charter party to which the applicant here is not a party.

PN459

THE COMMISSIONER: Sorry to interrupt you, but if the applicant complies with that request in accordance with the basis for the request, is it likely to be in breach of section 351 of the Act in relation to discrimination on the basis of national extraction?

PN460

MR MEEHAN: Well, with great respect. I am not going to answer that, Commissioner. I am not going to advance - - -

PN461

THE COMMISSIONER: Sorry to put you on the spot.

PN462

MR MEEHAN: Well, it does in a way that I don't have instructions to answer it and it's not - - -

PN463

THE COMMISSIONER: It's not relevant to this application.

PN464

MR MEEHAN: - - -in the interests of my client that I do. I mean no disrespect by that, of course.

PN465

Now, on 2 July, Commissioner, on the same day as this letter issued, members of the crew had been served with Teekay's section 418 application, so the application the subject of these proceedings. The Commission may infer that the crew are capable of reading and understanding what Teekay was stating in it, including that industrial action was being organised by the MUA and taken by employees in the form of refusal to perform work as directed, so that the Alexander Spirit could sail from Devonport.

PN466

Now, there is no evidence of any communication by any crew member to Teekay that they held a concern at that time - I'm only focusing at the moment on 2 July - about an imminent risk to their health or safety, which was the reason for not working as directed. Not a skerrick of evidence to that effect.

PN467

On the afternoon of 2 July, Mr Parmeter was copied into an email from a Mr Richie from Caltex to Edie Robinson from Teekay Corporation and one sees that in SW6. It's the email covering the letter to which I've taken the Commission to, and it appears are the bottom of the first page of SW4, at 3.24 pm on Thursday, 2 July, copied to David Parmeter:

PN468

Dear Edie

PN469

and the heading is there set out,

PN470

In accordance with rider clause 3.22 of the charter party for the Alexander Spirit, please find attached a request to change the crewing nationality matrix of the Alexander Spirit. Can you please confirm receipt of this email?

PN471

So Mr Parmeter has, by then, become aware of the decision of Caltex. Members of the crew, that ratings, were provided with a copy of the Caltex letter on the same day. The Commission knows that from paragraph 20 of Mr Whiteside. That evening on 2 July, the letter was read out to the crew and there was consultation about its contents, which Mr Whiteside accepted in cross-examination had come as a shock.

PN472

Mr Ian Bray and Mr Campbell from the MUA were in attendance at that meeting and the MUA had also been served with the section 418 application. They too must have known about Teekay's contentions about the alleged industrial action then taking place.

PN473

Now, in the face of having come to learn of the contents of Caltex's letter, having had a meeting at which it was read out to the crew and consultation about it, there is no evidence of any crew member having raised any concerns of any imminent risk to their health or safety on 2 July, such as to motivate a decision not to work as required.

PN474

Moving forward to last Friday, 3 July, Mr Whiteside and Mr Bateson, the Teekay fleet director attended a meeting with the crew and Mr Bray and Mr Campbell, both from the MUA. At that meeting, the master was present and said to the crew, "Are you prepared to sail the vessel today?" The ratings in a collective way said, "No" and that is evidenced in paragraph 26 of Mr Whiteside.

PN475

I pause there to say that is proof, in my submission, of a ban and it's the second refusal to sail the vessel. Again, I am labouring the point, no evidence of any suggestion that the reason for any rating being unprepared to sail was a concern held by any one of them about an imminent risk to health and safety.

PN476

Over the weekend, the evidence reveals that Mr Bray, Mr Campbell and Mr Gary Keane, the MUA's New South Wales branch secretary attended the vessel and spoke to members. They also attended consultation meetings. There is, of course, also evidence of the peaceful protest at the front security gate of the port. So MUA officials were in attendance; it was what was happening on the vessel was a matter of obvious significance and importance and so much so that there was also a protest at the front security gate.

PN477

Paragraph 29 of Mr Whiteside, he gives evidence about what he was able to observe on the MUA web site on 4 July and he attaches downloads. Can I take the Commission to annexure SW10, please. The Commission will observe - it's in very small print towards the top under the subject heading - the words "Posted by Ashleigh Telford on 4 July 2015". So that's posted on Saturday.

PN478

I won't read the entirety of the article, but at about point 8 on the page would the Commission observe these words:

PN479

The crew of the Alexander Spirit has refused to sail the vessel.

PN480

In my respectful submission, that is an admission and the Commission should evaluate it as such. Now, on 4 July the MUA wrote to Mr Whiteside with a series of questions and that letter is in evidence as exhibit 3. The Commission will see that the letter to Mr Whiteside, signed by Ian Bray, assistant national secretary of the Maritime Union of Australia and there is set out some 32 question as on pages 2 and 3. Then in the covering letter, would the Commission note the contention there set out that:

PN481

The questions asked by crew members predominantly remained unanswered. Accordingly, those questions are again submitted and are attached to this correspondence. We request that they be responded to in writing as soon as possible.

PN482

That letter becomes of significance for reasons that I will come to in the chronology. And again, there's no suggestion in that letter of any concerns held by any employees about imminent risk to health and safety.

PN483

Chronologically, we have reached Saturday, 4 July. The vessel is rescheduled then to depart Devonport at 3 pm approximately on Sunday, 5 July. The Commission will find that at paragraph 30 of Mr Whiteside. A meeting occurred at 1 pm on the Sunday with the Chief Integrated Rating and the MUA delegate, Mr Poynter, as well as Mr Keane and Mr Campbell. That meeting is dealt with in paragraph 31 of Mr Whiteside. There for the first time there's a suggestion that members were in a fragile condition who may react badly. I am paraphrasing, the Commission can see for itself what is set out in SW12.

PN484

Now, would the Commission note the email on the Sunday, SW12, at shortly before 2 pm, at just over an hour before the scheduled sail time, there is no suggestion in that email that any crew members had by that time reviewed or changed the stance that they had communicated to the company earlier, which had indicated on both Thursday and Friday that they would not sail the vessel. There is nothing to suggest that they were prepared at 3 o'clock on Sunday to sail the vessel.

PN485

No indication at all that there stands had changed, notwithstanding the meeting at 1 o'clock, and that is apparent from that email and importantly the email in SW13, which is at 2.09 pm on Sunday the 5th. This is what engages on that letter. The Commission will see the letter from the master - an email, rather, from the master to Mr Whiteside and Mr Bateson:

PN486

Good day again, Steve. At 1345 local time today the Chief Integrated Rating said they would like to talk to me. I requested him to come on the bridge. Gary Keane and Jason Campbell only saw me on the bridge and informed me that "under clause 12 of the EBA, on behalf of the MUA crew, the representatives would require answers to the questions put to the company in writing on Saturday 4/7 regarding the future of employment of the crew, and once they have the answers, and a reasonable time to consider them, they will further advise on behalf of the crew." This is a written script of what was said. I await your instructions/advice.

PN487

And that's from the master.

PN488

Now, again, this is written less than an hour before the scheduled sailing time on Sunday and, in my respectful submission, it's a plain indication that there is no intention to sail the vessel at 3 o'clock or at all until such time as answers have been given to the letter and a reasonable time after that has been taken to consider those answers.

PN489

Now, in my submission, that communication is properly to be characterised as the MUA stating that the refusal to sail would not be revisited until a reasonable time after answers to the letter had been provided. The Commission knows that the vessel did not sail as scheduled on Sunday, and the Commission knows the vessel remains in the port at Devonport.

PN490

In my submission, it is plain that there has been a refusal to perform work by members of the crew who I named in the schedule to the application and the schedule to the draft order who are members or are eligible to members of the MUA. I've addressed the sections in the definition of "industrial action" and I want to come, in a moment, to perhaps anticipating what my learned friend might say about "imminent risk to safety", although I will want to reply to what might be said.

PN491

Before I come to that, in my respectful submission, there is evidence based upon which the Commission could conclude and should conclude that the MUA has organised the industrial action. We have seen the evidence about Mr Poynter, the delegate, who was an officer of the union and in that capacity an agent of the union. You have the evidence about Mr Bray and Mr Campbell's involvement in meetings, actively engaging with the crew in full knowledge that this application was on foot in which it was alleged by the company that industrial action was happening in the form of a refusal to sail the vessel.

PN492

Not a hint of evidence that those officials or the delegate made any attempt to dissuade members of the crew from the refusal. Indeed, the probable inference is that they were actively organising by way of coordinating and supporting the employees in that process. As I have taken the Commission directly to, there is evidence of the email communication that was advanced on Sunday by the MUA.

PN493

Now, we come then to the carve-out, as it were, in the definition of "industrial action" in section 19. That appears in subsection (2) and, again, I am simply trying to anticipate at this stage, but I will want to reply to what's said, anticipating that there might be a submission about subsection (2)(c). That carve-out in terms applies to "action by an employee if the action was based on a reasonable concern of the employee" - I emphasise that, "about an imminent risk to his or her health or safety." I pause there to say not the health of safety of another member in the crew, the employee's own concern about his or her safety. And it has to be a concern about an imminent risk; that is, in my respectful submission, a risk that is impending; that is, a risk that could materialise in a very short time frame and also a concern that is reasonable.

PN494

Now, we've heard evidence today of an agreement that crew member number 1 will be removed from the crew. I will say nothing more at this stage about that issue, but in my submission, the evidence that the Commission has heard from Mr Kelso does not come anywhere near proving the matters that would have to be found by this commission to engage that carve-out; namely, that any one of them have a concern about an imminent risk to his or her health or safety. There is no evidence that would engage subsection (2)(c)(ii). So I'm principally just engaging on the question about evidence of reasonable concern here.

PN495

As Mr Kelso stated in his evidence, the types of evaluations he was making about - or the observations, rather, he was making some of the anxiety held by members of the crew was anxiety of a nature that one, indeed he, might find amongst employees in circumstances where they are confronting a possibility or probability of job loss. That doesn't go near enough to satisfy the statutory language of "imminent risk to one's health or safety".

PN496

One can well understand employees would hold anxiety about their future, including about their financial security and their job tenure, but that is not what this subsection is intended to or does, in its language, engage upon. Indeed, Mr Kelso gave evidence that none of the employees had said to him or express concern that they would be incapable of carrying out their tasks.

PN497

Can I lastly in chief come to the formulation of the orders that are sought. There is a draft order attached to the application, Commissioner. May I say this, would the Commission note in paragraph 3 of the draft order there is a definition of industrial action and that definition by design excludes, in conformity with the statutory language action by an employee - and one will see this in subparagraph (3)(f), action by an employee if it was based on that employee's reasonable concern about an imminent risk, et cetera.

PN498

So the order, if granted, would not adversely affect an employee who, as fact, had engaged in action because of a reasonably held concern about imminent risk. So that even if, contrary to my submissions, the Commission came to the view that some but not all members of the crew held reasonable concerns about imminent risk, that would not stand in the way or orders issuing.

PN499

Indeed, in my respectful submission, unless the MUA were able to persuade the Commission that all of the integrated ratings held reasonable concerns, such that they were not otherwise engaged in the industrial action, the Commission is compelled to make an order stopping the industrial action.

PN500

Can I indicate in paragraph 5, there have been some times and dates left blank. Perhaps if the Commission - I can address that now, but if the Commission - perhaps I can address that in reply if the Commission wants me to address that, but I can say that if an order issued today, as we respectfully seek, the company would move with all expedition to serve that order in accordance with the regime contemplated in the draft order.

PN501

So we would seek, in those orders, today's date and there would need to be a time fixed and in my respectful submission, the order should come into effect at the conclusion of today's hearing. May it please the Commission.

PN502

THE COMMISSIONER: Thank you. Mr Crawshaw?

PN503

MR CRAWSHAW: Thank you, Commissioner. The submissions I propose to make to you are firstly that there is no industrial action happening at this point in time and that s the test. My learned friend has premised the orders on that proposition.

PN504

Secondly, that if section 19 is otherwise satisfied that the exception in section 19 subsection (2)(c) relating to health and safety considerations applies. Thirdly, that there is no evidence of organisation by the MUA officers, delegates, employees or agents.

PN505

I d like to come firstly to the question of industrial action. As I said the case from the beginning has been about whether industrial action has happened. If the case fails on that, it fails completely. No orders can be given. The position is this, that there s been essentially three dates on which my learned friend bases the case for the applicant.

PN506

Firstly, on 2 July through SW4 there s evidence of a refusal to work, hearsay evidence, but we accept evidence of a refusal to work by the employees, the crew members who were MUA members as told to Mr Hardy by Mr Maneckshana, having been told that by Mr Poynter and Mr Keane.

PN507

But the evidence is this, as there is no definitive answer from Teekay regarding the fate of the ship, they are refusing to say. That refusal only lasts as long as there was no definitive answer from Teekay regarding the fate of the ship. In other words, it only lasted till that afternoon, or maybe it lasted until, it s not quite clear when the letter that was SW6, namely a letter from Caltex, was given to the employees.

PN508

At least by the evening of 2 July, Mr Whiteside at paragraph 21 gave evidence that he met with the whole crew and told them the fate of the ship. So that refusal on 2 July only lasted as long as the conditions set out in the refusal lasted, namely until the fate of the ship was known.

PN509

Now, we accept that on 3 July, there s evidence of a further refusal. So what I m saying is - you can forget about the SW4, it s past history. You re not looking at whether industrial action has happened, you re looking at whether industrial action is happening.

PN510

We come to 3 July and at paragraph 26 Mr Whiteside says on - this is the second lot of evidence regarding a refusal, says that Mr Maneckshana in the course of talking to the crew said are you prepared to sail the vessel today, and was answered in the negative. I m not going to take a point about that not technically being a direction to the employees, merely being a question. Let s accept that it was a direction. The question being asked only related to that day. Didn t relate to any subsequent days.

PN511

Once again that second bit of evidence of a refusal to sail and industrial action only lasted the day. It s ancient history. It finished at the end of 3 July. Now, until I asked in cross-examination, and this is probably not doing the best, asking questions in cross-examination you don t know the answer of. There was no other evidence of a refusal to sail.

PN512

But I asked Mr Whiteside whether there were any other similar conversations to that held on 3 July, on any subsequent days, he was only able to give evidence of one day and that was on 5 July where he d been told there was a similar conversation took place, namely the question was asked, are you prepared to sail the vessel today, and there was a refusal by the crew. He didn t know anything more about it than that.

PN513

Once again, that request was only for 5 July. Any industrial action that you can infer from that, only lasts as long as the question, namely today. So that s ancient history. You don t have any evidence of any other requests to sail. After 5 July you don t have any evidence of any other industrial action that has occurred subsequent to 5 July. You don t have any evidence that any industrial action has happened by way of a refusal to sail, or the more far-fetched suggestion that there s some ban.

PN514

The ban, the so called ban, which we didn t hear much about seems to be associated with trying to fit the MUA up with organising industrial action. But there s no evidence of a ban at all, and I ll come at the end to the alternative submission about whether there s any organisation by the MUA.

PN515

In our submission, you can dismiss this case on the first ground, namely there s no industrial action happening. If that s the argument. That s the argument that must fail.

PN516

As I said at the outset, assuming contrary to our submission that section 19 subsection (1) of the Fair Work Act is satisfied in terms of the definition of industrial action being satisfied as happening at this point in time. Ironically, as - and I only just thought about this. As we went into the hearing today, the time at which you are all considering it, although you may consider it - I m not necessarily saying you have to hand down your decision today, but at the time you re considering it, the crew s sailing the ship across what sounds like - long time since I ve been there, but across Devonport Harbour. So how can industrial action be happening? They re working as directed at this point in time.

PN517

They may have crossed the harbour by now, it wasn t clear from the evidence of Mr Kelso. But there s no evidence of industrial action happening. Sorry, my alternative submission about section 19(2) subsection(c), in relation to that section, perhaps I should firstly just give you an authority that deals with that section.

PN518

This is Federal Court authority on the matter of Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092, a decision by Justice Gilmour, admittedly in a case involving an interlocutory injunction. I won t read it all to you, but this case was dealing with building industrial action. You can see that at paragraphs 98 onwards, but it has a similar exclusion to its definition to that exclusion relating to health and safety in section 19 of the Act.

PN519

The law relating to reasonable concern and imminent is set out at paragraphs 109 through to 137. The exception failed in that case, but I felt a bias to provide you with some authority on the topic. I ll leave the Commission, given the time, to read that for yourself.

PN520

What we say in relation to that exception is that the evidence of Mr Kelso that you ve heard today wasn t the first evidence you heard on this topic. Mr Whiteside, in his annexures, SW12 and SW13 took you to the evidence that on 5 July, the MUA representatives had informed Mr Maneckshana that members were in a fragile condition. On hearing anything not conducive to the present circumstances, may react badly and there have been suicides in the past.

PN521

That s evidence led by the respondent and my learned friend, having led that evidence, in SW12 and SW13 comes along today and says well there s no evidence before then of health and safety. Well that might be right, but I come back to this point that what s being considered, is not whether industrial action has happened in the past, but whether industrial action is happening now.

PN522

What s relevant, that in a sense, is ancient history too because what is relevant is the position in relation to any concern about health and safety that pertains at this point in time, assuming that there s otherwise industrial action happening in accordance with section 19. In other words, we ve got to address the situation now, not ancient history. So my learned friend going to 5 July is going to ancient history, but he s further going to ancient history by saying well, it wasn t raised before then.

PN523

The fact of the matter is, that Mr Kelso s evidence is the best evidence you have in relation to the mental state of these employees. There hasn t been time to get a psychologist or a psychiatrist to do a thorough assessment, given the imperative in the Act that this case be heard as soon as practicable.

PN524

His is the best evidence and his evidence is not to be criticised in those circumstances for the lack of expertise. His evidence demonstrates clearly, we say, the crew member numbers one, two and seven, have stated that they can t properly carry out their job. I accept that the evidence in relation to the other employees doesn t breach the standard where the section 19(2)(c) would be satisfied. Certainly in relation to three crew members, it is satisfied and indeed, in relation to one of them, apparently the company s agreed that - and we don t know who it is, that employee should be taken off the ship today.

PN525

Mr Meehan relied on some evidence he got about not carrying out tasks, but he forgot to tell you what was the other part of Mr Kelso s response to that question, namely that crew members were concerned about keeping their mind on the job. Now that raises a health and safety issue. The crew members haven t got their mind on the job, there s clearly an imminent health and safety risk.

PN526

In those circumstances, should section 19 be otherwise satisfied, we say the exception applies to three of the crew members. We don t know which crew members, because they haven t been identified which means effectively that you can t make the orders against any of the employees because any of them could fall into that category.

PN527

My learned friend seeks to overcome the difficulty provided by this evidence, by saying that the order, if granted, has a health and safety exception. But that s not the point. That s true, but before you can grant the orders, there s got to be industrial action happening in relation to clearly identified employees. Our submission is that in relation to three unidentified employees, should section 19 be otherwise satisfied, the exception in section 19(2)(c) applies and you can t be satisfied that the definition of industrial action in section 19 is currently satisfied.

PN528

That s our first alternate submission. Our other alternate submission goes to the MUA, whether orders should be made against the MUA and MUA representatives. They re separate orders that are sought if you look at it in somewhat inappropriately put under the heading Item 4 Industrial Action to Stop or Not Occur. You have an order slipped in there at (b), the MUA and MUA representatives must stop organising and not organise any industrial action by any of the employees.

PN529

That s premised on the fact that first of all that industrial action is happening and I ve already made submissions about this, so this is an alternate submission. If you were to find that industrial action is happening, you can only make order for, if you also find that the MUA and the MUA representatives are currently organising that industrial action.

PN530

You ll see the MUA representatives are listed in (2)(a). The officers, delegates, employees and agents who come into contact with or have responsibility for the employees as described in clause (2)(b). In other words, that the crew members, because (2)(b) refers to the nine crew members. The final part of (9)(b) is that (9)(b) four named in the center, that s the nine crew members.

PN531

Our simple submission is none of those categories of persons, officers, delegates, employees and agents who have come in contact with, or have responsibility for the employees, have organised any industrial action, or more precisely, there s no evidence before you of any of those persons organising any industrial action.

PN532

Can I just hand up a definition from Macquarie Essential dictionary, 5th edition. I ve organised because the best way to see what you re task is, Commissioner, is to look at what the word organise means. You ll see there s various definitions, five in all, including four and five referring to trade unions, but in a different context to what section 418 is talking about in terms of organisations organising workers to become members of the union.

PN533

The most appropriate definition for the purpose of section 14, 418, is really 3, to arrange. I think it s elsewhere been talked about in other dictionary definitions as coordination. We say there s just no evidence of any such acts by any of the persons named in there. Certainly the only ones that my learned friend has tried to, I think I used the word fit up earlier, in terms of any organisation of industrial action, are the officers and the actual delegates of the crew onsite. So, there certainly not even a suggestion from the applicant that any employees or agents have been involved in organising industrial action.

PN534

In terms of the submissions of my learned friend, and it was sometimes difficult to glean where he was dealing with industrial action and where he was dealing with organising, but I ll try to separate them out. Can I go to what he has mentioned?

PN535

Firstly, there was SW4 where he tried to bring the MUA into the question of organising by referring to the email from Mr Hardy and Mr Bates from the Master as to what the MUA delegate together with a crew member, telling him about industrial action on that day, 2 July. The first point is a similar submission. That s the only time the delegates are said to be involved.

PN536

The first point I make about that is, it s ancient history. It s not current organisation by the delegate, it was organisation, if it was, on 2 July. The second point is, it s not an act or organising, it s an act of informing the Master of a decision that had already been made by way of industrial action.

PN537

The organising of that industrial action necessarily precedes the refusal, telling the refusal to sail. Telling the Master that a decision has been made, there s been a refusal to sail, is not organising because it s subsequent to the decision being made. Organising obviously takes place beforehand. So we can dismiss SW4.

PN538

Then my learned friend, in terms of his submissions, moved on to the officers who have been involved in the dispute. There s no doubt there s a dispute, but a dispute is a different thing.

PN539

The fact that officers have been involved in a dispute is a very different thing to the submission that must be made out that they re currently organising industrial action. The evidence that s relied on is essentially what Mr - well, is firstly what Mr Whiteside s statement at paragraph 21, 25, 26, 28 - I think my learned friend characterised they d been speaking to the members, they d attended consultations and there had been a peaceful picket. Now, what would you expect officials of the MUA to be doing when there s a dispute? Speaking to the members, attending consultations with the employer and, okay, every dispute doesn t have a peaceful picket. But my learned friend quite properly used the word, peaceful.

PN540

There s nothing improper about any of those actions. There is nothing in any of those actions that suggests that the MUA officials were organising industrial action; in other words, were arranging the refusal or coordinating the refusal. There is certainly no evidence of that currently occurring. Actually my learned instructor reminds me that the evidence wasn t a peaceful picket; it was of a peaceful protest, paragraph 28. Now, the next bit of evidence that was relied upon for organising was SW10, namely the press release - and you ll remember my learned friend took you only to point 8 and you can disregard the rest.

PN541

What he relied upon was the statement by the MUA that the crew of the Alexander Spirit has refused to sail the vessel. Once again, not evidence of organising but evidence of what happened after the time any organisation would take place, namely a statement of fact which is borne out by the evidence, we accept, on 2, 3 and 5 July that the crew has refused to sail the vessel. That is not evidence of organisation. The final smoking gun, according to my learned friend, was exhibit 3, namely Mr Bray putting various questions to the company, which Mr - my recollection is I asked Mr Whiteside about those questions. He thought it was quite proper that those questions be asked. He thought the company could easily answer most of those questions and was in the process of just considering its response to some of the others. Once again, nothing improper, nothing illegal; no act of organising industrial action to be found in the union carrying out its proper role of asking questions in a situation where the shocking event had occurred.

PN542

I use the word, shocking, because Mr Whiteside agreed, everyone - not only the MUA members and officials but he himself was shocked. There s just absolutely no evidence of organisation and even if you found that industrial action was happening, I submit you cannot find that there is any organisation currently occurring. Indeed, I say in relation to organisation unlike my submission on industrial action, there is no evidence of it having happened at all in this particular case. There s certainly no evidence of it currently happening.

PN543

So in those circumstances we submit you shouldn t make the orders for the three reasons I ve suggested: the first reason, no industrial action without looking at the exception - the health and safety exception; secondly, and alternatively, the health and safety exception applies and thirdly, even if you are minded to make orders relating to organisation happening, you wouldn t make orders relating to the industrial action currently being organised. Unless there is any questions they re my submissions.

PN544

THE COMMISSIONER: Thank you. Mr Meehan, do you want to exercise a right of reply?

PN545

MR MEEHAN: Thank you, Commissioner. I return to SW4. In my respectful submission my learned friend has characterised that or invites the Commission, rather, to characterise that email wrongly. It is not in terms the imposition of a condition upon the refusal to sail. My learned friend is inviting the Commission to conclude that the refusal there referred to only lasts as long as no definitive answer is given as to the fate of the ship. But that is not what the language says. It is not a condition; it is a reason.

PN546

As there is no definitive answer from Teekay they are refusing to sail. It doesn t say, Until such time as we get a definitive answer. So that is unqualified by condition, Commissioner, and you should reject the submission as to how that evidence should be characterised. What I invite the Commission to find is that there was - and the Commission should evaluate the evidence of refusal in its full context; that is, there has been a continuum. I ve taken the Commission to the evidence of the first refusal, the second refusal and the events on Sunday. What is evidenced, in my submission, is a continuum. The refusal has been ongoing. It s not a case where an applicant has to come to this Commission and bring evidence of repetitive testing of a refusal every day to make good the proposition that there is industrial action constituted by refusal to perform work.

PN547

As I indicated in relation to the evidence about what occurred on the Sunday in SW13, it is tolerably clear in my submission, that what is being imparted by the MUA through Mr Keane and Mr Campbell is a continuum of the refusal until such time as they have answers to the written letter and reasonable time to consider them. The Commission is entitled to evaluate that on 2 o clock, less than an hour before a scheduled sailing time, in the light of the evidence about the first refusal and the second refusal, and evaluate what is in fact going on.

PN548

In my submission, you would reject what has been contended against the applicant as to - under the banner of so-called ancient history. In relation to the MUA s organisation, I should emphasise - I think I put it earlier - that Mr Poynter as a delegate is an officer of the MUA. There s a definitional term in section 12 of the Act, of, officer. Officer of an industrial association means:

PN549

An official of the association or a delegate or other representative of the association.

PN550

In that capacity, he is an agent of the MUA and so the Commission is quite entitled to characterise and evaluate his conduct as conduct in that capacity. As to the meaning of, organise, I might hand up a decision of a full bench of this Commission in MUA v Patrick Stevedores, which was an appeal and in the interests of timeliness, can I direct the Commission s attention to paragraph 36 on page 15? May I just introduce that by saying there was a finding of organisation and that was challenged and here the full bench is saying:

PN551

Based on a reading of the decision as a whole and the ascertainment of the true character of his Honour s findings, we consider that the organisation finding was based on the conclusion that the MUA either through its delegates and/or officials had coordinated and planned the industrial action.

PN552

I invite the Commission without reading it out to look at the remainder of that paragraph and paragraph 37. I made that submission earlier, that in the context - and the Commission is quite entitled to draw inferences about the purpose for which Mr Bray and Mr Campbell were on the vessel and talking to their members throughout the weekend - that if they were involved in the planning or coordination of the refusal then that is a sound basis upon which to conclude that the MUA was organising.

PN553

You can also take into consideration the evidence in SW13 about what is being represented by Mr Keane and Mr Campbell to the company as to the intention of the crew and indeed, the wording there sets out what is being advanced is on behalf of the MUA crew. That is the union there speaking on behalf of the crew and as I submitted earlier, the context in which that is occurring is knowing that it s contended that there is industrial action occurring, knowing that this application is on foot, and then actively representing on behalf of the crew until such time as there is a response to the letter or - and, I should say, reasonable time to consider it - there will be further advice on behalf of the crew.

PN554

That is supporting and coordinating the ongoing refusal to sail. It s not as if Mr Bray and Mr Campbell have attended to give evidence to defend their conduct in the relevant sense. The Commission is entitled to have regard to that fact as well. The last thing I want to address - I beg your pardon, the second-last thing I want to address is the suggestion that because - I hope I m putting faithfully what my learned friend s submission is but on my understanding it s being contended that the Commission can t make an order against anyone because by reason of its inability on the evidence to identify members of the crew who it is contended would have concerns that would meet the description in subsection 19 that no order can issue, in my respectful submission if the MUA seeks to invoke the exception to the meaning of industrial action, the evidentiary onus falls upon it to demonstrate to the Commission by sufficiently clear evidence that an individual had reasonable concern about an imminent risk to that individual s health or safety.

PN555

If the MUA cannot satisfy the Commission of that then the exception is not made good and the Commission should reject the submission that the formulation in the draft order that carves out action based on a concern as to imminent risk is not a satisfactory basis on which to deal with any finding the Commission may have about - it s put against us - three employees who had such a concern. May I say in relation to crew member two - I withdraw that. I think it said that crew members one, two and seven have stated that they can t carry out their job. My note in respect of crew member two was that Mr Kelso said they didn t feel safe to travel to Singapore but they are carrying out their duties fine. That s my note. Crew member one we ve dealt with or I have dealt with.

PN556

Crew member seven, my notes suggest Mr Kelso said he was stressed and agitated, angry with regards to what s happened, had a mortgage and a child and the sort of intervention that Mr Kelso had in mind was anger management and stress management. He didn t go as far as saying there had been an express concern about an imminent risk to his health. So in my submission the Commission wouldn t find that crew members two and seven engage the exception in section 19(2). They re my submissions.

PN557

THE COMMISSIONER: Yes, thank you. I ll provide a decision in the matter in about half an hour so we ll adjourn for approximately 30 minutes.

SHORT ADJOURNMENT [4.28 PM]

RESUMED [5.00 PM]

PN558

THE COMMISSIONER: I am going to provide an ex tempore decision in the matter. The decision is as follows. This matter involves an application made under section 418 of the Fair Work Act, seeking that the Fair Work Commission make an order that industrial action that is occurring be stopped and not occur. Section 418 is obviously relevant. The application has been made by Teekay Shipping (Australia) Pty Ltd. The application seeks an order against the Maritime Union of Australia - the MUA - and members of the MUA who are employees of Teekay.

PN559

The industrial action that is the subject of the application relates to employees of Teekay who are members of the MUA and who are allegedly refusing to perform work as directed as to enable the vessel named Alexander Spirit to sail to Singapore. The definition of industrial action which is found at section 19 of the Act is obviously relevant. The evidence produced during the hearing has confirmed that the industrial action that is the subject of the application is happening or is threatened, impending or probable or is being organised.

PN560

The MUA has advanced inter alia the proposition that the industrial action taken in this instance does not satisfy the definition of industrial action on the basis that it is action that meets the exclusion to the definition of industrial action contained in section 19(2)(c) of the Act. I have considered the evidence provided by the MUA upon which it has been asserted that the industrial action relates to health and safety concerns of the MUA and its members such that the action has been taken in satisfaction of the terms of subsection 19(2)(c) of the Act.

PN561

Upon evaluation of that evidence, I am unable to accept that the industrial action in this instance satisfies the legislative exclusion provided by subsection 19(2)(c) of the Act. The existence of what may be considered to be a legitimate concern which prompts the taking of industrial action does not render that action to be protected industrial action. Further, industrial action does not become protected industrial action because of circumstances where there may be personal, psychological impacts arising from the continuation of work in accordance with the manner that work is customarily performed and without any form of restriction, limitation or delay upon the performance of work.

PN562

The prospect of some adverse, psychological condition does not translate into a reasonable concern about an imminent risk to health and safety. Although I may personally have great sympathy for the crew of the Alexander Spirit the predicament that these individuals face is in essence a predicament that is broadly shared by many other Australian workers. The prospect of sailing the Alexander Spirit to Singapore may, for example, be contemplated in similar fashion to those vehicle manufacturing workers who assemble the final Falcon, Commodore and Camry.

PN563

Consequently, the industrial action in this instance satisfies the definition of industrial action and it is not protected industrial action. Further, I do not believe that the industrial action is based upon a reasonable concern about an imminent risk to health or safety. Therefore pursuant to section 418 of the Act the Commission must order that the industrial action stop. The orders as broadly sought by Teekay are made and issued separately. Proceedings now stand concluded.

PN564

MR MEEHAN: Commissioner, I beg your pardon, there was the question of in any draft order the time I - - -

PN565

THE COMMISSIONER: That has been attended to.

PN566

MR MEEHAN: I am indebted, thank you.

ADJOURNED INDEFINITELY [5.00 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GAVIN PAUL KELSO, AFFIRMED................................................................ PN324

EXAMINATION-IN-CHIEF BY MR CRAWSHAW....................................... PN324

CROSS-EXAMINATION BY MR MEEHAN................................................... PN383

EXHIBIT #5 COPY OF EMAIL FROM MR KELSO TO MR BERTRAM DATED 06/07/2015................................................................................................................................. PN400

RE-EXAMINATION BY MR CRAWSHAW................................................... PN431

THE WITNESS WITHDREW............................................................................ PN436