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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052175
COMMISSIONER CLOGHAN
RE2015/367
s.505 - Application to deal with a right of entry dispute
Maritime Union of Australia
and
JKC Australia LNG Pty Ltd
(RE2015/367)
Darwin
9.14 AM, THURSDAY, 2 JULY 2015
Continued from 1/07/2015
PN940
THE COMMISSIONER: Mr Parry.
PN941
MR PARRY: If the Commission pleases. We will be relying in these proceedings on a number of documents and witness evidence. There have been directions of the commission made, and there are a number of documents that have been filed already. There is an outline of submissions regarding jurisdictional objections.
PN942
THE COMMISSIONER: Mr Parry, I will mark that - I just need to be reminded from yesterday what we're up to.
PN943
MR PARRY: You have a number of exhibits marked with A at the front of them. I'm not sure what your practice is.
PN944
THE COMMISSIONER: I'm not sure whether I marked any documents of the respondent yesterday. If not, I will ‑ ‑ ‑
PN945
MR PARRY: I'm told not.
THE COMMISSIONER: ‑ ‑ ‑ I will mark the outline of submissions on behalf of your client in relation to the jurisdictional objection as exhibit R1.
EXHIBIT #R1 RESPONDENT'S OUTLINE OF SUBMISSIONS REGARDING JURISDICTIONAL OBJECTION
PN947
MR PARRY: There is a statement of facts of the respondent dated 23 June 2015.
THE COMMISSIONER: I shall mark the respondent's statement of facts as exhibit R2.
EXHIBIT #R2 RESPONDENT'S STATEMENT OF FACTS DATED 23/06/2015
PN949
MR PARRY: There is a response to the applicant's statement of facts.
THE COMMISSIONER: I will mark the response to the applicant's statement of facts as exhibit R3.
EXHIBIT #R3 RESPONDENT'S RESPONSE TO APPLICANT'S STATEMENT OF FACTS
PN951
MR PARRY: The commission made directions with regard to two other matters; one is an outline of submissions regarding what I will describe as substantive matters, and I have a document to hand up to the commission dated 2 July, which is today, which is such an outline of submissions.
THE COMMISSIONER: Mr Quinn has got a copy? I will mark the respondent's outline of submissions as exhibit R4.
EXHIBIT #R4 RESPONDENT'S OUTLINE OF SUBMISSIONS DATED 02/07/2015
PN953
MR PARRY: And another direction was made concerning a statement of agreed facts, and there has been toing and froing between Mr Osbourne and Mr Quinn about this matter, and they've just told me that they've agreed a statement of agreed facts, which will be amended as they've agreed, and we will provide a copy of that shortly to the commission.
PN954
THE COMMISSIONER: Thank you.
PN955
MR PARRY: The respondent is also relying on a witness statement of Mr Bradley George, who is available for further evidence and cross‑examination. That will be the first matter this morning. There is another witness that we would propose calling, Mr Whitehead. Mr Whitehead - the commission might recall yesterday, I said he had to be - give his evidence yesterday, and unfortunately that didn't occur.
PN956
He, for personal reasons, has advised us this morning that he's not available today. We are still attempting to address that in a number of ways. We have the options of seeking to tender his statement without him being called; getting another witness from ALE; and/or calling some further evidence from Mr George, which we will be doing in any event. We are making those assessments as we speak, and will advise the commission later this morning as to the course of that we would want to take.
PN957
It's a circumstance we didn't plan on, and it is outside our control, and it's involving matters personal to Mr Whitehead; but all I can do is tell the commission that's the position at the moment why Mr Whitehead won't be here this morning.
PN958
The case to be met by the respondent is both a matter that raises jurisdictional issues and factual issues, and the statement of facts that the MUA propose to rely on, which have been marked as exhibit A1, focuses on particular employees that work exclusively on the Hydro Deck, being employees of ALE. Our case is here to me that.
PN959
We have, as we have indicated, one witness. As a program for the next day and a half, I assume the commission will hear that evidence, and then there are submissions to be made by both parties concerning jurisdictional and substantive matters. We would, I assume, anticipate that my learned friend would commence with his submissions on substantive matters; we would reply with regard to our submissions on substantive matters and jurisdictional matters; and my learned friend would then respond with regard to jurisdictional matters and anything further he wanted to say about the substantive matters.
PN960
That's a sort of working program that would appear to me to be a viable way forward; but, of course, were in the commission's hands as to how we organise the next day and a half. The reason I indicate a day and a half is that as the commission appreciates, getting out of Darwin on Friday is not the most simple exercise, and most of us have flights around lunchtime, so I'm just trying to make sure we don't waste time more than is necessary and facilitate the getting of the material before the commission.
PN961
THE COMMISSIONER: You propose to sum up, if I can describe it that way, in the absence of what we know is going to happen to Mr Whitehead's evidence?
PN962
MR PARRY: Well, we don't - before we close our case formally I, in consultation with my instructors, will make an assessment of whether we need to call another witness from ALE, which we would hopefully do today if that were possible.
PN963
THE COMMISSIONER: This is just practical issue. When is the last time you two gentlemen - four gentlemen - have to leave here tomorrow at lunchtime? My flight is 1.30. I suppose I'm signalling now if it is necessary we will start at 8 o'clock tomorrow morning.
PN964
MR QUINN: I don't anticipate - leaving aside what might happen - I'm not leaving aside what might happen with Mr Whitehead - I wouldn't anticipate Mr George's cross‑examination would be more than an hour, so I'm certainly hoping not to be back here tomorrow morning, notwithstanding enjoying the company. I would anticipate we try to finish - and pushed through and finish today.
PN965
THE COMMISSIONER: All right. We will just see how the day develops.
PN966
MR PARRY: I thought it appropriate to raise those matters at an early stage. My flight is at 12.45, and I'm told I have to leave here by 11.30 to accommodate that, but we will do what we can to, of course, get the evidence and submissions completed before we're on our way to the airport.
PN967
THE COMMISSIONER: Just for completeness, given that I've marked your - I think I've marked all your material, Mr Quinn?
PN968
MR QUINN: No, Commissioner. We didn't read our proposed facts. I was assuming that that would be done once there was an agreed statement put together. That has now been done, and I understand the respondent will be able to file a version of that later this morning.
PN969
THE COMMISSIONER: That's the only outstanding - - -
PN970
MR QUINN: We haven't read our submissions because we jumped straight into the evidence. We were playing it by ear as to the process for opening and the issues between jurisdiction and substance, so our submissions haven't been read. If you want me to formally read them now just to be able to mark them, rather than in conjunction.
PN971
THE COMMISSIONER: You've provided the outline of submissions and I've marked that as R4.
PN972
MR QUINN: Sorry A - that would be A6. If I can read, Commissioner, we have the outline of submissions in relation to jurisdiction, we're currently up to A5, I think. I might formally read those.
PN973
THE COMMISSIONER: I will deal with those. I just want to make sure, Mr Quinn, that I've incorporated everything into proceedings. I will do that will be before we have an adjournment. Before we begin, yesterday was - in some part of the day was freezing. I'm finding it very warm in here at the moment. Again, I think we will just have to change things as we go along.
PN974
MR QUINN: We may. And those of us with different thermometers might make some request at various parts of the day. I might add it was difficult at times to hear the witness over the air-conditioning are as well, I found, from this side of the bar table yesterday. It might be another excuse for me. If we can formally read our outline of submissions in relation to jurisdiction.
PN975
THE COMMISSIONER: That will happen sometime today, but I just want to get - - -
PN976
MR QUINN: Sorry, I thought you wanted to read them all now.
PN977
THE COMMISSIONER: No, not at this point of time. Mr Parry.
PN978
MR PARRY: If the commission pleases, there's only one other matter before called Mr George. That is yesterday you denied our request for an adjournment. You indicated that you could put reasons for that in the decision that you create. You asked whether we wanted that. We do. There's nothing further. I call Bradley George.
PN979
THE ASSOCIATE: Please state your full name and address.
MR GEORGE: Bradley Miles George, (address supplied).
<BRADLEY MILES GEORGE, AFFIRMED [9.27 AM]
EXAMINATION-IN-CHIEF BY MR PARRY [9.28 AM]
PN981
MR PARRY: If the commission pleases, your full name is Bradley Miles George?‑‑‑That's correct.
PN982
I think you are employed by JKC Australia LNG Pty Ltd?‑‑‑That's correct.
PN983
In the role of employee relations adviser at the project?‑‑‑That's correct.
PN984
You've prepared a statement for these proceedings, Mr George?‑‑‑I did.
PN985
Do you have a copy of that?‑‑‑I don't have a copy with me, no.
PN986
You've left it in the body of the court, I'm assuming? Might Mr George leave the witness box?‑‑‑Sorry. I apologise.
PN987
Do you have a copy of that statement, Mr George?‑‑‑I do. Thank you.
PN988
It has a number of attachments, and I think it's signed by you and dated 23 June 2015?‑‑‑Correct.
*** BRADLEY MILES GEORGE XN MR PARRY
PN989
Are the contents of that true and correct?‑‑‑I believe so.
PN990
I tender that witness statement.
THE COMMISSIONER: Mr George's witness statement and the attachments, which runs to 78 paragraphs, and dated 23 June, should be marked as exhibit R5.
EXHIBIT #R5 WITNESS STATEMENT OF BRADLEY GEORGE DATED 23/06/2015
PN992
MR PARRY: Mr George, I understand there are two matters that you wanted to correct in the statement or add to. I'm trying to - if the commission will excuse me briefly.
PN993
Perhaps we will return to that, if that's satisfactory to the commission, rather than trying to deal with it immediately now, but we will return to that shortly.
PN994
Mr George, you were in the commission yesterday?‑‑‑I was.
PN995
You, according to your statement, have a background in industrial relations for the AMOU?‑‑‑I was a national industrial officer for the Australian Maritime Officers Union.
PN996
And you had positions as an HR manager in the Maritime Hydrocarbons and Construction Industries?‑‑‑Correct. And I was HR manager - inaugural HR manager for Offshore Marine Services, and director and HR manager for Go Offshore - Go Marine Group.
PN997
There was some evidence given by Mr Carr yesterday concerning Gladstone and what he described as barges and some of the work they did in Gladstone Harbour. Do you have any knowledge of that sort of work performed in Gladstone Harbour in Queensland?‑‑‑I've been involved in tendering for work for the dredging project prior to Curtis Island Construction; wasn't successful with Go in that work, but am aware of the scope of work that did happen.
PN998
What was the scope of work?‑‑‑It was a large dredging project in order to enlarge the size of the harbour to accommodate the LNG facilities that were being constructed and work for WICET as well, for the off-loader.
*** BRADLEY MILES GEORGE XN MR PARRY
PN999
What sort of vessels or ships or boats conducted that dredging work - or were to conduct that dredging work?‑‑‑Cutter suction dredgers, hopper barges, backhoe dredgers.
PN1000
What sort of activates do those sort of vessels performs?‑‑‑Basically the removal of spoil and - well, removal of the sea bed in order to create spoil, and then dumping of that spoil in an approved location.
PN1001
How are they moved around?‑‑‑A hopper barge can either be propelled or non-propelled. If it's propelled, then it has its own propulsion system and will move itself around. A backhoe dredge can either be propelled or non-propelled. Generally it's non-propelled; however, there are propelled versions as well that can move themselves around on spud cams. You also have cutter suction dredgers, which effectively are foreign-going ships that are very large and able to move themselves through international waters, as well as within the location of the dredging area.
PN1002
These dredgers were to perform these sort of functions, moving around Gladstone Harbour?‑‑‑That's correct.
PN1003
In your paragraph 12 you refer to not being aware of the MUA illegally pursuing coverage of workers on barges or pontoons in the near shore construction industry. What's the near shore construction industry?‑‑‑Effectively any wharf construction work, jetty construction, new harbours being built, desalination plants, cable-laying type work, outfall pipes, any of that sort of near shore work which would involve a mix of tugs and barges.
PN1004
I think your statement deals with what you consider to be barges or pontoons?‑‑‑Correct, yes. I have an opinion on what a barge and what a pontoon is, correct.
PN1005
And the opinions on what you consider barges or pontoons, on what do you base those?‑‑‑Work history and having a 15‑year involvement in this industry; plus simply by reading the class society annotations for equipment that I've either managed or that I've been involved in tendering with.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1006
You refer to the coverage, I think, in paragraph 14 of the AMOU. To your experience was there an overlap with the MUA and the AMOU, or were there lines between them?‑‑‑There's a clear demarcation for deck officer to rating. It's a very strong delineation in the foreign-going vessels and in the offshore oil and gas vessels. It becomes blurred occasionally with very small operators where people may - tourism market, for example, where somebody may hold multiple roles. They may cross the line of the MUA, the AIMPE, the engineers, and the AMOU, where they may hold multiple functions on the one vessel.
PN1007
With the AIMPE, is there clear lines between the AIMPE and the MUA?‑‑‑There are clear lines. Very strong lines, again, in the foreign-going vessels; very strong lines in the offshore oil and gas vessels; and in the smaller markets, such as the tourism market, where the engineers have a lesser defined role, you will find a blurring of positions.
PN1008
The Hydro Deck, which you have described in paragraph 23 of your statement as a transition pontoon; is that unique, or are there other versions of it around? Is it like other pieces of equipment that you re familiar with?‑‑‑The Hydro Deck is a bespoke piece of equipment. It was designed specifically for this project, to deal with the unique circumstances of this construction job, and there is no other piece of equipment the same as the Hydro Deck.
PN1009
I think I'm now instructed as to a couple of areas. Paragraph 75(f) of your statement; this is referring to part of a Mr Clarke's statement?‑‑‑Mm'hm.
PN1010
There's reference to the arrival of the Hydro Deck and there being various shifts, and there's a reference there to a day shift, the second day shift, and a night shift. Is that still the position?‑‑‑As Mr Clarke said yesterday, there was a day shift, a second shift and a night shift. That has changed recently. There is now only a day shift and a night shift. There is no second day shift any more.
PN1011
And 75(e) he refers on page 25, again referring to the operations - there's a reference in page 25 to the process involving, "Watching the bottom of the ramp against a metal gauge," and so forth. Is that still the position, or was the position?‑‑‑Okay. So originally when the ramp gap was being measured there was a use of tape measures; then a metal gauge in form - like a T-square - was introduced; and now the metal gauge is a backup to a laser that is used to give the feedback, and the metal gauge is the backup for when it's raining. So if we have interference to the light beam, then we use the metal gauge.
PN1012
With regard to the employees on the Hydro Deck, Mr Clarke gave some evidence yesterday about the requirement for marine or maritime or suchlike experience. Do you remember - you were in the commission, you heard him give that evidence?‑‑‑Yes.
PN1013
THE COMMISSIONER: Mr Parry, just before we move on. I take it that the witness is citing paragraph 75(f), that the words, "A second day shift," should be deleted from his evidence.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1014
MR PARRY: Yes, Commissioner.
PN1015
THE COMMISSIONER: And in relation to paragraph (v) on page 25, what is he actually saying in relation to the second-last sentence?
PN1016
MR PARRY: Perhaps I will best hand that to Mr George?‑‑‑What I would say there is that the process involves watching the bottom of a ramp using a laser measurement system or a metal gauge.
PN1017
THE COMMISSIONER: Using a laser ‑ ‑ ‑ ?‑‑‑Laser measurement system.
PN1018
Did you go on to say, "As a gauge"?‑‑‑Or a metal gauge.
PN1019
That's the only change?‑‑‑That's would correct it.
PN1020
The insertion of those words?‑‑‑That would be correct.
PN1021
Thank you.
PN1022
MR PARRY: I was asking Mr George about a suggestion about employees having requirement for marine experience. In your statement at paragraph 38 you indicate that you were involved in analysing what was required of the employees and whether they did require compliance with marine-type qualifications and experience. What do you say to the requirement that there is a requirement for employees on the Hydro Deck to have maritime or stevedoring experience?‑‑‑Firstly there is no legal requirement for them to have maritime and/or stevedoring experience. Secondly, on looking at the operation and the workflow once the Hydro Deck was on location, it became evident that the non-trades positions required no additional skill base to any other construction labourer on site.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1023
Mr Clarke said some - he named a couple that had maritime experience. What do you say to that?‑‑‑In terms of the mechanical engineering positions, there are definitely people who have been employed who have a background as sea-going marine engineers with limited tickets; basically small vessel, low kilowatt work experience and qualifications; and they definitely have a history and a marine background. There are a few ex-Royal Australian Navy personnel on board who have been through various occupations, and so have no doubt that they have been to sea at some stage. I think he mentioned three people, and none of them had come direct from the seagoing positions. They had either been navy shore-side and then come to us, or they had been working in other industries before coming to us. And then I think he mentioned a couple of the engineering superintendents, similarly to the mechanical positions, they had some history in seagoing roles, but specifically to - that was part of the expectation, that there would be some people with some history in that area for the mechanical roles.
PN1024
And I assume there are some that don't have any experience in maritime and stevedoring working on the Hydro Deck?‑‑‑Yes. All but one of the trades assistants currently employed have never worked in a maritime position.
PN1025
Mr Clarke yesterday gave evidence about one particular aspect of a requirement for training and experience. That's where he said mooring lines needed to be checked by observing whether they were meeting the standards or whether they needed to be replaced?‑‑‑Yes. I was a little surprised by that, given his work history. There are a couple of things that are to be considered with mooring lines. Prior to this role I'm doing now I was a marine manager for four construction vessels; and all mooring lines, all ropes, et cetera, that have a tension applied to them are actually checked to a set of standards, either international or Australian standards, and its - visual observation is not accepted as the means by which you decide whether or not a mooring line is safe or unsafe. It is physically impossible to make that as an observation of the internal workings of the mooring line. We use a mix of destructive and non-destructive testing. Destructive being to actually cut a piece of a line off and have it tested, because if you understand the construction of a line, it is a series of either woven fabric or woven synthetic material, multiple strands, and you cannot physically see the inside, and it's the inside breaking strength that is what is measured by destructive testing. Non-destructive testing is a form of x-ray which works for wire, but not for synthetic. So that's - whilst any seafarer will obviously be able to make a visual observation of the top strands, nobody has a physical ability to check what's going on inside a mooring line.
PN1026
And so the mooring lines on the Hydro Deck, for example, how are they checked, and how often, and who by?‑‑‑They apply the - it will be an appropriate Australian standard, and currently everything that is on there is effectively no more than 18 months old. The lines that would have been observed on the commission's inspection in the main were less than six months old. And you would apply the Australian standard or you would apply the International Maritime Contractors Association standard, which means every 24 months or so, you would perform non-destructive testing or destructive testing in order to ascertain the condition of the lines.
PN1027
And that hasn't been reached yet?‑‑‑No.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1028
There was evidence given yesterday by Mr Carr and Mr Clarke concerning watch keeping. Mr Carr spoke about watch keeping and referred to - he was asked to summarise tasks as to the part of watch keeping and he gave summaries about anchor watches and mooring watches and securities and extension. We're here concerned with the ALE employees on the Hydro Deck day and night shift you say are currently performed. What do you say to the proposition that part of their duties are watch keeping?‑‑‑I find it challenging that anybody could call the work process that they're are involved in watch keeping. In a seagoing arrangement watch keeping is a period of time - four or six hours, or eight hours, depending on where you are - spent in a non-physical working activity, undertaking a process of effectively being either a look out; or listening out for a radio, doing a radio watch; undertaking a navigation watch, looking out for other vessels and hazards and objects; undertaking machinery watch, watching unmanned machinery spaces; and in port the only form of watch, being a security watch or an anchor watch being occurred; these are processes that you would do when you are not physically doing other duties. So it's a concept that I find challenging, that they would use the term watch keeping. Given Mr Clarke's seagoing maritime background, it would be fair to him to say that's what he would see as a typical activity, but in a 24/7 seagoing position, what he would see as a watch or what is watch keeping is effectively as part of his daily duties, part of his - somewhere between 10 and 14 hours of work, a period of that time would be spent doing non-physical activity in an observational role. We do not have observational roles. Every position on the Hydro Deck is physically working, whether it be day shift or night shift.
PN1029
Yesterday there was some issue raised about a dumb barge. Do you know what a dumb barge is, or do you have experience of that term in the maritime industry?‑‑‑Yes. I've been involved in the charter of dumb barges. Effectively the delineation in barges is the dumb barge is a barge which has no capacity to do anything other than be towed around. So it may have some deck jewellery on - and it may have a winch on board or it may have - can be fitted with anything you need to fit it with in order to perform the work that you plan to use it for. However, what it can't do is ballast; so it has a fixed amount of ballast, and it would be ballast in the form of heavy ballast. In terms of what we would describe as another type of barge would be a ballastable barge, and this is a barge which is not dumb, for want of a better term, it's a barge which can be used to work in alternative situations and be used at different drafts, as opposed to it being a fixed draft.
PN1030
Mr Clarke gave some evidence about matters that he said were the case, and I think he left in around September, October last year?‑‑‑I think he left - I think it's November when he left - 14 November.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1031
He described particular responsibilities of leading hands and superintendents in respect of matters such as communication and the like. Are they the same as they were, or have there been changes?‑‑‑Part of the process of having a bespoke piece of equipment is looking at how you operate it and operate efficiently and safely on a continuous basis. There's no fixed model that you would apply. In this case with the Hydro Deck, what we've done in terms of analysing it, what it is able to do, its capacity, and what work that we require of it, in particular I've set in stone a manning model - a crew model for it - so that we have got appropriate levels of people, coverage for different circumstances, and in doing so have moved away from having a single leading hand position; we've moved away from having a single superintendent position; and in doing so we have changed various systems so that the superintendents, which is the MOFTP superintendent, controls the overall operation, except during the direct offload process, when a ballast engineer takes control. I have no doubt that when Geoff was in the early stages, those first three to four months of work, that Geoff was called on to do and an enumerate number of tasks and to do everything he could to the best of his ability, and I respect him for that. But I know that the current leading hands do not have the same work history that he had; do not exercise the same level of authority that he did; and in doing so, a lot of the roles that he was claiming yesterday are actually - now sit with - and always should have sat with the superintendents.
PN1032
How many superintendents are there?‑‑‑There are four superintendents. At the time that I wrote this statement there were three, one unfilled position, and there are now four.
PN1033
They're staff positions?‑‑‑They're staff positions. They work one day, one night shift, depending on the level of - what operation we're on, or we have two on during the day.
PN1034
How many leading hand are there now?‑‑‑There are two.
PN1035
You say they don't have that background of Mr Clarke?‑‑‑No, they don't have Mr Clarke's seagoing background. And one in particular has no marine background at all.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1036
Mr Clarke particularly gave evidence yesterday in respect of Mr Whitehead's statement, I think, about communications between superintendents, leading hands and the ballast team?‑‑‑Yes. We're subject to a process on the transition pontoon where the client's marine warranty surveyor, overlooks our every activity - JKC's every activity - with the operation of the MOFTP, and we are subject to continuous analysis from them. Part of that analysis is looking at the workflows and the communication flows during the offload of the heavy lift vessels. Again, at the time that Mr Clarke was on board, you may have got the picture that the buck stopped with him with a lot of activities, and there was a lot of reliance on him personally, and so I think it became evident in a number of offloads that this was an inappropriate means by which we operated, and in working with the client's marine warranty surveyors, a number of challenges were put in terms of how the process of the offloads took place. The means of communication, the technology used in the communication, and who had the ability to give directions during offloads was reviewed and changed and the revision that is currently in, revision 3, is what we currently work to. In that the leading hand does not communicate with the ballast operators.
PN1037
Mr Mayor gave evidence yesterday that the rings on the deck - - -?‑‑‑The D-rings, you mean?
PN1038
The D-rings that were on the deck of the Hydro Deck - why are they there?‑‑‑At the early stages the client's marine warranty surveyor, London Offshore Consultants, had a view that because we had a bespoke piece of equipment, we had some very expensive modules that had been constructed overseas that were being brought to the project, that they would like to do a number of things to minimise risk, and one of those was to deal with the circumstance where we had offloaded the module from the heavy lift vessel and we get to position the transition pontoon for the module to be driven to the construction site; and they, through a means of some engineering, designed a minimum mathematical requirement to lash to the deck a module which was sitting on the SPMT. This process lasted for three load-ins, until it was proven that there was zero risk to the module in the period between the module sitting on the transition pontoon before it was driven to the construction site. They may have had a fear that there would be a system failure and we could list - that the pontoon could go into an awkward position, for example, and the centre of gravity of the module would mean that would fall off the SPMT or onto the deck of the transition pontoon. That fear was borne out in them having the D-rings installed so that they could be a lashing of modules. We have not had any form of lashing happened since September last year.
PN1039
So the D-rings aren't used?‑‑‑No, they're unused.
PN1040
And lashing, that doesn't take place?‑‑‑No, we no longer lash. And on the lashing thing, I don't know if anyone was indicating this, but the lashing was never undertaken by the Hydro Deck crew. I've seen something in Geoff's statement about helping ALE SPMT operators, but any form of lashing was undertaken by the riggers employed by the HLT1 package, who were responsible for the module coming across the pontoon.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1041
I think this goes back to the re-jigging of authorities, but there was, I think, evidence given yesterday about the connection of the Hydro Deck to the MOF with the module on it, and who gave the direction to that to occur. Do you follow that?‑‑‑So the MOFTP has a continuous connection in the form of a wire to the MOF that is tensioned by a winch. The process of bringing the transition pontoon into the right position so that the ramps can be lowered, so that the modules can be driven to the construction site, that direction is given by the MOFTP superintendent.
PN1042
These module arrivals are, what, every couple of weeks or at that sort of level, and some of these boats have more than one module on them, of course. Have you carried out - I think was put to Mr Clarke yesterday that about five per cent of the time of employees of ALE on the Hydro Deck is spent in the process of taking modules off the heavy lift ships. Is that a figure that you're familiar with?‑‑‑I'm of the view that five per cent is generous, and when you look at the total hours that we fund for the operation of the Hydro Deck, the actual process of module offloads involving the Hydro Deck is very minimal. This isn't the fault of the guys on the Hydro Deck, this is quite simply a process of we have fluctuating tides, we have a construction schedule, we don't bring modules to site until we're ready to use them, and so it's just a product of the purpose of the Hydro Deck. And so we don't have the ability to give them more work involving modules because they're simply not there.
PN1043
Also Mr Mayor gave evidence yesterday about grillage being cut. And he spoke about grillage being cut, I think, at the East Arm Wharf at Darwin Harbour. I think your statement on page 32(o) speaks of grillage being removed by a mechanical contractor. Firstly, what's grillage?‑‑‑Grillage is a mechanical fastening. So it will be - effectively what you would do is build stools or stands which are welded to the deck of the heavy lift ship, and then you will place the module, which has been constructed at an overseas fabrication yard, on top of those stools or stands, and then use steel plates and steel tubes - now, I'm not talking about small tubes, I'm talking about very large diameter steel plates and tubes - to be able to weld into place brackets; and those brackets are what we refer to as grillage.
PN1044
And what's - these mechanical contractors, they're engaged by the project, are they?‑‑‑The mechanical contractors who work at the - come to site, who are physically located on site, undertaking multiple functions. So I think Monadelphous mechanical package 2 has responsibility for removal of grillage from modules, and they are also the same people that are fitting the pipe racks; they are building waste gas product tanks; they are building the flare pad; and they're allocated other duties; metal fabrication, stick build work for the jetty; so they've got multiple functions across site.
*** BRADLEY MILES GEORGE XN MR PARRY
PN1045
And dealing with these contractors, there has been reference to Mammoet and some of their employees being on the Hydro Deck for some period of time. Have you conducted any assessment of what period of time such employees spend on the Hydro Deck or about the Hydro Deck?‑‑‑Yes. Mammoet is the heavy lift contractor on site, and they - from what I've managed to ascertain through measuring the work order requests that we use for Mammoet's services - based on the number of people they employ and the hours that they work on site, they spend less than 2 per cent of their time involved in being on board the Hydro Deck.
PN1046
What do they do the rest of the time?‑‑‑As a heavy lift contractor and SPMT operator, they maintain their machinery; they prepare the rigging and undertake the lifting activities for the entire project; they are involved in transportation of modules around site. If you would recall the size of the site yesterday, they're travelling at very slow speeds with these modules to take them to various places around site, so a single module move can take an entire shift. They are involved in the engineering of the lifts for the heavy lifts; they're involved in the engineering and the transport route work for transporting heavy lift items around site; and they undertake the various sort of rigging duties involved in lifting and placing modules.
PN1047
You're the source of contact for IR matters on site?‑‑‑I am one of the people involved in IR. I am responsible for the MOF and the MOFTP; I'm responsible for the heavy lift package; the mechanical package 2; and other packages on site related to construction activity.
PN1048
Have you been involved in any conversations with anyone from the MUA about where discussions with the ALE employees on the Hydro Deck would be held if they had a legal right of entry?‑‑‑No.
And you would be aware if there had been such discussions?‑‑‑I believe so. If any contact had been made with my manager or his manager, then that would have been discussed with me because it was a marine matter.
CROSS-EXAMINATION BY MR QUINN [10.10 AM]
PN1050
MR QUINN: Correct me if I'm wrong, because numbers aren't really my thing, but I think you mentioned that there were, when we were on the inspection the other day, about 6000 employees on site. Is that right?‑‑‑Yes, that's what we're told. It's a mix of white-collar, so people inside office space; and it's a mix of people on the construction roster, so if we say 6000, there's a chance that there's a percentage who are on leave at the time. They work a 4 and 1 roster.
PN1051
Would it be right to say - and I don't want to put you on the spot to give an exact number of people working on the Hydro Deck, because you say there are a few positions that aren't filled, and naturally people come and go, but if rough terms about 20 people all up?‑‑‑Employed, or working on a shift?
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1052
No, working on the Hydro Deck?‑‑‑The total number of people to work on the Hydro Deck? Less than 30.
PN1053
Less than 30?‑‑‑Mm'hm.
PN1054
So out of the then, roughly 5970 people that work on site that don't work on the Hydro Deck, how many of them undergo regular hull breach drills?‑‑‑None.
PN1055
None. Is it that none of those 5970 people do regular safety checks on life rings?‑‑‑We do safety checks on the jetty life rings, and we do safety ‑ ‑ ‑
PN1056
Who's we?‑‑‑The construction company who built the jetty do ‑ ‑ ‑
PN1057
How long did that construction - jetty construction ‑ ‑ ‑ ?‑‑‑It's ongoing.
PN1058
Which jetty construction ‑ ‑ ‑ ?‑‑‑This is the product loading jetty.
PN1059
Which is located where?‑‑‑At Blaydin Point.
PN1060
In relation to the MOF - in relation to the site that we visited the other day, the MOF?‑‑‑We have life rings on the MOF and on the catwalks, and the LPIs for checking the equipment on the life rings on the catwalks and on the MOF is undertaken by JKC.
PN1061
And out of the 5970 people-odd, how many of those do monthly life ring checks?‑‑‑I don't know. I can't give you an answer. I don't know. So the responsibility ‑ ‑ ‑
PN1062
Next to nothing?‑‑‑Sorry?
PN1063
Next to zero?‑‑‑Well, there are three people working in the operations team on the MOF, plus a safety adviser and a manager, so those five would undertake the life ring checks on the MOF.
PN1064
So about - in addition to the roughly 30 on the Hydro Deck, there are about five others. Is that right?‑‑‑There would only be one or two people on the Hydro Deck who would undertake a check of a life ring. It would be the HSE officer. It's his responsibility. And if he needed someone to assist him, he would probably use the barge superintendent.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1065
But you don't know that?‑‑‑Sorry?
PN1066
You haven't seen him use the barge superintendent?‑‑‑The HSE officer?
PN1067
Yes?‑‑‑I've been on an LPI with the HSE officer to see him doing the life ring checks, yes. Yes, salaried employee, HSE officer, there are four of them. So - - -
PN1068
And a barge superintendent?‑‑‑Sorry?
PN1069
And barge superintendent?‑‑‑Yes, well normally if I'm on board the purpose is to have a general chit-chat as we're doing something else, so we try and engage with people. So yes, there's always a chance that there will be a barge superintendent there.
PN1070
And who's the barge superintendent or sorry, how many barge superintendents are there?‑‑‑There are four now.
PN1071
Four?‑‑‑There were three at the time I wrote my statement. There are now four. The last one has just been appointed.
PN1072
And that's how you normally refer to them?‑‑‑No, I'd call them an off TP superintendent or a Hydro Deck - - -
PN1073
Well, why did you call them the barge superintendent to me?‑‑‑Sorry?
PN1074
Didn't you just tell the Commission that they're barge superintendents?‑‑‑I don't know.
PN1075
Well, you just said it about three times?‑‑‑Right.
PN1076
So that's what they're commonly called I presume?‑‑‑No well - - -
PN1077
Given that was your first response?‑‑‑No, they're not commonly called that. It's the Hydro Deck - it's - - -
PN1078
You made it up specially for these - - -?‑‑‑I don't know. You want to be a smart pants and keep talking like that then, you know, I'll just banter back.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1079
No, I'm trying to get a response from you. You're - - -?‑‑‑The position is the pontoon is called the Hydro Deck. The position is officially called the operations superintendent.
PN1080
But you refer to them as the barge superintendent?‑‑‑Would you like me to call them a ship's captain?
PN1081
Is it a ship? Yes. Is it a ship?
PN1082
THE COMMISSIONER: Mr Quinn, I'm aware of the differences between the parties in terms of the - - -
PN1083
MR QUINN: I'll leave it there. I'll leave it there, Commissioner.
PN1084
THE COMMISSIONER: - - - the nomenclature that has been attributed to the Hydro Deck.
PN1085
MR QUINN: Thank you.
PN1086
The MOFTP and the Hydro Deck are inside an MSIC zone, are they not?‑‑‑There's no such thing as an MSIC zone.
PN1087
Well, could you explain to the Commission the MSIC process that operates at the MOFTP and Hydro Deck?‑‑‑If you are required to have a maritime security identification card it would only be required if you were in a maritime security zone as set by DOTARS.
PN1088
And is the MOFTP and the Hydro Deck established as a maritime security zone?‑‑‑Under the security plan for the project and for that location within the Darwin Harbour the MSIC - sorry, the maritime security zone only applies 30 minutes prior to the arrival of an international vessel and for 30 minutes after the departure.
PN1089
And that's on the side of the - where we drove up there was a gate basically at the end of the causeway. I think it's maybe temporary fencing still?‑‑‑Temporary fencing, yes, correct.
PN1090
And that's where zone starts, is that right?‑‑‑Yes.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1091
And there was a sign on the gate identifying that to be the zone start?‑‑‑Correct.
PN1092
If I'm standing on this side of the gate, the landside of that gate, within that 30 minute window and I'm standing on this side of the gate or I'm standing a hundred yards back, or I'm standing two kilometres back, am I in an MSIC zone?‑‑‑There's no such thing as an MSIC zone.
PN1093
Well, am I required to have an MSIC card as consistent with the maritime security plan?‑‑‑At the time that a area is allocated and defined as being under the maritime security zone or being a maritime security zone and that that is actively being enforced then there is a requirement that if you are an MSIC card holder that you display that MSIC card either on your shoulder or on your chest and that it must be displayed. There - the ability to carry an MSIC card or not carry an MSIC card is dependent on you being authorised to have one. If you are not authorised to have one or have not been allocated one by the Australian Government then you may be escorted on a fixed ratio as approved under your maritime security plan.
PN1094
And if I'm standing on one side of that fence I have no necessity, need and can't be carted away because I don't have one; and if I'm standing on the other side of the fence I can be, is that correct, within that 30 minute window that you describe?‑‑‑I'm not sure about the carting away but can Customs ask - Customs can ask you - Customs and Border Protection can ask you to show your MSIC card and your due reason to be in that location when the maritime security zone is in force which is 30 minutes prior and for 30 minutes after the departure of a international vessel.
PN1095
Thank you. You've got your statement there, haven't you?‑‑‑Yes.
PN1096
Do you want to turn up your paragraph or page 3, paragraph 12 onwards? So at paragraph 12 there, in the middle there:
PN1097
I'm not aware of any occasion when the MUA has legally pursued coverage of workers on barges or pontoons in the near shore construction industry.
PN1098
So does that mean you're unaware of the coverage that the MUA has in relation to the near shore construction industry and the LNG plants in Gladstone?‑‑‑13 you're referring to?
PN1099
12?‑‑‑Yes, and what's your question?
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1100
Are you aware that the MUA does have coverage of construction barges at the LNG project, or at one of the LNG projects at Curtis Island in Gladstone?‑‑‑Name the barge.
PN1101
I don't know the name of the barge. I can pass you the decision though. So you're unaware?‑‑‑If you're referring to the Big Boss, they have coverage because it has a propulsion system.
PN1102
I'm not referring to a dredger at all. I'm referring to work on construction barges at the construction site on Curtis Island?‑‑‑I'm not aware of the MUA having coverage of a non-propelled barge at Curtis Island.
PN1103
So when you made that statement your lawyers didn't make you aware of the MUA v Bechtel matter where the Commission - - -?‑‑‑Yes, of course.
PN1104
- - - has confirmed that?‑‑‑I am aware of the MUA v Bechtel case.
PN1105
All right?‑‑‑And I'm aware that the claim was on the digger operators, but that project and that scope ended what, three years ago?
PN1106
Well, I take you back to your words:
PN1107
I'm not aware of any occasion when the MUA has legally pursued coverage
PN1108
So in relation to Gladstone the MUA legally pursued coverage?‑‑‑I see what you're saying.
PN1109
The MUA obtained coverage. The MUA got a decision in 2013 from the Commission confirming it had coverage. Are you aware of that?‑‑‑Yes, I'm aware of the Bechtel case.
PN1110
So why have you written here that:
PN1111
I'm not aware of any occasion when the MUA has legally pursued such coverage
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1112
?‑‑‑No, I would have - I should have probably said successfully instead of legally, now I read that.
PN1113
All right, let's put the word "successfully" in there. So are you aware that the MUA has coverage, successfully obtained coverage and had a decision from the Commission confirming that coverage, and when that matter was sought to be appealed, leave to appeal was refused in relation to that coverage? Do you define that as successful?‑‑‑Successful in terms of by the time that the matter had been dealt with the work had ceased.
PN1114
No, successful in that the MUA had legally obtained and successfully obtained coverage of employees working on construction barges at the construction site at the LNG project in Gladstone?‑‑‑We're not talking about barges. You're talking about a barge and a position.
PN1115
So if it's only a barge then you're entitled to say that's not any occasion?‑‑‑And it's not the barge work that they were successful in. It was the operation of one part of that barge work.
PN1116
And so that's not barge work?‑‑‑No, it's not barge work. The work that are undertake - the work that they were successful in gaining coverage of or claiming to have coverage of in order to exercise right of entry was not actual barge work. It was not the operation and maintenance of the barge.
PN1117
It's not barge work because there was a worker working on a barge?‑‑‑That's not barge work.
PN1118
What makes something barge work if it's not working on a barge?‑‑‑Operational maintenance of the barge.
PN1119
That's your definition of barge work?‑‑‑Absolutely.
PN1120
And is the Commission wrong then to say that that's barge work?‑‑‑I can't say what the Commission - the exact wording - - -
PN1121
Well, the Commission says that's barge work covered by the MUA's eligibility rules?‑‑‑- - - because I don't have the decision in front of me to re-read the decision.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1122
Is the Commission right or wrong?‑‑‑I'd have to re-read the decision to understand which parts of the decision they were - or which - what they were actually referring to when they said that that one position was able to be covered by the MUA.
PN1123
Can I put to you that you're wrong to say it's one position?‑‑‑You can put whatever you want to me and I don't accept what you're saying. I think you're taking a slant on the actual case.
PN1124
Yes, so you're aware of that decision?‑‑‑The Bechtel decision, yes.
PN1125
Yes, so nevertheless you maintain that:
PN1126
My experience in all cases has been that the MUA has not claimed coverage or advanced coverage of works on non-propelled barges or pontoons in the construction industry.
PN1127
?‑‑‑That's correct.
PN1128
How do you reconcile that with knowing and claiming that you're aware of the Bechtel decision?‑‑‑My understanding of that decision, that it does not cover the workers on the barge. It covers a particular position on the barge operating a particular piece of equipment on the barge.
PN1129
And the - - -?‑‑‑Carrying a particular product on the barge.
PN1130
And therefore it's not barge work?‑‑‑Correct.
PN1131
Thank you. You were in the room yesterday when Mr Mayor gave evidence about a self-ballasting transition pontoon that was used in Darwin Harbour for railroad loading - sorry, railroad unloading? I think it may also have been used for loading but for railroad loading and unloading in Darwin Harbour for more than a decade?‑‑‑Yes, I heard that. Yes. Yes.
PN1132
And that the MUA had coverage?‑‑‑Yes, the stevedores in the port. Yes, correct.
PN1133
And yet it's still your view that in 15:
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1134
The MUA does not have coverage or positions on non‑propelled floating plant including -
PN1135
And then you name a range of types of barges et cetera?‑‑‑Yes, I certainly do.
PN1136
At your 13 you claim that:
PN1137
The MUA has continuously conceded that coverage -
PN1138
That is, non‑propelled barges and pontoons in the construction industry:
PN1139
The MUA has continuously conceded that coverage to construction industry unions such as the AWU.
PN1140
What meetings have you sat in with MUA officials where they've sat there and conceded their coverage to the AWU?‑‑‑Nil.
PN1141
Thank you. You've identified your experience?‑‑‑Correct.
PN1142
In industrial relations. You remember the right of entry regime that was in place under the Workplace Relations Act - well, sorry, I shouldn't put that to you. Do you recall, to be more specific, that the right of entry provisions entitled Greenfields agreement to be made the effect of which would be that any unions that weren't part of the agreement then were unable to exercise a right of entry to the premises covered by the agreement?‑‑‑Not specifically, no.
PN1143
Let me put it to you this way. There was a provision in the Workplace Relations Act in the right of entry regime that unions who did not have or weren t a party to, covered by, an operating complying industrial instrument, an award or EBA, could not access entry to premises? Do you recall those arrangements?‑‑‑Yes, I understand that. Yes.
PN1144
And do you recall that in the construction industry and other industries, unions such as the AWU made Greenfields agreements that covered the entire site and the effect of which was to lock out any other unions who weren't party to those agreements from exercising right of entry during the life of the agreement?‑‑‑I'm not sure where you're going but the - - -
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1145
It was a question. I'm not going - - -?‑‑‑- - - the Greenfields agreement on this site is a multi-union agreement involving - - -
PN1146
I'm asking you about - - -?‑‑‑- - - involving the - - -
PN1147
I appreciate that. I'm asking you about do you recall those arrangements under the Workplace Relations Act?‑‑‑I recall allegations against the AWU for undertaking such activities.
PN1148
Do you recall that the AWU entered into agreements that gave it exclusive coverage?‑‑‑In my work history with the various unions, yes, I never came across a circumstance where the AWU was asked, given or granted exclusive coverage of any group of workers.
PN1149
I don't suppose you have a copy of Mr Mayor's statement with you? Sorry, it's a bit cumbersome?‑‑‑No, I don't have a copy. I don t have a copy, no.
PN1150
It's a bit cumbersome and mine is loose so I might - there's only one exhibit that I want to refer to. I might just take the liberty of - unless you've got a spare to hand up to him?
PN1151
MR PARRY: Which one do you want - - -
PN1152
MR QUINN: I think I don't have a spare.
PN1153
MR PARRY: Which one do you want to hand up?
PN1154
MR QUINN: TM2. It's just I've got a black and white one and I think it's pretty useless.
PN1155
MR PARRY: I've got a spare copy of TM2.
PN1156
MR QUINN: Do you?
PN1157
MR PARRY: I've got a spare.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1158
MR QUINN: A pamphlet from the Hydro Deck's designers and manufacturers?‑‑‑Yes.
PN1159
If you could turn to the second-last page of the pamphlet? It has got a main heading saying, "Hydro Deck commercial arrangements"?‑‑‑Yes.
PN1160
Forgive me my - in the second column or, sorry, the right‑hand column?‑‑‑Yes.
PN1161
It says, "Extra storage area" or there's a paragraph entitled, "Extra storage area"?‑‑‑Yes.
PN1162
What's the first sentence in that paragraph?‑‑‑The bit where it's got the metres squared in it?
PN1163
Yes, yes?‑‑‑You'd like me to read it?
PN1164
I'd love you to read it. Sorry my version is tiny?‑‑‑In capitals it has, "EXTRA STORAGE AREA". It has a hyphen and then it says:
PN1165
The Hydro Deck provides 5,600 metres square of storage space on the deck of the barge to provide for the rapid unloading and release of the delivery vessel.
PN1166
That's the first sentence.
PN1167
MR QUINN: Yes, so are the designers and manufacturers of the Hydro Deck wrong to call their product a barge; do they not know what they're talking about?‑‑‑The marketing people will say whatever they need to do to continue to offer this piece of equipment into the market, so.
PN1168
And you'll say whatever you need to do?‑‑‑No, I'll refer you to the next page where it says that:
PN1169
The class notation is Lloyds Register unmanned pontoon.
PN1170
MR QUINN: And the manufacturer has also identified it as a railroad pontoon?‑‑‑Roll on roll-off.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1171
Yes, and as a barge?‑‑‑I'm sure it says many things in this document, but if you ask me what it is I'll say that the class society says that it is Lloyds Register unmanned pontoon.
PN1172
Well let's take you then back to your statement, paragraph 33:
PN1173
The Hydro Deck is classed as a pontoon by the Lloyds Register.
PN1174
The Lloyds Register is a classification registry for ships, isn't it?‑‑‑It's a class society.
PN1175
For?‑‑‑It's a class society.
PN1176
For dogs?‑‑‑It's a class - - -
PN1177
For trucks?‑‑‑It is a class society. It is applied to various equipment and various quality requirements. It is not just for ships.
PN1178
Can you turn to BMG2 please, your exhibit 2?‑‑‑Yes.
PN1179
Which is the certificate?‑‑‑Yes, the certificate class.
PN1180
For the Hydro Deck?‑‑‑Correct.
PN1181
"This certificate is issued to the Hydro Deck 1. Port of registry Singapore." So it's registered in Singapore?‑‑‑Correct.
PN1182
Sorry, the Port of Singapore I should say?‑‑‑Yes, correct.
PN1183
And what do ports register, pedigreed dogs?‑‑‑No, they register ships.
PN1184
Thank you. If we go further down - - -?‑‑‑They also register dumb barges and they also register mobile operating drilling units.
PN1185
Is that right?‑‑‑And they also - jack-up barges, pipe lay barges, construction barges, crane barges and dredgers.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1186
And they register them because they're pedigreed dogs or because they're ships?‑‑‑Well, they don't register the - you know, Costoro 1 or the Semac, you know, pipe lay barges because they're ships, because they have no propulsion system. They register them because that's the appropriate society or the appropriate classification system to use, because ships predated the use of pontoons and barges and other floating plant; and the Lloyds system which is one of the oldest of the systems was what was used going back to the days of sailing ships, before we had other items. So that is the default system that we use around the world, is a class society to define what it is and below - when you read below the classification system it then has the markings for "100 AT pontoon IWS LMC" and the description.
PN1187
If I can take you to - - -?‑‑‑And the description is - - -
PN1188
- - - the description before that. So it's to confirm that it has been "Served by Lloyds Register classification society China"?‑‑‑Correct.
PN1189
And having been found in compliance with the rules and regulations for the classification of ships.
PN1190
?‑‑‑Yes.
PN1191
So it's a system for the classification of ships?‑‑‑Correct.
PN1192
Thank you. So:
PN1193
Having been found in compliance with the rules and regulations of the classification of ships, the aforementioned ship has been assigned to the class of pontoon.
PN1194
?‑‑‑Yes, unmanned.
PN1195
And a pontoon is a classification of a class of ship?‑‑‑Do you have - - -
PN1196
Yes or no?‑‑‑- - - a question?
PN1197
Yes or no, do Lloyds identify that a pontoon is a class of ship?‑‑‑The Lloyds Register identifies everything that is put forward that has a hull as a ship.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1198
Thank you?‑‑‑It then assigns whether or not it's propelled, non‑propelled, manned or unmanned.
PN1199
If you can turn back to your paragraph 36?‑‑‑Yes.
PN1200
And you state your opinion there that:
PN1201
I don't consider the Hydro Deck to be a vessel for the purposes of the Navigation Act or the Marine Safety (Domestic Commercial Vessel) National Law Act and that is because the Hydro Deck is foreign-owned and registered.
PN1202
If you could give me one moment. I have an extract from the Marine Safety (Domestic Commercial Vessel) National Law Act that I'd like to hand to the witness, Commissioner. It's just the definitions section?‑‑‑Thank you.
PN1203
The last - what is identified as page 9, so page 9 of 110, the last sheet, the inside back page. Section 8 there, have you found that definition of vessel?‑‑‑Yes. Yes.
PN1204
So it says, "A vessel means a craft" and I take it - I'm assuming that we can agree that that means water craft?‑‑‑Yes, there are exclusions to other craft so yes, that's correct.
PN1205
Yes?‑‑‑Because it says it's not an aircraft.
PN1206
Yes it does, although I have to admit I don't understand what a wing in ground effect craft is. I'm hoping that it's not relevant to us. So a vessel is a craft. Would you agree that that's a broader category of vessel than a ship?‑‑‑As defined under the Domestic Act?
PN1207
Well, it's the only Act we're looking at. I retract that. I'll put it another way. Is a water craft - I'll assume we're talking about water craft not whatever else craft might mean - a broader category or a narrower category than ship?‑‑‑Are you referring to the context of the Domestic Act?
PN1208
If that's how you want to answer it, yes?‑‑‑There's a definition in the Domestic Act as to what a vessel is. I'm not going to redefine for you what a craft is. I didn't write the legislation.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1209
So a craft - - -?‑‑‑And the legislation applies to domestic vessels.
PN1210
Well, let's move through the definition then. The type of vessel includes a range of types of craft including air condition - air cushion vehicle. Would you agree that s some form of hovercraft, what we'd normally refer to as a hovercraft?‑‑‑It is a hovercraft.
PN1211
Yes. Thank you. A barge?‑‑‑The Domestic Act applies - - -
PN1212
A barge?‑‑‑The Domestic Act applies to a barge.
PN1213
A lighter, a submersible, a ferry and chains and a wing in ground effect craft, whatever that means. A ferry and chains, would you agree, is a ferry that operates on a chain line normally backwards and forwards across a river?‑‑‑Yes.
PN1214
And earlier in the definition:
PN1215
a craft for use, or that is capable of being used, in navigation by water
PN1216
So the Hydro Deck meets all of those definitions of a vessel, does it not?‑‑‑It doesn't meet the definition of being a domestic vessel.
PN1217
And that's because?‑‑‑It's a foreign-owned and registered - - -
PN1218
Thank you. So the reason that it doesn't - the Marine Safety (Domestic Commercial Vessel) National Law Act doesn't apply is because it's a foreign-registered ship. Is that correct?‑‑‑Is a foreign-registered - it's a foreign‑registered something, that's for sure.
PN1219
Indulge me. It's a foreign-registered ship. Lloyds has classified it as a type of ship?‑‑‑Yes, the registry comes from the Port of Singapore and the Port of Singapore doesn't register it as a ship.
PN1220
Thank you. So - - -?‑‑‑The Port of Singapore registers it as a "other" and it applies the other Act.
PN1221
According to the Marine Safety (Domestic Commercial Vessel) National Law - - -?‑‑‑Which doesn t apply to foreign‑registered equipment.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1222
Thank you. We're aware of that?‑‑‑Yes.
PN1223
And that's the reason why it's excluded, but otherwise it meets the definition of a vessel under the Act?‑‑‑There's no pontoon here.
PN1224
a craft for use, or that is capable of being used, in navigation by water, however propelled or moved
PN1225
What part of that definition doesn't the Hydro Deck meet?‑‑‑The Hydro Deck - - -
PN1226
Is it a craft?‑‑‑The Hydro Deck is registered as a pontoon.
PN1227
Is it a craft that is capable of being used, in navigation by water?‑‑‑No, it can't be navigated.
PN1228
Does it teleport? How is it moved?‑‑‑By towage.
PN1229
Thank you. It's navigated by water?‑‑‑It's towed.
PN1230
Which is a type of teleportation or a type of movement by water?‑‑‑It's towed.
PN1231
Thank you. You discuss STCW10 in your paragraph 39, it's the last sentence there:
PN1232
It's a convention produced under the auspices of the IMO. It sets out a range of internationally recognised qualifications for people holding positions on ships that trade internationally.
PN1233
So the reason that STCW10 doesn't apply is because the Hydro Deck is not a ship that trades internationally. Is that correct?‑‑‑That's one of the reasons. Doesn't it - it doesn't - - -
PN1234
Is it a ship that trades internationally?‑‑‑No.
PN1235
Right, so STCW10 doesn't apply?‑‑‑Sorry?
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1236
STCW10 doesn't apply because it's not trading internationally?‑‑‑No, it doesn't apply because the port of registry has not issued a requirement for a manning certificate, and therefore with no manning certificate there is no qualification requirement, and with no qualification requirement there is no ability to set out the standards for the qualifications required for those people working on an unmanned pontoon.
PN1237
Paragraph 42:
PN1238
I concluded that STCW10 was not applicable because the MOFTP does not come under the jurisdiction of the Navigation Act or the Marine Safety (Domestic Commercial Vessel) National Law for the reasons I have outlined in paragraph 36.
PN1239
Now that's different to the reasons you're stating now, isn't it?‑‑‑No, it's absolutely linked. Navigation Act is the instrument used by the Australian Maritime Safety Authority as the port state controller to enforce the legislation, international legislation and the legislation signed up to by each foreign-registered port - foreign registry and - - -
PN1240
And the reason that the Navigation Act and the Marine Safety (Domestic Commercial Vessel) National Law Act don't apply is because it's a foreign-registered vessel. Is that correct?‑‑‑The reason the Navigation Act does not apply is because there is no safe manning certificate issued by the port of registry. When - and when you're referencing STCW10.
PN1241
I'll take you back to your 36:
PN1242
I do not consider the Hydro Deck to be a vessel for the purposes of the obligations of the Navigation Act or the Marine Safety (Domestic Commercial Vessel) National Law because the Hydro Deck is a foreign-owned and registered transition pontoon.
PN1243
Now that's a different answer again, isn't it?‑‑‑I could rewrite this into two different paragraphs and the paragraphs if I rewrote it, now looking at it, I would tell you that the Domestic Act doesn't apply because of the foreign-owned registry. She doesn t meet the definition of a domestic commercial vessel, and I would say that the reason that the Navigation Act does not apply is because she doesn't undertake voyages by water, particularly any overseas voyages. Which then leads to the port of registry determining what the requirements are for manning, and then from the manning what the qualification requirements are.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1244
Do you know what the definition of vessel under the Navigation Act?‑‑‑I don't have a copy of it in front of me.
PN1245
I'm your man then. Again, just an extract from the definitions section.
PN1246
THE COMMISSIONER: Mr Quinn I should remind you yesterday that Mr Carr described the Hydro Deck as a specialist piece of equipment. Do I take his evidence as evidence of what it is? I mean, I'm happy to have this backwards and forwards about what another statute is interpreted as, but I'm not so sure we're going to get anywhere. But I'm happy to let you continue. I've got one - - -
PN1247
MR QUINN: I will bring it to an end - - -
PN1248
THE COMMISSIONER: I've got one view of your own witness and I've got the view of this witness, but he just called it a piece of equipment.
PN1249
MR QUINN: Which - - -
PN1250
THE COMMISSIONER: But maybe it was loose language but now we're going to the extreme of what is contained within a - what is meant by a particular statute. Carry on, Mr Quinn.
PN1251
MR QUINN: I thank you for your interest in the process I'm undertaking. That's really an issue for submissions as to how to characterise this thing.
PN1252
Again the second-last page, page 10, down the bottom. Have you had a chance to read it?‑‑‑Correct, I've read it.
PN1253
To cut to the chase, is there any difference in substance? You'll see it's different in format but is there any difference in substance between that definition of vessel and the definition of vessel we were discussing under the Marine Safety (Domestic Commercial Vessel) National Law?‑‑‑The structure of the wording is different. There are - the way the examples are broken up is different.
PN1254
Do you agree in substance - - -?‑‑‑There's no use of the word "craft" in the Navigation Act. There's no use of the word "capable" in the Navigation Act. There's no use of ferry and chains or wing in ground effect craft in the Navigation Act.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1255
Thank goodness for that one?‑‑‑So they're worded differently, yes.
PN1256
And they still apply to:
PN1257
vessel used in navigation by water however propelled or moved, including a barge, lighter or other floating craft.
PN1258
Do you agree that that's what it says?‑‑‑It says:
PN1259
Vessel means any kind of vessel used in navigation by water however propelled or moved, and includes the following:
PN1260
(a) a barge, lighter or other floating craft;
PN1261
(b) an air cushion vehicle, other similar craft used wholly or primarily in navigation by water.
PN1262
MR QUINN: You mentioned the IMO number. You say that's voluntary for a pontoon or barge?‑‑‑It's voluntary for any item that is not a propelled vessel. It's a unique identification system and similarly to the class societies it's - it is a default system set up by Lloyds.
PN1263
And it's also voluntary for any cargo vessel that's under 300 tonne?‑‑‑There is a voluntary - sorry, the application is voluntary for specific tonnage - sized vessels and I don't have that figure in front of me, no.
PN1264
If you could take my word for it that it's in relation to it only applies to or, rather, it only applies compulsorily applies, if I can put it this way. It compulsorily applies to cargo vessels of 300 tonnes and above and passenger vessels of at least 100 gross tonnage?‑‑‑I'll accept - if you're saying it, I'll accept that.
PN1265
So any sort of vessel outside of those two classes it's voluntary for?‑‑‑I don t have it in front of me to be able to tell you that's exactly what it says.
PN1266
Well, I'm telling you. The proposition I'm putting to you is that it's compulsory for those two classes and it's non‑compulsory for any other class of vessel?‑‑‑Yes, I'll accept that.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1267
So in fact a huge range of craft or ships fall outside the compulsory component of the IMO number scheme?‑‑‑Yes, every sailing ship sitting out in Fannie Bay right now, apart from those that sail regularly overseas and want a unique identifier, will not have an IMO number.
PN1268
So the reason it's voluntary for the Hydro Deck is for the same reason it's voluntary for a whole lot of other range of ships? It falls outside of the class of ships that it's compulsory for?‑‑‑It's voluntary.
PN1269
Thank you. Now it's the IMO ship identification number scheme, is that right?‑‑‑Yes.
PN1270
So it's not the IMO things that aren't ships identification scheme? The Hydro Deck has an IMO number, the IMO ship identification number, because it's a ship?‑‑‑It has a unique identifier. The unique identifier that they've chosen is the IMO number system. That is correct.
PN1271
No, I put it to you they haven't chosen the IMO number system. They've chosen the IMO ship identification scheme. Is that correct?‑‑‑I don't have the full title of the - - -
PN1272
Well, you've put it in your affidavit - sorry, your statement?‑‑‑Yes. I don't have it in front of me at the moment.
PN1273
You have the statement in front of you, don't you?‑‑‑I have the statement in front of me, yes, and to make sure I've got the correct wording in the statement, I don t have the document in front of me that says that it's actually called that. But I'm more than willing to accept that you're not going to mislead me.
PN1274
Well, I'll make sure that I'm not?‑‑‑That's good.
PN1275
I can confirm that I'm not misleading you?‑‑‑Fantastic.
PN1276
According to resolution A600 of 1987 it's the IMO ship identification number scheme or the resolution of the IMO?‑‑‑Excellent.
PN1277
Thank you?‑‑‑And so I'll confirm that they voluntarily entered into registering the vessel with an IMO number.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1278
Correct me if I'm wrong, you said there were four superintendent positions now and is it three of them are filled and one not?‑‑‑At the time of writing this - signing this statement three were filled and one not, and effective this week the fourth position has been filled.
PN1279
So there are four positions?‑‑‑Yes.
PN1280
So are those positions identical to or fall within the category of officer positions that are in your experience covered by the AMOU?‑‑‑No, because they're all of equal standard. There is a superintendent. Like we have a construction superintendent looking after the cranes. We have a construction superintendent looking after, you know, construction of pipe racks. We have a construction superintendent involved in putting in foundations.
PN1281
Thank you. Earlier on in your evidence with my friend you mentioned three types I think - and you were talking very fast so I didn't get to write them all down. You mentioned three types of dredger barge. I think the third one you said effectively an international vessel?‑‑‑Self-propelled cutter suction dredge.
PN1282
Now the two, are they moved to their location, project locations, by tugs?‑‑‑It depends. A non‑propelled hopper barge will be moved by tug. A propelled hopper barge will generally - like the Nina or Pinta examples, ships that are worked in Australia, they will self-propel to the spoil ground. The backhoe - - -
PN1283
To the spoil ground, no, sorry that wasn't my question. To the project area they tow?‑‑‑From another country are you talking about?
PN1284
Yes, from their previous project or their previous - where they've been moored waiting for the next job. Do they travel the open - - -?‑‑‑You know, go way back the Geraldton - say the Geraldton port enhancement project, the Leonardo da Vinci sailed under its own steam. The Nina and the Pinta came under their own steam and the two little work boats were carried on a large lift-on/lift-off vessel and were offloaded in the port. They were all foreign‑registered, just different sizes and had different capabilities.
PN1285
So some are towed and some move under their own steam?‑‑‑None were towed. They were - the description I just gave.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1286
Sorry, sorry, I take that back. Sorry, I'm referring to that first category that you were discussing, they're the non‑propelled that are towed and then there's a second category you say that are propelled, and then there's a third category that is effectively an international vessel, a cutter dredge, is that right?‑‑‑Generally the cutter suction dredge is self-propelled. They're larger and move from project location to project location.
PN1287
Under their own steam?‑‑‑Yes. The self-propelled hopper barges if they're of a adequate size and it's economical to do so will come under their own steam. Your smaller work boats, if there is not an Australian version available and it's coming as a package, in the main have been delivered.
PN1288
Thank you. You referred to smaller operators. I gave you the example of the tourism market where employees on vessels have multiple functions, and you say that these are set and there was a blurring of coverage in those situations. Do you recall that?‑‑‑I wouldn't say there's a blurring of coverage. I'd say there's a blur - - -
PN1289
Well, that's what you said. You said there was a blurring of coverage?‑‑‑There's a blurring of roles.
PN1290
A blurring of roles. Well, as I recall you were saying that there was a blurring of coverage. It was in relation to some specific questions about the coverage firstly of the AMOU and then secondly, identical questions about the coverage and the overlapping potential, whether or not there was any overlap in coverage between the MUA and those other two unions. And as I recall you were identifying that there was an overlap in coverage in relation to both the AMOU - and you gave the example of the tourism market - and the AIMPE, also with the example of the tourism market?‑‑‑Yes, the blurring of coverage by - as a result of the blurring of roles.
PN1291
Thank you, and is there a blurring because the MUA covers those people?‑‑‑I don't understand what you're saying.
PN1292
Does the MUA cover those people?‑‑‑Which ones?
PN1293
Those people in your example of the tourism market who are operating on vessels in the tourism market?‑‑‑On a - I - sorry, I'm misunderstanding what you're asking.
PN1294
Do the rules of the MUA - - -?‑‑‑Yes.
*** BRADLEY MILES GEORGE XXN MR QUINN
PN1295
- - - allow them to cover those people that you referred to as operating in the tourism market?‑‑‑There's a specific reference to the tourism industry in the rules.
PN1296
Yes, are you sure about that?‑‑‑I'll just go and pull them out again and then have another read, but yes.
PN1297
That's all I have, Commissioner. Thank you.
PN1298
THE COMMISSIONER: Thank you Mr Quinn.
Re‑examination, Mr Parry?
RE-EXAMINATION BY MR PARRY [11.03 AM]
PN1300
MR PARRY: If the Commission pleases.
PN1301
Mr George, you've been handed a couple of pieces of legislation, one being one Act and another being another Act, and taken through the wording differences between them. The Navigation Act speaks of a vessel being a vessel used in navigation by water. With regard to the Hydro Deck you referred to it being towed. The towing, does that occur in the normal course of operations of the Hydro Deck?‑‑‑The only reason to tow it would be to take it to a cyclone mooring in the event of a cyclone, and when the port determined that we should remove it from the site.
PN1302
The port determined?‑‑‑Correct.
PN1303
Right, so you might get a direction that you have to move the Hydro Deck by the port authorities?‑‑‑By the Darwin Port Corporation.
PN1304
By the Darwin Port Corporation?‑‑‑So the harbour master will make the determination.
PN1305
Yes, but absent that direction, in the normal course the Hydro Deck sits where the Commission and ourselves saw it on Tuesday and that's where it sits and that's where all the functions are performed on it that the contract requires of the employer and those associated with it?‑‑‑From the 24th of June 2014 to today that's exactly where it sits and when it's completed, when the last module has been offloaded, it will depart and it will be put on a heavy lift - on a large heavy lift vessel and taken to another project somewhere.
PN1306
Yes. I have nothing further.
*** BRADLEY MILES GEORGE RXN MR PARRY
THE COMMISSIONER: Thank you for your evidence, Mr George.
<THE WITNESS WITHDREW [11.05 AM]
PN1308
MR PARRY: If the Commission pleases, might we have a short break to determine what we need to do next with regard to whether there's any more evidence we want to put before the Commission?
PN1309
THE COMMISSIONER: Do you want 15 minutes?
PN1310
MR PARRY: If the Commission pleases.
PN1311
THE COMMISSIONER: Or do you want till 11.30? What do you need?
PN1312
MR PARRY: 11.30.
PN1313
THE COMMISSIONER: The Commission will adjourn till 11.30.
SHORT ADJOURNMENT [11.05 AM]
RESUMED [11.37 AM]
PN1314
THE COMMISSIONER: Mr Parry?
PN1315
MR PARRY: If the Commission pleases, we ve been attempting to make contact with Mr Whitehead. We will not be calling him to give evidence and be available for cross-examination. We had intended, of course, to call him and we ve prepared our case on that basis. We ve prepared a statement which he s signed. We had expected him to be here and to be available for cross-examination. Without going into the detail of his reasons, as we understand them, they re personal family ones involving children and such matters and- - -
PN1316
THE COMMISSIONER: I don t need to know the details, Mr Parry.
PN1317
MR PARRY: No, we would not want to put the details on the record. The only reason I go as far as that is that we would want to have is statement marked. The reason we would want to have it marked is for a couple of reasons. Firstly, Mr Clarke, in particular and Mr Carr were asked a number of questions about his statement and parts of it they adopted and parts of it they didn t.
PN1318
Mr Clarke was asked by my learned junior whether he d read the statement and whether he agreed with it and parts he didn t agree with, and he gave evidence of the parts he didn t agree with. Now, in those circumstances, it has been referred to, and parts of it have been, in effect we would say, adopted, parts have been challenged. Now, of course, where parts have been challenged, in view of the Commission has the evidence before it of those people so challenging it and also have further evidence of Mr George. We accept it s of much more limited evidentiary value. The Commission is not bound by the Rules of Evidence. We say it s a document that should be before the Commission.
PN1319
THE COMMISSIONER: Thank you, Mr Parry. Mr Quinn?
PN1320
MR QUINN: Commissioner, we don t have any objection to the document being tendered. Naturally, there s an issue of weight then, but we re happy to concur with that course.
THE COMMISSIONER: Given the circumstances, I m shall mark Mr Whitehead s witness statement incorporated into these proceedings and it shall be marked as exhibit R6.
EXHIBIT #R6 WITNESS STATEMENT OF BRETT WHITEHEAD
PN1322
MR PARRY: That s the material on which we rely, if the Commission pleases.
PN1323
THE COMMISSIONER: Thank you, Mr Parry. Mr Quinn, I did mention earlier, for completeness it would be necessary to mark your document which is headed, Statement of Facts Upon with the Applicant relies in response to the jurisdiction objection by the Respondent . That hasn't been incorporated so far.
PN1324
MR QUINN: I would seek to read that document, Commissioner.
PN1325
THE COMMISSIONER: I don't think you need to read it, I ll just incorporate it into proceedings and I ll mark that as exhibit A6.
PN1326
MR QUINN: Commissioner, then there s the outline of submissions in relation to Outline of submissions on behalf of the applicant , it s headed, that is the submissions in relation to the substantive matter, shall I say.
PN1327
THE COMMISSIONER: And that s already been marked as exhibit A2.
PN1328
MR QUINN: My apologies Commissioner.
PN1329
THE COMMISSIONER: And I think the only thing that remains is the Agreed Statement of Facts.
PN1330
MR QUINN: I understand it s being filed electronically as we look at each other across the Bar table.
PN1331
THE COMMISSIONER: All right. I think that s all the documentation. Mr Parry, you had a suggested course of action in relation to submissions earlier this morning. I think that s the most appropriate way to conclude these proceedings.
PN1332
MR PARRY: As the Commission pleases.
PN1333
THE COMMISSIONER: Are you ready to do that or do you want some time?
PN1334
MR PARRY: No, I don't think - my proposal was that the MUA make their submissions regarding substantive matters and anything they want to comment with regard to jurisdictional matters, we ll make our submissions then on jurisdictional matters and substantive matters and my learned friend would have a right- - -
PN1335
THE COMMISSIONER: That's right.
PN1336
MR PARRY: - - -of reply with regard to both those matters.
PN1337
MR QUINN: Commissioner, I just find myself at some disadvantage now in relation to that proposal. I was only supplied with the respondent s submissions in relation to the substantive matters at the commencement of proceedings this morning. I haven't had the opportunity to properly review that and I was also anticipating that I would get the lunchtime to do that, on the assumption Mr Whitehead would be appearing in the second-half of the morning. So I would appreciate either dealing with the jurisdictional issues first and separately, or taking an early lunch to enable the submissions to proceed after lunch.
PN1338
THE COMMISSIONER: Mr Parry?
PN1339
MR PARRY: Early lunch seems appropriate. We don t have any concerns with that.
PN1340
THE COMMISSIONER: If we return say at 12.45, you ve both got the afternoon then to make your closing submissions.
PN1341
MR QUINN: Thank you, Commissioner.
PN1342
THE COMMISSIONER: That should be sufficient, I would have thought.
PN1343
MR PARRY: Well, we ll see how we go I suppose, Commissioner.
PN1344
THE COMMISSIONER: I ll make no comment, I m sure you can manage it. Thank you.
SHORT ADJOURNMENT [11.43 AM]
RESUMED [12.50 PM]
PN1345
THE COMMISSIONER: Mr Quinn, before we begin, I ve received a copy of the Agreed Statement of Facts. Is that agreed between the parties, is it?
PN1346
MR QUINN: It is, Commissioner.
PN1347
THE COMMISSIONER: I say that because it s just got Norton Rose Fulbright Australia at the bottom, so I m just confirming that it s agreed.
PN1348
MR QUINN: Yes, Commissioner.
THE COMMISSIONER: And with respect to that, I ll mark that as exhibit R7.
EXHIBIT #R7 STATEMENT OF AGREED FACTS
PN1350
MR QUINN: As I understand it, Commissioner, the plan is for myself to address the issue of the substantive dispute. We can call back the respondent then to deal with both the substantive dispute and jurisdiction and then reply as required. So I ll proceed on that basis.
PN1351
THE COMMISSIONER: I was hoping that s what s agreed between the parties, but thank you.
PN1352
MR QUINN: Until I say it out loud, I m never sure myself. I ll proceed on that basis. We have filed those written submissions on the matter of on the substantive dispute. I am operating on the assumption that notwithstanding their late filing, the Commissioner s had the opportunity to read those. I don t need to step paragraph-by-paragraph through those nor do I intend to- - -
PN1353
THE COMMISSIONER: You can take it they ve been read, Mr Quinn.
PN1354
MR QUINN: And the relevant authority and the relevant parts, but the relevant authorities have also been at least perused by the Commissioner by this time. So nor will I go paragraph-by-paragraph to those matters that we ve on the cases that we ve referred to there. But I will try to adopt, in walking through, via the structures of those submissions, just as a way of addressing the issue.
PN1355
So the first substantive section that we deal with in relation to the substantive submissions is the approach to the Commission. I ve approached that the interpretation of union rules and there s some non-contentious principles that we ve set out. What I would, given the way the matter has progressed, there are two things that I would like to emphasise in relation to those principles, possibly three.
PN1356
The first is the obligation for the rules to be interpreted objectively. I probably should take a step back Commissioner, and just to formally identify, lest it need be said, we don t object or didn t object to the tender of Mr Whitehead s statement. It is, however, untested. It was certainly highly contested by the applicant s witnesses. There is also a range of evidence in his statement that referred to events that occurred after the time during which Mr Clarke was employed on the premises, which we intended to address witness him and now I m unable to. So while we don t object didn t object to the statement being tendered, we do say it should carry virtually no weight in the Commission s consideration in those circumstances, as it remains entirely untested.
PN1357
Sorry, if I can return to the primary submission. The issue of objective determination is important in relation to the evidence that is before the Commission. The evidence that the respondent primarily seeks to rely upon is the opinions provided by Mr George. Those opinions are inconsistent with the decisions of the Commission that we ve referred to in our submissions and referred to in the course of proceedings. That is where the MUA has already previously obtained coverage in relation to barge work, including barge workers at operating a barge at a construction site in relation to a variety of classifications of employees in the in-harbour or in-shore industry where the rules make plain that all the employees engaged on those classes of vessels are able to be covered by the MUA s rules.
PN1358
There was no contest as to the MUA s traditional and ongoing coverage of all classes of employees, on other in‑shore, in-harbour vessels such as ferries including employees who have on marine component, direct marine component to their roles such as ticket sellers or beverage attendants, hospitality attendants. What we have is rules that are plain on their face in relation to those issues and an opinion by and evidence, uncontested evidence from the applicant s witnesses in relation to coverage of those matters and opinion evidence based on what Mr George has identified as his experience, suggesting that, incorrectly, or inconsistent with that evidence, suggesting that it hasn't occurred.
PN1359
So in the circumstances where, particularly in the circumstances where the rules are not required to be interpreted objectively, the uncontested evidence and the previous decisions of the Commission and the plain words of the rules on their face, clearly and overwhelmingly demonstrate the case, the accuracy of the case being put by the applicant.
PN1360
The second general principle that s relevant is that there should be interpreted, in relation to, or they should be given a wide interpretation and we say that that s particularly relevant in these circumstances because what we have is an attempt by the respondent to identify and I think it s becoming a little overworked, but I think we re in the quacks like a duck territory. Except on this occasion what we appear to have is, if you can forgive me, we appear to have the respondent identifying that we have a duck and a swan. And notwithstanding that we have set of union rules that cover and are clearly historically and on the face of the wording of the rules, cover ship to shore, that is, the transportation of cargo across the seas, it s unloading at its destination and up to the point of its movement away from the point of disembarkation.
PN1361
And on the applicant s case, we have a form of vessel, employees working on what is a type of ship or a type of vessel engaged in that process. We also have employees working on a vessel that is performing the function of a wharf, a floating wharf. The respondent s argument is that it s neither a wharf it s neither a vessel nor a wharf, it s something unique that somehow moves it outside both of those two categories, notwithstanding that what it actually is, is smack bang in the middle in the overlap between both of those categories.
PN1362
And so in particular, in this occasion, the generous approach that s required in relation to the interpretation of union rules, or rather it would be inconsistent with that requirement for a generous approach, for the Commission to find that there was some gap, some lacunae between these two categories of employees merely because the structure - if I can try to be neutral - the structure that the employees are working on is more sophisticated than many such structures in the past or it s only going to operate as that structure at that location for a matter of temporarily. But as I said, temporarily is for approximately 2 years.
PN1363
So in those circumstances, we say it would be impossible for the Commission to determine that the rules don t cover this structure and the people who are working exclusively on this structure, given the nature of the rules and the existing coverage of those rules and the manner in which the rules have to be, or required, to be interpreted.
PN1364
You raised the issue earlier in the proceedings as to the issue of how and why or the significance of looking at various pieces of legislation in determining whether the structure was a ship or a vessel. Now of course, we need to do so because that s the starting point for the analysis of the Seafarer s side of the union s rules. They re based on, in part, occupations and they re based, in part, upon the employment upon certain types of vessels. The rules don t define those vessels or don t define what those vessels are or the types of vessels that particular occupations are engaged on. So we need to determine what sort of whether it is a shop or a vessel of some sort and what sort that is, what sort of vessel it is.
PN1365
The respondent has spent some time, well multiple occasions, referring you to the barge as unique and Mr Carr also identifies it, I think, as a specialised piece of equipment. Now, that may well be so, but none of those adjectives actually determine what it is, and that s what we re required to do here, is determine what it is. It s certainly a highly a sophisticated piece of equipment.
PN1366
It may well be significantly more sophisticated than the pontoon or pontoon RoRo barge that Mr Mayor identified in his evidence as operating in the harbour, performing the same sort of function, that is a transition barge between a vessel and the primary wharf which allows for cargo to be rolled off a vessel by the means of adjustable ramps and a self-ballasted pontoon or barge to the wharf. It s performing precisely that same role in a much more sophisticated manner and certainly on a much larger scale but it s the same type of vessel, particularly, in light of what we re here for, which is to interpret the union eligibility rules.
PN1367
If there are multiple worlds between a 747 and what went on at Kitty Hawk a hundred years ago, but if the Wright brothers were carrying passengers as part of a commercial operation, the Pilots Union would have been in there and able to be there then as it is they re unable to be there now. Notwithstanding the development of the technology, the sophistication of that mode of transport or that vehicle, a plane is still a plane, a barge is still a barge, a pontoon is still a pontoon, a ship is still a ship, no matter whether it has computers running its ballast system rather than hand pumps or steam pumps.
PN1368
THE COMMISSIONER: So what s a Catalan then?
PN1369
MR QUINN: Beg your pardon, Commissioner?
PN1370
THE COMMISSIONER: So what is a Catalan?
PN1371
MR QUINN: I can t- - -
PN1372
THE COMMISSIONER: I said so what is a Catalan?
PN1373
MR QUINN: You ve lost me already, a cat?
PN1374
THE COMMISSIONER: Catalan is a, if you like, an aircraft which lands on water.
PN1375
MR QUINN: Catalan?
PN1376
THE COMMISSIONER: Yes.
PN1377
MR QUINN: Oh a Catalina, sorry. A Catalina is how I pronounce it. Well, funny that you should mention. What it is, is an aircraft and amongst the cases that have been referred to in our submissions, that precise issue is discussed in relation to that being considered by one of the higher English courts, where it was determined that it s not traversing or it s not navigating water, it s merely using it as a landing platform. So it remains an aeroplane and not a vessel for the purposes of the English Navigation Act.
PN1378
THE COMMISSIONER: I only asked the question because you, if you like, put some context to a thought that was going through my head.
PN1379
MR QUINN: Well, hopefully that s- - -
PN1380
THE COMMISSIONER: I didn t know the answer.
PN1381
MR QUINN: Hopefully that assists with the context.
PN1382
And I don't think there would be any question that the leaving aside that overlap that has been determined by the English High Courts, has not an overlap, would make any significant difference to the sorts of decision that is to be made here, which is coverage of union eligibility the breadth of union eligibility rules which in that case, would clearly still operating as an aircraft, notwithstanding where it lands, and the Pilots Union are entitled to knock on the door of the Catalina. Sorry, the- - -
PN1383
THE COMMISSIONER: You could be right, it s a Catalina.
PN1384
MR QUINN: I highly doubt that.
PN1385
THE COMMISSIONER: Yes.
PN1386
MR QUINN: So what the evidence has confirmed is that it s a vessel with an IMO ship identification number, it s a vessel registered within a particular class of ship in the Lloyds Register. It falls within the definition of a vessel in the Navigation Act and in the Marine Safety (Domestic Commercial Vessel) National Law Act. It also I might just very quickly, just take you back to that definition section in the Navigation Act. It also then establishes consequently that the persons engaged on that vessel are Seafarers. A Seafarer means any person this is on page 9 of that definition, like 11. That:
PN1387
A Seafarer means any person who is employed or engaged or works in any capacity on board a vessel in the business of the vessel other than the following.
PN1388
Pilots and owners and other issues that are irrelevant. Now, those definitions in the Navigation Act and in the Marine Act are very broad as to what constitutes a vessel. There s a range of craft. I ve listed there that on first glance might not, to the person in the street, be thought of as a vessel. An air cushion vehicle, which we seem to have agreed was a hovercraft, a submersible and whatever on earth a wing in ground effect craft is. So it s a vessel is clearly a very broad category and it specifically refers to barges. It specifically refers to any craft that is capable of being used in navigation.
PN1389
However it s propelled, whether its own steam or otherwise, I don't think there s any doubt about that issue. It also identifies that it is any craft however moved, that is, including when it s moved by some other form of vessel. The Hydro Deck is moved by tugs when it s in the confines of a harbour and the evidence from the respondent is that outside of the or rather, when it has previously been outside the confines of the harbour, that is upon its initial voyage from its place of fabrication to Darwin, it was ferried, shall we say, on another vessel piggy-back style. So it was moved by water in that way on that first voyage as well as being moved in-harbour to move to where it s now located and will be moved out from where it s located at the end of the project and will be moved for cyclone purposes, by tugs.
PN1390
To the extent that there s any doubt about those issues, in the matter of R v Goodwin, that was referred to in our submissions and I take it the respondent also intends to rely upon paragraph 26 in that matter quoting from the earlier matter, the Von Rocks, where it identifies assessing those same words about navigation from which the Australian Acts the Australian Acts are derived from the English Navigation Acts or Merchant Navigation Acts and they all rely on these same form of words and have done for over a century.
PN1391
Navigation does not necessarily connote anything more than movement across water. The function of conveying persons and cargo from place to place is not an essential characteristic.
PN1392
And there s a range of decisions that we referred to in our submissions that identify exactly that. Consistent with that, going back a hundred years, and all of those vessels that we ve listed at our paragraph 9(f) of our written submissions are identified there as non-propelled vessels. I should say there also, or non-steered vessels, just as the Hydro Deck is. And as I say, they go back to the 19th century - a non-propelled hopper barge, non-steering, non‑propelled hopper barge moved by tugs is identified to be a ship. A non-propelled dredger moved by tugs, a non-propelled floatel moved by tugs that is a floating hotel that was an accommodation centre for oil rig workers and therefore it was it was moored for extensive periods at the site of a rig or next to the site of a rig and only moved occasionally when the rig was then moved to a different site.
PN1393
A non-propelled, no-steering, flat bottom pontoon which was used as a working platform, a non-propelled, non-steered rig pontoon, a platform, which was moved by tugs or was actually moved piggy-back style on top of another vessel. So, all of those, consistently for a hundred years, all of those types of vessels have been determined to be ships for the purposes of this legislation. And the definitions in the Australian legislation pick up exactly those sorts of issues that have been identified there as characterising vessels as a ship, that is, movement or capacity to move across water however that s achieved.
PN1394
And the only limitation is that it s navigating by water which has the limitation of that definition has been found in relation to recreational vehicles, that is, things that just go around in circles for fun jet skis. Otherwise, any other form of vessel, that is, a craft that floats on water for commercial purposes, flat bottomed, non-propelled, non-steering, rigs or pontoons that stay in place for extended periods, have all been identified as ships.
PN1395
The only craft with such characteristics that has fallen beyond the definition of ships are those that have been permanently moored such that they lose their capacity to and their character as a vessel that can be moved through water. So a barge, I think on the Seine, that was sat still for decades. Otherwise, all those flat bottomed, non-propelled, non-steered vessels are all identified as ships, including vessels such as dredges or hopper barges or floatels or working platforms that stand still for extended period of time. That is, they re engaged for a project, the project can last for a few month to years, but with the intention of, for them to be removed by water at the end of that project and moved to their next location.
PN1396
The respondent has identified that the vessel here, the Hydro Deck, this is its first job, its first project. This project has lasted 2 years. Once this project is over in approximately April next year, it will then be transported to North America. The intention is for it to be taken across the sea to North America for its next project.
PN1397
As I say, the Australian legislation then goes a step further than the English legislation being considered in those cases in that it specifically identifies a variety of craft as part of its inclusive definition. I mean, it s an open-ended definition of what is a vessel, including a barge and as I say, some other slightly odd categories of vessel that identify it is meant to be an extensive umbrella term.
PN1398
Now, we are not dealing with whether or not the vessel in question here needs to be a ship for the purposes of the Act or for those Act, but if we re trying what we need to identify is some criteria by which to assist the Commission in determining what sort of vessels are vessels for the purposes of the union rules. And so we don t need to be limited by or constrained by the definitions in the legislation, but even that legislation on its face, and which doesn't extend to all types of it doesn't purport to extend to all types of ships or vessels, comfortably covers the sorts of vessels relevant to the rules of the MUA.
PN1399
The vessel in question is flat bottomed, non-propelled and what s been identified as commonly referred to in the industry as being a barge. It s described as a barge by its manufacturer. It was described, or rather the senior personnel of the vessel was described by Mr George as a barge master. Mr George also confirmed that there are multiple classes of barges of which this falls into the second, the second category. The first category is dumb barges, that is, non-ballasted barges. The second category of barges that he referred to are self-ballasted self-ballasted ballasted barges, that is, capable of being ballasted and that s precisely what we have here before us with the Hydro Deck.
PN1400
Now notwithstanding his unguarded moment in the witness box, otherwise Mr George has insisted that the vessel is a pontoon and even if that s the case, I take you back to the matter of the Von Rocks, which was a non-propelled, flat, non-steered pontoon, working platform which was identified to be a ship, consistent with a hundred years of case law before that. Clarke and Perks(?), a non-propelled rig pontoon moved by either tugs or piggy-back style upon another vessel.
PN1401
What it seems to be the case, is there is no clear distinction between what is a barge and what is a pontoon. I mean they serve the same purposes and we have and that s evident from the descriptions provided by the manufacturer themselves and it would appear to be that when a vessel of this description is sitting still for a long period, it s likely to be called a pontoon. When it s moving around, it s likely to be called a barge. But structurally they re identical, they are able to perform identical functions but at different points in time. They perform they may perform a stationary function or they may perform a moving function that doesn't change the character of the vessels, subject to it staying stationary for such an extended period that it no longer is capable of or effectively maintains its character as a ship when it becomes a permanent, effectively a permanent wharf.
PN1402
Now further, we say, the Hydro Deck is also a harbour vessel as is specifically provided for in the union s rules, being a vessel undertaking work in a harbour in distinction to vessels designed for work in open water. The applicant s witnesses gave evidence to that effect. There s no evidence from the respondent that contradicts that evidence from the applicant. Mr George identified sorry, my folder s falling apart, Commissioner.
PN1403
Mr George identified, at page 20 of his statement, paragraph (s) down the bottom, in response to Mr Carr s evidence that they are the Hydro Deck is a harbour vessel and that includes, amongst other things, barges, pontoons and work platforms. He doesn't address what is a harbour vessel. His evidence is that he doesn't agree that these are vessels that the MUA seeks to represent workers engaged upon and that s because they have no form of propulsion. Well, there s no contest that it has no form of propulsion. The contest is, is it or is it not a harbour vessel?
PN1404
Mr George goes on to say, for the reasons I have outlined previously:
PN1405
I do not consider the Hydro Deck to be a vessel.
PN1406
And we went through with Mr George in his evidence and we re going through now in submissions, the evidence and the approaches to interpretation of the term vessel in previous cases that identified clearly, the Hydro Deck is a vessel.
PN1407
Once the Commission reaches what we say is the inevitable conclusion that it is a vessel, the only evidence before the Commission as to what is a harbour vessel is the evidence from Mr Carr. That evidence from Mr Carr is also entirely consistent with the wording of the rules of the MUA and the meaning of those words on their plain face:
PN1408
Harbour vessel is a vessel that operates in a harbour.
PN1409
If it s a vessel, if it s in a harbour and it s doing its job in the harbour, then it necessarily is a harbour vessel.
PN1410
THE COMMISSIONER: Mr Quinn, as you re making your submission, I m trying to construct a test, in some respects for myself. 10 years or more ago, a vessel was tied up on the Thames and it was used as a prison. People referred to that as a prison, because that was its function.
PN1411
MR QUINN: 200 years ago, similarly- - -
PN1412
THE COMMISSIONER: Similar, and I m trying to approach this am I looking at the function of, to go back to Mr Carr, as a piece of equipment or, as you say, approaching it sorry. As you say, approaching it from, if you like, it s structure or it s characterisation?
PN1413
MR QUINN: We say, Commissioner, that the rules of the MUA cover the people working on this structure both in relation to the nature of the the fundamental nature of the structure, that is it s a vessel.
PN1414
THE COMMISSIONER: It s a vessel, yes.
PN1415
MR QUINN: And its current use, which is as a temporary wharf. Both- - -
PN1416
THE COMMISSIONER: Well, that s one limb of your argument, yes.
PN1417
MR QUINN: Well sorry no, that s both. Unless I m expressing myself very poorly, that s both limbs. One is that it s a vessel and therefore the Seaman s Rules, and I can call on that. The Seaman s Rules cover employees working on the vessel because those rules cover all people employed on- - -
PN1418
THE COMMISSIONER: But if you say it's a wharf, you're saying they're waterside workers.
PN1419
MR QUINN: Yes. And they're not exclusive categories; particularly in this circumstance, particularly in relation to the approach to be adopted to the interpretation of rules. It is performing the function of a wharf, and the people engaged on it are working exclusively in relation to the unloading of cargo from a wharf. So it's performing that function. And maybe just to jump ahead, that their principal purpose, identified ad nauseam by the respondent, is to crew the - I will try to be neutral - to staff the structure to enable it to perform its purpose, which is the unloading of cargo from a vessel. That's their principal purpose.
PN1420
To determine whether those employees then fall within the Rules of the Maritime Union, you look first - just because they come first in order in the Rules, the Seaman's Rules - which identify that anybody working on a vessel is covered by the Rules. If their position was to deliver stores to the vessel - that is, they're a storeperson and delivery driver, and for one hour a week they spend some time on the Hydro Deck delivery stores, that wouldn't make them a seaman. That's not their principal purpose, isn't to assist in the unloading of the cargo; or their principal purpose isn't to staff the vessel, their job is as a storeperson.
PN1421
In these circumstances the principal purpose is to crew this structure in order to enable it to perform its purpose. So that's their purpose, is to engage in the unloading process by maintaining this structure. And during the unloading process itself, which is a minority amount of time of the period that the structure is moored there for, also to engage directly in the unloading process, during those intermittent periods of unloading. The Waterside Worker Rule covers those people engaged in that same activity because they're doing it at a wharf.
PN1422
The other relevant principle that I didn't mention in the opening section of the submissions in relation to the principles to be applied was a recognition or an emphasis about the sort of rule that we're dealing with here. We're not dealing with an industry rule where the question isn't: are these people engaged in or in connection with a construction site? What we're dealing with is an occupational rule: are these people engaged in the occupation of waterside workers?
PN1423
There's a very clear case law about what that is, and it includes, as you say, gardeners; it included clerks; it includes bus drivers; it includes people plugging and unplugging refrigerated containers at the edge of a wharf; it involves electrical tradespeople; it involves mechanical tradespeople; it involves a range of people that never pick up a rope, never walk onto a ship. They're all waterside workers because they're engaged in that process of loading and unloading cargo.
PN1424
The seafarer is also an occupational Rule, so we're not concerned with whether or not it's "in or in connection with" the construction industry or any other industry; it's a function of the Rules - their occupation which is determined by, according to the rules, where they perform that role; if they perform it on a harbour vessel, if they perform it on a barge, or if they're performing it amongst the categories of seafarer that are listed in the Rules, irrespective of the type of vessel that they're engaged in, if they fall within those categories.
PN1425
I forget what the question was now. So as I was saying, there's no evidence to contest the evidence from Mr Carr as to it being a harbour vessel; there's no evidence to contest the existing coverage of the MUA in relation to all classes of employees - all categories of employees on harbour vessels, inshore work; there's no contest to the rules providing for and practice covering persons working on barges, including those in relation to a barge that's in connection with a construction site. That's specifically addressed in the Bechtel decision.
PN1426
If it's a barge, it's a barge. Somebody working on the barge is working on a barge. They're loading and unloading from a barge. They're engaged in the act of loading and unloading of cargo from a vessel. Mr George confirms in his statement that deckhands don't need any ticket, they don't need any marine qualifications, so what is now the lowest category of - potentially the lowest category of worker on a vessel, the lowest category identified in the classifications that are specifically listed in the Rules, the MUA is also entitled to cover those people, irrespective of whether they have any form of marine qualification.
PN1427
Mr Carr gave evidence both as to that and also as to the range of people that the MUA already does cover that fall into that category of people who have no marine ticket or people who are performing roles that have no marine function, clerical or hospitality. Mr George will confirm that at page 17 of his statement, paragraph (g) - 74(g).
PN1428
What then the respondent has done, through its evidence, has - with some small additions from Mr Clarke - has comprehensively identified the tasks undertaken by the different categories of employees working on the Hydro Deck. Mr George has quibbled with how those tasks are carried out. He identifies that the chain of command in some circumstances is different to that as outlined by Mr Clarke, and some of that may simply reflect a change in arrangements since Mr Clarke left the workplace.
PN1429
He seeks to - to the extent that it is relevant, Mr Whitehead does the same - seeks to belittle the work that they do as merely pushing a button, or merely watching and air draft, or merely watching a ramp. They denied that its physical work. They give no explanation about how, by some other psychic means, the work is being undertaken. They seem to deny that there is any physical element to it, notwithstanding that in his evidence Mr George said precisely the opposite.
PN1430
But nowhere do they deny that this work is being undertaken by all these people during the immediate unloading processes; that is, they're at stations on the vessel, monitoring lines, monitoring ramps, lowering ramps, monitoring air drafts; and fundamentally in relation to this vessel and the purpose that it serves, being the emergency backup - the human backup to the systems that are in operation. It has got to be one of the oldest adages in employment law, is that he who serves also waits.
PN1431
All of these people are standing around at the ready, watching the lines, watching the air drafts, to jump in when needed. That's during the unloading process. Merely because things go according to plan and they don't have to do anything doesn't mean they weren't working for that period; doesn't mean that they weren't working as part of the unloading process, notwithstanding that they might not lay a hand on the cargo; in the same way that a truck driver doesn't lay a hand on the cargo; the person on a watch on a vessel doesn't lay a hand on the cargo; the gardener doesn't lay a hand on the cargo; but they're nevertheless involved in the process of loading and unloading.
PN1432
These employees, in comparison to the gardeners, are critically involved in that process. What we know from the description provided about the Hydro Deck is that the respondent has spent tens of millions of dollars building this thing to enable a very delicate unloading process to occur to enable minute - to avoid minute changes in distances and heights affecting these very expensive large modules during the unloading process.
PN1433
What the employees on the Hydro Deck are doing are being the human backup to those mechanical processes that are already in place. If it's clear that if the air draft needs to be 65 millimetres, clearly the human failsafe, whose role is to deal with a change in that air draft, is just as important as the laser that is the primary means of measuring that. If the laser fails, then for the same reason that tens of millions of dollars have been spent to enable a stable loading platform to operate, the failsafe is that there is a human element of - a human failsafe - to ensure the stability of that pontoon/platforms/dredge/barge in that unloading process.
PN1434
So it beggars belief that the respondent can say that these people aren't really working - they're not really working on the unloading process, when they're the ultimate line of defence in relation to what is clearly a very delicate operation, and their monitoring the lines if a change of a few millimetres in depth of the vessel is so dangerous that it would require the operations to be stopped, then any change in the springer lines - any change in tension in those lines at the same time, presumably, would have the same potential for a critical effect.
PN1435
So the role of these employees in watching those lines or in watching the air drafts, operating the winches to maintain the tensions on those wire cables are all critical to this very delicate operation. We know from the evidence from the respondent and the evidence from Mr Clarke as well, we know pretty much exactly - and a lot of that is reflected in the agreed facts - we know pretty much exactly what they do, when they do it, and we also know how their work is substantially different to the work of the other people who work on a construction site up the causeway.
PN1436
Critically we also know why they do it. The sole purpose for the task that they're performing is as set out by the respondent multiple times, is to unload modules from a vessel to a wharf. The respondent seems reluctant to use the word "unload", it's reluctant to use the word "wharf", and it's reluctant to use the word "vessel". But whatever labels the respondent wants to place on those activities don't change the substance of those activities.
PN1437
As we set out in our submissions, we have a structure that is a wharf, notwithstanding that it has got a fancy acronym. It's a level quayside area to which a ship may be moved to load and unload. It has - as you were informed at the inspection, that whole MOF area is really three quayside areas; the two ends of the bar of the T, one of which is where the Hydro Deck is berthed, the other end is an end at which other ships are berthed; back up to - and the third is along the front of - the areas along the front of that bar of the T.
PN1438
It's a temporary - a five-year life, we're told - a temporary wharf, nothing else. The Hydro Deck itself also functions as - as we were discussing before - functions as a temporary wharf; that is, it's a level quayside area to which a ship may be moved to load and unload. That's precisely its function. It's a particular sophisticated temporary wharf - a sophisticated floating wharf, but what it is still what it is and what a wharf always has been. Putting computers onto it doesn't change it from being an area to which a ship may be moved to load and unload.
PN1439
The case law in relation to what is a waterside worker is well-established. It's not open to contest, I would have thought. The respondent's outline of submissions at 36, they've extracted a decision from Dethridge C that's extracted and relied upon in Co-Operative Bulk Handling which sets out very plainly that:
PN1440
The work covered by the Federal Waterside Workers award is in substance concerned with the loading or unloading of vessels.
PN1441
It has an exclusion:
PN1442
A shed or a factory that is substantially used as a store or factory, and not as a mere convenience.
PN1443
If it was in that wharf area, then persons working in that shed, if it was a permanent shed or a permanent factory, would not be considered waterside workers. But as long as that shed or storage area was a mere convenience for the movement of the cargo away from the wharf area, then that area, and people working in that area, are also waterside workers in that decision, and also covered by the relevant award.
PN1444
As the full bench went on to determine in Co-Operative Bulk Handling:
PN1445
Everybody engaged in connection with that loading and unloading process, carrying out tasks at and in the vicinity of a wharf, including the handling of cargo beyond the immediate wharf area to the location from and until the time in which it is dispatched to its ultimate location -
PN1446
Now, as we've set out from the - really, a trifecta of cases, it includes:
PN1447
The workers in skilled, semi-skilled maintenance occupations, and doing maintenance on the wharf, or to undertake work at or in the vicinity of a wharf; those engaged in administrative or clerical tasks associated with the management of material, equipment and personnel, both during and after the unloading of materials from vessels; and workers who fall within the above categories, irrespective of whether they are engaged by employers who are not otherwise involved in the transport, shipping and stevedoring industry if they are involved in that extended process of loading or unloading cargo into or from ships.
PN1448
It's also clear that:
PN1449
It has been long and consistently recognised that the function of loading and unloading ships is not restricted to the physical transportation of goods aboard or ashore.
PN1450
And thus all of those ancillary roles that are associated with, connected with, support and enable the persons who - so to speak, actually touch the cargo to perform their role - are all part of that waterside worker role and are covered by the Rules of the Waterside Workers Federation - now the MUA - down to and including the gardeners and the support activities that they provide to the persons who are touching the cargo.
PN1451
The respondent's submissions make reference to the principal purpose test as alluded to earlier. It's important to identify what the principal purpose test is required, and when it's required to be applied. It's relevant to determination of what category an employee falls into when there's a claim that certain elements of their tasks allow them to be covered by a certain grouping, and the contest is over whether the extent of those tasks are sufficient to enable them to be properly classified within that particular category.
PN1452
That is, are those tasks merely incidental to their primary purpose? Are they peripheral to the principal purpose or primary purpose that the employee has been engaged to undertake? As the respondent has made clear, there is one principal purpose for all of these employees on the Hydro Deck; it's to assist in the unloading of cargo from vessels to the Hydro Deck to the wharf. That's their only purpose. They do that by engaging in the unloading process, which is a relatively short space of time. In very rough terms at the moment, it would appear maybe one day a fortnight.
PN1453
The rest of their time is spent maintaining the structure that enables that process to serve that purpose. So just as the gardeners are maintaining the wharf, these employees are spending, it seems, potentially 13 days out of 14 maintaining a highly sophisticated piece of equipment that requires a high volume of maintenance activity to enable it to perform its role.
PN1454
So the principal purpose test is relevant to these matters - to this matter before the commission - in relation to the sorts of issues that the respondent raised with Mr Clarke. Some time was taken in walking him through various activities that he or others from the Hydro Deck undertook that was away from the vicinity of the wharf; picking up stores, delivering stores, delivering and picking up paperwork. As we were discussing earlier, all of those roles are, at the highest, peripheral to the task for which they have been engaged to do.
PN1455
Their role isn't as a delivery person or as a stores person; their role is to maintain the Hydro Deck, and they spend, on the respondent's evidence, almost exclusively somewhere in the high 90 per cents of their time working on that structure, and that there is simply no scope for the application of that principal purpose test as a way of seeking to delineate a distinction between a construction worker - or delineate the distinction between a construction worker and a person working on a harbour vessel, a person working on a barge, or a person working as a deck hand on a vessel, or as a person involved in the loading and unloading of cargo.
PN1456
If the category of employees that we were discussing were persons with entirely - with qualifications consistent with some or all of those that the people working on the Hydro Deck have, but they were engaged for 13 days a fortnight on the construction side; welding steel structures, digging holes, moving materials around on the site; and one day a fortnight they got brought down to the wharf to monitor lines, to watch air drafts, then there would be a question about principal purpose.
PN1457
If, on those facts, their principal purpose was to be a construction worker, it may well be arguable that they will not - their principal purpose wasn't to be involved in the unloading of a vessel. We don't have that situation here. We have the employees engaged exclusively working on this vessel, and exclusively for the purpose of assisting in the unloading of cargo from that vessel. And so there is simply no basis for the principal purpose test to be applied in the manner proposed by the - or it appears to be proposed by the respondent.
PN1458
As well as belittling the complexity of the work that they were involved in, as if that's somehow an answer to whether or not they perform the work, the respondent also seeks to identify that what they're doing could readily be undertaken by many of the construction employees on the project.
PN1459
That may well be the case as a matter of qualifications or experience, but it's entirely irrelevant because those persons on the construction site aren't spending - weren't employed to work exclusively on the Hydro Deck; aren't spending their time exclusively on the Hydro Deck; aren't spending their time exclusively on tasks associated with the unloading and the support role necessary to conduct the process of unloading cargo from a vessel.
PN1460
So what qualifications other people on the construction site do or don't have; what capacity for employees on the Hydro Deck to move seamlessly into another role on the Hydro Deck is really irrelevant to determining what that exclusive group of employees who are working on the Hydro Deck - what they are and what they're doing, and whether or not they're engaging in the occupation of a waterside worker; or whether they're engaged on a harbour vessel, a barge; or on a vessel as a deckhand.
PN1461
We say that those persons engaged exclusively in those roles fall both within the definition of a waterside worker, consistent with well-established case law as to what is a waterside worker; they also fall within the definition of a person working on a particular form of vessel or in a particular category of employee. So on both of those counts they are entitled to be covered by the rules of the MUA.
PN1462
There's no requirement in these circumstances for the commission to determine that only one or the other of those sets of rules cover these employees. The necessity for - in practical terms there's no requirement, as in there's no demarcation that needs to be addressed between those two types of employees. And the generous construction rules that is the established approach means that there's no requirement that an employee can only fall into one category or a set of rules.
PN1463
It's entirely commonplace that an employee - group of employees who will fall - or will be covered by more than one classification or one description of an occupation or type of work, both within the same set of rules or between rules of different unions. So there's no either/or that has to be determined here.
PN1464
The MUA has sought to enter these premises on multiple occasions. The MUA has identified its desire to meet in a number of particular locations that it has identified. It now has a - following inspection there's a - I guess we all have a better idea of what facilities are available for such meetings to occur.
PN1465
Nevertheless, there's still some - shall we say - potential for conflict in resolving where to meet, given that the respondent has identified that there's both a crib room on the vessel, which the Commissioner will be aware is rather small and cramped, and may or may not be suitable for the purposes of a meeting with employees who wish to engage in discussions with the union. There's also another room on the MOF that employees who are engaged on and in connection with the Hydro Deck take their breaks, we're informed. So the MUA would still seek to meet with employees in both of those areas.
PN1466
That issue is not addressed, that dispute is not resolved by the respondent simply refusing to address that issue at all. "If I close my eyes, you're not really there." By simply saying, "You don't have a right to enter, therefore we don't have to discuss the issue of where or how you're going to conduct your entry," that doesn t make that dispute disappear. What we have requested the commission to do is to identify that the MUA is entitled to enter the premises.
PN1467
And to avoid any dispute about those processes or that process when it occurs, to further make orders in relation to the manner in which or the location of which those discussions are to take place. Given the refusal of the respondent to engage in those discussions, it may be that an order to that effect might not be necessary. It may well be that some form of recommendations or discussions between the parties with the assistance of the commission would enable those issues to be resolved.
PN1468
All of that at the moment is up in the air because stage 1 in the process, allowing or responding to the applicant's proposal - or the permit-holder of the applicant - proposal to enter the premises has been met by silence, followed by an application and a response. So we say for those reasons that the applicant union and its permit-holders is entitled to enter the premises; the commission is entitled to determine that issue; the commission is entitled to then make orders to enable that right that's provided for in the Act to be exercised in a way that avoids any disputation or unnecessary disruption to the operations of the respondent. They're our submission on the matter of substance.
PN1469
THE COMMISSIONER: Thank you, Mr Quinn.
PN1470
MR PARRY: Commissioner, could we have five minutes? There's just one matter I would like to discuss with those instructing me.
PN1471
THE COMMISSIONER: We will adjourn for five minutes.
SHORT ADJOURNMENT [2.07 PM]
RESUMED [2.17 PM]
PN1472
THE COMMISSIONER: Mr Parry.
PN1473
MR PARRY: If the commission pleases, I will commence with making submissions about the jurisdictional issue. The first thing my learned friend said today - or the second thing - was, "The reason we are here is to interpret the eligibility rules of the union." We agree that's why we're here. Section 505 of the Act sets out that the commission can deal with a dispute about the operation of this Part and may deal with the dispute by arbitration.
PN1474
Clearly there are many disputes about the operation of various parts of Part 3-4 that can be arbitrated on. The sort of disputes that can be so arbitrated are contemplated by the legislation. Section 505(4) refers to, for example:
PN1475
In dealing with the dispute, the commission must take into account fairness between the parties concerned.
PN1476
So the sort of disputes that are going to arise under Part 3-4 are those where fairness is a relevance and must be taken into account.
PN1477
The taking into account of fairness is, of course, a classical attribute of an arbitral function. However, our position is this: not every dispute or disagreement or issue about a party seeking to enter premises is necessarily and inevitably firstly characterised as a dispute about the operation of a Part; and/or amenable to arbitration under section 505(3).
PN1478
This particular point is underlined by the decision that the MUA rely on in this case, being the Police and Nurses Credit Union matter. The commission, I assume, has a copy of that decision before it. That decision, I will obviously have a bit more to say shortly, but the present purposes paragraph 60 of that says this:
PN1479
In order to determine whether the FSU's application called on the Commission to exercise judicial power, as opposed to arbitral power, it is appropriate to -
PN1480
and this is in quotations -
PN1481
Review the entire factual background to properly characterize the claim and the power sought to be invoked.
PN1482
The fact that the full bench has put that in there, and when putting it in there has referred to a full Federal Court decision which deals with the distinction between arbitral and judicial functions, would underline the point that not every dispute or disagreement is amenable to arbitration.
PN1483
Before making the decision on that, the commission is required to firstly properly characterise the claim; secondly properly characterise the power sought to be invoked. Clearly on some occasions, when so properly characterised, the claim or the power to be invoked will fall on the part of being the exercise of a judicial power. In this case we can start with the claim. There is a bit of history and there is some evidence.
PN1484
We have, of course, what my learned friend just told the commission, but we also have other material to back that up, and Mr Mayor has put that before the commission in his statement, which has been marked exhibit A4. He has referred in paragraph 49 to forming the view that some employees on the Hydro Deck were eligible for membership of the MUA. Soon thereafter - and this is attachment TM9 to Mr Mayor's statement - and official of the MUA sought to enter the premises, I think, on 17 July 2014, and that was a fairly straightforward proposal to enter the ALE heavy lift Hydro Deck.
PN1485
The occupier, JKC, whom I represent, refused that, and they refused it for pretty clear reasons, which are in TM10. They said, in short correspondence from my instructing solicitor:
PN1486
Our client does not consider that your client is entitled represent the industrial interests of any workers performing work in those areas. Our client has confirmed that the relevant employers that they also hold this view.
PN1487
So back in July, a year ago, the employer - there had been a view formed, the employer had made clear what its view was.
PN1488
There was an application made to the commission some a few months later, and that was an application under section 505. That was an application which relied on the events - the correspondence that I've just taken the commission to - and the order sought was:
PN1489
The respondent allows officers of the MUA holding a permit issued under division 6 of the Act to enter the respondent's premises in accordance with Part 3-4 of the Act.
PN1490
There was, on 3 November, a further refusal; a further refusal for exactly the same reasons as given previously. Paragraph 60 of Mr Mayor's statement refers to sending a notice again in 4 March 2015 to the relevant employer indicating an intention to enter, and on 4 March, by return, they got the same response - that is TM13. Again, same wording, that is, "You don't have a right to represent the industrial interests of any workers performing work in that area."
PN1491
We would say the issue between the parties is clearly and solely about whether the MUA has a right under section 484(b). Section 484(b) of the Act gives rights to the MUA, and the right is to enter premises for the purposes of holding discussions if there are employees the MUA is entitled represent. If the MUA has such an entitlement to represent as a legal fact, then it has a right to enter.
PN1492
My learned friend, just at the end of his submissions, threw in this issue about location. There is no evidence of any dispute about the location of any discussions which would take place after lawful entry. There is no issue raised by the MUA at any stage - I asked Mr Mayor about this; there have been no discussions sought with JKC about this issue, I asked Mr George about that. There is simply no basis for any dispute about the location. There is one issue, and it is the issue my learned friend identified when he stood up.
PN1493
What the MUA wants is the same as they wanted in October, and I've taken the commission to TM11. What they want in this proceeding is order 1 in the application. Order 1 in the application that's before the commission is, and I quote - if the commission would excuse me briefly. Order 1 is in the same terms as it was in October. Order one:
PN1494
That the permit holder of the Maritime Union of Australia is entitled to enter the premises of the respondent at the Darwin Impex Project Module Offloading Facility for the purpose of holding discussions with one or more of the employees engaged at the premises, should they wish to participate.
PN1495
As we say, there is no dispute about were those discussions would take place if the MUA was so lawfully entitled. This attempt to throw in an order about the placement of those discussions is clearly just an attempt, without any foundation in fact, to add in something which might be arbitratable. There have been no discussions or debate about that, and certainly no jurisdiction to make such orders.
PN1496
Properly characterised, then, what the MUA want is their legal rights under section 484(b) to be set down by the Fair Work Commission. That declaration, as we describe it, would then become enforceable under section 506. As to the power sought to be invoked, it is the enforceability of that legal declaration by the mechanisms in the Act. Before turning to the commission authority, it's probably best to start with what the High Court tells us. The High Court has on a couple of occasions pulled up industrial tribunals for traversing the area of judicial power.
PN1497
We have, in our submissions, referred to Re Cram. Does the commission have a copy of Re Cram? The High Court decision Re Cram v others; Ex parte the Newcastle Wallsend Coal Co Pty Ltd? Probably not. I m sorry, I have spare copies for the commission. I can hand up a copy of Re Cram.
PN1498
THE COMMISSIONER: I've got a copy, Mr Parry.
PN1499
MR PARRY: I think it might be the wrong one. Mr Cram of the Coal Industry Tribunal ended up in the High Court on a number of occasions. The debate here was a matter before the High Court. The Coal Industry Tribunal was an arbitral tribunal with power to make arbitral decisions regarding matters within the coal industry. I'm sure the commission as constituted would remember much of that.
PN1500
I won't burden the commission with too much of the fine detail, but on page 148, after dealing with the background of the tribunal and the claim, which was for the payment of wages due and payable - and that's set out at about point 2 on page 148 - the High Court then sets out the judicial power of the Commonwealth and where it comes from, and it concluded - it made the point at about point 7 that:
PN1501
The result is that the Authority had no jurisdiction to determine or enforce a legal right to payment of wages on the part of employees in respect of a past period during which they had been stood down or refused work or to enforce the provisions of an award.
PN1502
And there are various authorities set out for that.
PN1503
Then at the bottom of the page:
PN1504
What this principle relevantly denies to the Authority is the power of judicial determination which includes, to use the words of Kitto J in Aberdare Collieries -
PN1505
and then is set out that which we would relevantly adopt:
PN1506
The giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conducts.
PN1507
He refers - and I'm not going to read it out to the commission - and he gives authority for that.
PN1508
About point 4 on the page the High Court says:
PN1509
Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties. Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.
PN1510
The other parts of it that we would take the commission to appear on page 154, where at the bottom of the page, point 8, which starts:
PN1511
In the result Mr Cram's decision was an exercise in determining the rights of the parties in accordance with legal principle. Neither the applications made by the Unions, nor the submissions made on their behalf, nor the decision, lends any support to the view that Mr Cram was engaged in settling a claim for remuneration as a matter of what was right and fair rather than as a matter of legal entitlement.
PN1512
And the High Court went on and refers to, on the next page at about point 4, again, that:
PN1513
Neither the presentation of the applications nor the decision suggests that the claim for payment was based on matters of industrial policy as distinct from matters of legal entitlement
PN1514
So here the issue is what is the commission being asked? And precisely in the words used by the High Court in Re Cram, what's being asked is not to settle what's right and fair; not to resolve a dispute about the operation of this Part, but to determine what the legal entitlements of the MUA are under section 484(b). Section 505(4), which refers to fairness which you must apply, has no relevance to this alleged dispute by the MUA.
PN1515
The next authority we rely on is Re Ranger Uranium Mines Pty Ltd; Ex parte FMWU. I think the commission does have the proper copy of that. This concerned the Industrial Commission and claims about summary dismissal and reinstatement. Again, this was a case that occurred, as I recall, a bit later in 1987, towards the end of 1987. Whilst it doesn't add a lot to the earlier one, they do make the point on page 660 that - halfway down the page:
PN1516
Reinstatement disputes may take many forms. The definition of "industrial matters" contemplates that a dispute may arise by reference to "the duty to reinstate".
PN1517
I'm sorry. When I'm reading this, Commissioner, I'm reading it from a CLR version, and I think - I have a fear you have an ALR version.
PN1518
THE COMMISSIONER: I have, but I've found the page.
PN1519
MR PARRY: It's page 38 on the last paragraph.
PN1520
THE COMMISSIONER: It commences:
PN1521
Reinstatement disputes may take many forms.
PN1522
MR PARRY: Yes. The duty, and importantly for current purposes:
PN1523
The duty there posited is not a legal duty, but a duty to be imposed by considerations of industrial fairness.
PN1524
Again a consideration which isn't relevant to what the Commission is being asked to consider here. The other part I would take the Commission to appears on the last paragraph of page 40 where the High Court said:
PN1525
It is clear that reinstatement may be claimed as a legal right or as a remedy for breach of a legal obligation. Section 5 of the Act is illustrative of situations in which reinstatement is a curial remedy for the breach of a legal obligation. A dispute as to the existence or enforcement of a legal right to reinstatement or as to the breach of a legal obligation properly remedied by an order for reinstatement is a dispute which necessarily involves the exercise of judicial power.
PN1526
And it's made clear there following from Re Cram at the bottom of the page:
PN1527
However, the creation of legal rights and obligations is a function which may be performed in the exercise of arbitral power. This is so even if the function is performed in settlement of a dispute relating to past transactions, events and conduct
PN1528
Now over the page on page 41, line 27, the relevant award - and again it repeats essentially what was said on the previous page that:
PN1529
The creation of new rights and obligations is a function which is properly performed in the exercise of arbitral power.
PN1530
And further the High Court noted in that case, and it's on page 42 two-thirds of the way down the page:
PN1531
A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so found.
PN1532
And on page 43 the top paragraph we also refer to and this is important again:
PN1533
The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.
PN1534
And we also without reading refer to page 43, line 31, onwards. Here our position is either the MUA has rights under section 484(b) or they don't. The ascertainment of whether they do or they don't is the determination of what their obligations and rights currently are. There are no new obligations or rights to be created. You're not being asked to create new rights or obligations. Either the MUA has coverage or it does not, and with regard to the High Court position, the most recent pronouncement was of the High Court in the private arbitration case, and the private arbitration case I don t have copies of. I'm just going to - the private arbitration case is one reported - what I'll do is after I've read from it I'll hand it to my learned friend and hopefully he can say about it what he will at the appropriate stage, but we can then hand a copy to the Commission.
PN1535
The private arbitration case the Commission might recall concerned what powers the Commission could exercise under disputes procedures, and as part of that there was a bit of a debate about where the intersection with judicial power occurred. Now the reason I refer to it is because it's not as though this issue of judicial power exercised by the Commission has gone away. It's still there. It's an issue that might arise or might not arise but, as we say, it depends on in the circumstances of this case the proper characterisation of what the Commission is required to do. At paragraph 26 of the CFMEU v AIRC [2001] HCA 16; [2000] 203 CLR 645 at 657 it said:
PN1536
an arbitrated dispute resolution provision will be invalid to the extent that it purports to confer judicial power on the Commission or anyone else.
PN1537
And reference is made to R v Gough and R v Hegarty:
PN1538
For present purposes, it is sufficient to note that a power to make a binding determination as to legal rights and liabilities arising under an award or agreement is, of its nature, judicial power.
PN1539
And similar paragraph 30 there's reference to the limits on what the Commission can do and paragraph 31:
PN1540
Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force.
PN1541
So it's a distinction still out there and it's not a distinction that's irrelevant to the exercise of the Commission's power under Part 3-4 and section 505. Now there have been decisions of the Commission or its predecessors that are relied on in this matter, one being the Police and Nurses Credit Society matter. Does the Commission have a copy of that? Now we understand that this is relied on because of some proposition that Full Bench authority must be followed and that proposition, although it hasn't been really articulated, is that somehow part of this decision says that the Commission is when dealing with right of entry dispute almost inevitably exercising arbitral and not judicial power and must accordingly be followed.
PN1542
Or it might be put another way. If there's a debate about right of entry in a right of entry matter about coverage, rights of coverage, then that must mean that there is arbitral power being exercised. Now the concept that Full Bench authority must be followed is often overstated. I think we would say it really says, that line of authority, that there should be consistency in the interpretation of statutory provisions. That's understandable. Or if there's a matter of industrial principle set down the Commission should follow that course generally unless there's good reason not to.
PN1543
The issue here is not the interpretation of statute. It's not the following of some industrial principle. It is whether in the facts of this matter what the Commission is being asked to do traverses judicial or arbitral power. We make these points about, I suppose, the argument that you are somehow bound to follow this case. Firstly we say you're not on the most basic level. It's not the same legislation nor the same constitutional underpinning as in 2003. Indeed at that time as the Commission will recall the Act depended both on the Corporations Act and the industrial power in section 51(35).
PN1544
Secondly, the wording is different. Thirdly, even the decision itself makes clear the issue of arbitral versus judicial power is one of fact, and I've taken the Commission to paragraph 60 and ultimately we would say, if we need to, that the reasoning is wrong in any event. As to the first, it's different legislation under a different constitutional underpinning. The wording is different. Now the complication with this case - and the Commission has probably had a bit of a look at it- it refers to industrial disputes and much of the debate in this case and in Moranbah, which came around about the same time, was what that meant when it was a defined term.
PN1545
The Full Bench in this case really had it a bit both ways. It sort of referred to Moranbah and said there was a dispute, but then they went on and in paragraphs 107 and 108, 112 and 113 and said, "Well, there is an industrial dispute in existence because there had been a claim made by the FSU in any event for rights of entry and accordingly there was a dispute between the parties as to rights of entry." So in a practical way the observations that they make earlier are largely obiter because they had already found and relied on the fact that there was an antecedent industrial dispute referred to in paragraph 123 about rights of entry.
PN1546
So in a way we're dealing with obiter. Secondly, as we say the facts of this case are the ones that have to be looked at and respectfully, when one looks with regard to the reasoning in this case, paragraph 61, it sets out characterising the claim, the power sought to be invoked. Paragraph 61 refers to the dispute notification and it's a section 99 dispute as it was required to be probably at that time, which the Commission will recall an industrial dispute to be brought to the attention of the Commission, and they make the conclusion because of the previous paragraph in 62:
PN1547
We think it is clear from the terms of the notification and the exchange of correspondence that there is an industrial dispute about the operation of Division 11A.
PN1548
And they then say that the appellant is wrong and then they say in 64, they basically repeat the above parts but then they somehow describe an incidental step to form an opinion about the legal effects of the agreement. The real issues really appear as far as analysis goes in paragraph 65 and that said, "Well, the power is conferred on the Commission and it takes its character." We agree. That's one factor. But as the High Court tells us, simply because the Commission is an arbitral tribunal does not mean that everything the Commission does is arbitral. So in a way 65 is a factor, but certainly hasn't been a factor that either prevents the necessity for characterising the dispute nor does it alter the fact that the Commission can on occasions err by exercising judicial power. The next is section 66:
PN1549
Further we are not persuaded that general considerations of industrial fairness did not form part of the Commission's consideration of the matter. And Mr Logan, representing the FSU made references to considerations relating to freedom of association and characterised the appellant's conduct as an attempt to construct a way of keeping the unions out. Such policy considerations are not suggestive of the exercise of judicial power.
PN1550
We agree they're not, but a couple of things. Firstly, nothing about industrial fairness has been urged on the Commission in this proceeding. Not one word has been said about industrial fairness to convince the Commission to take a particular approach. All the Commission has been told is that the MUA have a legal entitlement and their rules entitlement. Further, the accusation that "The appellant's conduct is an attempt to construct a way of keeping the unions out" might have been put by Mr Logan to the Commission and may well have been accepted by the Commission, but they have not been put here, neither is there any factual to put them.
PN1551
It hasn't been suggested to any of our witnesses. The whole cross‑examination focussed on factual matters concerning the coverage of the MUA. So 66 is irrelevant and indeed it doesn't help at all. 67, the terms of the order, I'm not sure that that is a factor at all. An order may be made, we understand that. If there is a proper dispute an order may be made. An order may be made that doesn't confer powers that are additional to or inconsistent with powers exercisable under the Division. In a frank and practical world if the Commission made an order that the MUA had coverage, then that may well be an order that was additional to or inconsistent with the powers exercisable under the Division. But as a fact paragraph 67 really takes the matter nowhere.
PN1552
As to paragraph 68 this is the one about the emasculation. That is, if we're right, that is that if the Commission is being asked only to determine the rights of the MUA under section 484(b) then that's somehow going to lead to employers avoiding the jurisdiction by the simple expedient of only contesting a union's right to enter the premises under Part 9 rather than disputing the manner in which such a right is to be exercised. Well, if there is a real and bona fide issue about the legal facts to go to support a right to enter under (b), (d), and if there's an argument put that's a device or an artifice, that's what the Commission is here for. It would make that call. That argument would be put.
PN1553
There may well be a dispute about the operation of the Part, however again nothing has been put or suggested that the contesting of the union's right to enter premises is being used as a simple device to avoid another and arbitral dispute, and that's a serious matter not put to any of our witnesses. The MUA in their written submissions regarding jurisdiction raise this issue of a condition precedent, and whilst I can't find it they speak of the entitlement to enter being a condition precedent. Well no, what this case is about is, is that condition precedent met? That's the assessment of a legal condition.
PN1554
Further, they simply assert there's a dispute. That s not enough. Simply asserting there's a dispute would mean that any time you turn up in respect of a section 505 matter all a union would have to say is, "There's a dispute". That's not enough. There has to be evidence of that dispute and it has to be characterised and the power has to be assessed. We add some further arguments with regard to this in our submissions that we have filed, from paragraph 27 onwards. They make points about the rights of - I'm sorry, they make points about the assessment of union rules, refer to the Registered Organisations Act, and I'm not going to repeat those but we rely on that part also.
PN1555
So our submission is there's no dispute that can be arbitrated by this Commission. What the Commission is being asked to do is to exercise a power of declaring the rights of the MUA and certainly there's no power to make orders about meal rooms or locations, because there is simply no dispute about that, and the Commission will be aware of the decision of Gostencnik DP or SDP - I might be promoting him or unpromoting him - in CFMEU v Austral Bricks at paragraph 37 where he said:
PN1556
There must be genuine attempts to agree, for there to be a dispute.
PN1557
Those are our submissions with regard to jurisdiction. We note that the Commission has made a ruling about we made an application for adjournment of the proceedings before any evidence was heard. The Commission decided not to adjourn the proceedings. Ultimately we say it's still in the hands of the Commission. Having heard all the evidence now the Commission may decide not to make orders in respect of the dispute pending the Federal Court decision. We would request the Commission to give consideration to that option. We note the Commission is going to hand down reasons in respect of the initial refusal. To turn to the issue of merit, section 484(b) refers to employees:
PN1558
whose industrial interests the permit holder s organisation is entitled to represent
PN1559
Let's start with which employees are we talking about? The material put before the Commission by the applicant has focussed on the Hydro Deck and employees of ALE firstly. Secondly the union's submissions, as much of their evidence, tended to blur the jobs and responsibilities out of various managerial, engineering and other positions. It sort of - there hasn't been put before the Commission any particular analysis of the employees the union says it has an entitlement to cover.
PN1560
The statement of facts that I think the MUA has put together at paragraph 14 sets out a number of top deck duties and they refer to members of the top deck. Now it hasn't really been articulated by them who are the top deck employees. We would say that we are here dealing with - and when we say what we're dealing with, we note the evidence of the union from Mr Clarke. Mr Clarke left in November. The information now is that there are nine trades assistants, two leading hands, four mechanical technicians, four electrical technicians, and they are regulated by the industrial instrument that Mr Mayor has attached.
PN1561
That industrial instrument I think is attached to Mr Mayor's statement. It's in TM15 and it's an industrial instrument made between various unions not including the MUA and in respect of the work to be performed at the Ichthys Onshore Construction et cetera, et cetera, and there's reference within it to its coverage and the various employees that it covers, and it covers particular work and excludes other work. Our position is that the employees that are covered are the group that I've mentioned, the TAs, the leading hands, the mechanical trades and the electrical trades.
PN1562
The ballast operators that the Commission has heard a little bit about, being the people that operate the ballast systems, are staff employees. They're not regulated by the industrial instrument. Mr Carr described them as the equivalent of a chief mate or chief - and when I asked him, "They wouldn't fall within the coverage of the rules?" he said, "No". Now that's certainly the way we would understand it because the Commission has also heard there are other employees, and Mr George has given evidence about them - at paragraph 45 of Mr George's statement he dealt with the employees and he then referred in paragraph 45 to various employees, being the Hydro Deck superintendent, the supervising engineer, the HSE officer, ballast operators and ballast engineers, all salary employees and not covered by the ALE's enterprise agreement.
PN1563
He said those that were covered were those that I identified. Now he went on and set out in paragraph 46 the duties of the Hydro Deck superintendent and attaches his statement, the supervising engineers that work on the Hydro Deck again and the HSE, the health safety environment officers and the ballast operators and also the ballast engineer, and the ballast engineers are referred to in paragraph 53 of his statement. Now as he has said, they're all salaried positions and there has been - the only evidence you have really concerning them is that given by Mr George. None of the union witnesses have dealt with that cohort of employee.
PN1564
So we, focussing on the particular employees that the evidence has largely focussed on(sic), then you have the eligibility rules of the MUA, and the principles regarding the construction of such rules are well known. We have provided to the Commission a copy of the Williams - I think the most quoted one in this particular area. Yes, hopefully the Commission has a copy of that somewhere. It seems to be the decision that's most cited and the particular parts, without burdening this too much, is this was a case that concerned a debate which ended up in the High Court about certain builders labourers and the extent of their work.
PN1565
There was an argument about the word "building" and the facts of these things are a bit interesting because they maintain their relevance, because there was an argument - and it has got strands in this case of there was a - the issue was people working doing excavation and people putting up a high voltage electricity transmission tower, steel tanks, carbon baking furnace stacks and structural steel frameworks, various things that went on a building site or a large construction site, and the union, the BLF, turned up and said, "Well, they're all buildings. It's pretty clear".
PN1566
It's a similar argument to what we've heard today. You know, they're above ground, they're placed there, people have offices in them, they wander around them therefore they must be buildings. The High Court rejected that and they did it setting out a number of provisions and some of the relevant parts are on page 408 where the High Court said at about point 5, "The rules must be construed objectively" and when that's said - and that means we have to look at the words that are used and construe them objectively - we can get assistance from statutory provisions, decisions, determinations, reports and other papers concerned with the relevant industry or industries. So they're things we can get help from, and then the reference to building or buildings on page 410:
PN1567
References to a building or buildings should not be understood as references to any structure at all but as references to what would ordinarily be described in common parlance as a building or buildings.
PN1568
And further, as is also said on page 410:
PN1569
The judgments make clear however that the meaning given to the words was to no small extent influenced by the context provided by the subclause in which the words occurred.
PN1570
So you don't just look at the word there, you sort of give it the context of where it appears, and they're commonsense things, and they decided that the word building or buildings didn't cover these structures; tanks, furnaces and other things, notwithstanding the fact that there were people on them and spent much time on them. So that's the sort of approach we should be taking and - - -
PN1571
THE COMMISSIONER: Mr Parry, it often strikes me that lawyers are archaeologists because they're continually digging for decisions in the building context.
PN1572
MR PARRY: Yes, that's true and they often are. I suppose when one is in interpreting union rules one starts from what the original drafters of the word meant and then you look at what a fair interpretation that they would in the current environment. I'm trying not to be too much of an archaeologist.
PN1573
THE COMMISSIONER: Just put up with me, Mr Parry. I'm just - I get bombarded with decisions, that's all, which I know you must do.
PN1574
MR PARRY: Well, that's one of my main goals, to bombard Commissioners with decisions.
PN1575
THE COMMISSIONER: That's what I feel, not you.
PN1576
MR PARRY: I'm trying not to read them out too much and I'm sure the Commission has been taken to these on a number of occasions before. And again in this approach I think in exchange with my learned friend, sometimes my learned friend sort of blurred the two parts of the rules. The seamen's rules and the MUA rules. Well, this is ultimately an exercising in construing words and giving them a particular meaning, and you can't throw in functions that the employees weren't required to perform and you shouldn't be taking a strained approach to a particular word. It depends on what the employer requires of the employees, and this becomes particularly relevant to the seamen's part of the rules.
PN1577
Now the seamen's part of the rules have two parts. Firstly they specify a number of positions and then they refer to employees engaged to work on specific items. The rules do encompass integrated ratings, and the Commission heard about the changes to the industry that took place in the late 80s and the rationalisation of the industries where the concept of ratings was introduced. So we can assume that the concept of ratings and so forth are probably in all likelihood - but I can't assert this with any knowledge, that the rules have been amended at some stage in the last 30 or so years to accommodate the amalgamation and the integration that Mr Carr gave evidence about.
PN1578
Notwithstanding that, and there's reference here to boatswains and integrated ratings, and ordinary seamen and deck boys and pump men and, starting with the particular provisions, it might be accepted that none of the employees on the Hydro Deck that I've referred to held any of the positions set out. They didn't meet - there's no suggestion they answered advertisements for any of these positions. There's no suggestion that any of the employees described themselves in these positions. None of the job descriptions contain those titles. But that is of course not the end of it. We need to look at the specified positions.
PN1579
We ask what duties, responsibilities and qualifications that position contemplated when placed in the rules. We ask whether the duties, responsibilities and qualifications of the employees may fairly be said to be contemplated by that term now, and important to appreciate that the specified positions are generally applied to seafaring employees working on vessels. They are vessels subject to various legislation and orders, for example the Navigation Act and the Maritime Orders. Mr Mayor says correctly in paragraphs 23 to 25 that - and this is under the heading, "The job and skills of a seaman" and he refers to:
PN1580
It's a specialist occupation, there are various classifications of employees, "deck hands, general purpose ratings, provisional integrated ratings or integrated ratings depending on the size of the vehicle.
PN1581
And he also says:
PN1582
A large part of a seaman's role is continuously monitoring and engaging in assessments of the operation of the vessel. This is a technical requirement and requires training in the marine industry in order to be completed safely.
PN1583
Now we don't have any issue with this and Mr Carr gave evidence which referred to these various titles of jobs being, I think in paragraph C5 he refers to them as seafaring classifications and in paragraph 6 he refers to the shipping industry, and again we can't take issue with that. So then we need to turn in that sort of context to the sort of titles that are given and there is - I took Mr Carr through each of these and the Commission will no doubt look back, or it might look back at transcript or it might not.
PN1584
I don't know whether transcript is being taken. But he made a suggestion that Mr Clarke might be a boatswain and I took Mr Carr through that, and he agreed that more likely I think that Mr Clarke could be a chief integrated rating. But in that context one doesn't just call you a chief integrated rating. That's where the various standards that Mr George referred to, the standards for the training and classification of watchman et cetera become relevant. Now clearly there was no requirement for Mr Clarke to be a chief integrated rating or to have any of those qualifications. It was never suggested that was part of his requirement.
PN1585
Seriously, again it would be a stretch to describe a leading hand on the Hydro Deck as a boatswain, and I don't think even Mr Clarke went that far to say he would have called himself a boatswain. The next is boatswain's mates. Well, it seems to be accepted they don't exist. Quartermasters, storekeepers, there has been no reference to. The world of - and able seamen have effectively been a title overtaken by others. So then we're in the world of the various integrated ratings and again it's worth the Commission noting the evidence of Mr Carr.
PN1586
I took him through the various ratings and what they mean. His evidence was with regard to the ratings that they would be required to go through the sort of training that are required, and the Commission will recall that Mr George has conducted an analysis of this. He was never challenged on that analysis as to the skills and so forth that was required, and the evidence of Mr George was that there was no requirement that the STCW training qualifications or requirements be met. Mr Carr referred to the trainee integrated ratings. These were people that were being trained of course to become integrated ratings.
PN1587
To suggest that the leading hands were being - I'm sorry, to suggest that any of the workers on the Hydro Deck were being trained to be integrated ratings is absurd. Of course they're not being trained, and the positions - I think Mr George has given evidence about this at paragraph 74E to F. He went through this at 74E to F. I won't read it out but essentially that dealt with the various provisions of those titles. Now Mr Carr refers to maintenance. Of course people do maintenance. Employees all over the country do maintenance. That doesn't make them a particular job. The issues here is whether the trades assistants are able to be described as integrated ratings. Mr George gave evidence about this in 74E about:
PN1588
The unique Australian seafaring positions. They align to STCW10 qualified positions in Marine Orders.
PN1589
He had formed the view that the STCW qualifications were not required on a skills basis. We say that's consistent with the law, and I'll turn to the particular legal requirements shortly, but that's an assessment on which Mr George has never been challenged. Indeed he says in paragraph 39 to 42, he goes through the STCW. Of course we're happy to provide that to the Commission. It's a folder this big. We have attempted to deal with it in a summary sense and I think I've fairly put that to Mr Carr, what our position is with regard to that and I don't recall him disagreeing with me on anything.
PN1590
We can provide that if the Commission wants but I'm not advocating I hand it up. But it is a standard of training certification and watchkeeping for seafarers. It has a number of Marine Orders attached. It has requirements for watchkeeping for example. Anyone watchkeeping on a certain vessel over a certain size is required to have eye tests, and that's the sort of material that's in there. That you're not allowed to get certified to be a watchkeeper on a big vessel unless your eyes are right, and various other things that are sensible and logical for people operating on seafaring vessels or even vessels operating in a harbour.
PN1591
But to then suggest that they would apply to people working on a Hydro Deck, which is a fixed structure, would really be stretching it. We say of course that Mr Carr's evidence doesn't undermine and is indeed consistent with the evidence of Mr George. So the labourers - I'm sorry, the TAs are not integrated ratings. Deck boys, well there has been a debate about deck boys. I just wonder if you walked up to one of those labourers and described them as a deck boy what would happen, and this is where common parlance becomes a part of this, and that's where the High Court says common parlance is an important part of it. The idea that deck boys, which is a term that appears amongst a range of integrated ratings - I think Mr Carr said it was the most junior position and the deck man, whatever, and I know this is sexist language but - - -
PN1592
THE COMMISSIONER: Carry on Mr Parry.
PN1593
MR PARRY: Well, it's damned if I do and damned if I don't. A deckhand; perhaps I'll use better language. A deckhand is a more senior position. Again they're terms that have to be read in a context and our position is - and I think Mr Carr's evidence warrants reading on this, that really to describe these trades assistants as such is stretching it. Sailors; it's an obsolete term according to Mr Carr at paragraph 14 and Mr George at paragraph 74I, and rhetorically they can hardly be said to be employees that sail. If sailors do anything, I'm assuming they sail, and Mr Carr in fact said little about deckhands. Mr George did. He said what he said at paragraph 74Q.
PN1594
Now ordinary seamen, again I think Mr Carr said little about that apart from the fact that it's a redundant term and I think Mr George agrees with him with regard to that. Donkey men, water tenders, and so forth, motor men, are irrelevant. Something is sought to be made of pump men but really when one - and I asked some questions of Mr Carr of this which warrant looking at because his position is that this was a position that involved the transfer of hydrocarbons, being oil, from vessel to vessel or shore to vessel, and that seems a commonsense and logical reading of what a pump man would do.
PN1595
Mr Carr threw in the suggestion in his statement that this somehow could be applied to people pumping water. Mr George said at 74K, that that's just not consistent with his understanding and indeed Mr Carr's evidence was really of a nature where this was - I think even he would see it as a bit of a stretch to start suggesting that anyone performing ballast work was a pump man. And indeed we have said, and Mr Carr agreed I think, that the ballast operator being a staff position was equivalent to a first mate, I think, and not covered by the rules of the MUA in any event. So in a way it's a narrow debate about the position of pump men.
PN1596
Watchkeeping duties, well there has been a few other terms that have been thrown around but our position is that on a fair reading, consistent with those rules, that those employees, those classifications, that none of the relevant employees on the Hydro Deck could be described as filling those positions. Now they have to be read of course in a context and in a way that leads into the next matter, the context of employees working on certain items. These items appear to be ones that meet the description of a ship or vessel. Now Mr Mayor starts from that position and I asked him questions about that. Mr Mayor at paragraph 8 I think starts from the position that the Hydro Deck is a ship or vessel.
PN1597
So in a way the MUA have made much of the Hydro Deck being a ship or vessel, and Mr Carr himself inevitably in his statement refers to ships or vessels, and we say of course one doesn't - and I think it follows from one of the Commission's questions, in making the assessment within union rules of whether an item of equipment is a ship or a vessel or fitting within one of these categories, then we should look at the piece of equipment itself and we should look at what the employer is using it for. Any number of examples could be thrown up of pieces of equipment that are used for a variety of purposes, but these are in union rules dealing with what employees do for employers.
PN1598
So we need to ask what is the employer requiring of the employee in respect of that equipment, and again in the context of the words used here about working on dredges, lighters, hulks, barges, punts, employees working on river and harbour vessels including ferries, employees working on tug boats and tenders, employees working in pilot services. We have to look at commonsense again, commonsense wording, the technical and legislative use of such terms, industry usage and historical usage. The Commission has the statement of agreed facts and it has been agreed how to describe a Hydro Deck, and paragraphs 17 and 18 sets out what we have agreed about the Hydro Deck. It works in conjunction with a MOFTP. It has been agreed it's a T-shaped semi-permanent structure - I'm sorry, that's the MOFTP.
PN1599
Made of steel bulk and concrete. The Hydro Deck transported to Darwin Harbour in April 2014 and located at a cyclone mooring and it was moved in June 2014. It will stay there until April next year when it will be removed, and it remains secured.
PN1600
It's classed as a pontoon. It's flat-bottomed, and number 7:
PN1601
Does not have its own means of propulsion navigation or steering and will not whilst in use by the respondent undertake any journeys by water with the possible but yet to occur limited exception of moving it to a safe cyclone mooring.
PN1602
Now just on that, clearly the Commission has seen it. It's a piece of equipment that stays in one place and the exception of moving it to a safe cyclone mooring is not something that's done in the normal course of work. It's not something the employer requires to be done. Indeed the Commission has heard that that would occur only if there was a direction given by the Darwin Harbour authority about moving that in respect of a cyclone. So the normal regular part of work that's required is when this piece of equipment is where it is and performing the functions the employer requires of it, which is to assist in the taking of modules off large ships called heavy lift vessels.
PN1603
Let's start with commonsense when we talk about the Hydro Deck. Mr Carr called it a specialist piece of equipment. We agree with him. That's commonsense. Mr - I'm sorry, to describe the Hydro Deck as a ship or a vessel is in our submission a real stretch and an unrealistic one and one might ask did the drafters of the rules intend to cover work on such a facility. Would workers themselves say, "I work on a ship or a vessel. I'm a seaman or a sailor"? I think our position is when one comes to a commonsense test, commonsense would say the Hydro Deck is as Mr Carr described it, a specialist piece of equipment.
PN1604
Next, technical and legislative. We have made submissions in our outline of submissions at paragraph I think 27 on the terms ship or vessel, and there are any number - and we've provided them to the Commission - of authorities with regard to what are ships or vessels. Let's assume that they're somehow not dissimilar or perhaps vessel might be a broader term. The term vessel has a long history. We note that - and I don't know whether the Commission has a copy of this but it was handed to one of the witnesses and it was the Navigation Act. The Navigation Act is an Act that Mr George referred to and I might be wrong but I thought Mr Carr referred to it in his evidence as well.
PN1605
Now the Navigation Act is an Act that has some long history in Australia. There was a Navigation Act that was referred to I think about a hundred years ago. I think there's one from 1912 - there was a Navigation Act in 1912, and the Navigation Act in 1912 had within it a reference to - it had definitions within it and the definitions - again I'm trying not to burden the Commission with too much. I'll read the definition on to the transcript because there's a definition of ship. If the Commission will excuse me briefly.
PN1606
I'll read that shortly, but the 1912 definition of ship is identical or almost identical with the definition in the Navigation Act now of vessel. I might have to provide this to the Commission because I'd like it to be before the Commission, and that is the definition of ship from the 1912 Act. The reason for that is that clearly the rules of the MUA were drafted in a particular context and the rules of the Navigation Act is a relevant part of that context. There was handed to Mr George a copy or an extract from the rules of the Navigation Act 2012. I don't think it was ever tendered or placed before the Commission, but my learned friend took Mr George to the Navigation Act and took him to the definition of vessel. As I said, the definition of vessel in the Navigation Act as it currently stands, and I quote:
PN1607
Vessel means any kind of vessel used in navigation by water, however propelled or moved, and includes the following:
PN1608
(a) a barge, lighter or other floating craft;
PN1609
(b) an air‑cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.
PN1610
Now that was handed to one of the witnesses and again we'd want that to be before the - - -
PN1611
THE COMMISSIONER: Mr Parry, I was given a copy of that. Because it's an extract from the statute I didn't mark it.
PN1612
MR PARRY: Good. Now what we take from this is that for this industry there is - and this is an Act relating to maritime safety. In this particular industry the legislature has seen fit to make a definition and a vessel doesn't mean a vessel simpliciter. It must mean a:
PN1613
vessel used in navigation by water, however propelled or moved, and includes the following:
PN1614
(a) a barge, lighter or other floating craft;
PN1615
(b) an air‑cushion vehicle -
PN1616
And so forth:
PN1617
used wholly or primarily in navigation by water.
PN1618
So the concept of navigation by water is an inherent part of what the Parliament sees as a requirement for a vessel. Now there have been decisions, which we have provided to the Commission, about a number of definitions of what a vessel is and one of the cases that we've provided to the Commission - and I note that my learned friend has referred to English authority and this is the main area where there is such authority. He referred to some English authority. I think one of the cases we've handed up is Steedman v Scofield [1992] (QB) 2 at 163. The reason we draw that to the attention of the Commission is that it was a decision that dealt with a phrase used in navigation. My learned friend sort of skated over this, understandably, because it's a significant matter in deciding whether the Hydro Deck is a vessel as contemplated by Australian maritime law. "Used in navigation", the Queen's Bench decision - and I'll read this part of it:
PN1619
The phrase used in navigation conveyed the concept of transporting persons or property to an intended destination. Navigation was not synonymous with movement on water but was planned or ordered movement from one place to another.
PN1620
And that is set out at point 8 on page 166. So there's also the Commission - as of limited help as the Macquarie Dictionary is on occasions, the definition of navigate is, and I quote:
PN1621
To traverse the sea, a river -
PN1622
et cetera:
PN1623
- in a vessel or an aircraft, to direct or manage a ship on its course, to pass over the sea as a ship does, to direct or manage a ship on its course, to travel by using a boat as over the water, sail, to pass over the water as a ship does.
PN1624
So when the Navigation Act was put in place it was intended to cover those vessels that were navigating and navigating by water, and here we say - this is not a new definition, it was in the Navigation Act as we say in 2012 - there is no navigation. It is not part of the normal requirement for this piece of equivalent that it be navigated, that it is navigated, or that any of the activities required of it by the employer and those engaging them are required to navigate.
PN1625
That there might, might hypothetically, within the timeframe of the equipment being where it is, that there might be a cyclone and that the harbour master or the authorities, the Darwin Port authority might give a direction that it be moved does not mean that that becomes part of the normal and regular use to which the equipment is put, and we say that's fairly crucial. The concept of barge is referred to - - -
PN1626
THE COMMISSIONER: Mr Parry just before you move on, and I can't think of the term and I'm sure there is a term where the Parliamentary Council when they're drafting legislation - this particular definition that you're referring to where it says:
PN1627
Vessel means any kind of vessel used in navigation by water.
PN1628
It's as if there is an understood meaning of the word "vessel" and "by navigation of water" because the definition is phrased in such a way that that's understood, and then it moves on to say "and includes the following". There is a particular way that the Parliamentary Council construct sections that way and when it was first given to the witness, without interfering in the process of cross‑examination, but to me it's what is understood by the ordinary meaning of vessel and by navigation by water. That's how I understand the Parliamentary Council - - -
PN1629
MR PARRY: Sorry, I didn't catch that last bit. You understand it how?
PN1630
THE COMMISSIONER: Anybody reading the statute, if they go to the definition of vessel it's constructed in such a way that you understand the ordinary meaning of the word "vessel" and you understand the ordinary meaning "used in the navigation of water", and then it goes on:
PN1631
...however propelled or moved, and includes the following.
PN1632
So it's as if the inclusive parts are to give clarification to what is ordinarily understood by the word "vessel" and by "navigation by water". That's how I understand this is constructed.
PN1633
MR PARRY: We would read the definition as contemplating that there may well be vessels that are not used in navigation that are not meant to be included, and that the navigation by water when it includes in commas, "however propelled or moved," the term "navigation by water" contemplates that there is a sort of movement of the vessel that the English Court of Appeal and the Macquarie Dictionary contemplate. That is, we're not talking about a static, fixed piece of equipment.
PN1634
We're talking about something that is moving through the water from one point to another, and the Commission's comments about "includes the following", we would say that that would include barges, lighters, or other floating aircraft that are used in navigation by water however propelled or moved. One couldn't have it that one could simply say, "That's a barge and it's fixed in that spot" basically for the term of whatever the employer wants, but then it becomes a vessel. It still requires that barge to be used in navigation by water however propelled or moved. That's our submission.
PN1635
THE COMMISSIONER: I understand your submission.
PN1636
MR PARRY: Yes.
PN1637
THE COMMISSIONER: Just while I've interrupted you, clearly an aircraft carrier we would consider to be a vessel but we don't refer to it as a ship, we refer to it as an aircraft carrier. We see it as something that's distinctly different, the same as a cruise ship. We'd see those as particular types of vessels.
PN1638
MR PARRY: Yes.
PN1639
THE COMMISSIONER: Yes, so again I'm just trying to settle the differences between you and how I approach it, that's all.
PN1640
MR PARRY: Yes. We are making the submission that one reads the seamen parts of the rule in the context of ships or vessels and in the context of what would be the common understanding, and our position is that you take into account what the drafters could have meant by such legislation. That's the argument. The concept of barge, as we say, within the Navigation Act again there are uses that barges may well have. They may well be used in navigation, they may well be towed around and the Act obviously contemplates that such barges may be towed.
PN1641
They may be, and if they're towed and used in navigation by water they would be a vessel. The question is then not what is hypothetically possible with regard to the Hydro Deck but what it is being used for by the employer. That has to be the starting point, and it is not being used as a barge. It is not being used as a vessel, and the rules of the MUA - and it's a serious stretch we would suggest to somehow construe them as extending to this sort of equipment. They refer to "engaged in working on dredges". It's not a dredge. It's not a lighter. It's not a hulk.
PN1642
There's an argument about whether it's a barge or not. If it is a barge, which we say it's not, but even if it were it is not being used as a barge for the purposes which the drafters of these rules contemplated. We say the drafters of these rules contemplated barges as being those sort of vessels that are towed or moved or navigated, not ones that are fixed in a place for the duration of their working period and intended to be so fixed. The argument about barges has been complicated somewhat by my learned friend's attempt to drag in the Bechtel case, and the Bechtel case is, respectfully, a furphy in respect of barges. Does the Commission have a copy of that case?
PN1643
THE COMMISSIONER: I do.
PN1644
MR PARRY: Yes, if the Commission would just excuse me briefly. The Bechtel case was one where the MUA sought rights of entry to Curtis Island at Gladstone and there was various debates. But the MUA was relying not on anything to do with barges but on that part of their rules dealing with waterside workers. Paragraph 7 sets out certainly what Commissioner Booth was thinking when he referred to the MUA:
PN1645
being entitled to represent the industrial interests of any person who intends to follow the occupation of waterside worker.
PN1646
This is not a case dealing at all with barges. It's not a case dealing with that part of the union rules that go to the various categories of seafaring craft. There are various debates but the Commission might note that there was some debate in paragraph 87:
PN1647
the MUA submitted that four groups of employees met the occupation of waterside worker:
PN1648
(i) excavator operators at the Condock;
PN1649
(ii) riggers at the MOF;
PN1650
(iii) a mooring master; and
PN1651
(iv) employees of the contractor that operates the self-propelled modular transporters or SPMT vehicles used on the Curtis Island.
PN1652
Now I make the point firstly that there was no inconsistency with the evidence of Mr George. Mr George was tackled on this being something about barges and about the rights of the MUA to work with regard to barges. The argument was here determined on whether the excavator operator was following the occupation of waterside worker, and when one goes to it the union put the position in paragraph 94 that the predominant and substantial activity of the excavator operator was unloading cargo and the Commission found that at paragraph 102:
PN1653
Under the ETU test, excavator operators predominant working activities are unloading from the barge in the vicinity of the wharf. They have other tasks that are not predominant and are not the priority set by their employer. The predominant task, and the priority, is unloading aggregate. Because it is unloading from a barge docked at a wharf, it is a stevedoring operation.
PN1654
And the others, the Commission found there was evidence to find that they were covered by the rules. So really this concerned one or two, one excavator operator whose predominant working activities were unloading barges. So it really doesn't bear the sort of spin that my learned friend puts on it, and it was appealed and what happened with the appeal - and hopefully the appeal decision is there - is that the Commission at Full Bench level didn't grapple with the argument about coverage and errors that might have occurred in that because the excavator operator had left and it was found that there was no utility in conducting the appeal.
PN1655
So in a way there hasn't been a Full Bench determination of this issue at all. It has been a matter that was left to one side - or, I'm sorry, was dismissed because of legal reasons being the lack of utility in the appeal, and there's no determination or decision with regard to the merits of Commissioner Booth's decision. The evidence of Mr George, now Mr George has set out his position with regard to what the Hydro Deck is. I'm not going to repeat that. Paragraphs 33 to 36. The Commission asked about Catalinas, which are flying boats, flying vessels, flying ships, I don't know.
PN1656
The English Court has looked at that. My learned friend correctly said what the rationale was. That is that they weren't ships or vessels because - I'm using my learned friend's words here - they weren't navigating or traversing water. We agree with him and we say neither is the Hydro Deck. He also referred to the Von Rocks and that was a debate about the UK Arrest Convention. It's important to note in that case that it was a factual finding and an important factual finding that the Von Rocks vessel, as it was found, regularly traversed the sea, was regularly towed and spent significant periods of time moving across the sea.
PN1657
Now in those circumstances it's hardly surprising that it could be described as a vessel or ship. Again, issues that don't apply at all with regard to the Hydro Deck. So for the employees working on the Hydro Deck that we've identified, we say they are not seamen, they don't come within the seamen's rules, they are not working on a harbour vessel. Even if it was a barge, and we dispute that, we say it was not a barge being used as a barge. That is, it was not being used for the purposes any navigation.
PN1658
To then turn to the occupation of waterside worker, and the Commission has seen the decision of Commissioner Booth with regard to the excavator operator. Like all these cases they turn on certain factual matters. These excavator operators considered by Commissioner Booth were actually engaged in the task of unloading aggregate, and when one looks at the decision of the Full Federal Court with regard to grain handlers, it is hardly surprising. I'm reminded by my learned junior that the Hydro Deck doesn't carry cargo on the sea as other cases suggest, and indeed arrived being carried on a boat itself.
PN1659
Returning to the waterside worker, respectfully there are no direct precedents regarding workers such as these workers working on the Hydro Deck. That there are fixed wharves, that there are pontoons that are sometimes used, do not - there are no decisions regarding these matters and there's not a lot of assistance from the authorities, with respect. The Co-operative Bulk Handling case involved the bulk handling of grain on ships. Understandably those that were working on that and were engaged in it were understandably considered to be following the occupation of waterside worker.
PN1660
We have included in our authorities, as the Commission will note, the MUA v Gambier Mills I think it's called, and that decision dealt with some workers at a pulp mill that performed some of their work on the wharves and the Commission might gain some assistance from looking at that. It's again a decision on its facts concerning the amount of time one spent performing the tasks, but it shows the sort of analysis that needs to be gone through. As I asked Mr Mayor, a waterside worker isn't somebody that simply works beside water. If that be the case then as one of the cases says then the man at Bondi Beach doing lifesaving would be a waterside worker.
PN1661
So there has to be something more to make you a waterside worker and both - or Mr Mayor gave evidence about what the characteristics of a waterside worker are. The sort of factors we look at to make a decision whether a person is a waterside worker, and I think he made these observations at paragraph 31 where he referred to the - at paragraph 31, and again we would agree and I quote:
PN1662
The work of unloading cargo from vessels is a specialist function of waterside worker that should not be engaged in by workers without appropriate experience and supervision.
PN1663
We agree. He then went through the waterside worker's functions and again this is the union's case and they start with mooring. He describes it as an important duty of waterside worker. Now we're not going through this checklist and saying whether they're present or not but the Commission's required, we would submit, to look at all these matters and make an assessment as to whether they're present or not. If none of them are present or they're present in lesser ways then that will be a factor that goes into the Commission's thinking. We have agreed in our agreed statement of facts at paragraph 46 with regard to the first one, mooring. It's agreed in the statement of facts, and I read it:
PN1664
The trades assistants labourers do not undertake mooring on the Hydro Deck.
PN1665
So there's one important duty that isn't done by the trades assistants and labourers. The mooring is done by other employees that are not relevant for the purposes of this proceeding, and as Mr Mayor says it's normally done under the supervision of an experienced waterside worker, a mooring master, and he goes through the various things. But we don't need to burden ourselves with this because it's accepted that the trades assistants labourers don't do it. Secondly, the second factor that Mr Mayor identifies is what experienced waterside workers do:
PN1666
They inspect the cargo to determine how it can be safely unloaded.
PN1667
He says:
PN1668
Where large cargo is to be moved by self-propelled modular transporters a waterside worker will need to consider how the cargo could be moved safely to enable the transfer of the load at SPMT for the offloading facility with regard to weight, distribution, buoyancy and tidal fluctuations.
PN1669
Mr Mayor has identified that but the evidence is that the trades assistants labourers don't conduct any such function of inspecting the cargo to determine how it can be safely unloaded. These are very large modules moved by specialist employees that come to that particular area to perform that function. Mr George at paragraph 32 of his statement refers to - sorry, it's not 32, it's some other. He does however give this evidence and I don't understand it to be in contention that the employees do not inspect the modules to determine how they can be safely unloaded. Various other, as I've said, persons that are qualified do that. Also in paragraph 34 Mr Mayor refers to this, and I quote:
PN1670
A waterside worker is also required to unlash and lash cargo that is loaded or unloaded. This is the function of a waterside worker and not a seaman. The labourers and TAs are not required to do any lashing or unlashing of cargo.
PN1671
The Commission has heard extensive evidence about how these modules are moved and the involvement of the labourers and TAs is minimal. The next - I'm sorry, it's page 32 of Mr George's statement. He referred to - yes, Mr George at paragraph 76N on page 32 said:
PN1672
This responsibility of inspecting the cargo is the responsibility of the load out engineer who designs, plans and schedules the unloading of modules from a heavy ship. The load out engineer is based at the point of origin of the module and advises the ballast engineer and the SPMT engineer of the calculations and schedule for the unloading modules.
PN1673
And he deals then in paragraph O with the lashing and unlashing, and the Commission will recall the removal of the grillage by mechanical contractors. The next item that Mr Mayor refers to is - the next matter that Mr Mayor refers to is the involvement in moving cargo and unloading vessels and Mr George deals with this in paragraph 75L and M. He refers to their minimal involvement in unloading, they don t physically participate, they don't place the SPMT under the modules, they don t have anything to do with the transportation of the modules to the relevant part of the construction site, and the rationale of the Bechtel case was of course that the excavator operator was directly involved in unloading. There are references in Mr Mayor's case to maintenance tasks around the wharf, as he describes it:
PN1674
To ensure the wharf is in a condition fit to perform its primary function.
PN1675
The trades assistants and labourers do do various maintenance tasks. Indeed that is where most of their work is, maintaining the Hydro Deck so that other persons can attend to the use of the Hydro Deck and to the unloading functions that it is involved in. Five per cent of the time, the evidence is, is spent on activities when the Hydro Deck has modules on it or being moved off it. The other 96 per cent of the work of these employees is performing a range of functions. Mr Whitehead's statement was to this extent adopted by Mr Clarke.
PN1676
Mr Whitehead's statement in paragraph 24 set out a range of or the scope of work and I didn't understand Mr Clarke to dispute this. He was taken to it by my learned junior in cross‑examination. There are 10 sort of jobs set out. I think he added another one, but assuming the 5 per cent/95 per cent, then there is reference to, "1. Line monitoring. 2. Line handling" to move the Hydro Deck. Now these are both functions that fall within the 5 per cent. Then we have the other items of duty that the trades assistants labourers conduct being, "Collection of orders from suppliers in Darwin" and the Commission heard about the officers of ALE.
PN1677
Delivery of documents, washing site cars and trucks, safety checks and general housing, painting.
PN1678
Now all these other activities are the purpose of the job. The purpose of the job is maintenance and the 5 per cent are occurring when there is a module to be moved. The next item that is identified by Mr Mayor, and it is through his paragraph 31 onwards when he talks of appropriate experience and the particular knowledge that waterside worker have. That would suggest that if this was really maritime - I'm sorry, wharf side work then the employer would have a requirement for the particular skills or marine skills. The statement of agreed facts has within it paragraph 26. Paragraph 26 says:
PN1679
The Hydro Deck employees are employed by ALE. None of the ALE employees that work on the Hydro Deck are required to have any form of marine qualification. The employees are only required to have a construction white card to work on the Hydro Deck.
PN1680
And the Commission has heard evidence about the various matters that take up the - or the various experience of various employees. Commissioner I've just been handed copies of the Navigation Act or extracts from the Navigation Act 1912. I'll hand one to my learned friend and if I could hand one up to the Commission as well, and hopefully the definition of ship - well, it's almost the same but whatever, the Commission will read that. If the Commission would excuse me briefly.
PN1681
Commissioner, I've been handed five enterprise agreements, being the construction Greenfields agreements, one for Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement, one Leightons Contractors Pty Ltd Ichthys Onshore Construction Greenfields Agreement, one MAS Ichthys Onshore Construction Greenfields Agreement, one Applied Electro Systems Ichthys Onshore Construction Greenfields Agreement, one East Arm Civil Pty Ltd Ichthys Onshore Construction Greenfields Agreement. The reason we would want to have them before the Commission is that each contains a definition of labourer which is in the same form as the definition of labourer that appears in the JKC Agreement, which is attachment TM15 to the statement of Mr Mayor.
PN1682
Now clearly we say that's consistent with our thesis that these employees are construction workers. I'm happy to hand them up to the Commission. They are adding more bulk to the Commission but they - I'm not saying they're every agreement onsite but they're consistent with our view that these labourers that are working for JKC are the same sort of workers as done by various other workers onsite, as evidenced through these Greenfields agreements. I'm showing them to my learned friend. Perhaps while my learned friend is looking at those we make these final points.
PN1683
THE COMMISSIONER: Mr Parry, just before you move on to your final point, you obviously want to make a comparison with the ALE Agreement, which I've got a copy of. Which clause are you referring to, so I can mark it in terms of the comparison with the other agreements that you've provided?
PN1684
MR PARRY: It's on page 42. It's the definition of labourer.
PN1685
THE COMMISSIONER: Thank you.
PN1686
MR PARRY: We make these final points. Our argument is when properly looked at and analysed the employees on the Hydro Deck are working in an area that is not a port or container depot. It is clearly associated with and integral to the construction site. It is where very large pieces called modules are brought on for placement on the site. The access to the area where the Hydro Deck is through the construction site. It is part of the construction site. The employees are inducted to the project. They're not inducted to work on the Hydro Deck. They were project PPE, they comply with project policies and procedures. Our position is that when that evidence is all analysed that we say there isn't a right of the MUA to represent these employees. Commissioner, one final matter. The Commission has no doubt got some material before it and some argument. Ultimately the - - -
PN1687
THE COMMISSIONER: That's an understatement, Mr Parry.
PN1688
MR PARRY: If the Commission notwithstanding our arguments and notwithstanding our applications is inclined to deal with the matter and make orders, then we would ask or request or make the submission that those orders come into effect 28 days after the making of any decision with regard to those matters. Yes, if the Commission pleases.
PN1689
MR QUINN: My apologies, Commissioner. I'm just in the movement of material. So if we can return to the issue of jurisdiction. We have provided those written submissions some time ago. Again, I won't repeat those. There are some issues I do want to raise and some issues to address that have been raised by my friend. We say that there is very clear Full Bench precedent in the Moranbah decision and that Bench led by Giudice J and in the Police and Nurses Credit Union decisions led by Ross J.
PN1690
First to the Moranbah decision, that it made it plain that there was no - it shouldn't even be seriously contemplated that there could not be a dispute in relation to the operation of the right of entry part merely because the employer refused to agree to an initial request. The Police and Nurses Credit Union decision made effectively the same decision and made that decision, including in the paragraphs that my friend took you to where the dispute was a bare claim or right to enter by sending correspondence and then correspondence in reply refusing to enter, and that was a dispute under the equivalent of section 505.
PN1691
My friend referred to the issue being determined there under a different constitutional foundation and under a different statutory - a different Act. None of the either change to the constitutional element affects that decision nor the change to the name of the statute over that period. The issue was whether or not there was a dispute. Yes, the Moranbah decision was a consideration in relation to the extent of what is an industrial dispute under those right of entry provisions compared to the more limited traditional limitations on the notion of dispute in the dispute award making areas of the Act in force at that time.
PN1692
That doesn't affect the determination of that issue of jurisdiction arising simply by a request and a denial, and that issue was addressed in the Police and Nurses Credit Union decision to the same end. Despite the multiple claims made in submissions that there is no dispute about anything else and there's no evidence about any dispute about other matters, it's plain in the material before the Commission, TM14, prior to filing a dispute, after the third refusal of entry, the applicant sought confirmation in that correspondence at 7 March. The applicant sought confirmation from the respondent via solicitors that it would be allowed to enter and that it would be allowed to enter:
PN1693
in the rooms he has proposed and subject to your client urgently confirming you will allow Mr Mayor to enter the premises and hold discussions in the rooms he has proposed upon provision of further notice of his intended entry. The MUA understand the parties to be in dispute about such matters and will take steps as necessary to address the dispute.
PN1694
So it's a clear that there is a matter at issue between the parties about where, about the manner of, how the right is to be exercised and that's continued through in the application, the orders that have been sought and the submissions that have been made. Now that takes the matter beyond the determination in Moranbah and Police and Nurses Credit Union where the decision or, sorry, the outcome that the MUA contends for that the Commission does have jurisdiction was confirmed by the Full Bench in those cases even where there wasn't that additional element over a dispute about the location of the meeting that was to be held.
PN1695
Besides that additional element there's nothing to distinguish the matter before the Commission today from those earlier Full Bench decisions. So even if the Commission was inclined, convinced of, inclined to doubt, convinced of the incorrectness of those decisions, the most that a member can do in those circumstances as the Full Bench set out it raised that rationale but is still compelled as a matter of concomity with existing decisions to follow that Full Bench precedent, and we set that out in our written submissions.
PN1696
Now that evidence that's before the Commission as to the intentions of Mr Mayor as the permit holder seeking entry, the scope of the dispute at that time was identified via correspondence between solicitors on his behalf and on behalf of the applicant prior to the application being filed is not in dispute in the evidence. It wasn't put to him - notwithstanding the submissions that seem to have been made - effectively that that dispute was not genuine and he was certainly asked questions, as was Mr George as to whether there had been any discussions or any correspondence in relation to those matters, and both witnesses confirmed that there had not been,
PN1697
And that is because the respondent failed to reply to the request sent in correspondence thus an application was filed, and the respondent has failed to enter into or respond - failed to enter any other discussions since that time. So it's hardly possible for the respondent to now rely upon its own silence as evidence of there not being a dispute. There has been no further discussions because they refused to engage in discussions on any of those issues.
PN1698
As I say, that there was a dispute about those issues, the entry and the manner of entry or the location of entry, was never - is not in dispute in the evidence and no issue about that was ever put to Mr Mayor in cross‑examination to bring that into question. I don't want to traverse again what we put in our written submissions but I think we can illustrate some of the issues that have been put to the Commission today by the respondent that identify the nature of a dispute of this sort, even if it was a bare dispute about a request for entry and a denial and nothing else.
PN1699
That that is necessarily a dispute about the operation of Part 3-4 consistent with the reasons we set out in our submissions, consistent with the previous Full Bench decisions, and there are two ways to characterise that. A comparison can be made between the process that the Commission is involved in here, when compared to the process that arises under the good faith bargaining provisions in the Act. Under those provisions the legislation effectively grants the employer a veto power over bargaining and over the capacity for the good faith bargaining obligations to kick in.
PN1700
If a union knocks on the door and says, "We want to bargain" and the employer says "No" then when the employer says no that means no. There is no bargaining and that's the end of the process. There's no dispute that arises. The employer simply has to say no. There's no dispute. There's no recourse for the Commission to review that decision. There's no requirement that can make the employer review that decision. There's no capacity for the Commission in relation to that refusal to directly conciliate or recommend or arbitrate in relation to that refusal. The employer is just entitled to say no. End of the story.
PN1701
All there is is then an entirely separate process by which the views of employees can be gained and the Commission can then make a determination through a majority support determination about if those employees - well, they express their views, then that entirely separate mechanism can be brought into play to enable the good faith bargaining obligations to arise. But subject to employees expressing their views and the Commission exercising the discretion it has in relation to a majority support determination, where an employer says no it means no. There is no dispute arises.
PN1702
The right of entry matters are set up in distinction to that structure. They don't provide any such veto power to the employer to simply say, "I m not going to let you exercise your entry rights under the Act in the way you want or in any way at all". It provides a mechanism for the union to identify its desire to enter the premises and it provides a dispute resolution mechanism that arises from the union exercising that right, that desire. So the Act makes very - that comparison makes plain how the Act intends for these sorts of matters to proceed.
PN1703
If the Parliament had intended that an employer could say, "No, you don't have an entitlement to enter the premises" and that power was to act as a veto power on the capacity of the union to enter, on the capacity of the Commission to deal with that matter as a dispute, then the Act would have provided a mechanism that forced the union to another forum to deal with that issue. What Part 3-4 provides however is a dispute resolution mechanism; a clear structure of the Act identifies that, and intended that, failure to comply with a request would create a dispute, and it introduced a particular and a peculiar dispute resolution mechanism to achieve that end, and as the Full Bench in Moranbah found, it did so in a way that even when the notion of dispute was limited in the award making or the body of the Act to industrial disputes extending beyond the limits of any one State nevertheless the term dispute had a special meaning in relation to those dispute mechanism provisions in the right of entry provisions.
PN1704
There has been no suggestion that that special meaning, that extended meaning, that meaning that applies to enable that Part to operate effectively, that Parliament has ever sought to restrict that extensive and extended meaning of the notion of dispute to enable the Part 3-4 to operate effectively. If there was any such intention then it would be recognised in some mechanism which would have forced disputes of a character that was a bare request to enter and refusal to be determined in the Federal Court. No such mechanism exists. No such change has been introduced into the Act.
PN1705
As the Full Bench in the Police Credit Union case identified not only would it be inconsistent with the plain meaning of the terms, but it would be fundamentally destructive of the regime and impossible to hold as the intention of Parliament that the system would be designed to send a message to employers that if they provide a specific reason for refusing an entry or the manner of entry they could be dragged in front of the Commission in a dispute about it; but if they've provided no reason or simply told the union that the reason was, "You are not entitled to enter", that the Commission could have no role in that process.
PN1706
That's not some sort of claim in the abstract or some obscure claim about unlikely possibility because - and the second way to illustrate this issue, the approach to the provisions that the respondent is urging you to adopt is that you cannot deal with the dispute if that condition precedent of coverage of relevant employees is not met. You heard you, the Commission, is not entitled to deal with that dispute. But that condition precedent and entitlement to represent the interests of an employee on the premises is only one of a range of conditions precedent to the exercise that's been approached this way.
PN1707
There are a range of conditions precedent to the exercise of the power, any one of which a respondent could rely upon - an employer would then be entitled to say, "I can refuse you entry and the Commission has no capacity to deal with the dispute". That inevitably plays itself out this way, in any alleged dispute that was notified under section 505, any dispute, even if the parties aren't in disagreement as to the entitlement to enter, the Commission is still under its normal obligation to determine whether it has jurisdiction in the matter before it.
PN1708
So the first step the Commission must take in any dispute application that's brought before it, or any dispute that's brought before it under 505, is to determine if there is a right to enter based on eligibility, whether a relevant notice has been provided in the correct terms et cetera. It's obliged, the Commission is obliged to determine that, to determine whether there is a dispute under Part 3-4 in front of it. So if in the exercise of that assessment the Commission determined that there are for example no eligible employees on the premises then the Commission's job is done effectively.
PN1709
It can determine that there can't be a dispute because there are no employees that would entitle a union to exercise its right to enter in relation to. If however it determines in the non-binding way that the Commission can, that there are eligible employees on the premises, the Commission still has before it an employer that's refusing to allow entry and a union in which, subject to all of the other boxes being ticked, in the Commission's opinion the union is entitled to enter. So it then has a dispute in front of it that it's then obliged to consider how to address.
PN1710
The alternative would amount to the Commission refusing to consider a dispute by refusing to determine whether or not it had jurisdiction, and being required to do so on the respondent's position, it's being required to refuse to determine if it has got jurisdiction. Merely because the employer has failed to provide a reason or its refusal, it doesn't go beyond the ball, "You are not entitled to enter" or by identifying one of the other multiple conditions precedent haven't been met. So the effect of the respondent's position is that the Commission must be required to refuse to determine if it can exercise its jurisdiction, which would make a nonsense of section 505.
PN1711
Irrespective of whether the view held by the employer was a mere artifice, whether it was genuinely held or whether it was reasonably held, the Commission would be prohibited from inquiring into that issue merely by what might well be the artifice of a refusal based on a claim that the union had no entitlement to enter. My friend referred to the matter in Cram. Those principles aren't in contention. Those principles were fundamental and not in contention before the Full Benches in the Moranbah case or the Police and Nurses Credit Union cases. They didn't prevent any barrier.
PN1712
They don't prevent any barrier - or they didn't prevent any barrier then to a dispute finding, they don't prevent any barrier now. Notwithstanding the principles confirmed in that case it is of limited direct relevance other than illustrative of what's not occurring here. Cram involved a claim of a failure to pay wages that were due in the past. There was a claim of a breach of an entitlement, a claim that the Administrative Tribunal could make an order requiring the employer to make a payment to employees in relation to a breach that occurred in the past.
PN1713
There's no question that it was a dispute involving some determination of future rights. It was clearly on the face of it a determination about a breach of an entitlement and providing a remedy for that breach. Now that is clearly the exercise of judicial power. No such issue has been raised here. There is, as my friend referred to, a history. That history has been identified as part of the factual matrix that the Commission has to determine in identifying what it should do once it confirms it has jurisdiction, and what it could do in order to address the dispute.
PN1714
We say that that would - and that history, multiple attempts at entry followed by multiple refusals is certainly relevant now when the respondent is now asking for in effect a stay of any implementation of a decision adverse to its position. That issue would effectively do no more than provide it with an opportunity to appeal any decision adverse to its position, and is an attempt to prevent the standard principle applying, that the decision will apply from - the successful party is entitled to the fruits of its litigation and the matter shouldn't be stayed unless there's some overwhelming or overriding reason for that to occur.
PN1715
We've been through all of those issues a day and a half ago. I won't go through them again. The issue is however that that history is relevant to the Commission's determination of or resolution of the dispute that's before it. That history is now doubly important given the orders that the respondent is now proposing that the Commission would make to accompany any orders it made in favour of the applicant. To return to the previous point, in clear distinction to the issues in dispute in Cram there are no allegations of breach have been made.
PN1716
There's no request for the Commission to determine the appropriateness or not, or rather the legality or not of the previous refusals by the respondent to refuse entry. The application wholly and solely identifies that there is a dispute arising from a failure to allow entry in March, the end of March, the beginning of April this year, and a request for orders to be made to enable the union or the permit holders of the union to enter into the future, and the manner in which they will enter in the future.
PN1717
So there's just simply nothing that reflects upon any, or provides any suggestion of, an exercise of judicial power in relation to that request for orders regulating the conduct of the relationship between the parties in the future. Ranger Uranium is to the same effect. It deals with matters that are entirely prospective that bear no relationship to the dispute that has been raised and the orders that have been sought in the matter currently before the Commission. As to the issues of merit, my friend took you to the decision in Williams.
PN1718
If you turn, I think, two pages back from the provisions or sorry, the considerations he was trying - he was placing some emphasis upon, the High Court there made clear that two other issues or issues in consideration of rules are not simply commonsense but the common parlance in the industry, the participants in the industry and the history of the provision in relevant legislation, statutes, awards. We've taken the Commission to the relevant legislative provisions. We've taken the Commission to a range of cases that deal with the meaning of the terms.
PN1719
All of those provisions in legislation and the decisions in those cases, all are consistent with the position put by the applicant that ship, vessel, has a very wide application, that the legislative provisions specifically extend to barges, they extend to other craft, they extend to craft in navigation on water. The cases identify what navigation on water means. My friend took you to the Steedman case and tried to make something of a suggestion that it had been trodden over lightly in submissions by the applicant.
PN1720
To the extent that it wasn't directly addressed it's because the Commission - the matter has been distinguished by the later matters in the Court of Appeal that we referred directly to, and we've referred to these decisions in our written submissions already. But I might, if I can manage to find it within my mess, I'd like to take you to them again. So following the Steedman decision there was the Clarke v Perks which identified that navigation just means movement across the water. Von Rocks to a similar effect and R v Goodwin that endorsed those earlier decisions that navigation just means movement across water and the capacity for movement across water. The Marine Craft Constructors going back as far as 1953 identified that:
PN1721
A pontoon, particularly a pontoon being used for carriage of goods must be described as a vessel
PN1722
There are the additional cases going back a hundred years in relation to non‑propelled, flat bottomed, barges that are towed - sorry, vessels that are towed and have no steering mechanism. There are the cases that we've listed in our written submissions identifying that that extends - the notion of vessel or ship has been extended clearly, consistently to all of those vessels including vessels that are carried from place to place on another vessel, including those that are fixed for long periods of time, including those that are characterised as pontoons and those that are characterised as barges.
PN1723
My friend talked of a primary consideration is what - and I might go back a step. In relation to all of those cases there is consideration of the status or the character of those vessels in question based upon their work history. The only reason that the respondent can say to the Commission today that the Hydro Deck doesn't fit within any of those categories is because this is the first project that the Hydro Deck has undertaken. So it has no history of movement on the water or of navigation on the water beyond its shipping from its place of fabrication to Darwin, its movement by tugs within Darwin Harbour.
PN1724
The evidence to the Commission is that once this project is finished it will then be moved by water out of Darwin Harbour and across the sea to North America to its next project. All of those vessels considered in the other matters have a history which a Court could draw upon in making its consideration. There is no such history here but there is a clear contemplation of what the or how the vessel is going to conduct itself into the future. That is, it will move from project to project by water to operate on water, to be moved by tugs when need be, and to be moved potentially by heavy lift ships on other occasions.
PN1725
So there's nothing in substance differentiating this vessel from any of the others apart from not having that history already there for the Commission to review. Now that narrow approach to the decision or the relevant issues is extended by the respondent when it was put to you that really what's important is determining what the employer is requiring of the employee in the context of that equipment in relation to this project. Again what the respondent seeks to do is an entirely artificial - a historical - take an entirely artificial approach. What we have here is a vessel on its first project. I don't think it's in dispute that it has a cycle. That is, it travels across the sea to a project, it undertakes that project, it's going to travel across the sea to another project.
PN1726
What the respondent is seeking the Commission to do is to say, "Forget about what it does before and how it gets there. Forget about what it's going to do in the future and how it's going to get there. All you need to look at to determine what it is" - because that's the question - "is what it's doing at the moment, and at the moment it's standing still". Well, it may well be primarily standing still at the moment but it's floating on water, it has been transported by water, and the intention is that it will continue to be transported by water for its lifespan however long that lifespan might be, and given the tens of millions of dollars that have been spent on it no doubt it's not going to be a short lifespan.
PN1727
But what's important here is not simply that very limited approach of what is the employer requiring it to do now in relation to what's being determined here today, which is the coverage of the breadth of the eligibility rules of a union. In order to determine those issues the Commission also has to consider what and where, and that's because of the nature of the rules that you are being asked to consider. The seafaring side of the rules are occupational; persons engaged in certain categories of work on a vessel and persons engaged on certain vessels.
PN1728
What the respondent is asking you to do is, "You don't have to worry about that. Notwithstanding that the rules require you to determine whether or not this craft is a harbour vessel or a barge, you can do that by looking at it in isolation as to what it's doing at the moment, which is sitting still". It's character as a vessel, which reflects all of the navigational characteristics that it has, its current use, its intended use and its means of transportation between uses, all of those are what determine what it is and therefore how you can determine whether or not those elements of the occupationally-based rules of a union can apply.
PN1729
Similarly the waterside worker elements of the rules are determined by where it is, what it is. It's a wharf. That is it's a structure involved in the unloading of cargo from vessels, and so the Commission needs to take that broad approach to determining the character of this craft in order to assess the coverage of those rules. My friend referred you to the - I don t know how to pronounce it either and I already have a dispute about how to pronounce flying boats, but the Tasmanian decision, the mill worker decision if I can call it that, it is entirely irrelevant to these proceedings and it's an example of the sort of matter that I identified in our primary submissions as irrelevant.
PN1730
In that matter a group of mill workers were designated to occasionally go down to the wharf to unload the produce from the mill that they worked at, and there was a small proportion of time - I forget the proportion but maybe 12 per cent I think was the number - some small proportion of their time was spent in that loading activity, and that's where a principal purpose test may be relevant. They were mill workers. Their principal purpose had been to work in the mill and this was a peripheral or incidental duty to being a mill worker, was loading the vessel.
PN1731
What we have here is a group of workers whose principal purpose is to work on the Hydro Deck. My friend asserted that their principal purpose was maintenance. Well, if their principal purpose was maintenance then they would be engaged as generic maintenance employees and going left, going right, going straight ahead when they came in the gates each day. They have been specifically recruited to work on the Hydro Deck. They work exclusively on the Hydro Deck. The only maintenance they engage in is maintenance of the Hydro Deck. Their only, principal, primary, sole purpose is to maintain the Hydro Deck.
PN1732
There are inevitably some minor incidental functions that require them to move away from the Hydro Deck; washing the bus. None of them are engaged to be bus washers. They've been engaged to work on the Hydro Deck, to maintain the Hydro Deck, and to maintain the Hydro Deck for the sole purpose of unloading cargo from vessels. What the cases make plain - and it can't be contested that employees who are engaged in that process, that extended process of unloading or loading of cargo from vessels are all waterside workers, including those with entirely peripheral tasks such as gardeners.
PN1733
Also centrally including those who have centrally relevant tasks in relation to the safe unloading of the cargo in question, being these modules being unloaded through a highly sophisticated and delicate operation, given the nature of that cargo. And we have people who are a group of people whose sole occupation is to directly ensure that that process is undertaken safely and undertaken successfully. There's nothing peripheral about what they do. My friend was right, the criteria in relation to a waterside worker is not simply working near the water. It's involvement in the unloading of cargo, directly and indirectly.
PN1734
These people are involved for a small proportion of their time directly in the unloading process, and for the majority of their time indirectly by maintaining the only facility that can allow for this cargo to be discharged from the vessels to the wharf to the construction site that is its ultimate destination. Naturally I haven't been able to peruse the EBAs that the respondent handed up in depth. What I could see is that they are - I think there are four or five, all of which or none of which have the MUA as a party to them.
PN1735
How other construction unions' definition of a labourer is relevant to determining the extent of the occupational eligibility rule of the MUA in relation to waterside worker or seamen is a little beyond me, particularly when they're agreements that the MUA hasn't been party to. The agreement may well reflect a process that excluded the MUA from the making of those agreements, a process that involved construction workers and a process that doesn't involve what we've been told on multiple occasions is a unique facility. So it's hardly surprising that those agreements wouldn't provide any insight into what the Commission needs to consider in determining the occupational categories that are at issue before it today. Unless the Commission has any further questions they're our submissions in the matter.
PN1736
THE COMMISSIONER: I have no questions, Mr Quinn. Thank you.
PN1737
MR PARRY: Commissioner, may I be heard briefly on a couple of matters? It will be brief.
PN1738
THE COMMISSIONER: Very brief, yes.
PN1739
MR PARRY: The first point, the argument based on the correspondence that there is somehow a dispute over where and the manner of entry. Our position is that this is clearly an attempt to confect a dispute out of nothing. The letter my learned friend refers to was sent on Saturday 7 March. The application was filed on Monday 9 March. There has been no compliance with section 492(3) about attempts to agree. The decision of Gostencnik DP and paragraph 37 refers to holding discussions being a question of fact. There is no dispute as there's no evidence of any such discussions or attempt to agree.
PN1740
Secondly with regard to the seamen's rule I didn't make a point before about the harbour vessels. Our position is that they're vessels that are under navigation in a harbour, that move around across water within a harbour, which this one clearly is not. Finally, the Sorresdale case, the Gambier Earth Movement, the point of that case - and it's on page 7 of 13 - is that one looks at the integrated operations of the company. One doesn't say that you don't look at these matters, and that's what Watson DP there did. It's relevant to look at whether the activities form part of a larger operation, as the Deputy President did. Here, that larger operation is the construction of an LNG plant. That was what this formed part of. If the Commission pleases.
PN1741
THE COMMISSIONER: Thank you Mr Parry. Needless to say that you've presented me with a lot to consider and I'll reserve my decision in relation to the application. Whilst it has been two long days, can I thank you Mr Quinn and you, Mr Parry and Mr Murdoch for the way you've presented the arguments. If nothing else, I clearly understand what you're putting to me and what I'm required to determine. On that basis I'll adjourn these proceedings. Thank you.
ADJOURNED INDEFINITELY [5.11 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #R1 RESPONDENT'S OUTLINE OF SUBMISSIONS REGARDING JURISDICTIONAL OBJECTION..................................................................... PN946
EXHIBIT #R2 RESPONDENT'S STATEMENT OF FACTS DATED 23/06/2015 PN948
EXHIBIT #R3 RESPONDENT'S RESPONSE TO APPLICANT'S STATEMENT OF FACTS................................................................................................................................. PN950
EXHIBIT #R4 RESPONDENT'S OUTLINE OF SUBMISSIONS DATED 02/07/2015 PN952
BRADLEY MILES GEORGE, AFFIRMED.................................................... PN980
EXAMINATION-IN-CHIEF BY MR PARRY................................................. PN980
EXHIBIT #R5 WITNESS STATEMENT OF BRADLEY GEORGE DATED 23/06/2015 PN991
CROSS-EXAMINATION BY MR QUINN..................................................... PN1049
RE-EXAMINATION BY MR PARRY............................................................ PN1299
THE WITNESS WITHDREW.......................................................................... PN1307
EXHIBIT #R6 WITNESS STATEMENT OF BRETT WHITEHEAD........ PN1321
EXHIBIT #R7 STATEMENT OF AGREED FACTS.................................... PN1349
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URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/448.html