B2015/1224, Transcript of Proceedings [2015] FWCTrans 508 (2 September 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052356

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COMMISSIONER LEE

B2015/1224

s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

KDR Victoria Pty Ltd T/A Yarra Trams

and

Australian Rail, Tram and Bus Industry Union
(B2015/1224)

Melbourne

2.45 PM, TUESDAY, 25 AUGUST 2015

PN1

THE COMMISSIONER: I will take appearances, please.

PN2

MR C O'GRADY: If the Commission pleases, my name is O'Grady, initial C. I seek permission to appear on behalf of KDR Victoria Pty Ltd.

PN3

THE COMMISSIONER: Yes, Mr O'Grady.

PN4

MR M HARDING: If the Commission pleases, my name is Harding, M. I seek permission to appear on behalf of the ARTBIU and to address you seated, Commissioner.

PN5

THE COMMISSIONER: Yes, that's fine, Mr Harding. I take it you both will be pleading that there is some complexity in the matter and it would be more efficient to grant you both permission.

PN6

MR O'GRADY: Yes, Commissioner.

PN7

THE COMMISSIONER: No difference on that, Mr Harding?

PN8

MR HARDING: No. Indeed not.

PN9

THE COMMISSIONER: Permission is granted on that basis to you both.

PN10

MR O'GRADY: Thank you, Commissioner.

PN11

THE COMMISSIONER: Mr O'Grady?

PN12

MR O'GRADY: Yes, Commissioner. Pursuant to the directions that were issued yesterday, we have filed a number of items with the Commission and served them. If I can perhaps go through those with you. You'll see that there is a witness statement of James Edmiston. You would have seen, Commissioner, if you had a chance to look at it, that that was in form the same statement that was filed in respect of the previous application brought by my client last week.

PN13

THE COMMISSIONER: Yes.

PN14

MR O'GRADY: There is also a supplementary witness statement of Mr Edmiston which is directed to the peculiar circumstances of this particular application.

PN15

THE COMMISSIONER: Yes.

PN16

MR O'GRADY: We have also filed a witness statement of Malcolm Lettoof. Once again, Commissioner, that was a statement in the same form as had been filed in respect of the previous application.

PN17

THE COMMISSIONER: Yes.

PN18

MR O'GRADY: Finally, there is a statement of Ian Cushion, which is also in the same form as the material that had been filed in respect of the previous application.

PN19

THE COMMISSIONER: Yes.

PN20

MR O'GRADY: The reason for filing material in that form, Commissioner, was not just one of efficiency in not preparing a fresh suite of material, but it was in order to address any concerns that you might have as to the respondent's opportunity to consider the material, because in the proceedings last week, we filed and served that material so the respondent was on notice as to the substance of what our case was.

PN21

THE COMMISSIONER: Yes.

PN22

MR O'GRADY: You will have seen in the material that has been recently filed by the respondent, they have had the opportunity to consider that and address it as best they can; so there is no prejudice associated with the time frame in which we have sought to bring this matter on. Because the material that was filed in respect of last week's application addressed a circumstance where there was proposed to be not just a stoppage concerning Yarra Trams but a stoppage concerning Metro, there are some parts of those statements that are in the same form as that previously filed that we don't rely on. In particular, we don't rely on paragraphs 39 and 40 of Mr Edmiston's first statement.

PN23

THE COMMISSIONER: Just a moment. Yes.

PN24

MR O'GRADY: Or the second sentence of paragraph 41 of Mr Edmiston's first statement. In addition, as a result of last week's proceedings, the RTBU has indicated it is no longer proceeding with the industrial action consisting of the announcements ban. In those circumstances, we don't need to rely on paragraphs 16 to 21 of Mr Cushion's statement which is directed to that particular issue.

PN25

THE COMMISSIONER: Okay.

PN26

MR O'GRADY: You will have seen, Commissioner, that we do rely on the bulk of the statements filed in the previous proceedings, notwithstanding the fact that the Metro industrial action is not proceeding, because my client's position is that in respect of whether or not there is a concurrent stoppage by the rail services, there is a very real threat to the welfare of the population of Victoria or a part thereof. If I could, Commissioner, before going into evidence, just briefly open to provide the Commission with an understanding of what we say are the issues in this case. The starting point, in my respectful submission, are the observations - - -

PN27

THE COMMISSIONER: Just perhaps before you do that.

PN28

MR O'GRADY: Yes.

PN29

THE COMMISSIONER: I want to propose - and I should say that given the urgency of the matter, that if we're able to do this, it would only occur for a brief period, but I note that there has been apparently negotiations been going on for some time. That is certainly the evidence of one of the union's witnesses in this matter that was filed this afternoon; numerous meetings and so on.

PN30

My interest is in whether or not there would be a willingness - and again provided it would be on a short term basis - for the parties to engage in a brief period of conciliation to see if there is some alternative resolution. I'm not proposing that there would be before me a detailed embarking on can we resolve this dispute here and now, although that would be fabulous if that were to occur, but rather more if there was an alternative pathway that would remove the need for this application to proceed.

PN31

I would only be prepared to do that by way of conciliation process. If it doesn't reach any fruition, that's fine. We'll press on and we'll deal with the matter today.

PN32

MR O'GRADY: Yes.

PN33

THE COMMISSIONER: Have you got a view about that, Mr O'Grady? Do you want to get some instructions?

PN34

MR O'GRADY: Can I just clarify my instructions?

PN35

THE COMMISSIONER: Of course.

PN36

MR O'GRADY: On the basis that you've outlined, Commissioner, mainly that it would be for a brief period, my client would be prepared to participate in that process.

PN37

THE COMMISSIONER: All right. Mr Harding?

PN38

MR HARDING: I've just received similar instructions on the basis, Commissioner, that you propose.

PN39

THE COMMISSIONER: Yes. All right. Thanks. That being the case, we'll adjourn the conference.

SHORT ADJOURNMENT [2.52 PM]

RESUMED [4.17 PM]

PN40

THE COMMISSIONER: Yes, Mr O'Grady.

PN41

MR O'GRADY: Thank you, Commissioner. I was intending to open to perhaps take the Commission through the material that we have filed.

PN42

THE COMMISSIONER: Yes.

PN43

MR O'GRADY: The parties are agreed that there should be witnesses out of court and I'd seek an order to that effect. However, there is an issue regarding one of the witnesses that the RTBU wants to call; namely, Ms Kazakoff. She is providing instructions to Mr Harding. In my submission, if there is to be an order for witnesses out of court, it should apply generally. Mr Harding and I agreed that we would raise that with you.

PN44

THE COMMISSIONER: All right. You haven't been able to reach an accord on the matter?

PN45

MR O'GRADY: No.

PN46

THE COMMISSIONER: Mr Harding?

PN47

MR HARDING: Commissioner, on that subject, obviously there is a practical issue associated with the fact that Ms Kazakoff is instructing me. That is the first thing. The second thing is really when you look at the material she has given evidence of, it's evidence concerning what she has obtained by searching the Internet and annexing it. It doesn't respond specifically to any factual matter that is put in issue by either of my friend's witnesses.

PN48

THE COMMISSIONER: No.

PN49

MR HARDING: She professes to have no personal knowledge of the matters that they give evidence about. All she does is really put before you matters that are not the public record and gather it together in a rather convenient form by saying, "Well, look, I had a look at this web site and that web site and that web site, and this is what they say." You know, obviously my learned friend is entitled to cross‑examine her, but we're at a different position I think in relation to her presence in the Commission as compared with another witness like Mr Altieri, who is part of the fray.

PN50

THE COMMISSIONER: Who will be excluded.

PN51

MR HARDING: Yes. He has gone.

PN52

THE COMMISSIONER: Yes. That's a compelling submission, Mr O'Grady.

PN53

MR O'GRADY: I don't have anything further to add, Commissioner. I'm in the position where there was a dispute. We wanted to put it before you.

PN54

THE COMMISSIONER: Yes. Look, I think these things are often difficult. It's not unusual in matters before the tribunal where those who are instructing - this is slightly unusual in the sense it's the legal practitioner, but it's not unusual for instructors to stay in the room while evidence is given, particularly having regard to the context that Mr Harding has painted around the type of evidence that Ms Kazakoff is going to give. I will order that witnesses are to be excluded from the room, but that won't apply to Ms Kazakoff.

PN55

MR O'GRADY: As the Commission pleases.

PN56

THE COMMISSIONER: So we do have that accorded with; we've got the witnesses out?

PN57

MR O'GRADY: All of my witnesses are out of court. Commissioner, could I briefly open and take you to some of the material just to explain what it is and what it does.

PN58

THE COMMISSIONER: Yes.

PN59

MR O'GRADY: Can I start with a very brief number of comments regarding the law, because where the parties seem to be apart - to which they're apart on the law - seems to be the weight to be given to the University of South Australia decision in the light of the full bench decision in the Monash University case.

PN60

THE COMMISSIONER: Yes.

PN61

MR O'GRADY: You of course are familiar with the Monash University case because you were on that bench.

PN62

THE COMMISSIONER: Yes.

PN63

MR O'GRADY: My learned friend's outline seems to put considerable reliance upon a number of the observations that were made by the full bench in the University of South Australia case. As you will recall, Commissioner, what the full bench in the Monash case did was say that the Vice President was in error to the extent to which he took those comments in the University of South Australia case to mean anything other than one has regard to the words that are in the Act. The words that are in the Act, in my submission, don't impose any special or unique requirement for the issuing of an order under section 424. Rather, they direct attention to the question of whether or not the action is threatening to endanger, relevantly, the welfare of the population or a part of it.

PN64

The authorities, including the Metropolitan Ambulance Service case - and I've dealt with some of these authorities in the outline that I've filed, Commissioner, but the authorities including the Metropolitan Ambulance Service case make clear that there need not be an actual endangering or putting welfare at risk. Rather, all there has to be is that there is a threat to put welfare at risk and that will satisfy the requirement of the section. It's in that context, Commissioner, that we have filed our material, which is largely uncontested.

PN65

If I can take you, firstly, to the first statement that has been filed on behalf of Mr Edmiston. There are a number of points that, in my submission, flow from that. Firstly, that the proposed action, whilst it has been described as a four‑hour stoppage, will not be a four‑hour stoppage. It can't be a four‑hour stoppage. It can't be a four‑hour stoppage for two important reasons. Firstly, if my client is to avoid the dangers inherent in a mass shunting of trams occurring at or around 10 am, it's going to have to start cancelling services prior to 10.00 and indeed closer to 9.00, which of course takes us close to the peak hour period.

PN66

THE COMMISSIONER: And they will do that, will that?

PN67

MR O'GRADY: They will do that. I want to come to our proposal for contingencies in due course.

PN68

THE COMMISSIONER: Yes.

PN69

MR O'GRADY: Secondly, when you have all the trams in the depots at 2 pm - the proposed end period for the action - they then all have to leave the depots in order to resume normal services. The evidence that we've filed shows that that is going to take two to three hours. That is not an unlikely or implausible scenario when one considers where the various tram depots are located and the number of trams that are going to have to, in effect, re‑populate the network. What we're talking about, Commissioner, is not a four‑hour stoppage, but a seven or potentially eight‑hour stoppage before there is a normal resumption of tram services.

PN70

In addition, the evidence is that the disruption is going to be of such a magnitude that the tram tracker service, including the service that is provided by the electronic tram noticeboards at various stops in the CBD, will be unable to operate. People will be left without trams, not knowing when trams are likely to resume. There is, on any view of it, significant disruption that is going to run for a significant period of time. The cessation and resuming of normal services is dealt with by Mr Edmiston in paragraphs 16 through to 20 of his first witness statement and explains those difficulties.

PN71

Coupled with that is the extent of patronage for the tram service and this is dealt with in paragraphs 21 and following of Mr Edmiston's statement, but there are approximately 3.5 million passenger trips taken on the Yarra Trams' network each week. In the period between 9.00 and 4.00, we're looking at in the vicinity of 230,000 passengers. I use the reason for 9.00 to 4.00 of course because of the extended disruption. In paragraph 23 of Mr Edmiston's statement, the percentages of weekday patronage are explained. 22.7 per cent of weekday patronage occurs between 10.00 and 2.00; 34.7 between 9.00 and 3.00; 44.7 per cent between 9.00 and 4.00, which is the anticipated duration of the disruption that's going to be occasioned.

PN72

We have evidence of the demographics of people who use the tram services and almost 10 per cent are over 60 years of age. 6.9 per cent, or 8056 people a day, are aged between 60 and 69, with another almost 2 per cent 70 years or older.

PN73

THE COMMISSIONER: How many over 70?

PN74

MR O'GRADY: 1.9 per cent or 2234. That is on a daily figure. In addition there are .42 per cent, or 491 people per day, with special mobility needs. That becomes important, Commissioner, because you may have seen that in the material that has been filed on behalf of the RTBU and in particular Ms Kazakoff's statement, she talks about the ability of individuals to use alternative transport arrangements; getting a train to, for example, North Melbourne station and then walking to the hospital.

PN75

That may well be fine for an able‑bodied person in their 30s or 40s. It doesn't follow that that is an option that could be readily availed of by some of the population who regularly use tram services. There are also a significant number of concession card holders who use the tram network and that obviously also has the capacity to limit alternatives.

PN76

In paragraph 26 of Mr Edmiston's statement, he explains how the tram network is concentrated in those parts of Melbourne that have low car ownership density, so the alternatives of getting in the car to make the trip - and it need not of course be a trip to a hospital. The way in which we've framed our concerns regarding the action is it is interference with people who have appointments that are not easily able to be rescheduled. That might be a grandmother wanting to look after her grandkids while the parents go to work. It might be a student wanting to get to university for a lecture. It might be somebody who needs to attend a hospital.

PN77

In paragraphs 27 through to 30, there is reference to the hospitals that are serviced by the tram network and there are a large number of hospitals within 400 metres of that network. The advantages of trams as a means of transport are explained in that context. There is a discussion as to some of the difficulties of using rail substitutes to attend some of those hospitals.

PN78

Paragraphs 31 to 33 of his statement, the roles that trams play in servicing schoolchildren are explained. That of course becomes important when it's remembered that it is just a misrepresentation to describe this as a stoppage confined from 10.00 until 2.00. Necessarily, it is going to run for a number of hours after 2.00. In paragraphs 34 through to 38, the services provided by trams for people with special needs or mobility restrictions are explained.

PN79

You'll find, if you look at that statement in exhibit JE5, a brief overview of the passengers who use the tram network and reference to some of the statistics that I have referred you to. That overview also makes it very clear that during the period where there will be this disruption, there are very high patronage levels of the tram network. JE6 deals with the correspondence between the car density and the provision of the tram network, and JE7 and 8 deal with proximately of schools and hospitals to the tram network.

PN80

In his supplementary statement, what Mr Edmiston does is he deals with the situation now confronting Yarra Trams - namely, that there won't be a simultaneous stoppage by Metro - and the consequences that that will have. One of the points that he makes, which is perhaps best illustrated by reference to exhibit JE12, is the important role that trams play in servicing a number of universities. I don't know whether you've got that before you, Commissioner, but it might be useful if I was to explain this document. This is JE12, as I understand it.

PN81

THE COMMISSIONER: I don't know if I have a copy that is quite as easy to see as the one you've got.

PN82

MR O'GRADY: Can I perhaps provide you with a copy. If I can explain what this reflects. You'll see the various dotted lines are the tram lines that are serviced by Yarra Trams. There is colour‑coding of those dots that reflects the level of usage. You'll see, for example, where there is a yellow dot there is usage of somewhere between 652 to 1610 passengers boarding at that particular stop. Where there is a red dot, then we're dealing somewhere between 3362 and 5659 passengers boarding. If one has regard to the right‑hand side of the map, you'll see that one of the high density stops is adjacent to Deakin University.

PN83

THE COMMISSIONER: Yes.

PN84

MR O'GRADY: Which is serviced by the tram line that runs down Burwood Highway. There are also high density stops towards the top in the centre of the map. That's RMIT's Bundoora campus and La Trobe University's Bundoora campus. Perhaps not surprisingly, there is very high density when one moves close to the city, both within the CBD and in the suburbs adjacent to it.

PN85

Part of the evidence of Mr Edmiston is that trams perform a distribution function, so whereas many people might get the train into the CBD, that doesn't get them to where they need to go. For example, a university student going to Melbourne University might get a tram up Swanston Street to attend university or somebody attending the hospital precinct along Flemington Road might use the tram services from one of the city train stations in order to go to that hospital.

PN86

The other part of this map which I thought might be useful to explain, Commissioner, are the areas that have the orange lines around them. Those are parts of the tram network where buses would not be able to use the normal tram stops. For example, as you may or may not know, on the Burwood Highway the tram line runs down the centre of the roadway. Whilst it would be possible for a bus to travel along the highway, passengers would not be able to use the normal tram stops because a bus wouldn't be going along there. That of course becomes important from a safety point of view, in that you might have people who are waiting at the tram stop and then have to rush across the road when they see a bus coming and the like.

PN87

The same problem exists in respect of the northern part of the line up towards Bundoora. In addition, there are a number of tram routes, including those using the light rail lines, where there is no correspondence between a road and where the tram goes. So somebody who would be normally using the tram services can't simply go to somewhere adjacent to their stop and hope that a bus will be coming along and pick them up, because there is no road that is adjacent to where the tram travels.

PN88

You'll see that there are quite a number of areas where the orange lines have been used to delineate the fact that buses would not be able to use the normal stops that trams use in that area.

PN89

THE COMMISSIONER: Just on that, that sort of goes to the safety concerns. Just taking you back a little in terms of 424(1)(c), it talks about in order to make the order:

PN90

If FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.

PN91

Now, it's not put, is it, that there is endangerment to life?

PN92

MR O'GRADY: No.

PN93

THE COMMISSIONER: It is put that there is endangerment to personal safety or health?

PN94

MR O'GRADY: The focus of the application is endangerment to welfare.

PN95

THE COMMISSIONER: That's the focus. I understand that.

PN96

MR O'GRADY: That is the focus.

PN97

THE COMMISSIONER: But is it put that there is endangerment to personal safety and health?

PN98

MR O'GRADY: Not in those terms. What is put is that the factors I was taking you to a moment ago impede the ability of Yarra Trams to provide an alternative service.

PN99

THE COMMISSIONER: Yes.

PN100

MR O'GRADY: And that in those circumstances, there is going to be very significant disruption that is going to impact upon the welfare of the population.

PN101

THE COMMISSIONER: The welfare, okay. All right. Thanks for that.

PN102

MR O'GRADY: That's not to say the scenario that I have outlined is an unrealistic one, but we don't say that the order should issue because there is a risk that somebody might run across the road.

PN103

THE COMMISSIONER: Yes, okay.

PN104

MR O'GRADY: Yes.

PN105

THE COMMISSIONER: I just wanted to flush that out, because I thought that perhaps you were - - -

PN106

MR O'GRADY: No.

PN107

THE COMMISSIONER: It is a welfare consideration.

PN108

MR O'GRADY: It is a welfare consideration. I'll come to this in a moment when I deal with the steps that we're hoping to put in place in respect of mitigation.

PN109

THE COMMISSIONER: Yes.

PN110

MR O'GRADY: These sorts of limitations mean that we are only able to put in place really what might be said to be quite a rudimentary plan for mitigation, because we need to make sure that we don't give rise to safety concerns.

PN111

THE COMMISSIONER: Yes.

PN112

MR O'GRADY: It is in some ways a triaging exercise, where we have to look at what we can safely do and cut back the service accordingly.

PN113

THE COMMISSIONER: Okay.

PN114

MR O'GRADY: The supplementary statement of Mr Edmiston goes to - I've made the point about people using trams to complete their duty and that's dealt with in paragraph 7. In paragraph 8, Mr Edmiston deals with the issue of buses and the fact that buses won't be able to access some of the tram stops, which is the point that I've been taking you to.

PN115

If one has regard to exhibit JE13, the number of trams on the network and accordingly the number of buses that would be required to replace them, just if you were doing it on a bus for tram‑type analysis, is set out in that table; on the left‑hand part of the table. Do you have that, Commissioner?

PN116

THE COMMISSIONER: This is with the supplementary - is it?

PN117

MR O'GRADY: This is in the supplementary statement, JE13.

PN118

THE COMMISSIONER: Yes.

PN119

MR O'GRADY: It's the table that looks something like that.

PN120

THE COMMISSIONER: Yes.

PN121

MR O'GRADY: You'll see on the top we've dealt with the hours of 9.00 to 4.00. We've broken it down by various routes. Across the network, at 9.00 there are 270 trams in operation; at 10.00 there are 256 trams; 11.00, 257. That's important for two reasons, Commissioner. Firstly, if we were to, in effect, try and substitute trams for buses, you're talking about an enormous number of buses being added to the road volumes at the particular times in question on an hour by hour basis.

PN122

Secondly, it goes to the need to stop the service earlier, in that what seems to be suggested in some parts of Mr Altieri's statement is that, well, you can just trust the tram drivers to shunt the tram back; so, at 10.00, they will just shunt the trams back to the depot. To have 270 - or 256 trams at one time shunting themselves back across the entire network is, we would say, a very dangerous proposition and is one that has given rise to the situation where we have no option but to start cancelling services early.

PN123

The point I'd make about this table, Commissioner, is you'll see that it is not just a question of replacing trams with buses, in the sense that buses don't carry as many people as trams; so the right‑hand half of the table details how many buses you'd need if you were to have the same carrying capacity as are currently provided by the trams we use. Whilst there are only 270 trams operating in the hours of 9.00 until 10.00, they carry the equivalent of the passenger load that 465 buses can carry.

PN124

THE COMMISSIONER: Yes.

PN125

MR O'GRADY: It perhaps is another way of making the point that I made earlier - - -

PN126

THE COMMISSIONER: So that's the total number of buses that would be needed to completely cover - what is it, 447 buses at 11.00?

PN127

MR O'GRADY: Yes. If you were to say we have at this point in time trams that carry X number of people, to be able to carry that number of people, you would need to have 447 buses.

PN128

THE COMMISSIONER: And I saw somewhere in the evidence that you can access 200. Is that right?

PN129

MR O'GRADY: Yes, that's right. You'll see that we're not proposing to do either of these things because, given the number of buses, we can't; but you certainly couldn't do what's proposed in the right‑hand table.

PN130

THE COMMISSIONER: You can access 200 buses.

PN131

MR O'GRADY: We can.

PN132

THE COMMISSIONER: Yes.

PN133

MR O'GRADY: And I'll need to come to what we're dealing with in mitigation in a moment.

PN134

THE COMMISSIONER: Yes, okay. That's all right.

PN135

MR O'GRADY: But there are also the problems of where they go. I've indicated, Commissioner, the problems where the road doesn't run alongside the trains. Another real problem is of course - as you'll see in a moment - a lot of the tramlines run through the CBD and the inner suburbs. To visit a huge additional number of buses into those streets would have its own impact upon the welfare of the population and a part thereof.

PN136

I suppose it makes the point, Commissioner, that we are talking here about some 230,000 people who use the tram network between the hours of 9.00 and 4.00. There is a very real capacity, in my submission, for disruption to that number of people to give rise to the considerations that are invoked by section 44; because even if we're only talking about 1 per cent of those people who have medical appointments, that's 2300 people.

PN137

You know, there is some material that has been put forward by the RTBU, well, there are ancillary services and some of the hospitals say, "Ring us up if you need somebody to give you a lift," but those are services, in my submission, that you should assume are generally operating at or near capacity. There's no suggestion that they've got the capacity to carry another 2300 people or, if it's say 10 per cent who have medical appointments, 23,000 people.

PN138

The next statement I'd just like to run through with you is Mr Lettoof's. I apologise to Mr Lettoof for having mispronounced his name earlier. You'll see in that statement he deals with the difficulties of shunting and the need to reduce trams from the network early in order to avoid that.

PN139

THE COMMISSIONER: Yes.

PN140

MR O'GRADY: He also deals with the fact that to exit the trams - and he gives the example of the Essendon depot where he is located - there will be some 54 trams in that depot come 2.00. So to get them out and to re‑populate the network, is going to take time. He gives his recollection of what occurred the last time that we had a tram strike in this state, which was in the 1990s, and the havoc that was occasioned on that occasion.

PN141

Finally, as far as evidence is concerned, we've got a statement of Mr Cushion. He also gives evidence regarding the shunting issue and the difficulties that are associated with that issue. There does appear to be some minor contest about some of this evidence, as to how he describes the condition of some of the shunts or those sorts of issues. In my submission, the bottom line - namely, that there are 140 shunt areas across the tram network and that for there to be an uncontrolled shunting across that network at around 10 o'clock would be to give rise to an unsafe situation - leads inevitably to the conclusion that the stoppage is not going to be a 10.00 until 2.00 stoppage. It's going to run beyond that.

PN142

He talks about the risks associated with multi‑line corridors; namely, where you have various trams running up and down the same route and the capacity for - - -

PN143

THE COMMISSIONER: Excuse me. If you want to have really long conversations, it's best that you go outside, because you're disrupting me.

PN144

UNIDENTIFIED SPEAKER: Sorry.

PN145

THE COMMISSIONER: Go on, Mr O'Grady.

PN146

MR O'GRADY: Yes. Thank you, Commissioner. As Mr Altieri says in his statement, there are occasions where shunting occurs as part of the normal operations. There might be a road closure because there is a car accident. There might be a need for a tram driver to shunt, but it doesn't all happen at once and it doesn't happen in the uncontrolled way that is being envisaged by this action.

PN147

THE COMMISSIONER: Yes.

PN148

MR O'GRADY: The last document I wanted to take you to by way of opening is the outline of mitigations document which we filed pursuant to the Commission's directions.

PN149

THE COMMISSIONER: Yes.

PN150

MR O'GRADY: You'll see there that tram service will start to be withdrawn at 9 am and there are going to be some 14 traffic controllers to facilitate people going back onto the tram network, but, notwithstanding those steps, it's considered that there will be significant disruption. In paragraph 2, it's made clear that there is no proposal to replace the tram services with the buses, but what is proposed is perhaps best described in the map that is attached to that document. If I can explain that to you, Commissioner. I don't know if you have that.

PN151

THE COMMISSIONER: Yes.

PN152

MR O'GRADY: You'll see that, in the grey, all the tram lines that are currently operated by Yarra Trams are identified. Of course all those will be out of operation from around 9.00 until 4.00 or thereabouts.

PN153

THE COMMISSIONER: Hang on. Sorry, I don't have that. What is that?

PN154

MR O'GRADY: Perhaps if I can hand up a larger copy to you, Commissioner.

PN155

THE COMMISSIONER: Yes, that would be good. That's a bit better. Thank you.

PN156

MR O'GRADY: If you have a look at the grey lines, you'll see that's all the tram routes that are currently operated.

PN157

THE COMMISSIONER: Yes.

PN158

MR O'GRADY: The orange lines are the proposed bus replacements.

PN159

THE COMMISSIONER: Right.

PN160

MR O'GRADY: As I indicated earlier, this is very much a case of triage. It's not possible to go one for one. What has been decided to do is pick up perhaps the most vulnerable areas where there can be a substitute service put in place and that's what we're proposing to do with those orange lines.

PN161

THE COMMISSIONER: Based on those earlier figures, that you needed 400 and - well, in one of the highest numbers of hours, I think it was about 450 - - -

PN162

MR O'GRADY: Yes.

PN163

THE COMMISSIONER: - - - and you can access 200, then is it fair to say that you're going to be able to cover what percentage of the routes - - -

PN164

MR O'GRADY: As far as the routes are concerned, we're not trying to cover the routes.

PN165

THE COMMISSIONER: No, but you are trying to mitigate.

PN166

MR O'GRADY: We are.

PN167

THE COMMISSIONER: As you should.

PN168

MR O'GRADY: Yes.

PN169

THE COMMISSIONER: But the question is - and you might not be in a position to say it, but it's just a query - you know, is it going to be that about 40 per cent of them would be covered or somewhere in the percentage or more?

PN170

MR O'GRADY: Significantly less a percentage.

PN171

THE COMMISSIONER: Right.

PN172

MR O'GRADY: Perhaps the best I can do is this map.

PN173

THE COMMISSIONER: Yes.

PN174

MR O'GRADY: But you'll see that all the grey lines are separate routes that have been run by Yarra Trams. None of them that appear to be grey are going to be covered.

PN175

THE COMMISSIONER: Right.

PN176

MR O'GRADY: All that we can do - and we'll obviously give evidence to explain why this is the case - is run substitute bus services where the orange lines appear. For example, there will be a substitute bus service running from East Brighton that will take somebody to the Arts Centre on St Kilda Road. If you start down here at East Brighton - - -

PN177

THE COMMISSIONER: Yes.

PN178

MR O'GRADY: - - - the bus service will take you up to there and drop you off, but we can't take the buses through the city. You are then going to have to get your own way from where you get dropped off to, for example, Melbourne University or the hospital precinct and the like.

PN179

THE COMMISSIONER: You're not allowed to run them through the city?

PN180

MR O'GRADY: Well, the decision has been made that to introduce that many buses to try and run it through the city would be counter‑productive.

PN181

THE COMMISSIONER: Okay.

PN182

MR O'GRADY: So the vast bulk of the network will not have a substitution service.

PN183

THE COMMISSIONER: Yes.

PN184

MR O'GRADY: There will be some identified areas of vulnerability where people will be taken, the idea being to take people to places where they might be able to get a train or some other form of transport to come into town or to meet their appointments.

PN185

THE COMMISSIONER: Yes.

PN186

MR O'GRADY: But if one simply has regard to the large extent of grey lines where there is no adjacent orange line, then you can see the vast bulk of the network will not be serviced. I was told that what we're looking at is something in excess of 103 buses who are going to be engaged to start providing services at 9.30 through to 3 pm to try and deal with the issues that are being raised by the proposed stoppage, coordinated through two bus companies.

PN187

The issue of one‑to‑one replacement is not being pursued, both because of the number of buses required, but also because of the adverse impact that would have on the road network. As I say, this is very much an attempt of triage to identify some of the worst affected areas and where we can make a positive difference to put in place a complementary system to try and relieve some of the damage.

PN188

As I have said a number of times, Commissioner, and as this map shows, the network is of course very broad. Because that map is a schematic, it underplays, if you like, the geographical extent of the network. If you perhaps have regard to that earlier map that I took you to, Commissioner, that shows the dotted lines, you will realise the breadth and the number of areas that are serviced by the network.

PN189

As I said, given the large number of people who are being transported, it only takes a very small percentage of them to have engagements or appointments that cannot easily be changed, for their welfare to be endangered for the purposes of the section.

PN190

THE COMMISSIONER: Yes.

PN191

MR O'GRADY: Commissioner, that was all I intended to say by way of opening. I am grateful for you indulging me in that, but I thought it was easier perhaps for me to take you through the documents rather than for you to hear the witness explain them. In those circumstances, can I call Mr Edmiston to speak to his two statements.

PN192

THE COMMISSIONER: Yes.

PN193

THE ASSOCIATE: Could you please state your full name and work address for the Commission.

PN194

MR EDMISTON: James Edmiston, 555 Bourke Street, Melbourne.

<JAMES EDMISTON, SWORN [4.58 PM]

EXAMINATION-IN-CHIEF BY MR O'GRADY [4.58 PM]

PN195

MR O'GRADY: Mr Edmiston, could you tell the Commission your full name, please?‑‑‑James Edmiston.

PN196

And what is your occupation, Mr Edmiston?‑‑‑Operational planning manager for Yarra Trams.

PN197

What is your business address, sir?‑‑‑555 Bourke Street, Melbourne.

PN198

Have you prepared two witness statements for the purpose of these proceedings?‑‑‑Yes, I have.

PN199

Could I perhaps hand up copies of those statements for you to identify them, please. Could I take you to the document headed "Witness statement of James Edmiston", dated 24 August 2015. Is that a statement that runs for 42 paragraphs, with a total of eight attachments?‑‑‑That's correct, yes.

PN200

Are there any changes you wish to make to that statement?‑‑‑No, that's fine.

PN201

To the best of your knowledge, are the contents of that statement true and correct?‑‑‑Yes. They are at the time of writing it, yes.

PN202

I'd seek to tender the first statement of Mr Edmiston, Commissioner.

PN203

THE COMMISSIONER: No objection, Mr Harding?

*** JAMES EDMISTON XN MR O'GRADY

PN204

MR HARDING: No.

PN205

THE COMMISSIONER: O1.

EXHIBIT #O1 WITNESS STATEMENT OF JAMES EDMISTON DATED 24/08/2015 PLUS ATTACHMENTS

PN206

MR O'GRADY: Thank you.

PN207

And could I take you to the document headed "Supplementary witness statement of James Edmiston"?‑‑‑Yes.

PN208

Is that a witness statement with a total of nine paragraphs and 13 attachments?‑‑‑Yes.

PN209

And do you wish to make any changes to that statement?‑‑‑No.

PN210

And to the best of your knowledge are the contents of that statement true and correct?‑‑‑Yes.

PN211

Yes, I'd seek to tender that statement.

PN212

THE COMMISSIONER: Yes, that's O2.

EXHIBIT #O2 SUPPLEMENTARY WITNESS STATEMENT OF JAMES EDMISTON

PN213

MR O'GRADY: Thank you.

PN214

Now Mr Edmiston in both your first statement and your second statement you deal with the issues of buses and bus replacement, and in exhibit JE13 you set out a table that shows the number of buses that it would require to replace trams on a one to one basis, and also the number of buses that would be required to carry the same number of people as can be carried by the trams that are used by Yarra Trams?‑‑‑That's correct, yes.

*** JAMES EDMISTON XN MR O'GRADY

PN215

Yes. Can you just explain to the Commissioner why or have you considered whether or not in response to the proposed industrial action you should be replacing trams on a one to one basis or at some higher basis, in order to deal with the greater carrying capacity of trams?‑‑‑That table represents the - both loading and also the actual vehicle requirement on the network. To replace that - to replace them on the existing timetable with buses, there are not a number of that many buses available to do a one to one in Melbourne during that period of time from our suppliers. If we were to replace the capacity then again that wouldn't be that - the number of buses required in Melbourne to access it without potentially cancelling school runs or on other runs around Melbourne.

PN216

I see. Thank you. Have you been involved in preparing the contingency arrangements that Yarra Trams is hoping to put in place?‑‑‑I have, yes.

PN217

Yes, could the witness please be shown a copy of the outline of mitigations document?

PN218

All right, if you could have a look at the map that appears attached to that. Now have you been involved in developing that proposal?‑‑‑I have, yes.

PN219

Yes, and could you explain to the Commission what is the effect of that proposal and why this is the proposal that Yarra Trams is putting forward?‑‑‑With the available bus fleets, again from our suppliers, we have taken a view that with the trains running and with the normal bus network around Melbourne that we can allocate the resources through certain trunk routes and create a service offering so people can still move around Melbourne.

PN220

All right, if not a complete one to one service why haven't you simply used the buses to replicate where trams go?‑‑‑The buses don't have the ability to go in some areas that trams go to. The tram network is quite CBD-centric and to bring every tram through the centre of Melbourne would lock down the CBD and - - -

PN221

When you say every tram, you mean every bus?‑‑‑Every bus, sorry. Yes, and the buses don't have the ability to go through Swanston Street.

PN222

All right, thank you.

PN223

I have no further questions, Commissioner.

PN224

THE COMMISSIONER: Thank you.

PN225

Mr Harding?

*** JAMES EDMISTON XN MR O'GRADY

CROSS-EXAMINATION BY MR HARDING [5.04 PM]

PN226

MR HARDING: Yes. Thank you, Commissioner.

PN227

Mr Edmiston, just in answer to a question that my learned friend asked you, he asked you have you considered one to one replacement buses. Do you remember that?‑‑‑(No audible reply)

PN228

And you said that you didn't have - there weren't sufficient available based on inquiries to your suppliers. Who are the suppliers?‑‑‑We have a tender arrangement with Dyson's and with Ventura.

PN229

And are they the only bus companies that you've approached?‑‑‑Yes, we have a contractual agreement with them. Within that contractual agreement they tell us what they can get as work supply.

PN230

But you'd concede there are other bus companies available in Melbourne?‑‑‑Yes.

PN231

And you haven't asked them?‑‑‑We've asked one other one who were unable to supply.

PN232

Okay, and did you make inquiries at least of the others?‑‑‑Not directly because of the contract we have in place.

PN233

And does that prohibit you from making inquiries of others?‑‑‑It doesn't - contractually we are obliged to go through them. If they choose to access other companies there is a subclause there that allows them do that.

PN234

So they can contact other companies?‑‑‑Yes.

PN235

And so their assessment is they told you, "This is what we've got available" but they could have called on other bus companies under their contract with you?‑‑‑I don't know if they did or didn't, the numbers they're quoting to me. Whether they did or didn't.

PN236

All right, and as I understand it your evidence in your first statement was that there were 200 - you've been advised by the relevant operators - and this is in paragraph 41 of exhibit O1 - there are approximately 200 buses available on Friday 21 August ,so that was last Friday?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN237

And in opening, your counsel said that only 103 buses would be utilised. Is that right?‑‑‑Correct. Yes.

PN238

And you know Aline Frantzen, don't you?‑‑‑Aline, yes.

PN239

Aline Frantzen?‑‑‑Yes.

PN240

Yes. Who is she?‑‑‑She's the director of lines or director of operations for Yarra Trams.

PN241

And do you report to her or does she report to you?‑‑‑Yes, correct. No, I report to Aline.

PN242

Yes, and are you aware that yesterday in a bargaining meeting with the union she said that there were 250 buses available?‑‑‑I was unaware of that. The number that she quoted would have been in response to the number the industry put up at the start of the potential industrial actions, both Metro and Yarra Trams. But no number has ever been committed because it's basically whether they can get casual drivers or not.

PN243

Pardon me. All right, but have you made - so that's news to you in relation to the 250. Have you been involved in discussions with Aline about procuring that number?‑‑‑No. No, she's quoting the number that was put up as I said last week when Metro were involved in the dispute and - but that number has never been solidified by the industry. As I said it's a potential depending on how many casual drivers are willing to drive on any one day.

PN244

Yes?‑‑‑And also how many chartered buses are out on any one day. So as early as this morning they're telling me that the numbers are - one of the companies can get hold of 75.

PN245

And these are the companies under which you have a contract, Ventura and the other one?‑‑‑Yes. So one of the companies said 75 and that's incorporating other companies as well, so calling on our behalf.

PN246

All right. Well, can I then ask you to have a look at the outline of mitigations document which my learned friend has taken you to. Have you got that in front of you?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN247

And annexed to that is this chart that shows, as I understand it, the lines that are affected in grey, the tram lines that are affected?‑‑‑That's correct.

PN248

Yes, and then the orange lines are the ones where you're proposing to put bus replacements. Is that right?‑‑‑Correct. Yes.

PN249

And this involves an assessment by Yarra Trams as to where to best utilise the buses?‑‑‑Correct. Yes.

PN250

Based on the need that you've assessed will be best met by those buses?‑‑‑It's not just on need. It's on also the physical infrastructure.

PN251

Okay, and I think you gave some evidence that this chart has also taken account of the fact that in the city centre there are trains available and also buses that are available as a matter of normality?‑‑‑Correct.

PN252

And so in preparing this document what you're informing the Commission about is how you've made an assessment of what transport options are available?‑‑‑Yes.

PN253

And then you've fitted the buses into the bits that you think most meet the needs that you've identified?‑‑‑Correct. Yes.

PN254

All right, now if I could take you to your supplementary statement and you've annexed a table or a chart to that and that's the one headed "Total number of passengers boarding trams between nine and five on a typical work day"?‑‑‑Yes.

PN255

And what this shows, isn't it, is what would normally be the numbers that would be utilising the system on any given day?‑‑‑Absolutely, yes, this is normal.

PN256

Yes. All right, and you're aware, aren't you Mr Edmiston, that Yarra Trams has the means to communicate to the travelling public about the impending industrial action?‑‑‑We do have mechanisms available to us, depending on the - obviously the outcome and the commitment of today's proceedings. So, yes.

PN257

Yes, well, are you aware of what statements the Yarra Trams has made about the industrial action that was notified by the union on 13 August?‑‑‑I'm not in the communications area but I know high level.

*** JAMES EDMISTON XXN MR HARDING

PN258

Are you aware of any communication made to the general public advising them of the industrial action that's occurring on Thursday?‑‑‑I know of only one instance of the tramTRACKER turning on for a last week. We put a message on the tramTRACKER which is the electronic display at the stops and I think it also goes on to people's tramTRACKERs on their phone as well.

PN259

Can I hand you a document please? I'm instructed that that's one of those notices that you can put up on the tramTRACKER display on a tram stop?‑‑‑Yes.

PN260

Is that the message you're referring to?‑‑‑No, I thought there was one that mentioned the possible action last Friday.

PN261

All right, and is that the only communication so far as you're aware that Yarra Trams has made to the general public about the action and what likely impact there may be from it?‑‑‑Yes, to my knowledge it was only the one, because we were working towards not having it, the stopping of the trams so - which obviously didn't happen on Friday.

PN262

No, that didn't happen on Friday but since then no action has been taken notwithstanding that you know that there's going to be a disruption to the general public?‑‑‑Pending today's proceedings.

PN263

Pending? What, you're relying on these proceedings, are you? You haven't notified because you're assuming that you might succeed in these proceedings?‑‑‑Well, the issue we have moving with customers, and we do this on a daily basis because we do disrupt the network in small segments and if you put a message out and you confuse the public. So if we put it out on Monday and then - and these proceedings meant that the strike didn't go ahead then we'd have to retract the statements.

PN264

Yes?‑‑‑And a number of our passengers don't have - often get confused when we start retracting statements. That's been the experience of my team.

PN265

But can I take you to paragraph 4 of your supplementary witness statement, Mr Edmiston, and you've put in some material there about the basis upon which you say there is a threat to the personal safety, health or welfare of part of the population. Do you see that?‑‑‑Yes. Section 4, yes. Yes. Yes.

PN266

Yes, that's right. But as I understand it from your counsel that what you are really relying on is the welfare component. Is that right?‑‑‑That's a large component, yes. Yes.

*** JAMES EDMISTON XXN MR HARDING

PN267

Yes, that's the only component, isn't it?‑‑‑For the action not going ahead?

PN268

No, that's what you're relying on in this application?‑‑‑Yes.

PN269

Yes, and the basis for that you say is because it might affect those who attend medical appointments and/or other appointments that cannot or cannot easily be rescheduled. That's the basis for it?‑‑‑Correct. Yes.

PN270

Well, don't you think it would assist those affected by the industrial action to be told that there may be a disruption and that they may be advised to change appointments?‑‑‑Yes. Yes, possibly it could be if they - but then if they changed their appointment for Friday last week they would have been disappointed if they knew they could get to the appointment.

PN271

They might be disappointed but they wouldn't at least go to an appointment that they could have avoided, would they?‑‑‑No.

PN272

And you can't say to the Commission, can you, one way or another whether anyone would be affected if you made that announcement?‑‑‑If we made the correspondence out via tramTRACKER, no, I don't know. I don't know everyone's personal circumstances, so no.

PN273

No, you don't know but you could put it on your website, couldn't you?‑‑‑The - there's "Pending industrial action".

PN274

Well you could say that "The industrial action is occurring for four hours between 10 am and 2 pm on Thursday the 27th, and we advise you to reschedule any appointments that you have made in those times that might be affected by the action". You could say that?‑‑‑Possibly, yes.

PN275

MR O'GRADY: Commissioner, I object to the question on the basis that at this point in time as the witness has explained we don't know that industrial action is occurring. That's a live issue, and it's in my submission unfair to the witness to be suggesting that he should be putting an announcement that's based on a false premises.

PN276

MR HARDING: That's ridiculous.

*** JAMES EDMISTON XXN MR HARDING

PN277

THE COMMISSIONER: Well, it's common ground that the action is threatened, impending or probable, isn't it?

PN278

MR O'GRADY: And I accept that.

PN279

THE COMMISSIONER: Yes, that's why we're here.

PN280

MR O'GRADY: Indeed. Indeed, and if - - -

PN281

THE COMMISSIONER: Yes, absent the proceedings, Mr O'Grady, it's happening.

PN282

MR O'GRADY: I've no - well - - -

PN283

THE COMMISSIONER: But you agree with that?

PN284

MR O'GRADY: Well, if - - -

PN285

THE COMMISSIONER: Sorry, absent the outcome of these proceedings.

PN286

MR O'GRADY: Yes, if the question was put, "You could put out an announcement saying industrial action is threatened" I have no objection. But that wasn't the way the question was put.

PN287

THE COMMISSIONER: All right.

PN288

Well, you might want to consider reframing it in that sense, Mr Harding.

PN289

MR HARDING: You're aware, that is Yarra Trams was aware as of 13 August that there was threatened industrial action on Thursday?‑‑‑Correct. Yes.

PN290

On Thursday this week?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN291

And it was open to Yarra Trams to put on their website information to the general public that says "There is threatened, impending industrial action scheduled for Thursday and you might be advised to change appointments that could be affected if that industrial action occurs". That was open to Yarra Trams, isn't it?‑‑‑Yes.

PN292

Yes, and likewise it was open to Yarra Trams to put out a press statement to the same effect?‑‑‑Well, the - it was taken off our ability to do that after the tramTRACKER went up advertising the industrial action. We were advised by the State Government not to, so.

PN293

What, the State Government told you not to tell the general public?‑‑‑Yes, not to discuss it in a public forum. So not to advertise it.

PN294

On what basis?‑‑‑I don't know. But we haven't pursued the communication after that advice.

PN295

But you're the employer aren't you? That is, Yarra Trams?‑‑‑Correct. Yes.

PN296

And you're the one affected by the industrial action, are you not?‑‑‑Yes. Yes.

PN297

And you owe your obligations as a service provider to the service users who use the trams, don't you?‑‑‑Yes.

PN298

And you're the one coming along, aren't you, and claiming that there are going to be people who are attending medical appointments or other appointments that cannot or cannot easily be rescheduled as a result of the threatened industrial action, aren't you?‑‑‑Correct.

PN299

But you can't tell the Commission whether anyone will be able to reschedule or not reschedule any appointment that they might have on that day?‑‑‑No, as I said I don't know everyone's personal circumstances. So no, I don't know.

PN300

And so this supplementary statement where

PN301

you have this table here, rather this chart headed "Total number of passengers boarding trams between nine and five on a typical week day"?‑‑‑Yes.

PN302

Only tells us what occurs if there's not threatened industrial action, doesn't it?‑‑‑Correct.

*** JAMES EDMISTON XXN MR HARDING

PN303

Yes. Now, can I take you to paragraph 25 of your first statement, exhibit O1, and you say a significant number of concession card holders use the Yarra Trams network and you identify who those are. That's right?‑‑‑Correct. Yes.

PN304

And you've said in relation to the map which is attached to the outline of mitigations that the grey areas identify or take into account the fact that there will be train services running and there will be bus services running on Thursday?‑‑‑Yes.

PN305

And you would agree that persons identified in paragraph 25 could avail themselves of both train and tram services, could they not?‑‑‑In some instances. Not everywhere. We haven't covered every part of the network.

PN306

Okay, let's look at the map that you've got on the mitigations document. So in the grey area which is the city centre?‑‑‑Yes.

PN307

There are train services running in that section?‑‑‑Yes.

PN308

Which the people you identify at paragraph 25 could utilise?‑‑‑Correct. Yes.

PN309

Likewise there are bus services that the people in that section could utilise?‑‑‑Not on every road, but yes.

PN310

Yes and it's correct to say, isn't it, that 80 per cent of the bus network is wheelchair accessible?‑‑‑I'm unaware if it's that percentage. The bus replacement offered to us by the industry is only 43 per cent, but the actual buses in the CBD could well be 80. I don't know.

PN311

Okay, but the buses operating in the CBD are operated by which company?‑‑‑Transdev. There are others but mostly Transdev.

PN312

And that's the ordinary course of public transport in the city?‑‑‑Yes.

PN313

Yes?‑‑‑Yes.

PN314

And there are taxis as far as you're aware that are running throughout Melbourne?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN315

And it's possible, isn't it, that someone advised of this industrial action who has got an appointment could ask a friend to take them to the appointment there and back?‑‑‑Yes, if they are - they have the ability to do that.

PN316

Yes, have you taken any account of that in your evidence?‑‑‑No, not that as another option because again people's personal circumstances - I don't know everyone's personal - people's personal circumstances. So ours is just looking at available options to us to protect the network.

PN317

Yes, and that's because you really have no idea who might be affected at all, have you?‑‑‑No.

PN318

And you give some evidence in paragraph 27 of your first statement about "The services" - "Tram services provide a means of transport to hospitals and other health facilities in Melbourne" and you identify those hospitals?‑‑‑Yes.

PN319

Have you had an opportunity to read the affidavit of Ms Kazakoff?‑‑‑Yes, briefly when I came in this afternoon.

PN320

And she goes through - she gives some evidence about the Epworth and the Royal Melbourne and the Alfred Hospital and the availability of alternative transport options at those localities?‑‑‑Yes.

PN321

And you don't disagree, do you, with what she says about the availability of the services that she identifies?‑‑‑Some of her advice wasn't correct, but that just would have been knowledge of the network. But - - -

PN322

And what's that? What were the incorrect bits?‑‑‑Bus 401 servicing the people in North Melbourne station. The country services no longer stop there. So if you're coming in from Geelong, Ballarat or Bendigo to go to - to get cancer treatment or anything at those hospitals you'd have to come into the city centre. You'd normally jump on an 86 tram or a 96 tram and go back out, or you'd have to jump on a Metro service, go back out to North Melbourne and then jump on the 401 bus.

PN323

So that's the only one?‑‑‑Yes, that's the only one I picked up in the - I believe so.

PN324

So in that circumstance they could either get a taxi, you'd agree, from Spencer Street?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN325

Or sorry, Southern Cross. I'm going back in time, or they could go to North Melbourne and get a bus?‑‑‑Yes. the socioeconomics of someone going for a transfer treatment on the B line service would suggest not a taxi, but potentially the bus, which would - - -

PN326

Well, you don't know the socioeconomic circumstances of anyone in particular, do you?‑‑‑No, but nor do you so - but that's all I'm saying. But - - -

PN327

No, but I'm asking the questions. Do you?‑‑‑Yes, so the - no, they could do both.

PN328

Right, and if they're coming in from Geelong they come through North Melbourne, don't they?‑‑‑No.

PN329

No?‑‑‑No.

PN330

And are you aware that at least the Leukaemia Foundation operate their own transport for those who are transport‑disadvantaged?‑‑‑I'm not aware of the Leukaemia specific(sic) but I'm aware of a number of the different volunteer services that offer in-patient treatment.

PN331

And have you made any inquiries of anyone of those services to assess their capacity?‑‑‑Not to them directly, no.

PN332

Now in paragraph 30 of your statement you give some evidence about the closest train station to the Royal Melbourne and the Royal Children's Hospital is North Melbourne station, and this is at paragraph 30 of your first statement. Do you see that in A? You say there are buses available to service that area but let's take the Royal Children's Hospital, for example, which is on Royal Parade or Alexandra Parade, whatever the road is, and you'd be aware wouldn't you that there is a tram zone that runs along that road?‑‑‑The Royal Children's Hospital? Yes.

PN333

Yes?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN334

And there won't be any trams between 10 and - so the bus could drive on that part of the road?‑‑‑No, it can't. The - there's a grey separated area. Buses are not allowed to drive into those platform stops and nor are they allowed to drive on some of the grey separated areas from a safety point of view. There was instances where buses have mounted kerbs and ended up on platform stops, so there was - a few years ago now there was a ruling put in place, self‑imposed, for the safety of people on the platform stops not to put replacement buses into platform stops, and the width in the platform stops doesn't allow two of them at the same time either.

PN335

But the normal bus service is otherwise available at that time at that route?‑‑‑Down that route, no there's not. That's why - one of the reasons why the - if you look at the rail replacement - the tram replacement, sorry.

PN336

Yes?‑‑‑We are actually servicing the Royal Womens.

PN337

You are servicing that area, yes?‑‑‑And that - for that reason, because there are no buses.

PN338

Okay, I understand.

PN339

THE COMMISSIONER: We're talking about Flemington Road?‑‑‑Yes.

PN340

Yes?‑‑‑There's a section on Flemington Road in front of those hospitals where there's no buses for some reason.

PN341

MR HARDING: Yes. Now in paragraph 31 of your statement you say:

PN342

The tram network also services, both enabling students and teachers to get to and from school and when schools use the service for excursions.

PN343

Have you advised schools about the impending strike?‑‑‑They're aware of it, not us - from us directly. But one of the reasons why the bus replacement service numbers reduced was that very reason, that when the schools found out on Friday a number of them approached the bus companies directly and booked what would have been our replacement services directly for their own students and in time, so at this stage we haven't contacted about Thursday.

PN344

All right, so there is at least some schools that have made their own arrangements and organised buses to your knowledge?‑‑‑To my knowledge there was, yes.

PN345

Do you have any particular evidence to give to the Commission that any particular school will not be able to undertake an excursion on Thursday?‑‑‑No, I haven't contacted to find out what their excursions are on the Friday - or Thursday, sorry.

PN346

Now as I understand the position, Yarra Trams would normally roll out the afternoon school extra trams at approximately 2.45 pm?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN347

That's right?‑‑‑Yes.

PN348

And the methods that you're adopting yourselves to ease trams back into service will enable you to provide that service after the stop work?‑‑‑We're offering no guarantees in that place for the school runs. There is a concern with some of the depots about how quickly we will be able to get the trams out of the depots, and whether we'll be able to place the trams in time.

PN349

Yes. Well, talking about getting trams out of depots - and you've read the statement, or have you, of Mr Altieri?‑‑‑Yes.

PN350

Yes, and he gives some evidence that Yarra Trams employs employees who can, you know, regulate the traffic. Like depot starters is one example, and other specific traffic persons who can assist in getting the trams out on to the roads in an orderly way. Do you agree with that?‑‑‑No. No, we do employ what's termed officers.

PN351

Yes?‑‑‑But these officers are not VicRoads accredited traffic controllers. They can marshall trams and they can certainly help us with our running in and running out and holding tram drivers. But these traffic officers as they're termed within the tram industry are not licensed to hold for instance Malvern Road, and hold traffic on Malvern Road for an indefinite period of time while they - you need a proper accredited individual to do that.

PN352

But you have said, haven't you, that the plan is that there will be 14 traffic controllers?‑‑‑Yes.

PN353

And they're licensed to perform that activity?‑‑‑Yes.

PN354

And so the system that you propose both to run in the trams and run them out again will ensure that you can have a smooth transition into the industrial action which starts at 10 and then a smooth transition back into the operations after it finishes at two?‑‑‑Smooth, it's more the safety, a safe operation and a safe operation out. 350-odd trams, it's about the safety aspect of it, so yes.

PN355

Yes, and his evidence, that is Mr Altieri's evidence, is that operations centre control as in operations officers will remain on work, remain at work, until the last tram comes in and so they won't participate in the industrial action until that occurs, if they're rostered on?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN356

Well, that will mitigate substantially, would it not, any potential risk arising from perhaps shunting incidents or simply get running in that number of trams?‑‑‑No, they're - there's office based who are on a monitor, like a control centre, and there are at any one time from three to five on the ground. This exercise is exposing the fact that because we don't shunt so many trams at any one time that three to five on the ground for the entire tram network is completely inadequate, and we don't have the means to cover every shunt point, and so that's why we're taking the action we are which is extending it to undertake this move safely.

PN357

But it's correct to say that tram drivers shunt all the time, don't they, without someone sitting next to them saying, "Well, do it this way" and "Do it that way"?‑‑‑Depending where it is, but there are some shunt points where absolutely tram drivers do it by themselves.

PN358

Yes?‑‑‑They do it daily. They do it a number of times a day. There are other shunt points where we say to them, "You need to do it under protection or you need to do it with an officer". And so we're doing a staged, safe, organised demobilisation to protect the tram drivers and the travelling public by - from trams moving in ways they wouldn't normally move en masse.

PN359

That's right but in terms of how that could occur, in relation to those areas that you don't - where drivers don't perform it themselves do you say, do you Mr Edmiston, that you don't have the staff to supervise each shunt at those locations?‑‑‑Correct. We would not do mass shunting like this.

PN360

Yes?‑‑‑We would - if it was a - we would do it at a centralised location to try and control the shunt and do it in a controlled environment.

PN361

Was there any objection to providing the union with a list of shunt points that you deem unsafe?‑‑‑The union actually have a couple of these because they've put black bans on them.

PN362

Well, there you go. So at least the drivers know those are unsafe and presumably they wouldn't shunt there, would they?‑‑‑Well, under the protected action we were concerned that they would because it said "At 10 o'clock you turn around and you come straight home". So there was a few there that some drivers might take that as, "We can do it whenever, wherever we want".

*** JAMES EDMISTON XXN MR HARDING

PN363

Mr Altieri's evidence is that drivers will be informed by the union that they are not to shunt at shunt points that you have identified as potentially unsafe. That would solve your concerns, wouldn't it?‑‑‑The instruction that he gave in his evidence was general and it wasn't specific, so we've tried to create it more specific by doing it in a controlled environment.

PN364

Okay, but you say that and that's a choice you've made?‑‑‑Yes.

PN365

Yes, but there is no objection is there surely to saying to the union, "Across the system there are 10 points" and I'm making that number up?‑‑‑Yes.

PN366

"That you should inform drivers not to shunt at when they're engaging in the action or in preparation for the action"?‑‑‑Yes, we could certainly do that. The issue with that which we tried to mitigate is the multi-line routes. St Kilda Road there's a tram every two or three minutes.

PN367

Yes?‑‑‑And in those environments we generally don't put the tram driver in - on a main line trying to shunt a tram. So that would number a huge number that we'd tell the drivers not to shunt on, and rely on human error if they shunted anyway, so.

PN368

Well, that's the normal course isn't it? That's what might happen in the normal course of operating the tram system?‑‑‑Not 300 trams at once.

PN369

Yes, but ultimately a driver has to make a judgment, don't they, about where they shunt and if they're directed not to you have no reason not to believe that they wouldn't obey that direction?‑‑‑Normally no, we wouldn't. We would allow them to make the judgment call.

PN370

That's right, and if you told them not to do it you have no reason to believe they wouldn't?‑‑‑I would say to you that 99 per cent of the workforce I'd agree with you. But there are instances we have derailments. We do have derailments. We have driver error. Our industry's based on human input. We haven't got away from driverless trams just yet. So because of that human input we are exposed.

PN371

Well, that's right but that's because you have human beings driving trams?‑‑‑Absolutely.

PN372

And that happens in the ordinary course of you operating a tram system?‑‑‑Yes, or a car driver, whatever.

PN373

Or a car driver?‑‑‑It's the same.

*** JAMES EDMISTON XXN MR HARDING

PN374

That's right. Likewise you've identified in paragraph 37 of your first statement a concern that a person but for your self‑imposed system of winding down the system and then winding it back up, might be left stranded. Do you see that?‑‑‑Yes, 37. Yes.

PN375

Yes. Well, let me just make this clear. It would be right to say that under the system that you've proposed and the winding - you know, the smooth winding down then the winding up, it's unlikely that that risk would arise, would it, someone being stranded?‑‑‑That's in the intent of why we're doing it, yes.

PN376

Yes, that's right. So you're seeking to avoid that. But if you didn't do it and the union then began to wind down its services as of 10 am, Mr Altieri's evidence is that drivers will be instructed to take passengers who request it to the next accessible tram stop?‑‑‑Yes.

PN377

That would solve that concern, would it not?‑‑‑No, the fear we have in that space is a number of our longer routes, like line 86, line 75, and if a driver chose at one past 10 to turn around at the closest shunt point, for example Burwood Highway and Springvale Road, and that person was going to Vermont South where there's bus connections, there is a perfectly good DDA‑compliant stop at the corner of Springvale Road and Burwood Road and they would - they could potentially be left there for four hours, five kilometres from the closest bus up at Vermont South. Yes, because they could turn around and go back.

PN378

Okay, so you're assuming here that - so you're accepting that the potential is that they could be taken to an accessible bus stop - accessible tram stop?‑‑‑Tram stop, yes.

PN379

But your concern is that they might just be left there?‑‑‑Correct.

PN380

Well, you have no reason to believe that they are incapable of utilising a mobile phone if they have one, and call for help?‑‑‑Again I don't know everyone's circumstances but I look at the socioeconomics of some of the areas that we look after.

PN381

Yes?‑‑‑And there are some of them that are - may not have a mobile phone.

PN382

They may not, but you don't know whether they'd be travelling with someone, do you?‑‑‑No.

*** JAMES EDMISTON XXN MR HARDING

PN383

No. You don't know whether they might have money to pay for a taxi wherever they need to go to get to the bus stop?‑‑‑No.

PN384

So the concern identified in paragraph 37 is pure speculation, is it not?‑‑‑We don't believe so because we see it on a semi-regular basis with people we have to unload when trams break down and we've got to shunt them or turn them back, and some people are stuck in those situations until another tram comes along.

PN385

Yes, but the difference is that they're expecting another tram to come along?‑‑‑But they're still - they don't go anywhere. They sit there.

PN386

But maybe they make a choice?‑‑‑So again I don't know if they make a choice or - - -

PN387

No, I know. You just don't know, do you?‑‑‑- - - or - I don't know the - - -

PN388

No, and a fairly material consideration here, is it not Mr Edmiston, is that there won't be another tram coming along for a number of hours until the stop work finishes?‑‑‑Correct.

PN389

And it's correct to say, is it not, that Yarra Trams have the capacity to make announcements on the tram?‑‑‑On the tram, yes.

PN390

Yes, so Yarra Trams could make an announcement on each of the trams on the day to say that there is industrial action scheduled and that passengers should get off at the stop that's the most convenient for them or make the driver aware of any need that they have to be taken to an accessible stop?‑‑‑Yes, well the drivers have the ability to make announcements and in some trams have the ability to make an overarching announcement. Yes.

PN391

Is there any plan to make such an announcement?‑‑‑Now that the industrial action has been lifted on driver announcements we would hope that that would be our primary point of contact with customers. Yes.

PN392

So you intend to make that announcement?‑‑‑We - if - yes, if we're doing industrial action and the trams are winding down there will be notices and there'll be announcements made so people know.

*** JAMES EDMISTON XXN MR HARDING

PN393

All right, and so paragraph 37 and the concern you identify there doesn't take into account that plan, does it, because there was at the time you prepared this statement a ban to be made on announcements?‑‑‑Correct.

PN394

And that doesn't apply any more?‑‑‑It still has the ability to leave people stranded but they'll be more informed.

PN395

They'll be informed and stranded I suppose?‑‑‑Yes.

PN396

On your evidence?‑‑‑Yes.

PN397

THE COMMISSIONER: Sorry to interrupt your flow but isn't it conceded - I understand the line of attach but isn't it conceded, Mr Edmiston, that the organisation has made a decision that they are going to phase down earlier than the bans strictly require, for the reason that you're looking to avoid the situation of people being stranded? You're going to, as I understood your evidence - and Mr O'Grady put it in summary before you gave evidence that you've decided to do that, as I understand it, as a matter of course so that that eventuality won't emerge. Am I right about that?‑‑‑Correct. We wanted to give people certainty of journey in that space and it is coming at - even though it's part of the action it's not part of the unprotected action. So, yes.

PN398

MR HARDING: Yes, I understand that, Commissioner.

PN399

Excuse me for a moment. Sorry to backtrack a little, can I take you to paragraph 29 of your first statement. Do you have any actual evidence that supports the assertions you make in that paragraph?‑‑‑In regards to older people driving?

PN400

Yes?‑‑‑Not as in we've interviewed treatment - passengers coming out for a treatment, if that's what you mean? We haven't interviewed anyone.

PN401

You make two statements in that paragraph, don't you? The first is that you say:

PN402

There are a cohort of people attending hospitals that includes a significant number of older persons who may not be able to or feel competent driving.

PN403

That's the first assertion?‑‑‑Correct. Yes.

*** JAMES EDMISTON XXN MR HARDING

PN404

Do you have any evidence to present to the Commission that the threatened industrial action on Thursday will affect those people for that reason?‑‑‑No, that's just a statement I suppose in regards to not pertaining directly to this but just where - - -

PN405

It's a general statement?‑‑‑- - - they use us as opposed to driving.

PN406

Yes, when there's a tram available?‑‑‑Yes, so that's - from our point of view is supported by the State Government funding of the DDA-compliant stops at nearly all hospitals, Epworth.

PN407

Yes, and one expects that if the tram service is running that they'll utilise it, and then the second statement you make:

PN408

In addition, many treatments received as part of a hospital attendance result in a patient being unable to drive in the hours following treatment because of the anaesthetic received as part of the treatment or because of the impact of the treatment itself, for example chemotherapy.

PN409

Do you have any actual evidence that supports what you say there?‑‑‑Only from personal experience and the rules around having anaesthetics and operating machinery.

PN410

So you're referring to yourself?‑‑‑Both myself and family members who have had treatment.

PN411

So you and your family?‑‑‑Yes, well if you're asking for evidence I'm giving you an example. But if you're asking for evidence specifically in from - - -

PN412

I'm asking you for evidence?‑‑‑From interviewing people coming out of the hospital, no we haven't interviewed people coming out of the hospital.

PN413

Okay, thank you. But you don't have any specific knowledge of any particular rule of any particular hospital concerning their practices as you identify them in this paragraph, do you?‑‑‑About anaesthetics?

PN414

Yes, any particular hospital with a rule that governs how they deal with anaesthetics?‑‑‑Only as I said from personal experience that the four or five hospitals that I've been into, that you can't drive after an anaesthetic, so.

*** JAMES EDMISTON XXN MR HARDING

PN415

Okay, but you could organise a friend to come and pick you up, couldn't you? That's possible, isn't it?‑‑‑Yes.

PN416

It's just as possible?‑‑‑Absolutely.

PN417

Yes. Bear with me for a moment. Now can I take you to paragraph 17, and I do apologise for chopping and changing. This material came to us later in the piece. You refer to the four hour stoppages to be implemented between the hours of 10 am and 2 pm on the relevant days and you:

PN418

...anticipate that the impact of the bans will be significant between two and four.

PN419

Do you see that? And:

PN420

That is likely to take until four or 5 pm before trams are running to schedule.

PN421

Now that statement is made on the basis that the union's proposal to run in trams and run them out would be implemented, rather than the self-imposed one that Yarra Trams has told the Commission about. Is that right?‑‑‑The four hour stoppage, no matter what methodology you undertook post-2 pm the implications to the network will be big. So the returning of services to any sort of visible timetable on tramTRACKER could take between two to three hours no matter if it's a big bang approach like the union, "Back on board. It's 2 o'clock" or if it's a gradual approach like we're doing.

PN422

Yes?‑‑‑- Where the eight depots are based around Melbourne it's just a matter of getting the rolling stock back in the - back in where they should be.

PN423

Okay, and that's just an estimate on your part, is it?‑‑‑It's a - it's an estimate but it's more than that because we're utilising our existing master timetable and how we run trams out, and how long it takes us to get to those trams is certain, and taking into consideration that we'll be attempting to move 300-odd trams through the city centre on a busy afternoon. When we normally do undertake this exercise we do it at 4 o'clock in the morning, 5 o'clock in the morning.

PN424

You've been in the role that you currently occupy since 2014, is that right?‑‑‑Yes.

*** JAMES EDMISTON XXN MR HARDING

PN425

And I assume you have no personal experience of an event like this, have you, beforehand?‑‑‑Not industrial action like this, no.

PN426

No, okay, and you're aware that Mr Lettoof has made a statement in this proceeding are you not?‑‑‑Yes. Yes.

PN427

And he has given some evidence concerning the Essendon depot and he says the Essendon depot - and I'll just read it to you because it's easier that way:

PN428

The Essendon depot is located on Mount Alexander Road. It will take approximately an hour to roll out 54 trams.

PN429

?‑‑‑Yes.

PN430

That's an hour, not two to four?‑‑‑That's to get them out of the depot.

PN431

Yes?‑‑‑But we're talking about the timetable here.

PN432

Well, once they're out of the depot they're on the road and they're deployed, aren't they? There's a service?‑‑‑It's not a timetable though. There will be trams on the road.

PN433

Yes?‑‑‑Without a doubt. But as far as having them in a recognisable service that people will know, as opposed to five trams just following each other down Mount Alexander Road, and assuming that VicRoads gives us the ability to get them through the traffic lights it will be before four to five before a person can look at their Smartphone at tramTRACKER and get an accurate idea of what's going on.

PN434

But he goes on to say:

PN435

The trams will be sent in both directions in an attempt to return the schedule to normal. In respect of the Essendon tram lines the services are expected to take until 3 pm to return to normal.

PN436

Do you disagree with him?‑‑‑I think he's going to get all his trams in potentially an hour but I'd be surprised if he can return that, because Ian Cushion's role, who's the operator, and you've got his statement there as well, he oversees the control of all the trams on network at any one time.

*** JAMES EDMISTON XXN MR HARDING

PN437

Yes?‑‑‑And so in regards to the timing we've looked at both the timetable and taken his advice and his controllers about how long it takes to return a service once it's been disrupted.

PN438

Yes, but your evidence is concerned with how long it takes for the tram to be visible on tramTRACKER according to its normal schedule. Is that right?‑‑‑Well, correct, that's what I'm referring to.

PN439

Yes?‑‑‑Yes.

PN440

So that what you're referring to. So it's about normal scheduling, but the tram is on the road available for a passenger who might come out of a hospital when it goes past, to get on and utilise it?‑‑‑Yes, like if it's - if it happens to be in the right spot at the right time. Yes.

PN441

Thank you, they're my questions, Commissioner.

PN442

THE COMMISSIONER: Thanks Mr Harding.

PN443

Mr O'Grady?

RE-EXAMINATION BY MR O'GRADY [5.54 PM]

PN444

MR O'GRADY: Yes. Thank you.

PN445

Can I perhaps just deal with where you were at a moment ago, Mr Edmiston. Do you have any idea as to how long it might take for a tram to get from its depot to the end of a particular run?‑‑‑They vary greatly but it can be anywhere from 35 to 40 minutes, maybe in some extreme cases longer than that, depending on what traffic they've got to get through.

*** JAMES EDMISTON RXN MR O'GRADY

PN446

And does it follow from that - and correct me if I'm wrong - that if one is looking to not just head away from the depot but head towards the depot, then the tram would get to the end of the run and then move back towards the depot so there might be a longer period than that 35 to 40 minute time?‑‑‑Yes, it would - there - in that instance it would be. The issue with that time of the day is when we run the trams out at 4 o'clock, 5 o'clock in the morning we're not dealing with the traffic on Toorak Road, and we're not dealing with the traffic on those roads and so that will - that time. Why there's an estimate of over an hour, an hour and a half there is because we won't know the traffic conditions on the day to put the trams back out on the network.

PN447

All right, so if we were dealing with one of those longer routes, can you identify for the Commission one of the longer routes?‑‑‑The route 86.

PN448

MR HARDING: I object to the question, Commissioner. I don't see how this arises out of cross‑examination at all. He's leading evidence, new evidence.

PN449

MR O'GRADY: With the greatest of respect, my learned friend put to the witness the proposition that his evidence as to the length of time it would take to get the service back to normal was inconsistent with the evidence of Mr Lettoof's and it would take a lesser period of time than he had estimated, and I'm asking the witness to explain the basis for his earlier evidence as to the delay associated with the industrial action.

PN450

THE COMMISSIONER: And how does the longer routes issue arise in that context?

PN451

MR O'GRADY: Because the witness has just explained that there is different timing depending on routes, and if one's looking at the time across the entire network, what happens on longer routes is a matter that's a relevant consideration for the Commission.

PN452

THE COMMISSIONER: Yes, all right. I'll allow the question.

PN453

THE WITNESS: Sorry, can you repeat?

PN454

MR O'GRADY: So could you identify for the Commissioner one of the longer routes?‑‑‑Route 75.

PN455

All right, and where does that go to?‑‑‑Vermont South to Docklands.

PN456

So that's the one that's identified as going past Deakin University on the map that you were taken to?‑‑‑Yes.

*** JAMES EDMISTON RXN MR O'GRADY

PN457

All right, and if there was a roll out of trams along the line as you have described, can you give the Commissioner an indication of when you think the first tram heading back from Vermont South towards the city would, say, cross or come through Camberwell Junction?‑‑‑It would be a thirty - a 20‑odd minute exercise to get up to Vermont South if everything went well, and then depending on the stopping pattern of the passengers it picks up it could be at least that again, probably more coming back down. But I'm probably being generous with those times. It's likely to be more.

PN458

All right. Thank you. Now you were asked some questions about shunting. Could you explain to the Commission what you mean when you're talking about shunt points and also perhaps explain by reference to once again this map that was attached to your statement - - -

PN459

MR HARDING: Well, I'm going to object again, Commissioner, on the same basis that I did earlier. This is new evidence.

PN460

MR O'GRADY: With the greatest respect - - -

PN461

MR HARDING: There's evidence in the statements about what shunting involves and he has given evidence about it, and I asked him questions about what he put in his statements concerning shunting.

PN462

MR O'GRADY: With the greatest respect, the witness was cross‑examined about the proposal in respect of shunting. He is entitled to explain to the Commission what is the situation regarding shunting and why he has given evidence that there are safety concerns associated with shunting.

PN463

THE COMMISSIONER: Yes that's fine, Mr O'Grady, but you are on notice about any introduction of new evidence.

PN464

MR O'GRADY: Yes. Thank you, Commissioner.

PN465

THE COMMISSIONER: Yes.

*** JAMES EDMISTON RXN MR O'GRADY

PN466

MR O'GRADY: Could you just explain to the Commission by reference to this map where the shunt points are located across the network and how many there are?‑‑‑There's 140‑odd shunt points around the network at any one time. A number of them are out of commission for the infrastructure team to be doing routine maintenance, and there are a number of shunt points that we deem to be unsafe unless they're under a controlled environment. And so there are the - most people are aware of the terminus shunt points where trams turn around and come back, but there's mid‑route shunt points where we run short for various reasons and allow trams to turn back.

PN467

All right, and it was put to you that the operations officers could supervise the shunting processes that have been discussed. How many operations officers do you have at any one time?‑‑‑At any one time there's three, at most in some instances there's five on a normal daily operation. There are others that potentially could be used but as rostered shifts that's all that we have on the ground.

PN468

Yes, thank you. Now you gave some evidence regarding a direction from the government about communications. Do you recall that?‑‑‑Yes.

PN469

Can you explain to the Commission how that direction was communicated?‑‑‑As I said at the start of my statement I'm not in the communications area. I was just aware that the communication was put out to the customers by a tram tracker, and it was - we were asked not to do it again until we'd been given approval and the government were looking to read our correspondence that was going out in every direction with the general public as to what we were saying.

PN470

I think it was put to you by Mr Harding that well, you're the employer, you're the service provider, you should be focusing on the concerns of customers. Who is the contract with that Yarra Trams has to provide the tram service?‑‑‑Our client is the government.

PN471

You were also asked some questions about the number of buses. It was put to you that there'd been some discussion of a potential of 250 buses. You've given evidence that under the litigation process that's proposed to be in place there's only going to be 103 buses or thereabouts used. Can you just explain to the Commission why not put more buses into the litigation process?‑‑‑There's a concern with the buses and the industry. So the industry has given us a commitment of definitely 100 without pushing it too hard. Anything above that they will certainly do what they can and they've said there's up to 200, 250, they've thrown a lot of numbers around without giving us a hard and fast email. In regards to going beyond what we've done, the concern is the CBD in Melbourne and we're attempting not to bring down logjam, so by putting more and more buses in there on top of the existing network would just clog the existing system up and lock it down.

PN472

Yes, thank you. I've no further questions, Commissioner.

PN473

THE COMMISSIONER: Thanks. Thank you, Mr Edmiston for your evidence. You can step down.

<THE WITNESS WITHDREW [6.02 PM]

*** JAMES EDMISTON RXN MR O'GRADY

PN474

MR O'GRADY: The next witness, Commissioner, is Mr Lettoof.

PN475

THE ASSOCIATE: Please state your full name and work address for the Commission.

PN476

MR LETTOOF: Yes, Malcolm Lettoof, 318 Mount Alexander Road, Ascot Vale.

<MALCOLM LETTOOF, SWORN [6.03 PM]

EXAMINATION-IN-CHIEF BY MR O'GRADY [6.04 PM]

PN477

MR O'GRADY: Mr Lettoof, could you tell the Commission your full name please, sir?‑‑‑Sorry, what was that?

PN478

Could you tell the Commission your name?‑‑‑Malcolm Lettoof.

PN479

What's your occupation, Mr Lettoof?‑‑‑Manager of the line out of the Essendon train depot.

PN480

What is your business address?‑‑‑318 Mount Alexander Road, Ascot Vale.

PN481

Have you prepared a witness statement for these proceedings?‑‑‑Yes, I have.

PN482

Would you have a look at this document for me, please. Is that a witness statement that runs for 11 paragraphs?‑‑‑Yes, that's correct.

PN483

To the best of your knowledge are the contents of that statement true and correct?‑‑‑Yes, they are.

PN484

I'd seek to tender Mr Lettoof's statement, Commissioner.

PN485

THE COMMISSIONER: Yes, that's O3.

EXHIBIT #O3 WITNESS STATEMENT OF MALCOM LETTOOF

PN486

MR O'GRADY: Thank you, Commissioner. I've no further questions.

*** MALCOLM LETTOOF XN MR O'GRADY

PN487

THE COMMISSIONER: Thanks. Mr Hardin.

CROSS-EXAMINATION BY MR HARDING [6.04 PM]

PN488

MR HARDING: Yes, thank you, Commissioner. Mr Lettoof, you've been working on the tram ways for a long time?‑‑‑That's correct.

PN489

That history is set out in paragraph 2 of your statement, is it not?‑‑‑Yes, it is.

PN490

You give some evidence about what you expect, and this is from paragraph 8 on, the disruption I suppose or the congestion on the roads that might be caused by the stoppage. Is that right?‑‑‑That's correct, yes.

PN491

Is the purpose of paragraph 8 and 9 and 10 of your statement to compare what is threatened as industrial action on Thursday with the tram stoppage in the late 1990s - sorry, the late 80s and early 1990s?‑‑‑Yes.

PN492

So when you refer in paragraph 8 to, "During the train and tram stoppages" - - -?‑‑‑Yes.

PN493

You're really referring to the tram stoppage?‑‑‑No, I'm referring to both and individually, separately.

PN494

There's no train stoppage that's occurring on Thursday?‑‑‑That's correct, yes. I'm aware of that.

PN495

So comparing apples and apples, we're talking about comparing Thursday, as you apprehend it to be, with the stoppage in the late 1980s, early 90s, is that right?‑‑‑Of trams only, yes.

PN496

Yes. You say that there was substantial congestion as a result of major traffic congestion in the Melbourne CBD, as a result of that stoppage?‑‑‑Well, CBD and other parts of Melbourne as well, yes.

PN497

You're aware, aren't you, the threatened stoppage on Thursday is for four hours?‑‑‑Yes, I am.

PN498

You're also aware are you not that the intention is that the trams will return to the depot or each of the depots?‑‑‑Yes, yes.

*** MALCOLM LETTOOF XXN MR HARDING

PN499

Between 10 and 2, is that right?‑‑‑They'll return there as close as possible to 10, yes. And roll out as near as possible after 2.

PN500

Would you accept, Mr Lettoof, that a pretty significant difference between the dispute in the late 80s, early 90s and the ones that's proposed for Thursday is that in the former case, late 80s, early 90s, trams were out for nearly a month?‑‑‑No. I'm talking about many, many stoppages. I'm not talking about the stoppage where the trams were parked in the CBD for six weeks. I've referred to that in my statement.

PN501

Well, you just referred to tram and train stoppages in the 80s and the 90s?‑‑‑Yes, but - - -

PN502

And you recalled the tram stoppage in 1990 when the trams were parked in the Melbourne CBD?‑‑‑Yes, but there were many stoppages and there were many stop work meetings in that period of time, in addition to that long stoppage, and that's my reference to both of those. But in particular the rolling in and rolling out which was quite difficult for a lot of people at the time and I'm talking about the people of Melbourne, the people travelling and driving their vehicles and trying to catch transport to and from different locations.

PN503

So you're saying that there was disruption, general disruption to the population of Melbourne due to these tram stoppages back then?‑‑‑Yes, I am.

PN504

General disruption and inconvenience to the people of Melbourne arising from traffic congestion that were caused during the stoppages?‑‑‑Yes.

PN505

Thank you. No further questions.

PN506

MR O'GRADY: No, re-examination, Commissioner.

PN507

THE COMMISSIONER: Thank you. Thank you very much for your evidence, Mr Lettoof. You can step down.

<THE WITNESS WITHDREW [6.08 PM]

PN508

MR O'GRADY: The final witness, Commissioner, is Ian Cushion.

PN509

THE COMMISSIONER: Yes.

*** MALCOLM LETTOOF XXN MR HARDING

PN510

THE ASSOCIATE: Please state your full name and work address for the Commission.

PN511

MR CUSHION: My name is Ian James Cushion, I work at 555 Bourke Street, Melbourne.

<IAN JAMES CUSHION, SWORN [6.09 PM]

EXAMINATION-IN-CHIEF BY MR O'GRADY [6.10 PM]

PN512

MR O'GRADY: Mr Cushion, could you tell the Commission your full name please, sir?‑‑‑Ian James Cushion.

PN513

What is your occupation, Mr Cushion?‑‑‑I'm the manager, network operations for Yarra Trams.

PN514

What is your business address?‑‑‑555 Bourke Street, Melbourne.

PN515

Have you prepared a witness statement for these proceedings?‑‑‑I have.

PN516

Could you have a look at this document for me, please. Is that a copy of your witness statement?‑‑‑Yes, it is.

PN517

To the best of your knowledge are the contents of that statement true and correct?‑‑‑Yes, they are.

PN518

I'd seek to tender Mr Cushion's statement, Commissioner.

PN519

THE COMMISSIONER: Yes, that's O4.

EXHIBIT #O4 WITNESS STATEMENT OF IAN JAMES CUSHION

PN520

MR O'GRADY: I have no further questions, sir.

PN521

*** IAN JAMES CUSHION XN MR O'GRADY

*** IAN JAMES CUSHION XXN MR HARDING

THE COMMISSIONER: Yes, Mr Harding.

CROSS-EXAMINATION BY MR HARDING [6.10 PM]

PN522

MR HARDING: Mr Cushion, you're aware aren't you that there is an intention of the part of Yarra Trams to cease services early from 9 am as the - in the lead up to the stop work at 10 am, as it's been announced by the union. You're aware of that?‑‑‑Yes, I am.

PN523

Then to roll them back out after 2 pm?‑‑‑Yes.

PN524

Paragraph 8 of your statement you refer to -

PN525

a risk at the uncontrolled, unsupervised shunting of trams may result in a collision or collisions between trams, particularly in the CBD and on multi-line corridors.

PN526

Do you see that?‑‑‑Yes.

PN527

The proposal - self-imposed proposal by Yarra Trams to alleviate that concern. That's right, isn't it?‑‑‑Yes, indeed.

PN528

If that proposal hadn't been adopted by Yarra Trams - I should ask, have you had an opportunity to read Mr Altieri's statement?‑‑‑Yes, I have.

PN529

You'll recall won't you, Mr Cushion, that he gives some evidence that tram drivers currently perform shunting operations on multi-line corridors such as Swanston Street, Bourke Street and the CBD and they're all fully trained?‑‑‑Yes.

PN530

In the ordinary course of their ordinary duties they have to be alert to the potential risk that you identify in paragraph 8?‑‑‑Yes.

PN531

It's also correct, is it not, that shunting is supervised by operations controllers in the operation centre control. Is that right?‑‑‑Yes, so we will give instructions.

PN532

Tram drivers are obliged to comply with those instructions?‑‑‑Yes.

PN533

Are you aware that Mr Altieri gives some evidence that the intention is that the controllers will remain on duty until the last tram is in the depot, if the union's proposal were to apply?‑‑‑Yes, I am.

*** IAN JAMES CUSHION XXN MR HARDING

PN534

It's right, is it not, that in those circumstances the controllers are capable of providing an instruction to tram drivers just as they would normally about how to shunt?‑‑‑It's a significantly higher number of tram shunting at the same time than would normally be the case.

PN535

Yes, but other than that fact as to the scale, there is no relevant difference is there between what would ordinarily occur and what - in terms of the ability to give directions, and what is being proposed by Mr Altieri?‑‑‑The situation is that on particularly multi-line corridors we have trams trying to shunt in opposing directions, to get back to different depots, which becomes the conflict points that we've highlighted within the documents.

PN536

In those circumstances though that's something that a tram driver might encounter in the ordinary course of performing their duties. Do you agree with that?‑‑‑It would be very unusual for two trams to be attempting to shunt at the same location.

PN537

But does occur?‑‑‑It would be extremely unusual for that to occur.

PN538

Now you say in paragraph 9 that a number of shunt areas cannot be safely used or can only be used in certain circumstances, and you give some examples there. Do you see that in paragraph 9 of your statement?‑‑‑Yes, I do.

PN539

Mr Altieri has given some evidence that if Yarra Trams was to prepare a list of those unsafe shunting spots, that information would be provided to tram drivers and they wouldn't shunt at those locations. Are you aware of that?‑‑‑I am.

PN540

That would resolve the concern you identify, would it not?‑‑‑In not using those locations, yes, it would.

PN541

Yes, it would. Mr Cushion, in paragraph 12 you give some evidence about the risk of passengers being stranded. You see that?‑‑‑Yes, I do.

PN542

You're aware, are you not, that Mr Altieri will give some evidence to the effect that drivers will be instructed to take passengers who require it to the next available accessible tram stop?‑‑‑I am, which may not be their destination.

*** IAN JAMES CUSHION XXN MR HARDING

PN543

No, that may be not their destination but it's possible, is it not, for Yarra Trams to make an announcement on the tram concerning the industrial action and the possibility of - and the effect that it may cause?‑‑‑Of course.

PN544

It's possible, is it not, for Yarra Trams to make an announcement in advance of the threatened industrial action on Thursday, so that passengers can make changes to their arrangements?‑‑‑To those who can receive those announcements, yes.

PN545

So the possibility of a stranding, as you refer to it, in paragraph 12 is you would accept merely a concern that you have rather than as a result of any particular evidence of any particular effect?‑‑‑It's a risk that we see as a real perceived risk.

PN546

It's a risk, is it not, if Yarra Trams - a particular risk if Yarra Trams has not informed the public about the impending action. Agree with that?‑‑‑I believe the risk we highlight is for those people that would not be aware or necessarily receive that information.

PN547

Are you able to say - can you give the Commission any evidence of who those people might be and what number they might be?‑‑‑Not directly, no.

PN548

Thank you, I have no further questions, Commissioner.

PN549

THE COMMISSIONER: Thank you.

RE-EXAMINATION BY MR O'GRADY [6.18 PM]

PN550

MR O'GRADY: Briefly, Commissioner. You were asked some questions regarding shunting being performed in the ordinary course of duties. Can you explain to the Commission what, if any, differences there are between shunting being performed in the ordinary course of duties and a proposal that as soon as possible after 10 am all trams would return to the depot and shunt accordingly?‑‑‑Yes, so where we'd be undertaking shunting in normal situations might be for a range of reasons. It might be in a situation where trams cannot continue beyond a certain point, so all trams would be asked to shunt at a certain location. In which case they would all take it in turn to shunt in that location and they would all be aware that they'd all been instructed to do that. Another situation might be that individual trams are running late and the next trip they have to do might be a take which puts them at risk of drivers not being in the right places or they're going for a meal and they might be late for their meal, in which case they'd be individually instructed to shunt on the road at an appropriate location. And there are typical locations along routes that are used for short shunting, that are known to be of good visibility, safe to use and provide the appropriate catch up time to return back on time. So there's known locations that are used regularly by drivers, and they're fully aware of what happens at those locations.

*** IAN JAMES CUSHION RXN MR O'GRADY

PN551

How does that compare with the proposal that as soon as possible after 10 o'clock, trams would return to the depot and perform a shunting manoeuvre, if necessary, at their nearest available shunt point?‑‑‑Yes, so in this situation we wouldn't have been - we wouldn't know which tram was undertaking a shunt at which location, so we wouldn't actually be assessing the number of trams around in terms of making a decision to shunt. We'd also have the risk of trams, for instance, going in different directions and shunting opposing each other, which even if they - which is a safety risk but also mainly to trams being in conflict or being locked and no trams actually being able to move.

PN552

You were asked some questions about controllers and their function in supervising shunting as part of their ordinary course. In respect of the proposed proposal that shortly after 10 am all of the trams that needed to perform a shunt would perform a shunt to return to depot, can you inform the Commission as to the capacity of control as to supervise that activity at that point in time?‑‑‑So normally on a day we would have of the order of 160 short shunts through the day. This proposal would effectively bring 300-and - I think it's about 357 trams we've got planned to be on the network at that point. So instead of spreading 106 activities across the course of the day, we'd be undertaking 357 activities in the space of a few minutes.

PN553

Yes, thank you. I have no further - sorry, how many controllers do you have?‑‑‑We normally have five on duty.

PN554

I have no further questions, Commissioner.

PN555

THE COMMISSIONER: Thank you. Thank you for your evidence, Mr Cushion. You can step down.

<THE WITNESS WITHDREW [6.21 PM]

PN556

MR O'GRADY: Those are the witnesses.

PN557

THE COMMISSIONER: We might have a short comfort break as it were but then we'll press on. So perhaps we'll break until - we'll break for 10 minutes or so. We'll resume at 6.35.

SHORT ADJOURNMENT [6.22 PM]

RESUMED [6.41 PM]

*** IAN JAMES CUSHION RXN MR O'GRADY

PN558

MR HARDING: I think, Commissioner, it falls to me and what I might do just by way of opening, if I could hand up an outline of argument which I've provided to my leaned friend before batting commenced today.

PN559

THE COMMISSIONER: Yes.

PN560

MR HARDING: His opening addressed what he alleged to be the difference between us in terms of how to assess the case. I think you will have gathered through the questions that have been asked of my learned friend's witnesses what the basic thrust of the RTBU's case will be. I think in many respects we're referring to similar authorities, although we have a difference as to how those authorities - what those authorities require you to - how you're required to approach section 424. I don't think at this stage that I will go much further into the outline, other than hand it up. I don't know if, Commissioner, you wish to mark it or wish to leave it until final submissions.

PN561

THE COMMISSIONER: Mark your outline?

PN562

MR HARDING: Yes.

PN563

THE COMMISSIONER: Yes, look, I will do that. I'm going to mark that but before I do, it's just reminded me there's the - there was the tram tracker document also. Did you seek to tender that?

PN564

MR HARDING: Yes, I did.

PN565

THE COMMISSIONER: Which I didn't mark. You didn't seek to tender it.

PN566

MR HARDING: No, the witness identified it.

PN567

THE COMMISSIONER: Yes.

PN568

MR HARDING: I don't need to tender it, Commissioner, in fact because I think his evidence was that it wasn't the particular tram tracker he was referring to.

PN569

THE COMMISSIONER: Yes, indeed.

PN570

MR HARDING: So it's really just a matter - - -

PN571

THE COMMISSIONER: I'll mark the outline as H1.

PN572

MR HARDING: Thank you.

EXHIBIT #H1 OUTLINE OF ARGUMENT

PN573

That being so, Commissioner, I propose to call two witnesses, and by agreement with my learned friend the first will be Carita Jane Karakoff(sic).

PN574

THE ASSOCIATE: Please state your full name and work address for the Commissioner.

PN575

MS KAZAKOFF: Carita Jane Kazakoff, 485 Latrobe Street, Melbourne.

<CARITA JANE KAZAKOFF, AFFIRMED [6.44 PM]

EXAMINATION-IN-CHIEF BY MR HARDING [6.44 PM]

PN576

MR HARDING: Ms Kazakoff, I think I called you Karakoff before. Is your name Carita Kazakoff?‑‑‑Yes, it is.

PN577

Is your work address 485 Latrobe Street, Melbourne?‑‑‑Yes, it is.

PN578

Are you an associate in the employ of Slater & Gordon?‑‑‑Yes, that's correct.

PN579

Have you prepared an affidavit for the purposes of this proceeding?‑‑‑Yes, I have.

PN580

Can I hand up a copy of a document. Is that the affidavit?‑‑‑Yes, it is.

PN581

Is it true and correct?‑‑‑Yes.

PN582

Commissioner, I tender that affidavit. I believe it has been filed.

PN583

THE COMMISSIONER: Yes, H2.

EXHIBIT #H2 AFFIDAVIT OF CARITA KAZAKOFF

*** CARITA JANE KAZAKOFF XN MR HARDING

PN584

MR HARDING: Ms Kazakoff, could I ask you to have a look at a document please and hand it up to the witness. Perhaps if you could hand it to the witness first, please. Can you tell the Commissioner what that is?‑‑‑It's a letter addressed to the partner at Thompson Geer Lawyers, which I emailed to Thompson Geer this afternoon, shortly before coming to court.

PN585

Thank you. I propose to tender that letter, Commissioner.

PN586

THE COMMISSIONER: Yes, H3.

EXHIBIT #H3 LETTER FROM CARITA KAZAKOFF TO THOMPSON GEER LAWYERS

PN587

MR HARDING: No further questions at this time, Commissioner.

PN588

THE COMMISSIONER: Yes, Mr O'Grady, sorry.

CROSS-EXAMINATION BY MR O'GRADY [6.46 PM]

PN589

MR O'GRADY: Thank you, Commissioner. Ms Kazakoff, you were present in court earlier this afternoon when Mr Harding described the nature of your evidence?‑‑‑Yes. Yes, I was.

PN590

He described it as being in essence you setting out what you had discovered by reference to a number of internet searches you had undertaken?‑‑‑Yes, he did.

PN591

It goes a little bit further than that, doesn't it, in that in the earlier part of your affidavit you also detail correspondence that you've engaged in with the solicitors acting on behalf of Yarra Trams?‑‑‑Yes, yes, those early paragraphs, that's correct. I do refer to that correspondence.

PN592

But it's fair to say, isn't it, that from paragraph 8 and following Mr Harding got it right that the effect of your evidence is to set out for the Commission matters that you discovered from internet searches you'd undertaken?‑‑‑Yes, that's correct.

PN593

You don't dispute the number of passengers that Yarra Trams asserts it carries on a typical week day?‑‑‑No.

*** CARITA JANE KAZAKOFF XXN MR O'GRADY

PN594

You've had an opportunity, haven't you, to have regard to Mr Edmiston's statement and in particular paragraphs 21 and 22?‑‑‑I have read it. I can't recall those particular paragraphs off the top of my head.

PN595

Well perhaps if you can be provided with a copy. If you can turn to paragraphs 21 and 22 and perhaps 23 as well. Mr Edmiston sets out patronage level at particular hours of the day. You don't take issue with that information?‑‑‑No.

PN596

You don't take issue with the description of the demographics of Yarra Trams customers that appears at paragraphs 24 and 25?‑‑‑I don't take issue with what's described at 24 and 25, no.

PN597

You would agree, wouldn't you, that a number of tram routes are convenient to hospitals?‑‑‑Yes, I would.

PN598

You're not in a position to say how many Yarra Trams customers use the tram service to attend those hospitals for medical appointments and the like?‑‑‑No, I'm not.

PN599

You have set out a number of alternative way of getting to the hospitals based on your web research. That's the case, isn't it?‑‑‑That's correct, yes.

PN600

You would accept that it's possible that some people who would have little difficulty in attending a hospital by way of a tram service, might not be able to use the alternative means that you've described in your witness statement?‑‑‑That some people might not be able to?

PN601

Yes?‑‑‑I suppose so, yes.

PN602

Somebody who had a walking difficulty might have - might not be able to walk the required distances?‑‑‑To access the alternative means that I describe?

PN603

Yes?‑‑‑Well it depends on the distances. I don't know.

PN604

You don't know. Somebody who was unfamiliar with Melbourne more generally but who did know that a particular tram went past their hospital might be or might have difficulty in using some of the alternative routes that you've described?‑‑‑They might have difficulty, yes.

*** CARITA JANE KAZAKOFF XXN MR O'GRADY

PN605

Now you have set out in paragraph 37 some other means of transport?‑‑‑That's correct, yes.

PN606

You've attached at exhibit CJK12 and following documentation associated with some of those other means of transport?‑‑‑Yes, I have.

PN607

You haven't provided any evidence as to the capacity of those alternative means of transport?‑‑‑No, I have not.

PN608

You would agree with me that if we're only talking about one per cent of Yarra Tram users during a relevant period not being able - or having to access these alternative means of transport, we're talking about approximately 2300 people?‑‑‑That 2300 is one per cent of the total number of users of Yarra Trams on a daily basis?

PN609

During the affected period?‑‑‑Yes.

PN610

You're not in a position to say whether those alternatives that you've described would be capable of handling anything like that additional traffic, are you?‑‑‑No, I'm not.

PN611

As is apparent from the exhibits you've attached to your statement, there are a number of limitations associated with the provision of the services that you've described aren't there?‑‑‑There are - yes, there are some limitations and some different eligibility criteria for different services.

PN612

It's apparent from those attachments that unless you meet that eligibility criteria you're not able to access the services that you've referred to in your statement?‑‑‑I think that's right, yes.

PN613

You're not in a position to give the Commission any inside into how many of the Yarra Trams users who might be using Yarra Trams to access hospitals meet or don't meet those criteria, are you?‑‑‑No, I'm not.

PN614

I've no further questions, Commissioner.

PN615

THE COMMISSIONER: Anything arising, Mr Harding?

PN616

MR HARDING: No, thank you, Commissioner.

*** CARITA JANE KAZAKOFF XXN MR O'GRADY

PN617

THE COMMISSIONER: Thank you, Ms Kazakoff. You can step down.

<THE WITNESS WITHDREW [6.52 PM]

PN618

MR HARDING: The next witness is Mr Phil Altieri.

PN619

THE ASSOCIATE: Please state your full name and work address for the Commission.

PN620

MR ALTIERI: Philip Altieri, Level 2, 365 Queen Street, Melbourne.

<PHILIP ALTIERI, SWORN [6.53 PM]

EXAMINATION-IN-CHIEF BY MR HARDING [6.53 PM]

PN621

MR HARDING: Mr Altieri, is your full name Philip Altieri?‑‑‑Yes.

PN622

Is your professional address 365 Queen Street, Melbourne?‑‑‑Yes, it is.

PN623

Is your occupation the National President of the Australian Rail, Tram and Bus Industry Union?‑‑‑Yes, it is.

PN624

As well as the Assistant Secretary of the Victorian Branch and the Secretary of the Tram and Bus Division of that branch?‑‑‑That's correct.

PN625

Mr Altieri, have you made a statement for the purposes of this proceeding?‑‑‑Yes, I have.

PN626

Have you read it recently?‑‑‑Yes, I have.

PN627

Do you wish to make any corrections?‑‑‑No.

PN628

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

PN629

I tender that statement, Commissioner, which I believe has been filed.

*** PHILIP ALTIERI XN MR HARDING

PN630

THE COMMISSIONER: That's right. I'll mark that H4.

EXHIBIT #H4 WITNESS STATEMENT OF PHILIP ALTIERI

PN631

MR HARDING: Mr Altieri, just one question. Are you aware whether or not there was a bargaining meeting yesterday?‑‑‑Yes.

PN632

There was?‑‑‑Yes, there was.

PN633

Are you aware of - do you know Ms Aline Frantzen?‑‑‑Yes, I do.

PN634

Who is she?‑‑‑She's the director of lines for Yarra Trams.

PN635

Were you present at the meeting?‑‑‑Yesterday I was, yes.

PN636

Was there a meeting today?‑‑‑Yes, there was a meeting this morning.

PN637

Were you at that meeting?‑‑‑No, I wasn't able to attend that meeting.

PN638

Were there representatives of the RTBU at that meeting?‑‑‑Yes, there were.

PN639

Are you able to say to the Commission who they were?‑‑‑Yes, there was Mark Teasdale, the President. We also had individual representatives for the authorised officers Theo Mitsios, representative for depot starters Danny Filaire, yes, and that was for the - well that was the people there on behalf of the unions.

PN640

Have you had any conversations with those people about what occurred during that meeting?‑‑‑Yes, I have.

PN641

Yes, and - - -?‑‑‑Excuse me, Commissioner, there was one more and that was Mark Moran from the RTBU, I forgot to mention him.

PN642

Did they advise you or inform you, rather, about whether Ms Frantzen said anything at that meeting concerning the number of buses?‑‑‑Yes, they did inform me about the buses.

*** PHILIP ALTIERI XN MR HARDING

PN643

What did they say?‑‑‑I believe that Mark Teasdale asked a question initially, Commissioner, in that have you made any arrangements for buses to replace trams, and the answer forthcoming was that there's 250 buses available, however we're using about 100 of those.

PN644

Thank you. No further questions, Commissioner, at this stage.

PN645

THE COMMISSIONER: Mr O'Grady.

CROSS-EXAMINATION BY MR O'GRADY [6.56 PM]

PN646

MR O'GRADY: Thank you, Commissioner. Mr Altieri, you were present in the precincts of the court room when the Commissioner made an order for witnesses out of court?‑‑‑Which proceeding was that, sorry?

PN647

This one here?‑‑‑Four weeks ago?

PN648

No, no, today, this afternoon?‑‑‑Yes, of course, yes.

PN649

You understand that the object of that is that you shouldn't be informed as to what's been going on in the proceeding before you give your evidence?‑‑‑Yes, that's correct.

PN650

You had a discussion with a number of individuals who were present in the court room during the break that we had just prior to you coming into the witness box. That's right, isn't it?‑‑‑No, I wouldn't say it's a discussion. It was a quick hello and walked past. So I wouldn't say it was a discussion.

PN651

Now you have made two witness statements associated with this proposed industrial action, haven't you?‑‑‑Last week's and this week's yes.

PN652

They're different in a number of respects, aren't they, Mr Altieri?‑‑‑To the extent that it's been updated?

PN653

Well it's more than that, isn't it?‑‑‑I'm not sure what you mean.

PN654

Well could you have a look at a copy of the statement that was tendered last time. If you could have a look at paragraph 20 and 22 of the statement to start with. That's a copy of the statement that you prepared for last week's hearing, isn't it, Mr Altieri?‑‑‑I believe so.

*** PHILIP ALTIERI XXN MR O'GRADY

PN655

In paragraph 20 and 22 you deal with the issue of passengers being stranded part way through the journey?‑‑‑Yes, I'll just finished reading that with your indulgence. Yes, that's correct.

PN656

The solution you suggest in those paragraphs is that Yarra Trams cease providing services prior to 10 o'clock to prevent people from being stranded part way through the journey?‑‑‑That's one solution, yes.

PN657

Well that's the solution that you've put forward, isn't it?‑‑‑In that paragraph.

PN658

Indeed, you go onto say that this has occurred many times in the past, in the 80s, the 1990s and 2001?‑‑‑That's correct.

PN659

You make no mention of that solution in the statement that you filed for today's proceedings, do you?‑‑‑No, I don't believe so.

PN660

You'd agree with me that as far as stopping or avoiding the situation where somebody is stranded part way through a journey, the only viable option that Yarra Trams has is to cease rolling out trams, so as to ensure that each tram actually completes its scheduled route before returning to the depot by 10 o'clock?‑‑‑I'm not sure that's correct. It's not the only option.

PN661

Well the reality is, Mr Altieri is that if I'm on a tram, let's say it's a 75 tram heading out to Vermont South, and I get to Springvale Road, if a tram turns around and comes back towards the depot I'm going to be stranded, aren't I?‑‑‑It depends where you're going, I guess.

PN662

Well if I'm going to Vermont South?‑‑‑Potentially, yes.

PN663

The only way to avoid that is to not commence that journey so as to ensure that trams are not turned around halfway through proposed routes?‑‑‑That's correct.

PN664

You'd agree with me that that poses a significant risk to individuals, that they might be stranded some five kilometres from where they're trying to get to?‑‑‑No, I don't think that's correct.

PN665

Well you'd agree with me that there is that risk, that if I'm heading out to Vermont South and the tram stops, whether it be at Springvale Road or at Deakin University, I'm stranded?‑‑‑Potentially, yes.

*** PHILIP ALTIERI XXN MR O'GRADY

PN666

Not everybody who travels on the tram network has the access or has the funds to pay for a taxi to allow them to complete their trip?‑‑‑That would be correct, yes.

PN667

Not everybody who travels on the tram network has a mobile phone?‑‑‑Not necessarily, yes.

PN668

You'd agree with me that people who travel on the tram network often listen to music using headphones and the like?‑‑‑I don't know that that's quite right. I wouldn't say a lot of people, some people.

PN669

Some people do. Some people have difficulties with English communications?‑‑‑In some cases I would think so.

PN670

To the extent that there are people who use the tram network who either aren't listening or can't understand English communications, they wouldn't be assisted by announcements from tram drivers, as to proposed stoppages or when the tram's going to turn around. That's the case, isn't it?‑‑‑No, that's not correct because we don't have a ban on announcements.

PN671

But if I don't understand English, I don't know what the announcement is, Mr Altieri?‑‑‑Quite often, Commissioner, a tram driver will be having a conversation with a passenger that has some extra queries. That's not unusual for a tram driver to do that, to let that person better understand what the situation might be.

PN672

I understand that, Mr Altieri, but my proposition remains a sound one, doesn't it, that if I don't understand English, I won't be able to understand the announcement?‑‑‑If that's the case.

PN673

If I'm not paying attention to announcements, I may not even realise an announcement's been made?‑‑‑That could be the case.

PN674

Thank you. Now you also deal with the issue of supervised and controlled shunting in your statement. You would agree with me that there is a difference between shunts occurring spasmodically over the course of the day and all trams committing a shunting operation within a relatively short period after 10 am in the morning?‑‑‑I'm not sure what you mean by that question.

*** PHILIP ALTIERI XXN MR O'GRADY

PN675

You'd agree with me that it is unusual and indeed I put it to you it has never happened in recent history that all approximately 300 trams that might be using the network at a particular time, commit a shunt at 10 o'clock or just after 10 o'clock?‑‑‑Last time would have been 1997.

PN676

You understand, don't you, that normally, in the normal operations of the tram network it would be unlikely that there would be that many shunts in an entire day, let alone within the course of a few minutes?‑‑‑There is a lot of short shunting that does go on but the number would be greater definitely, yes.

PN677

You'd agree, wouldn't you, Mr Altieri, that the number of shunts we're talking about here, approximately 300, could not be supervised by the five or so controllers that might be on duty at any particular time?‑‑‑They don't necessarily need to be.

PN678

No, well that's another question but you'd agree that it's just impossible?‑‑‑Yes, sure.

PN679

That's different from what happens when shunting occurs in the ordinary course of things, in that if there is an accident that blocks a road or the like, then people - Yarra Tram organises how the shunting is to take place in order to minimise risk associated with it?‑‑‑Not always. Sometimes the driver carries out their own shunting procedures, without supervision.

PN680

That's in exceptional circumstances isn't it, Mr Altieri?‑‑‑Well it happens very often, in every day running. I mean we're not talking a particular circumstance. At the end of the terminus, for instance, there are hundreds of shunts every day that the tram drivers do totally unsupervised.

PN681

I understand that but we're talking about at the end of the terminus where the terminus has been designed with a view to minimising the risk associated with the shunt?‑‑‑Or - yes, that's correct but there's also short shunting that drivers do on a daily basis, not at the terminus, before the end that are not supervised. Many, many of those happen daily.

PN682

I'll put it to you that there's less than - well there's certainly less than the 300 that we're talking about engaging in, in the course of the five or 10 minutes after 10 o'clock?‑‑‑That's correct.

*** PHILIP ALTIERI XXN MR O'GRADY

PN683

You'd agree with me that there are particular risks associated with multiple shunts occurring at the same time. You might have a situation where trams are shunting, if you like, in the opposite direction so that they can go to different terminuses?‑‑‑Tram drivers are very well trained to cope with these sort of situations.

PN684

I didn't ask you that, Mr Altieri - - -?‑‑‑Well I don't believe there's a big risk because as I say, tram drivers are very well trained to deal with those situations. So I don't believe there's a high risk.

PN685

Mr Altieri, I thought you gave evidence a moment ago that we're talking about in excess of 10 years since there was the last occasion that this number of shunts were committed over a very short period of time?‑‑‑Yes, that's correct.

PN686

So how often are tram drivers trained in the manoeuvre of the 300 tram shunting technique?‑‑‑They're not trained for that obviously.

PN687

You'd agree that if trams do collide when they're engaged in this activity of reverse shunting, there is a potential to completely block the tram line?‑‑‑If there's an accident.

PN688

Were that to happen, that could have all sorts of consequences, not just to tram users but also to the broader public because of the blockages that would occur on the various roads used by trams?‑‑‑I'm not sure that that's the case.

PN689

You're aware of tram accidents that have occurred in the past?‑‑‑Yes, I am, yes, quite a number.

PN690

That has caused quite significant disruption to the tram network?‑‑‑Most of the time I wouldn't say that's the case. The tram's usually in the middle of the road. It might upset tram traffic but it wouldn't necessarily upset motor car traffic.

PN691

You understand don't you, Mr Altieri, that many of the roads that trams use, drivers drive motor vehicles behind the tram as well as alongside?‑‑‑In every road in Melbourne there is also a carriageway next to the tram that motor vehicles can access.

PN692

Sometimes cars park in that carriageway?‑‑‑There is parking on the side of the road but to the best of my knowledge there would still be enough room for a single carriageway to have access.

PN693

Thank you. You'd agree with me that there are a great number of people who use the service provided by Yarra Trams in the course of a normal weekday?‑‑‑Yes, that would be correct.

*** PHILIP ALTIERI XXN MR O'GRADY

PN694

You don't dispute that in the period of say 9 am to 4 pm we're talking about approximately 230 passengers?‑‑‑I couldn't give you an exact figure.

PN695

You understand, don't you, Mr Altieri, that it's not usual for all of the trams to be in the various depots at 2 pm on a weekday?‑‑‑Yes, that's correct. It's not usual.

PN696

Are we once again going back to the 1990s when we talk about the last time that happened?‑‑‑No, it would have been 1997.

PN697

You accept don't you that a number of the tram depots are located on major roads?‑‑‑Yes.

PN698

That it would take time for those trams to leave the depot and resume running after 2 pm, if they all had to come through the traffic on those roads?‑‑‑Depending on the depot it would be approximately one hour.

PN699

Why do you say that, Mr Altieri?‑‑‑Well, from past experience and I also know from Mr Lettoof's statement he verifies that it would take his depot about one hour to get back to normal.

PN700

Your past experience is based upon what happened in 1997?‑‑‑And previous to that, yes.

PN701

You'd accept that traffic has got worse not better in the intervening 18 years?‑‑‑Yes, there's more traffic on the roads. I don't think anybody can dispute that.

PN702

Even if it took, say, an hour to get back out on the road it would be far longer than that, wouldn't it, before normal services were resumed?‑‑‑There's various ways that it can happen. It depends on how Yarra Trams want to arrange that.

PN703

I put to you that irrespective of how Yarra Trams wants to arrange it, there would be a significant delay before normal services were resumed after 2 pm?‑‑‑Significant to what extent? I couldn't tell you, yes.

PN704

Let's take the 75 tram. That's a trip of approximately 45 minutes or thereabouts from depot to the terminus in Vermont South?‑‑‑Thereabouts.

*** PHILIP ALTIERI XXN MR O'GRADY

PN705

So at the very least it would be 45 minutes before people who wanted to get a tram to get to Vermont South, that last part of the trip, were able to catch a tram. You'd accept that?‑‑‑It would be fairly right.

PN706

Indeed if you were actually wanting to come back into town, so let's say you were trying to get on a tram at Camberwell Junction, it'd be the 45 minutes for the tram to get all the way out there and then there'd be maybe another half an hour or 40 minutes before the tram had made its way back into Camberwell Junction?‑‑‑Well again, it depends on how that runs out. You wouldn't run trams out just one way in making up the service, you'd run them both ways. I mean it's not up to me to say that but that's what I would be doing.

PN707

Well there's no depot, is there, out past Vermont South?‑‑‑No.

PN708

So to get out there you've got to run a tram from one of the depots located towards the centre of the city all the way out, and then they have to come all the way back?‑‑‑Well you don't necessarily run it all the way out. You could shunt halfway through to cut that time down. There's lots of different options that could be utilised.

PN709

Well it you were to take that option, that would mean that people who wanting to get out to Vermont South couldn't necessarily catch the first tram that was labelled as a 75?‑‑‑Depending on what is used. You'd stagger it, you wouldn't do them all the same.

PN710

You'd agree with me that having some degree of certainty as to where the tram's going and when it's going to arrive, is a very important part of public transport usage?‑‑‑Yes.

PN711

I put it to you that it's not until sometime around 5 pm after the industrial action, that there is going to be any real degree of certainty as to when trams are going to be turning up at particular stops and taking passengers to where they want to go to?‑‑‑I don't think that's correct.

PN712

I have no further questions, Commissioner.

PN713

THE COMMISSIONER: Anything arising?

RE-EXAMINATION BY MR HARDING [7.14 PM]

*** PHILIP ALTIERI RXN MR HARDING

PN714

MR HARDING: Mr Altieri, you were asked a question about whether it would be possible for the controllers to supervise - five or so controllers to supervise 300 or so trams that were coming into the depot, and you said no, but you prefaced that answer by saying they don't need to be. What did you mean by that?‑‑‑Well as I said earlier, tram drivers are very well trained and that's - they need to be competent in shunting procedures. But having said that also, there are a number of officers, operational officers, that would be available. You have depot starters at every depot, there's four of those. You have operations officers that are mobile that will also do that. You also have traffic officer drivers that act as officers, and if they're running in, they're running in at the eight locations. So there would be officers at all those eight - well, you would assume there would be officers available to be at all those eight locations. So the fact that they could be supervised but to the extent that they can't be supervised, tram drivers are fully versed with how to shunt a tram into the depot.

PN715

Thank you. No further questions, Commissioner.

PN716

THE COMMISSIONER: Thank you, Mr Altieri, you can step down.

<THE WITNESS WITHDREW [7.16 PM]

PN717

Mr O'Grady.

PN718

MR O'GRADY: Yes, thank you, Commissioner. Commissioner, as Mr Harding said in opening the parties are generally referring you to the same authorities but as he also noted, perhaps to different effect. It's apparent from Mr Harding's outline and indeed the lines of cross-examination that he pursued with Yarra Trams' witnesses that he seeks to resist this application on the basis that you shouldn't speculate. In effect, unless Yarra Trams was to call individuals who could definitely attest to the fact that they would be impacted upon as to their welfare by virtue of this industrial action then there's not a basis for the making of the orders that we seek.

PN719

With the greatest of respect, in my submission, that submission is wrong and contrary to authority, and overlooks the numbers. At the end of the day, Commissioner, as you would have gathered from the material that Yarra Trams has filed, Yarra Trams relies very significantly on the numbers. We are talking here about 230,000 people potentially impacted over the period of time that we're concerned with.

*** PHILIP ALTIERI RXN MR HARDING

PN720

Now I accept that not all of those 230,000 people are going to be inconvenienced between the hours from 10 until 2, but the evidence in my respectful submission is clear that as a direct result of the industrial action, Yarra Trams has no option but to take the steps that it is proposing to take, as far as winding down the service earlier, and the physical difficulties associated with the egress of the large numbers of trams that are in depots takes one to the 4, 5 o'clock in the afternoon period. In my respectful submission, so much was in effect admitted by Mr Altieri in that he acknowledged that the word arounds that he was proposing would inevitably engender an additional level of uncertainty associated with the tram service.

PN721

In addition - - -

PN722

THE COMMISSIONER: You accept, don't you, that the earlier winding down removes the concern about the stranded passengers scenario.

PN723

MR O'GRADY: Yes.

PN724

THE COMMISSIONER: Yes.

PN725

MR O'GRADY: I do, Commissioner, but in my submission the RTBU can't have it both ways. They can't on the one hand suggest well, that there are - - -

PN726

THE COMMISSIONER: That the stoppage doesn't have an effect for a longer period of time - - -

PN727

MR O'GRADY: Precisely.

PN728

THE COMMISSIONER: - - - at the same time. No, I get that point.

PN729

MR O'GRADY: So our case is clearly premised - - -

PN730

THE COMMISSIONER: Does it also remove the issue of the shunting risk?

PN731

MR O'GRADY: Yes.

PN732

THE COMMISSIONER: That is the winding down earlier.

PN733

MR O'GRADY: That is the winding down earlier. But where that leaves you is that as a direct consequence of industrial action we're talking about disruption to the service commencing at 9 am and not being removed from the service until 4 or 5 o'clock in the afternoon. That then leads you to the 230,000 people and you would have seen in Mr Edmiston's witness statement, we've actually taken the steps to breaking these groups of people up into hour blocks in paragraph 22, so that even if you don't accept everything I'm putting to you, you still have a basis for performing the calculation that shows that we are looking at something around 200,000 people who are going to be unable to catch trams to get to their destination.

PN734

Once you accept those figures and once you accept the demographics that are described in paragraphs 24 and 25 of Mr Edmiston's witness statement concerning both the age groups that we're concerned with, and the concession holders who use the tram network, it flows that there are going to be a significant number of people who are going to be impacted on by the stoppage in respect of attending medical or other appointments that cannot or cannot easily be re-scheduled. That's just a function of the maths, in my respectful submission, Commissioner. If you say we have a service that is providing transport for 230,000 people or 200,000 people that is not going to run, then there are going to be a lot of people who are not going to be able to attend appointments that cannot be, or easily be, re-scheduled. Now, whether it is ‑ ‑ ‑

PN735

THE COMMISSIONER: I can't glean that from the evidence, can I? I can glean that they won't be able to get there on a tram.

PN736

MR O'GRADY: Yes.

PN737

THE COMMISSIONER: And they'll be impacted to that extent. But I can't necessarily conclude, can I, that but you tell me if I can that they can't get there at all.

PN738

MR O'GRADY: Well, in my respectful submission, the numbers are so great, you can. It might only be five per cent of those tram users who are using a tram to get to an appointment.

PN739

THE COMMISSIONER: Yes.

PN740

MR O'GRADY: And even if you proceed on the basis that four of those five per cent can make alternative arrangements, you're still dealing with in excess of 2000 people. Now, there might be a far higher number. Now, we're not in a position where we can call individuals who say, "I have this appointment on this day", that's not surprising, in my respectful submission, given the nature of the proposed action. But we can point to the numbers, and we can point to all of the whittling away, and you might recall Mr Harding's cross-examination where you can't say they might not have a friend who can pick them up, or they might have money to buy a taxi. I'm sure there will be a number of people who are in that position, but equally it flows there will be a number of people who will not be. And, in my respectful submission, the nature of the disruption, and the numbers that are before you are such that you can be confident in inferring that there will be significant numbers of people who have their welfare impacted upon in the way that's alleged in the application.

PN741

And in that ‑ ‑ ‑

PN742

THE COMMISSIONER: Just while you're on that point.

PN743

MR O'GRADY: Yes.

PN744

THE COMMISSIONER: The test is not that their welfare is impacted upon, is it?

PN745

MR O'GRADY: No.

PN746

THE COMMISSIONER: It's that it's going to has threatened, is threatened, or will threaten to endanger their welfare.

PN747

MR O'GRADY: Yes.

PN748

THE COMMISSIONER: Yes.

PN749

MR O'GRADY: Yes. And so what ‑ ‑ ‑

PN750

THE COMMISSIONER: What am I to make of that?

PN751

MR O'GRADY: Well, in my respectful submission, the first point I'd make is that you don't have to find there is going to be any impact, just a potential impact, that's what the word "threatened" means. And then one comes to the authorities concerning threatened and perhaps if I can take you to the decision of Kaufman SDP in the Metropolitan Ambulance Service case where he set out the definitions. You'll see at paragraph 64 the Senior Deputy President refers to the Macquarie dictionary definition of "endanger":

PN752

To expose to danger and peril.

PN753

THE COMMISSIONER: Yes.

PN754

MR O'GRADY: And then to the shorter Oxford English dictionary:

PN755

Expose a person to infringement of his or her rights, make liable to punishment by another person, put in danger, incur the risk of chance.

PN756

And, in my respectful submission, cause the danger of make probable someone untoward, and, in my respectful submission, in this context what we're really dealing with is incurring the risk of "or chance". So when section 424 speaks in terms of endangering or threatening to endanger the welfare of part of the population, the question is whether or not the protected action threatens to put that welfare at risk, and, in my submission, it clearly does so. And you will see, in paragraph 66, the Senior Deputy President makes a point that's picked up in a different context in the Monash University case, that the focus is, of course, on the words used in the Act and it's not part of the Commission's task to find that the industrial action would cause serious hardship, or even significant harm, as was made clear by the Full Bench in the Monash University case.

PN757

So, in my submission, there is clear evidence that would enable you to be satisfied that there is a threat that the welfare of part of the population will be put at risk by this proposed action, and, as I said in my submission, that flows clearly from the numbers, and the fact that we are not confined to stoppage between 10 and 2 but we are dealing with a far larger practical effect.

PN758

Could I take you then to the Monash University case. And, in particular, that part of it dealing with the cross-appeal at paragraph 16 and following. And as you may recall, Commissioner, the issue in the cross-appeal was whether or not the Vice President had misapplied what had been cited in the University of South Australia and you'll see in paragraph 17 the ground of appeal, mainly that the Vice President had applied a test that required that there be exceptional circumstances or that the threat be clear and the endangerment be significant, and that the threat of endangerment to the health, safety or welfare must be sufficiently large to attract the description as significant was dealt with.

PN759

And then in paragraph 18 the Full Bench sets out what the Vice President had decided, and, in paragraph 19, found that, with respect to him, he got it wrong, because what he had done was that he had picked up language from the explanatory memoranda and the like and had imported that in to the statutory test. And you'll see, in paragraph 19, the Full Bench, in referring to Baini v Queen says that the focus has to be on the language in the section:

PN760

There is no substitute for giving attention to the precise terms in which that provision is expressed. Paraphrases of the statutory language, whether found in parliamentary or other extrinsic materials or in cases decided under the Act or under different legislation, are apt to mislead if attention strays from the statutory text. These paraphrases do not, and cannot, stand in the place of the words used in the statute.

PN761

And then in paragraph 20 the Full Bench continues:

PN762

In NTEU v University of South Australia we do not consider that the Full Bench, by its use of the expressions "exceptional circumstances" and "significant harm" in the passages quoted in the Decision, was intending to establish criteria or tests in substitution for or in addition to those found in the language of section 424(1) itself. Rather the Full Bench used those expressions only to characterise the legislative intention that could be gleaned from the Explanatory Memorandum - - -

PN763

It is no doubt the case that the circumstances which would satisfy the criterion in section 424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm. However, that does not mean that in determining any particular case, expressions of that nature not to be found in the actual language of the statute should be determinative of the outcome, and we do not understand the NTEU v University of South Australia to stand for any contrary proposition.

PN764

In determining the matter on the basis that the threatened endangerment to health and welfare was not "sufficiently large to attract the description 'significant'", his Honour applied an incorrect, exteriorly derived test. It is not mere semantical nitpicking to find error on the basis of his Honour's use of the word "significant" in this way; his Honour's own reasoning makes it transparent that his application of the standard of "significant harm", which he regarded himself as bound to do by NTEU v University of South Australia, altered the outcome of the case.

PN765

So, in my respectful submission, what that does is takes you back to the language in the Act, and the ordinary dictionary definitions of the words "endanger" and "welfare" and I've set those out in the outline of submissions that we filed, and ask yourself whether there is evidence to satisfy you that, in respect of a part of a population, there is such a threat. And then, in my submission, it really comes back to a question of the numbers.

PN766

And whilst it might be said that this is an attempt by the RTBU to engage in a stoppage of work and that often that doesn't involve a sufficient trigger for suspension or termination of the industrial action under section 424, one has to, in my respectful submission, have regard to what is the work that is being performed and what are the consequences of the stoppage going to be. And there may be, in many work places, where a four-hour stoppage would not provide an adequate trigger, but here, when you have regard to the numbers of people involved, the integral nature of the transport system, and what people use it for, there is, in my submission, almost an inescapable conclusion that a great many people will have their welfare impacted and accordingly the statutory prerequisites will be satisfied. If the Commission please.

PN767

THE COMMISSIONER: just before you sit down. There's been a lot of canvassing of evidence about mitigation, and appropriately so. And well I'll put this, the query is really about whether more could have been done to mitigate. There's been a discussion about the numbers of buses that may or may not be available. My query to you is really what do you say I should make of that to the extent that I may be satisfied or not that more could have been done. Where does that weigh in terms of my consideration?

PN768

MR O'GRADY: Well, in my respectful submission, the issue is what is the threat posed by the industrial action, and it's been suggested, as I understand the questioning, that Yarra Trams hasn't done anything other than engage in good faith in attempts to mitigate or reduce the impact to its passengers. Whilst there has been some uncertainty in respect of a number of buses, the proposition that a tram, a bus for tram replacement service just isn't viable wasn't challenged in cross-examination. And as I understand it the effect of Mr Edmiston's evidence is that there are problems with simply dumping buses on to the roads in any event. So what you have before you is, in my submission, evidence of Yarra Trams having turned its mind to what it can sensibly do. I think I used the language of triage in my opening earlier this afternoon, but work out, well, what can it do to alleviate some of the problems without adding other ones, and it has engaged transport providers to try and do that.

PN769

In respect of the communications which seemed to be the other limb that was being sort of thrown up as mitigation, in my respectful submission, Mr Edmiston's evidence as to not wanting to engender confusion and wanting to await the outcome of this application, before announcing those sorts of measures, should be accepted by the Commission. It's a perfectly understandable and reasonable approach in circumstances where Yarra Trams has been engaging in negotiations with the RTBU trying to find a resolution of the dispute and has foreshadowed that if there was to be industrial action of this nature it would be bringing an application of this type to the Commission. And that was clearly communicated by what it did last week and again this week, so, in my submission, there really can be no criticism of Yarra Trams in either regards because, to make an announcement causes problems in itself, and impacts upon the welfare of people.

PN770

So a grandmother who normally uses a tram to go and look after her grandkids might say, "Well, I can't do it, because I can't get there", so the mother then has to take a day off work. It's not something that Yarra Trams could do lightly and, in my respectful submission, they shouldn't be criticised for not having done it when they wanted to agitate their rights in this application.

PN771

THE COMMISSIONER: Yes. All right. Thank you.

PN772

MR O'GRADY: Thank you.

PN773

MR HARDING: Commissioner, perhaps I can start and I realise I'm taking my learned friend by surprise in relation to this, but it's just been handed to me, and I can hand it to him, and I want to rely on it. It's some information that has come up on the Yarra Trams website concerning Thursday, and providing some advice to the general public about what to do in that event. Obviously I cannot oppose in the event Mr O'Grady wants to get some instructions then I'm happy for him to do so, but that's what's happened.

PN774

THE COMMISSIONER: Just let me read it.

PN775

MR HARDING: Yes.

PN776

THE COMMISSIONER: You're saying this has just been posted on the web?

PN777

MR HARDING: So far as I'm aware, yes, Commissioner. Do you have any opposition to tendering it?

PN778

MR O'GRADY: I don't have any objection to you tendering it.

PN779

MR HARDING: I tender it, Commissioner.

PN780

THE COMMISSIONER: All right, H6. The planned industrial action on 27 August, Yarra Trams Bulletin.

EXHIBIT #H6 YARRA TRAMS BULLETIN ADVISING PLANNED INDUSTRIAL ACTION DATED 27/08/2015

PN781

THE COMMISSIONER: Yes, Mr Harding?

PN782

MR HARDING: Yes. Commissioner, my learned friend has agreed with my earlier submission concerning the authorities that we're both referring to, and the differences perhaps between us in relation to how those authorities ought to be understood in applying the test, and he's made some submissions about that, and of critical importance, Commissioner, and one that is completely overlooked in Mr O'Grady's submissions is that the starting point for analysis is that these employees have a right to take protected industrial action.

PN783

In short, Mr O'Grady would lower the bar so far as by his way of engaging section 424, subsection (c), that almost any disruption or inconvenience that might be suffered by the general public would trigger the section and cause the termination and the loss of the benefit of this valuable right. Which all the authorities refer to, and that would undermine the scheme of the Act, which is principally concerned, in relation to enterprise agreements, with parties seeking to and striving to reach agreement by means of good faith bargaining. But in the event that one or other parties wishes to take industrial action, then there is a process by which that is to occur, and that process has been followed, and the industrial action on Thursday is an aspect of the industrial action that's been notified.

PN784

Now, no issue has been taken by Mr O'Grady with that, but the starting point is that there is a balance between the exercise of the right on the one hand and the engagement of the defence, if I can call it that, in section 424, to suspend or terminate industrial action in the circumstances that are set out in the provision. Now, my learned friend has referred you to the decision of NTEU v Monash University, and you've presumably got that in front of you.

PN785

THE COMMISSIONER: Yes.

PN786

MR HARDING: And he says, look, in short, the way in which we say the case ought to be understood is wrong, and that it somehow or other engages with the way Lawler VP decided the case, which the Full Bench held was wrong. Well, no, that's not correct at all. What paragraph 20 of the Full Bench says is that they recognise, firstly, that the explanatory memorandum in the Fair Work Bill constitutes a statement of legislative intention and, in our submissions, you'll see at paragraph 10, we've identified, we set out an extract from NTEU v University of South Australia, which talks about and extracts the explanatory memorandum.

PN787

At 15 of the Full Bench's reasons they say:

PN788

Whether in a particular case the exceptional circumstances for making of the order suspending or terminating protected industrial action under section 424 have arisen will be a matter to be determined on the consideration of all the circumstances.

PN789

And likewise in the Monash University decision their Honours and Commissioner say:

PN790

It is no doubt the case that the circumstances which would satisfy the criterion are likely to be exceptional in the sense of being atypical and out of the ordinary and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm.

PN791

Now, that's not to impose an additional test that the Act doesn't contain, it's rather a recognition of the balance that I have referred to whereby we have a right, on the one hand, to take industrial action that is only qualified by what's set out in the provision. And so for you to do what Yarra Trams is urging you to do is to take an exceptional course that, in my submission, requires you to be satisfied on the evidence that there is, as section 424 says, an endangerment, an actual endangerment.

PN792

Now, the case has been put by Yarra Trams on the basis that there's a threatened endangerment and all you need to be satisfied of is somehow or other that there is going to be the effect that it, or it could be, the effect that it posits. In my submission, and the authorities say, you have to be satisfied that there's a probability that that will occur. And that simply can't be made out on the evidence.

PN793

If I can take you to a couple of authorities just on the proposition that I've advanced. Firstly, my learned friend took you to a decision, I think, of Kaufman SDP. You will see - on the subject of the word "threatened" and you'll see that's in paragraph 8 of the outline, we've set out an extract from Giudice J in Coal and Allied and the CFMEU, and if I can hand up that case to begin with. And the extract is found on page 32 of his Honour's reasons. And you'll see about half-way down there's a sub-heading 6.4 Causative of Harm to Specified Public Interests.

PN794

THE COMMISSIONER: Yes.

PN795

MR HARDING: And his Honour says in the context of the verb:

PN796

In the context the verb is threatening to may be given its ordinary meaning.

PN797

And that's the source of the extract, but if you go on down to the next paragraph:

PN798

In the context the words "to endanger" and "to cause" each import a direct relationship and a relatively high degree of causative impact in producing the specific danger or damage.

PN799

Likewise, in the Full Bench decision of Victoria Hospitals Industrial Association and ANF, a decision of Boulton J, Acton SDP and Lewin C. On page 160 of their Honours and Commissioner's reasons under the heading Consideration, at paragraph 49 they state:

PN800

that there must be an appropriate evidentiary basis to found such a satisfaction.

PN801

This satisfaction exists in 424. And then they set out what the High Court said in Coal and Allied when it went on to the High Court from the Commission.

PN802

THE COMMISSIONER: Yes.

PN803

MR HARDING: And you'll notice that I think extracted from the judgment of Gleeson CJ and Gaudron and Hayne JJ their Honours say:

PN804

It is not simply a matter of impression or value judgment... the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question.

PN805

And then in paragraph 51 their Honours and Commissioner analyse the concept of welfare. And then can I draw your attention to the last sentence in paragraph 51.

PN806

The impact of the conduct must, however, be more than merely to cause inconvenience ‑ ‑ ‑

PN807

THE COMMISSIONER: Sorry, just to stop you there.

PN808

MR HARDING: Yes.

PN809

THE COMMISSIONER: Just I'm interested in the word "welfare" for obvious reasons given its focus.

PN810

MR HARDING: Yes.

PN811

THE COMMISSIONER: So they make a reference to regarding the meaning of the terms including the references to welfare of the population and the concept of endangerment. And they make a reference to that:

PN812

These are commonly used words and expressions which are widely understood.

PN813

Do you know what the reference was that they were making, in terms of welfare? If you don't that's okay.

PN814

MR HARDING: I think they're making a reference to welfare and its ordinary meaning.

PN815

THE COMMISSIONER: I just wondered whether welfare had been dealt with in another decision to which they're making a reference there, but ‑ ‑ ‑

PN816

MR HARDING: Yes. Well, it has. In Coal and Allied you'll see that paragraph 13 of the outline of submissions that I've handed up.

PN817

THE COMMISSIONER: All right. Okay. Thanks. Sorry, go on.

PN818

MR HARDING: But the last sentence:

PN819

The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger.

PN820

And so there is a critical issue that lies at the heart of the concept that section 424 embraces. We aren't here talking about inconvenience, disruption of an ordinary kind that one might expect from industrial action, because that is what industrial action does, and I make some submissions about how I think the evidence should be treated in that respect. We're looking at something greater than that, and what we're looking at is an endangerment of the kind that is identified in the provision. And just to give you a practical example of that from the Monash University case, you'll note, and I can't tell you off the top of my head what the reference is, but one of the critical factors in that case, as has been the case I think in the hospitals matter that I handed up, is that there the industrial action was indefinite. And that's a point of critical distinction between what we're dealing with here and what was dealt with there. We're talking about a four hour stoppage here, and that bears on the issue that you have to consider.

PN821

Then in the Monash University decision the Full Bench, and it was said that, and there was some evidence led, as to the stress and anxiety that might be caused to students if they weren't able to get their results on time which was one of the industrial actions that the Full Bench and Commissioner were there considering. And to give you an illustration of how the Full Bench analysed the kind of effects that we were talking about that might engage section 424, you'll see on paragraph 37 of the judgment their Honours deal with that concept and they say:

PN822

Stress and anxiety are part of the ordinary travails of human existence, and in the university context it can readily be accepted that anything to do with examinations, including the issuing of results or any delay thereto, is likely to lead to stress and anxiety to some degree on the part of most students. That is not sufficient to attract a finding under section 424(1)(c).

PN823

What was sufficient to attract a finding was the evidence of a Ms Trembath who gave particular evidence that the students were a particularly vulnerable cohort and that the absence of the results could:

PN824

constitute a significant additional psychological stressor which may either cause a diagnosable mental condition or exacerbate an existing one.

PN825

One of the potential adverse consequences was a risk of self-harm. And they go on to say:

PN826

this convincingly demonstrates a threatened endangerment to student health and welfare capable of satisfying the criterion.

PN827

Now, I don't suggest that evidence of that kind will always be necessary to satisfy the criterion but it gives you an insight into the endangerment that the section is grappling with, and so it should be because the result of your decision will be to bring an end to the right, so that's what we're looking at. And so that's the situation that was obtained in that case.

PN828

What you have before you is a case in which it's asserted against the RTBU that their strike will have an adverse effect on the tram users, a capacity to attend medical appointments and/or other appointments or commitments that can or cannot be at liberty re-scheduled. That's it. It is the height of speculation, in my submission, that any of those results could satisfy you up to the requisite standard that there is a probability of an endangerment arising from such generalised evidence of the kind that has been given to you through the evidence, through the statements, and cross-examination of the witness called by Yarra Trams. Yarra Trams ‑ ‑ ‑

PN829

THE COMMISSIONER: It's the weight of numbers that's put against you ‑ ‑ ‑

PN830

MR HARDING: Well, the weight of numbers ‑ ‑ ‑

PN831

THE COMMISSIONER: ‑ ‑ ‑that there's so many that surely it's going to be the case. What do you say about that?

PN832

MR HARDING: Well, that is still speculation, because one of the bases upon which their case has been framed is we've done nothing to inform the populous about the strike action until recently it seems. Nor have we advised them about how it is they can deal with the problem that's been pointed to by changing their arrangements. And they come along notwithstanding the fact that they've known since 13 August that this action is planned and say, "Well, look at what's going to happen. Look, at what's going to happen. We've sat on our hands and done nothing." Apparently the Government has told them not to; they've sat on their hands and done nothing to avert this situation, and then they invite you to speculate about what the possibility might be; that it might have an adverse on some people, who they can't tell you, in particular, where they are or they might be affected, or whether they'll be affected at all. And what's said against me is, "Well, you've got to draw the inference because there are so many people who use public transport." Now, we know, because they've told the general public, through the website, that there is industrial action planned for the 27th. The union, as Mr Altieri has deposed, has made a press release, and he's exhibited this at PA2 to his statement, in which he specifically, or the union specifically says:

PN833

Unless Yarra Trams makes other arrangements trams will return to tram depots on or after 10 am.

PN834

And then he goes on to say in about the third-last paragraph:

PN835

We wish to advise the travelling public that they should plan for the stoppage scheduled for Thursday including if thought necessary by making appropriate alternative arrangements.

PN836

All the evidence that came from Mr Edmiston about the numbers has been put on the predicate that this is the numbers that usually use the service. But this is a highly unusual situation in the sense that there's strike action, and so you can't infer, in my submission, that the numbers that they say usually use the system will be affected in the way that they assert, or will be affected to the extent that they assert, or will, in fact, be affected at all, because there's an equal possibility, on the evidence, that they won't be, or they won't be affected in the way that's being suggested. And so what we've got is competing speculation and that's no basis upon which you can draw an inference one way or the other. It certainly can't satisfy you that there's probability of exposure to danger in the sense that section 424 requires you to be satisfied of.

PN837

I don't think I'll need to take you to any of the other cases referred to in the outline. They're referred to and you can read them for yourself, Commissioner. I did want to say a number of things about the evidence. It's been said against us that the dispute will in fact be wider and bigger because of the mitigating steps that Yarra Trams has decided to impose on itself, namely by starting to reduce the trams, take them back to the depots from 9 am, and other measures. And I think it's been conceded that by that measure some of the things that they have identified as potential issues evaporate.

PN838

THE COMMISSIONER: Well, two things: the shunting issue and the stranded passenger issue.

PN839

MR HARDING: Yes. And the stranding. Yes, that's right. But even if, on my submission, even if they had not taken that voluntary action, the evidence would satisfy you, in my submission, that those problems would not arise in light of what Mr Altieri has said the union will do in the circumstances that he refers to, including in relation to those two issues.

PN840

THE COMMISSIONER: Yes.

PN841

MR HARDING: And you heard my cross-examination about that. In my submission, really shunting is an ordinary function of a tram driver and it might be that as a matter of scale it's bigger on this occasion because of the numbers.

PN842

THE COMMISSIONER: One would think so.

PN843

MR HARDING: Yes, absolutely. But that doesn't necessarily prove that the risk that is identified will come to actuality. Now, in my submission, it's unfair then for Yarra Trams to come along and say, because we've taken these measures in order to mitigate, as we see it, that you should then draw the conclusion that the effect of this stoppage is much bigger and wider and more significant than what it would otherwise be. On the union's own measures, in my submission, these issues are unlikely to arise in the way that could engage the section as asserted. And we've got to come back to this, as asserted now by Yarra Trams, namely it's going to have an effect on medical appointments or other appointments that cannot be easily re-scheduled. That's the basis and that's the starting point and end point for the conclusion that's been pressed under 424.

PN844

You heard some evidence well, you heard some opinions being expressed by various of the Yarra Trams witnesses about how they perceive their might be impact on both traffic and congestion, and also how some hospitals may or may not operate in response to the industrial action. It's been suggested by my learned friend that you should assume that the community based forms of transport, to which Ms Kazakoff deposes, and also those systems that are available to the hospital are already at capacity. There's no basis for that assumption. There's no evidence one way or another. What that evidence tells us is that these services exist. What the evidence tells us is that there's certain criteria that's to be met but nonetheless the services exist. They form part of the factual matrix that enables you to conclude that there are a myriad of ways in which people can avoid the detriment that is being pressed upon you in this application.

PN845

On that subject you'll note that in the outline of mitigations that has been tendered by Yarra Trams they've annexed a diagram, and I took some time on cross-examination with this, but the evidence is that the diagram has been prepared on the basis that in the city, the grey areas, there are buses and trains available to transport people during the period of industrial action. And that the orange spots are where the alternative is being provided in the form of buses, and that has been an assessment undertaken by Yarra Trams as to how to utilise that resource, and so really when you're looking at that picture, what it tells you in fact, on the evidence, is that the orange bits plug a gap in the transport options that are available.

PN846

And, of course, as Yarra Trams has said in its website announcement today there are others including catch a city loop train, a bus, walk or cycle, hire a bike, ride a bike or catch a cab, including hire a uber driver. So these are the many ways that are available to mitigate this transport deficiency that has been asserted before you. And, in my submission, that tells you that there really is not a sufficient evidentiary basis to make out the section.

PN847

Finally, in our outline of submissions we've concluded with a submission that you ought to dismiss the application; that what is being agitated before you is an application to terminate the industrial action. Now, on my submission, there's simply no basis upon which you can and should terminate. The unchallenged evidence of Mr Altieri is that there is bargaining underway and that the RTBU stands ready to engage in that bargaining. Now, our principal submission is that there is no basis for any suspension or termination of industrial action, but if you were of the view that any of the criterion in (c) are made out then you ought not terminate. You should turn your mind to suspension and it ought to be for only a short period in light of the evidence about where things stand in the negotiations.

PN848

THE COMMISSIONER: Yes. All right. Thanks, Mr Harding. Anything in reply, Mr O'Grady?

PN849

MR O'GRADY: Yes. Just briefly if I may, Commissioner. And perhaps just dealing with them in order. The first proposition that Mr Harding put was that there was a right to take industrial action, and that's true but of course it's a qualified right, and it's a right that's qualified by the requirement that the industrial action not threaten to endanger the welfare of part of the population. It is not the purpose of this application to prevent, or this application is not directed to a number of the forms of industrial action that have been notified by the RTBU. But one particular species of industrial action, namely the four hour stoppage, is something that we say gives rise to the consequence contemplated by section 424.

PN850

My learned friend said, well, it has to be something that's not typical. You couldn't have asked for something that is more quintessentially atypical than a major stoppage of the type that is being threatened by the RTBU on Thursday. As Mr Altieri said we haven't had one of these since 1997. So we are not dealing, with the greatest of respect, with a workplace where stoppages may be a normal part of the give and take of protected industrial action and the negotiation of enterprise agreements. By its very nature this is an atypical situation because of the consequences associated with bringing the system to a stop in the way that had been threatened by the RTBU.

PN851

Mr Harding also suggested that there actually had to be evidence of endangerment. With respect, that's not correct, and that's not consistent with the terms of the Act. What the Act contemplates is that there be a threat of endangerment and nothing more. And that point was picked up by Kaufman SDP in another one of the ambulance cases in Ambulance Victoria v LHMU [2009] FWA 44, and I apologise, Commissioner, I don't have a copy, where he made it clear that the language in terms of "would threaten to endanger". And that is different from finding that there was an establishment of actual endangerment. And, in my submission, that's reflected in the language that the Act uses and, in my submission, to suggest anything to the contrary is to misread the authorities.

PN852

Mr Harding also referred to the VHIA case and in particular the passage appearing at the end of paragraph 51. As you would have seen, Commissioner, in that passage the Full Bench was concerned with issue of endangerment to life, and the distinction between that and "significant risk to personal safety or health". And it's in that context that they said:

PN853

The impact of the conduct must, however, be more than merely to cause inconvenience to persons concerned - it must be such as to expose them to danger.

PN854

In my submission, it's not and perhaps if I read the passage in its full context so you've got it, and I'm commencing about 10 lines up from the bottom of paragraph 51:

PN855

Although the conduct might not be of such a serious nature as to amount to an endangerment to "life", it might nevertheless be such as to constitute a significant risk to "personal safety or health". Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger.

PN856

In my submission, the use of the words "expose them to danger" is there directed to the endangerment to life and to personal safety or health. And does not require that in ‑ ‑ ‑

PN857

THE COMMISSIONER: How do you make that proposition, Mr O'Grady? I just don't follow that at all.

PN858

MR O'GRADY: Well, in my submission, where they are talking about endangerment to life and significant risk to personal health or safety that's the focus, if you like, of the passage. They go on to talk about:

PN859

Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services.

PN860

And then they come back to what, in my submission, is the focus of the passage, namely:

PN861

The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned - it must be such as to expose them to danger.

PN862

It's not consistent with the language of the Act, in my submission, for the Full Bench to be saying that there will only be a threat to welfare if there is an exposure to danger. That's the submission.

PN863

THE COMMISSIONER: Okay.

PN864

MR O'GRADY: Yes. And in that context, Commissioner, in my submission, there is a real risk, with respect, in relying upon analogies with other cases. Now, Mr Harding referred you to the Monash case, and seemed to be suggesting, well, it's only if you've got some form of indefinite stoppage that there will be a basis for making an order under section 424. Now, as he said, the industrial action in that case concerned the delaying in the release of results to students. A four hour stoppage in respect of that conduct is hardly likely to give rise to any threat to the welfare of the population or part thereof. But an indefinite stoppage may well do so. Here we're dealing with a very different species of industrial action and different considerations arise.

PN865

THE COMMISSIONER: Every matter turns on its own facts. I agree with that.

PN866

MR O'GRADY: Sorry?

PN867

THE COMMISSIONER: Each case turns on its own facts so I agree with that.

PN868

MR O'GRADY: Indeed. And that's why I keep coming back to the nature of this proposed industrial action and the consequences that will flow from this industrial action. Mr Harding made the submission that if you were to grant the order that would bring an end to the right of the RTBU to take industrial action, although he acknowledged towards the end of his submissions, if you were determine the application by a suspension of the industrial action, then that would not be the case. What would be achieved in those circumstances is that the stoppage that is currently proposed for Thursday could not go ahead, but it would be open for the RTBU to issue fresh notices of industrial action and for that action to be taken once the requisite time period had elapsed. So it would be wrong, in my submission, to proceed to deal with this application on the basis that you have to go down an all or nothing path. There is, in my submission, as I think Mr Harding acknowledged, middle ground that is open to the Commission.

PN869

THE COMMISSIONER: The test is no different though, is it? I can't do either unless I'm satisfied of the requirements.

PN870

MR O'GRADY: I accept that. And all I can do in that regard, Commissioner, is to ask you to recall the magnitude of the system, and you've got the maps, you've got the evidence about what happened.

PN871

THE COMMISSIONER: Got the maps. Yes.

PN872

MR O'GRADY: You've got the figures about the numbers.

PN873

THE COMMISSIONER: Yes.

PN874

MR O'GRADY: And it does not take, in respectful my submission, speculation to be satisfied that a stoppage of the type that is being talked about is going to create one hell of a mess. And that is going to impact upon a lot of people who use the system and some of them will have their welfare impacted upon in a way that gives rise to the section 424 trigger.

PN875

Mr Harding referred to 13 August and said, well, we've known about it since 13 August. Of course, if we had have done what Mr Harding was suggesting, we would have been notifying people that there was going to be action last Friday and that, of course, didn't transpire. And there is, of course, a very real risk in the line that says well, just simply because action is being threatened you have to put in place the full suite of contingencies, because, as I submitted to you earlier, contingencies themselves have the potential to cause adverse impacts. It would appear that unbeknownst to me my client has come to the view that, given the timing, it had no option, at this stage, but to notify people. But that's a reflection, I suppose, of the risk that it perceives to be associated with the proposed industrial action.

PN876

As to the suggestion that, on the evidence, you should not find that the duration of the action is attributable to what's being proposed, and in respect of the shunting issue and the stranded issue, the evidence as to people being stranded is, in my respectful submission, completely unanswered by the RTBU. And you might recall that Mr Altieri, whilst he did not address that in his witness statement in this proceeding, had filed a witness statement in the earlier proceedings in which he acknowledged that the way in which you avoid people being stranded is you shut down the system earlier.

PN877

THE COMMISSIONER: Which you're doing.

PN878

MR O'GRADY: Which we're doing. But, in my submission, you should proceed on the basis that the full duration of the action is a direct consequence of what is being threatened by the RTBU. And I should, perhaps as a matter of completeness, ask that that earlier statement be tendered in the proceeding. I think I put it to Mr Altieri, but I neglected, I'm afraid, Commissioner to tender it.

PN879

THE COMMISSIONER: Yes. The old statement we'll call it.

PN880

MR O'GRADY: Yes.

PN881

THE COMMISSIONER: Any objection to that, Mr Harding?

PN882

MR HARDING: No, Commissioner.

PN883

THE COMMISSIONER: No. What are we up to with you, Mr O'Grady? Any idea? 05.

EXHIBIT #O5 PRIOR WITNESS STATEMENT OF PHILIP ALTIERI

PN884

MR O'GRADY: Thank you. In respect of the shunting issue, Commissioner, obviously it's my client that has the responsibility to try and keep its employees safe. If it's formed the view that the best way to do that is to bring them in early then, in my submission, it's not open for them to be criticised for having made that call. It's for those reasons, in my submission, Commissioner, you should find that the test has been satisfied. If you're concerned about the balance that Mr Harding, if you like, put forward as the core basis of his submission, then that can be addressed by suspending and not terminating. If the Commission pleases.

PN885

THE COMMISSIONER: Is there anything you wanted to say to me about page 6?

PN886

MR O'GRADY: Sorry, page 6.

PN887

THE COMMISSIONER: The Yarra Tram bulletin that was ‑ ‑ ‑

PN888

MR O'GRADY: I don't dispute its provenance. I don't have instructions as to how it came to be put out. I'm assuming, and it's only an assumption from the Bar table, Commissioner, that this is an attempt by my client to try and do what it can, given that time is running out.

PN889

THE COMMISSIONER: Yes. There was only one issue I had with it, and that query just in terms of the evidence that's fairly critical in the case but I note that, under 26 August there, it says:

PN890

Due to planned industrial action on Thursday 27 August between 10 am and 2 pm trams will not operate.

PN891

And then it says:

PN892

There may be also be service changes for a short period before and after these times.

PN893

MR O'GRADY: Yes. Well ‑ ‑ ‑

PN894

THE COMMISSIONER: I'm just trying to reconcile with the evidence about how long the stoppage is going to have an impact for.

PN895

MR O'GRADY: Yes, Commissioner. And I can't go any further than saying that you've had before you the people who are responsible for making these decisions within Yarra Trams.

PN896

THE COMMISSIONER: Yes.

PN897

MR O'GRADY: They've given you direct evidence as to what they say will be the consequence.

PN898

THE COMMISSIONER: Consequence. I should rely on that.

PN899

MR O'GRADY: This is a communications document written by somebody who is unknown, and, in my submission, it shouldn't cause you to doubt the ‑ ‑ ‑

PN900

THE COMMISSIONER: It's not reliable?

PN901

MR O'GRADY: I didn't say that, Commissioner. All I'm simply saying is you have the best evidence before you, and I'd ask you to act on that. If the Commission pleases.

PN902

THE COMMISSIONER: Yes. I understand that. Thanks. I'm going to retire to consider these matters and I'm going to endeavour to hand down a decision at 9 pm this evening. I think I have sufficient material in which to make a decision. There may not be full reasons given this evening, in fact, that's unlikely in the circumstances, but I think it's important that there be some certainty given to the parties and, of course, to the Victorian travelling public, as to what my decision will be. And so having regard to that, I'll return at 9 pm. The Commission is adjourned.

SHORT ADJOURNMENT [8.19 PM]

RESUMED [9.07 PM]

PN903

THE COMMISSIONER: What follows is my decision in this matter, B2015/1224. At the conclusion of the proceedings, I indicated that I would provide a decision to the parties within a short timeframe in order that this matter be determined as expeditiously as possible. I've considered all the evidence that's been put in the proceedings and I am in a position to announce my decision in this matter.

PN904

KDR Victoria Proprietary Limited trading as Yarra Trams has made an application pursuant to section 424 of the Fair Work Act for an order terminating protected industrial action which is taken by the ARTBIU. The basis for the application is that a particular action in paragraph 6 of the application that was made, that is the:

PN905

Four hour stoppage of all work commencing at 10 am on Thursday 27 August 2015 and finishing at 2 pm on Thursday 27 August 2015 for the holding of a stop work meeting about enterprise agreement negotiations. Employees intending to engage in the action would all be employees who are the members of the RTBU and whose employment will be subject to the proposed agreement but would exclude all employees who are employed as authorised officers or depot starters.

PN906

So the application was directed at that particular action, and it was said that in the application that action was threatening to endanger the personal safety or health or the welfare of a part of the population of Melbourne who rely on public transport generally and tram services in particular. The application has been opposed by the ARTBIU. The ARTBIU also submitted that if the requirements of section 424 were met that the appropriate course would be to suspend rather than terminate the protected industrial action.

PN907

I have considered all of the material that has been put in the proceedings today including the witness evidence and the submissions that have been made by the parties including the submissions as to the correct approach I should take in applying the provisions of section 424.

PN908

While the industrial action undoubtedly will have an effect on the travelling public, I am not satisfied the protected industrial action by the ARTBIU has threatened, is threatening or would threaten to endanger the personal safety or health or the welfare of the part of the population within the meaning of that section of the Fair Work Act.

PN909

I'm not satisfied as to the matters in section 424(1)(c) and therefore there is no basis to terminate nor suspend the protected industrial action. Accordingly the application is dismissed. An order to that effect will be issued with this decision. I will publish full reasons for this decision as soon as practicable and I will publish this decision soon after this hearing today. But to be clear this does not constitute the full written reasons. I urge the parties to continue negotiations with vigour in order that the dispute may ultimately be settled by way of a concluded agreement. The Fair Work Commission remains available to the parties to assist them in that regard. That concludes the decision.

PN910

MR O'GRADY: As the Commission pleases.

ADJOURNED INDEFINITELY [9.12 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JAMES EDMISTON, SWORN........................................................................... PN194

EXAMINATION-IN-CHIEF BY MR O'GRADY............................................. PN194

EXHIBIT #O1 WITNESS STATEMENT OF JAMES EDMISTON DATED 24/08/2015 PLUS ATTACHMENTS................................................................................................. PN205

EXHIBIT #O2 SUPPLEMENTARY WITNESS STATEMENT OF JAMES EDMISTON PN212

CROSS-EXAMINATION BY MR HARDING................................................. PN225

RE-EXAMINATION BY MR O'GRADY......................................................... PN443

THE WITNESS WITHDREW............................................................................ PN473

MALCOLM LETTOOF, SWORN...................................................................... PN476

EXAMINATION-IN-CHIEF BY MR O'GRADY............................................. PN476

EXHIBIT #O3 WITNESS STATEMENT OF MALCOM LETTOOF........... PN485

CROSS-EXAMINATION BY MR HARDING................................................. PN487

THE WITNESS WITHDREW............................................................................ PN507

IAN JAMES CUSHION, SWORN...................................................................... PN511

EXAMINATION-IN-CHIEF BY MR O'GRADY............................................. PN511

EXHIBIT #O4 WITNESS STATEMENT OF IAN JAMES CUSHION........ PN519

CROSS-EXAMINATION BY MR HARDING................................................. PN521

RE-EXAMINATION BY MR O'GRADY......................................................... PN549

THE WITNESS WITHDREW............................................................................ PN555

EXHIBIT #H1 OUTLINE OF ARGUMENT.................................................... PN572

CARITA JANE KAZAKOFF, AFFIRMED..................................................... PN575

EXAMINATION-IN-CHIEF BY MR HARDING............................................ PN575

EXHIBIT #H2 AFFIDAVIT OF CARITA KAZAKOFF................................. PN583

EXHIBIT #H3 LETTER FROM CARITA KAZAKOFF TO THOMPSON GEER LAWYERS................................................................................................................................. PN586

CROSS-EXAMINATION BY MR O'GRADY.................................................. PN588

THE WITNESS WITHDREW............................................................................ PN617

PHILIP ALTIERI, SWORN................................................................................ PN620

EXAMINATION-IN-CHIEF BY MR HARDING............................................ PN620

EXHIBIT #H4 WITNESS STATEMENT OF PHILIP ALTIERI.................. PN630

CROSS-EXAMINATION BY MR O'GRADY.................................................. PN645

RE-EXAMINATION BY MR HARDING......................................................... PN713

THE WITNESS WITHDREW............................................................................ PN716

EXHIBIT #H6 YARRA TRAMS BULLETIN ADVISING PLANNED INDUSTRIAL ACTION DATED 27/08/2015................................................................................................ PN780

EXHIBIT #O5 PRIOR WITNESS STATEMENT OF PHILIP ALTIERI.... PN883