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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052359
COMMISSIONER SIMPSON
AG2015/2789
s.185 - Application for approval of a single-enterprise agreement
Application by Sea Swift Pty Ltd
(AG2015/2789)
Cairns Court Complex
10.03 AM, WEDNESDAY, 26 AUGUST 2015
PN1
THE COMMISSIONER: Good morning. Start with appearances.
PN2
MR HERBERT: Yes. Good morning, Commissioner. My name is Herbert. I continue my appearance in these proceedings for the applicant, who is Sea Swift. I think permission to appear was granted on an earlier occasion.
PN3
THE COMMISSIONER: That's right, Mr Herbert, yes. Thanks. All right. For the other parties?
PN4
MR D QUINN: Commissioner, Quinn, initial D, of CRH Law. I'm seeking leave to appear on behalf of the Maritime Union of Australia and the Australian Marine Officer's Union.
PN5
THE COMMISSIONER: Yes. All right.
PN6
MR N KEATS: Good morning, Commissioner. My name is Keats, initial N, solicitor. I seek permission to appear on behalf of the Australian Institute of Marine and Power Engineers. I'm happy to address you on the requirements of the Act now or at some appropriate time later.
PN7
THE COMMISSIONER: Thanks, Mr Keats.
PN8
MR M CERRATO: Thanks, Commissioner. My name is Cerrato, initial M, and I appear on behalf the Transport Workers Union of Australia. May it please the commission.
PN9
THE COMMISSIONER: All right. Thank you, Ms Cerrato. Mr Herbert, I take it you wouldn't have issue with Mr Quinn or Mr Keats' participation.
PN10
MR HERBERT: Certainly not.
PN11
THE COMMISSIONER: All right then.
PN12
MR HERBERT: It would be a little bit self-defeating for me to ‑ ‑ ‑
PN13
THE COMMISSIONER: In accordance with section 596 subsection (2) I will grant permission for Mr Quinn and Mr Keats to represent the MUA and AIMPE on the basis that it will assist me in dealing with the matter and that it involves some complexity. As I recall, I think Mr Herbert has already been granted that leave, but in the event that I haven't, I will grant it to him for the same reasons.
PN14
MR HERBERT: Thank you, Commissioner. Commissioner, the applicant relies upon - just so we've got it straight as to the material that's available - or should be available to the commission - the applicant relies on the form F16, being the application for the approval of the enterprise agreement; the form F17, which is the employer's statutory declaration.
PN15
There are, for the purposes of these proceedings, three witness statements, which have been lodged primarily in response to the material received from the objecting unions. They are statements of Mr Lino Bruno, Mr Robert O'Halloran, and Mr Fred White. We have also provided the commission, in accordance with the commission's directions, and outline of the applicant's submissions, which has been filed with the commission.
PN16
The time lines are a little late, but in our own defence we say, Commissioner, that the material received from the MUA and the AMOU was significantly late. We took no objection to that on the basis that we be granted an appropriate extension, and that has all happened. And there has been a late-breaking statement as of yesterday or Monday from the MUA and AMOU.
PN17
We think we've been able to deal with that in the time provided, and we take no issue about time limits generally in relation to that, Commissioner. That's the material on which we rely.
PN18
I've had a discussion with my opponents. It would seem, certainly from this end of the bar table, the better course to take would be for the applicant to go first, put on all its evidence in relation to the matter, the unions to follow, and that the submissions follow a similar course: the applicant go first, unions to follow, with a right of reply for the applicant in relation to submissions.
PN19
THE COMMISSIONER: Sure.
PN20
MR HERBERT: And there is also proposed to be inspections tomorrow morning of some of the facilities that are in Cairns and one of the vessels - at least one of the vessels in Cairns; we can make some housekeeping arrangements about how and where to meet everybody perhaps a little later in the day.
PN21
THE COMMISSIONER: Just in terms of the timing of that, I think initially we were talking about 9 am. Are we talking about that, or 9.30?
PN22
MR HERBERT: Whatever suits the parties, we can do that. what has happened, we've organised for a medium-sized bus to accommodate everybody, and to - within limits, we can pick up people from their accommodation venues for people who can centralise somewhere, rather than requiring people to go down to the Sea Swift office and then come back again, because there are a number of us who don't have cars; including, I think, the commission.
PN23
We can arrange to all of that, and I thought we might do that later, off the record this afternoon before we adjourn.
PN24
THE COMMISSIONER: Sure. I was going to raise one issue with the parties. There's no issue - we've allocated the three days, there's no issue with that. We've got five witnesses, it would appear. There's some time allocated for inspections tomorrow. I'm happy to see how we go in terms of how we get through the evidence. Depending on how we're travelling, if it appears that there's a prospect that we might get through the material in two days, I'm happy to sit a bit later. But look, why don't we just see how we go.
PN25
MR HERBERT: We think we might get the evidence - we're certain we will get the evidence done today and tomorrow at the longest. That would then leave the question of submissions. Friday is still available for that. Depending on what the parties want, it may be that parties speak to their submissions at that point. If there are any other issues that have been raised that might require some further elaboration or consideration by way of written submission, then we could deal with that possibility then.
PN26
But we think there's no difficulty in more or less dealing with everything that we came to Cairns to do while we're here in the three days.
PN27
THE COMMISSIONER: Yes. Sure. All right. Anything arising out of that for any of the respondent parties? All right then. All right, Mr Herbert. I'm happy - I mean, in terms of the parties' views about whether they want to make openings or go straight to evidence, what's your preference?
PN28
MR HERBERT: Commissioner, a very brief opening. The arguments in relation to this matter have been well ventilated by the parties, it would appear. Can I say that the issues fundamentally come down to these: in relation to the maritime awards which are - there are two maritime awards fundamentally that are in contention as being those in respect of which the BOOT test is said to apply. One is the Seagoing Industry Award and the other is the Ports, Harbours and Closed Waters Vessels Award; and there are the competing contentions in relation to that.
PN29
There does appear not to be anything much by way of case law guidance at all in relation to some of the critical expressions that are used, particularly in the Ports, Harbours Award, and in particular the critical expressions that emerges from our submissions is what is meant by "another body of water within the Australian coastline".
PN30
We have obviously adopted a particular measure as to how that might be ascertained because - and what we say in relation to that is that the measure that we have adopted - that is, in effect, the territorial baseline, which is erected in very many locations around the Australian coast for particular purposes - is a very sensible, rational and logical means of ascertaining the question as to whether the body of water behind that line is or is not within the Australian coastline.
PN31
What we say in short terms is the territorial baseline is, in effect, the legal coastline of Australia, as distinct from the shoreline of Australia, which is, of course, an extremely ragged and uncertain and inconsistent situation.
PN32
What we say, then, about that is that if one adopts the territorial baseline as being the means of determining whether or not the limits have been exceeded - that is, the limits of the various bodies of water that are described in the awards - then this case, on the basis of the evidence we have as to what my clients operations are and where they are conducted, essentially and on the material that we've put on, the vast majority of my client's operations on vessels occurs in ports, harbours or bodies of water behind the Australian baseline - territorial baseline.
PN33
THE COMMISSIONER: Just on that, Mr Herbert - and I don't mean to interrupt you, but just housekeeping issue, really. There was an attachment to the statement of Mr O'Halloran. I think it's attachment B. I think it's a map. I was just going to ask if it would be possible to get your instructors to generate perhaps an enlarged copy of that. The copy I've got is two-sided, and it's just a little bit difficult to discern some of what's on that map. I don't know whether the respondents have had a similar issue.
PN34
I thought it might - certainly would be helpful for me, I think, in terms of that if it would be possible - it doesn't need to be now - it's this document here. It looks like you've got a bigger one there.
PN35
MR HERBERT: Yes, I have.
PN36
THE COMMISSIONER: You're ahead of where I was at.
PN37
MR HERBERT: We've come prepared. I've had them out at the bar table. We have a much larger version of - this particular sheet contains the Cape York, Queensland areas and Torres Strait areas on one side, and the Northern Territory and Tiwi Island areas on the other. That is a larger scale.
PN38
While we're at it, we also, for the purposes of some of the submissions that we expect we will be making, we've also printed off a copy of the same - from the same series of charts from the Commonwealth agency for the balance of the Queensland coast, just to the east coast of Queensland. That goes from - essentially down to Nambucca Heads in New South Wales. It's on two sides again. It indicates the extent to which territorial baselines have been drawn elsewhere.
PN39
So from those two documents you will have the territorial baselines, where they exist, from north-west of Western Australia down to mid-northern New South Wales, and all around the northern coast of Australia. Essentially what it comes down to is this, is that these awards apply throughout Australia. It would be extraordinarily useful and sensible and rational to apply a standard which is found and created by and under Commonwealth legislation in accordance with an international United Nations treaty, and it's a standard that applies universally to every single inch of the Australian coastline.
PN40
And accordingly, if one is to work out questions of whether one is required - as one is, by the interplay of these awards - to determine questions of where and how the limits of bays and harbours and other bodies of water in the Australian coastline are to be determined, so that you know that if you leave them, there may be consequences for your award coverage; if you stay within them, there may be other consequences for the award coverage, by far the most preferable way to do that would be by reference to a standard that applies universally around Australia in every place where the award could apply.
PN41
We say that that's in preference to the situation which is postulated in the AMOU/MUA submissions where they have referenced the limits of three ports in Queensland by reference to Queensland state legislation; and Sea Swift visits 30-something ports, and only three of them have limits identified by those unions from which one can determine whether you've left them or not.
PN42
If the question then arises in the balance of the courts that Sea Swift goes in and out of, and the Harbours and the other waters that they go in and out of at the inlets and the bays and all the rest of those things they go in and out of, how does one tell whether they're in or out of the bay or in or out of the water, or whether the body of water is within the Australian coastline or not when there are only three such discussions in relation to Queensland domestic political arrangements and the rest of them have no such designation at all identified by the unions? So that it's impossible to tell by any standard.
PN43
THE COMMISSIONER: Just in terms of, I mean, the core purpose of what I'm being asked to do here, it's right to say, isn't it, it's interpreting what the full bench decided that that made the award.
PN44
MR HERBERT: Yes. And there is a curious interplay between ‑ ‑ ‑
PN45
THE COMMISSIONER: So it's not up to me to come up with some view about what should say.
PN46
MR HERBERT: No.
PN47
THE COMMISSIONER: It's up to me to decide what they intended.
PN48
MR HERBERT: Yes. And what sensibly could be taken to mean "a body of water within the Australian coastline" - and we say that, at the very least, means internal waters in accordance with the Seas and Submerged Lands Act is a sensible criteria to be adopted.
PN49
I immediately say that's not a standard which the full bench expressly did adopt, but is one which, in the circumstances, has a great deal of logic and sense about it, and one which this commission can say is at least what they meant, or could be taken to mean, and it's useful measure of that fact because it is in fact a legal means by which bays and harbours are closed for the purposes of Australian domestic law, as well is international law, and therefore they are deemed to be, for all relevant purposes, within the Australian coastline, whatever that means.
PN50
THE COMMISSIONER: I've just noticed none of the submissions, unless I've missed something, because it talks about - just bear with me for a second - the expression "body of water within the Australian coastline" I mean, on one view it might mean bodies of water inside the coastline.
PN51
MR HERBERT: Yes, like Lake Eyre.
PN52
THE COMMISSIONER: Is there some history to this but no one has sort of said to me, "Look, here's an award that existed in 1974 and here's where it" - you see. So, I mean, I haven't been given that sort of thing by either of you.
PN53
MR HERBERT: And that's a matter we will address. That history doesn't exist, because what occurred on this occasion is, by the award modernisation process, is that - and we can provide you with, from the Commission website, a list of the awards that were taken into account in the making of these two awards, and one of them is the Sea Swift Enterprise Award that existed at the State jurisdiction.
PN54
But there are a whole raft of awards that were taken into account in the making of the Ports, Harbours Award, and another raft of awards were taken into account in relation to the making of the Seagoing Industry Award. All of that was put into the washing machine, mixed up, cut in half, and divided into two by the full bench, largely behind closed doors, and issued.
PN55
Now, the "body of water within the Australian coastline" is not an expression that we can find that appears in any of those awards - any of them. It seems to have been an expression developed by the full bench without the benefit of any submissions or history, and they didn't appear to extract it from any award.
PN56
But even if they did, it's plain that there was, we say - it's plain that there was a - that what the full bench was doing was seeking to divide up the various aspects of the maritime industry. There is a Marine Towage Award. They created a Dredging Award, and they created the Ports, Harbours and Closed Water Vessels Award, and the Seagoing Award. And there are significant differences between them.
PN57
It creates even a greater difficulty when one appreciates the fact that both the Seagoing Industry Award and the Ports, Harbours Award are mutually exclusive. Both of them exclude the other where it applies, which begs the question of where one starts, in the circumstances, to break into that circle. Because if there is a possibility of each one applying - both of them applying to a set of facts, they both exclude the other.
PN58
We've put on some submissions about what will that means and how one breaks into that circle in the circumstances. But there was a whole new set of awards created with a whole new set of demarcations behind them. The submission is, and will be that having recourse to the history of the Maritime Industry Seagoing Award is of no assistance at all in relation to understanding the scope of the Seagoing Industry Award because there are carve-outs from the Seagoing Industry Award which did not exist under the MISA Award, as it then was.
PN59
So that it is very plain that the MISA Award, because it is the subject of those carve-outs, does not have the same coverage that it once had, arguably. But we will deal with that in more detail, obviously, in the submissions.
PN60
But essentially what we say is that the "body of water within the Australian coastline" conveniently, for the purposes of these proceedings, can be assessed by reference to - but without being necessarily bound by - the territorial baseline, unless there is something quite odd or anomalous about the position of the territorial baseline, which we will point out by reference to the Seas and Submerged Lands Act, the territorial baseline cannot stray far from, or at any different angle from the coast, because under the convention it's not permitted to do so. The government and council who make these things must only do so not inconsistently with the convention.
PN61
But we say, of course, the concept of "body of water within the Australian coastline" is not confined to the territorial baseline. That is a very useful guide in most cases, but when one starts to get out into the Torres Strait and one has a scattering of islands, all of which are Australian territory, all of which are surrounded by Australian territorial waters, and one is moving in and beyond and around them on a regular basis, the waters that surround those islands are waters within the Australian coastline in the sense that this award was intended to convey.
PN62
There are Australian coastal territories in every direction one cares to look, for the most part, and the vessels go in and out of the close waters and the shores, and in fact even park on the beach, in many cases, many of those islands; and therefore the waters around them can be taken to be within the Australian coastline for relevant purposes - for the purposes of this proceeding.
PN63
And finally what we say about that is that in any event, all of the operations which occur in the Gulf of Carpentaria are also operations which occur in a body of water within the Australian coastline, because when one looks at the map, the Gulf of Carpentaria, if it's nothing else, is surrounded on at least three sides by Australia. It is a gulf, which is defined in the way we put in the submissions. There is no other national boundary that surrounds it in any sense, and as such all of the operations within the Gulf of Carpentaria are - - -
PN64
THE COMMISSIONER: As I recall your submission - and I don't want anyone to read anything into this, I'm just trying to make sure I've got it right - your argument would go that whether you've got the Gulf of Carpentaria counted or not, you would still have substantial work inside the territorial baseline.
PN65
MR HERBERT: Yes.
PN66
THE COMMISSIONER: That's your submission.
PN67
MR HERBERT: Yes. The substantial majority of the substantial majority of vessels is behind the territorial baseline in what the law calls Australian internal waters. So that the question of internal waters is instructive as to whether that correlates to inside the Australian coastline for the relevant purposes.
PN68
And yes, because it's operating wholly or substantially - the employer is operating wholly or substantially in the relevant bodies of water, the fact that it may have a vessel that goes out in the Gulf of Carpentaria, whether it is or is not within the Australian coastline doesn't detract from the fact that the vast majority of the vast majority of all of the other vessels is actually behind the baseline, in the internal waters.
PN69
And in that, and/or operating in and around the Torres Strait Islands at the moment, which we say in the idiosyncratic circumstances of the situation in the Torres Strait, that can and should be considered by this commission to fall within the intention of what the full bench meant when they described a body of water within the Australian coastline, and that is travelling on a milk-run situation from island to island to island to island through the Torres Strait in a stepping stone fashion the way that they do; that you never leave - except in the possibility of going out to Murray or Darnley, which is a little further out, the eastern edges of the Torres Strait - you effectively hardly ever leave sight of one island before you've arrived at the next.
PN70
And that's the type of situation we say would be - and it's shallow waters, and all those reefs and all those sorts of things that blue water ships keep a very long way away from.
PN71
One of the ways in which we would say it's to be expressed is that the Seagoing Industry Award is intended to cover blue water vessels which head out to sea and keep a long way away from places like this. The Ports Vessels and Enclosed Waters Award is intended to deal with vessels which actually drive into places like this. This is their home patch.
PN72
You will never find a supertanker in this area - in any of these areas. They simply wouldn't go there because they try to keep as far away from these sorts of areas as they possibly can, whereas that's where my client's vessels ply their trade. And that, in very simplistic terms, we say is the difference between the two in what the full bench was trying to express when they talked about a body of water within the Australian coastline.
PN73
That's the core issue in relation to the marine area. In relation to the shore-based employees, we have, as you will see from the submissions, conceded that in light of the decision of the full court of the Federal Court in the Coles delivery drivers case, the part of the Road Transport Award which specifies that that award applies in relation to persons engaged in the transport of goods, in effect, in trucks by road, even where that transport operation is merely an ancillary part of a quite different operation being conducted by the employer.
PN74
In that case, the grocery home delivery drivers for groceries for Coles were found to be covered by that award by the full court of the Federal Court. We can't obviously argue with that, and you would be bound that decision. In this case we've conceded that in relation to the persons whose work duties from time to time would qualify them - that is, by way of the magnitude of those duties, the extent to which they form ‑ ‑ ‑
PN75
THE COMMISSIONER: It's an occupational and industry award, isn't it?
PN76
MR HERBERT: Yes, it is. And in that occupational sense, any person whose occupation can properly be described as that, as opposed to somebody who's a general shed had who jumps in a truck from time to time, then that award would have application to them.
PN77
However - and we haven't descended into the detail of who they might be, and one of the reasons for that is that it vacillates from time to time depending on demand and other things, but we say that's an academic point in any event because the BOOT test is satisfied by this agreement in relation to those drivers. We've made that concession. That does not need to be, I think, further ventilated in these proceedings.
PN78
In relation to the other question; that is whether that award applies to the employees engaged in the shore facilities, that depends - and the point simply is: are those shore facilities distribution centres within the meaning of that award? And in short terms, as we put in the submissions, the answer to that has to be no because it can only be a distribution centre, as defined, if it is conducted as a part of a road transport business operated by the employer.
PN79
It's quite a different thing as to whether the vocational aspect of this award applies to some drivers on the one hand, and whether from an industry point of view a shipping company called Sea Swift is actually conducting a road transport business. The simple point about that, we say, is it has over $50 million worth of ships and about half a million dollars worth of trucks; and the trucks are used - and only used - for the purposes of commencing or completing a sea transport operation.
PN80
Once the material at shore it might go 2000 miles on a ship and two kilometres on a truck to complete the transport contract. That's not a road transport business, and those facilities are not conducted in connection with a road transport business, and therefore they are not distribution centres in accordance with the industry aspect of the rule. And therefore we say that it's the Storage Services and Wholesalers Award which applies, for the reasons that we've put earlier in the submission.
PN81
They're the core BOOT issues. As to the other issues, they've been dealt with in the evidence and the submissions. I won't go into any of them. I don't wish to open them in any detail, but rather just to make it clear where we see the real contest in this matter as lying. We don't see any - we don't think we will encounter any difficulties in dealing with the other issues that have been raised by the unions.
PN82
But again, I don't wish to make any detailed opening in relation to those matter. Most of what we say is in our statements and in the written outline. Having said that, unless there's anything else, the order of witnesses will be Mr Bruno, Mr O'Halloran and Mr White.
PN83
THE COMMISSIONER: All right then.
MR HERBERT: I call Mr Bruno.
<LINO BRUNO, SWORN [10.32 AM]
EXAMINATION-IN-CHIEF BY MR HERBERT [10.33 AM]
PN85
THE COMMISSIONER: Good morning, Mr Bruno. I'm Simpson C. I will give you to Mr Herbert now.
PN86
MR HERBERT: Mr Bruno, can you tell the commission, please, your full name, your address, and your occupation?‑‑‑Sure. My name's Lino Bruno. I'm the chief operating officer of Sea Swift.
PN87
And your address, please, just for identification. Your work address, if you prefer?‑‑‑Yes. 41 to 45 Tingira Street, Portsmith.
PN88
Mr Bruno, have you prepared a statement of the evidence that you are able to give in these proceedings?‑‑‑Yes, I have.
PN89
Does that statement - do you have a copy of it there?‑‑‑I haven't got a copy, no.
PN90
We have a copy for the witness. If you would look at this document, please?‑‑‑Thank you.
PN91
Is that a copy of your statement, consisting of 52 paragraphs and signed by you on 10 August 2015?‑‑‑That is correct.
PN92
Does it have three attachment, A, B and C?‑‑‑Yes, A, B, C, correct.
*** LINO BRUNO XN MR HERBERT
PN93
Are the facts and circumstances set out in that statement, to the best of your knowledge, true and correct?‑‑‑Yes.
PN94
I tender that statement, Commissioner.
THE COMMISSIONER: All right. I will admit the statement of Lino Bruno, dated 10 August 2015, made up of 52 paragraphs and three attachments, as exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF LINO BRUNO DATED 10/08/2015
PN96
MR HERBERT: Just one further matter, Mr Bruno. You've been requested to obtain from the records of the company an approximate evaluation of the fleet of vessels currently operated by the company?‑‑‑Yes, I have.
PN97
What is that?‑‑‑The vessel valuation or insured value is approximately $53 million - $53 million.
PN98
And similarly, have you sought to obtain an approximate current valuation of the motor vehicles - transport vehicles operated by the company in conjunction with its business?‑‑‑Correct. The trucks valuation is estimated to be around $600,000.
PN99
$600,000?‑‑‑Correct.
PN100
Thank you. That's the evidence-in-chief of Mr Bruno.
PN101
THE COMMISSIONER: Thank you, Mr Herbert. Mr Quinn, are you going to go first?
PN102
MR QUINN: I understand that the TWU is intending ‑ ‑ ‑
PN103
THE COMMISSIONER: Mr Cerrato.
PN104
MR QUINN: Commissioner.
THE COMMISSIONER: Thank you.
*** LINO BRUNO XN MR HERBERT
CROSS-EXAMINATION BY MS CERRATO [10.35 AM]
PN106
MS CERRATO: Just in relation to your statement, at paragraph 6 you indicate there that the customer is issued with a single consignment note for the forwarding of sea freight. Is that correct?‑‑‑That is correct, yes.
PN107
And that's those attached, isn't it, a sample of one of those is attached to your statement?‑‑‑Yes, that is correct.
PN108
So there's no separate charge for the transport by road of any of the cargo. Is that correct?‑‑‑That's correct, yes.
PN109
And is there a separate charge for the consolidating, packing and loading of that freight?‑‑‑No.
PN110
So it's all part of the same business, it's all part of the one transaction?‑‑‑All part of that consignment, correct.
PN111
And the fleet of trucks that's run by Sea Swift, that's part of the cost of the - that part of the cost is incorporated into the cost that's passed on to the customer?‑‑‑It's part of the cargo cost, correct.
PN112
Just in relation to paragraph 12, you've indicated that the truck drivers who are employed in Cairns do - approximately 80 per cent of their duties are as truck drivers. Is that correct?‑‑‑That's correct.
PN113
What do they do for the rest of their time, for the other 20 per cent?‑‑‑There are a whole host of other activities that they undertake as part of their job. I think there are a few listed in the statement from - obviously a lot of documentation, safety, our housekeeping within the yard; there's also activity within the depot that might be required.
PN114
What sort of activities do they undertake?‑‑‑If I can refer to the items that were listed there, obviously there's an element of receiving cargo in the down time.
PN115
Where is that ‑ ‑ ‑?‑‑‑Sorry, page 6 of 9. 37. So effectively what you see there from (a) to (u) are all activities that occur within the facilities.
PN116
Okay. So they would operate as general hands?‑‑‑Effectively, yes.
*** LINO BRUNO XXN MS CERRATO
PN117
You talk about the delivery of fuel. There's delivery of, I believe, aviation fuel at Horn Island, and there's delivery of other fuel on some of the other remote islands. Are those duties undertaken in fuel tankers?‑‑‑There is probably a bit of a blend. When it comes to the bulk diesel distribution or deliveries to the remote power stations, that is done in a fixed tanker, so yes. Alternative to that, we've also got aviation fuel that gets carried in ISOs, or bulk containers, effectively, and they will be delivered with a side loader, which is effectively a trailer.
PN118
You talk in various parts of your statement about in some locations general hands will occasionally jump in and drive trucks from anything - I think in your statement, from anything to - from about 5 per cent to 80 per cent of their duties would be truck driving duties?‑‑‑Mm-hm.
PN119
In terms of the general hands who would do approximately five to, say 20 per cent of their duties driving trucks, would they drive a truck for a whole day?‑‑‑No, that wouldn't be the case necessarily. Generally it might be a situation where there's a delivery to be made to a customer that's just around the corner, and at that stage the customer has requested it. Generally they come to the facility to pick up their freight, but there are certain larger customers that can't - themselves. So at that point there the general hand might be asked to do that delivery.
PN120
Just quickly, in the submissions that have been put on behalf of Sea Swift in this matter, the submissions are that the employer has a number of different divisions as part of its operations?‑‑‑Mm-hm.
PN121
So it has got administration, freight consolidation, transfer facilities, including transport and logistics?‑‑‑Mm-hm.
PN122
The maintenance division, and the marine operations division. So would you agree that freight consolidation and transfer facilities, including transport and logistics is part of one division within Sea Swift?‑‑‑It's probably how we structure it internally within the company, but generally we refer to the northern cargo business - even financially is referred to in our financials - is dealt with as one complete unit. So northern cargo, which includes those freight facilities, are all-inclusive of a group or a division.
PN123
In terms of your role, you're responsible for that division of Sea Swift activities, the freight consolidation, transfer facilities - - -?‑‑‑That's correct.
PN124
- - - transport logistics. Is that correct - as one ‑ ‑ ‑ ?‑‑‑As chief operating officer, the operating divisions effectively report to myself, yes.
*** LINO BRUNO XXN MS CERRATO
PN125
You say that none of the operations employees work any form of shift roster whatsoever?‑‑‑Mm-hm.
PN126
I'm just wondering, attached to the submissions made in this matter were sine calculations in respect of truck drivers which compared the base rate between the award and the agreement, and also the afternoon shift rate between the award and the agreement?‑‑‑Mm-hm.
PN127
Are you saying that you've got no employees who work shift work all afternoon shift - - -?‑‑‑On the whole it's effectively a daytime operation. There are times - for example, just recently (indistinct) right now where we brought in a temporary vessel to replace one of our larger vessels that's getting maintained, so currently we are operating in that sort of fashion where you've got, like, a very compressed time scheduled to get the vessel out. Our operation really relies on departure times and arrival times to meet that schedule, but that's only a very small element. It only happens every three to four years. In fact, this is the first time it has actually happened in about a decade, because we generally use our other vessels during a Christmas period to be able to fulfil that gap when a maintenance or a docking is required for a vessel.
PN128
You've also talked about - and I'm just having difficulty finding it here, but you've also talked about on one of the remote islands they work a Sunday afternoon?‑‑‑Mm-hm.
PN129
Is that correct?‑‑‑There is, yes.
PN130
The Sunday afternoon, is that a specific time? What's the time of that shift? Is it a two-hour shift? Is it a four-hour shift? How does that - - -?‑‑‑It generally is dependent on when the vessel arrives. Again, everything is geared around the vessels and the marine part of the business. As you would appreciate with vessels, you can get late arrivals because of weather and so forth, but generally it's geared towards the marine part of the business, and usually with our schedules there is a Sunday afternoon requirement to have personnel ashore to be able to receive that cargo. That might be four to six hours, it really is dependent upon the schedule on the day.
PN131
And the timing of that?‑‑‑The timing? I think in general there might be - you know, in Horn Island it might be a Sunday morning to be able to process the freight if the vessel is in early. I think at Seisia there might be an element of a few hours on the Saturday morning to assist customers to receive their freight.
*** LINO BRUNO XXN MS CERRATO
PN132
What would be the length of that?‑‑‑I think that Seisia it would probably be around the three hours or so in Seisia, that particular depot.
PN133
THE COMMISSIONER: Did you say Saturday morning at Seisia?‑‑‑Saturday morning for about two to three hours, yes. We've experienced late arrivals, Commissioner, with regards to our top-up vessel - what we call a top-up vessel - arriving into Seisia, so there is a bit of an overflight. Again, it's a short aberration. It will resolve itself once this vessel gets back into schedule.
PN134
MS CERRATO: Are there any other areas where they work so those and Sundays as part of ordinary - they're part of ordinary hours, aren't they?‑‑‑Correct.
PN135
Are there any other locations where they work weekend were?‑‑‑No. At that point there it becomes the marine operation, which then does the deliveries, that's right.
PN136
And that's part of their ordinary hours on (indistinct) Sundays incorporated?‑‑‑I think it is incorporated. I understand there is an overtime component to that period.
PN137
You also talk about the shore-based employees who work up to 8 pm on one day of the week. Is that correct?‑‑‑Correct.
PN138
Is that part of their ordinary hours?‑‑‑I believe so, yes.
PN139
Is that paid as a shift? Are they paid shift allowance for that, or what is the - - -?‑‑‑I think there is an element - if they work past that period there is an element of - I can't recall straight off the top of my head what that might be, but there is an element.
PN140
So you're saying up to 8 pm, though, it would be the ordinary rate of pay that would apply?‑‑‑I think there is, again, an element of additional payment to those that would work one day a week in rotation.
Would that be at overtime rates or the shift allowance?‑‑‑I haven't got that detail with me.
CROSS-EXAMINATION BY MR KEATS [10.47 AM]
*** LINO BRUNO XXN MR KEATS
PN142
MR KEATS: You were giving some evidence just earlier to my friend about how the company is divided into division. I'm wondering whether you could help me out with the structure of the company. I gather you, in your position, report directly to the CEO. Is that right?‑‑‑Correct, yes.
PN143
And you said the divisions report to you. Does that mean the fleet master, Mr O'Halloran, reports directly to you, or does he have a direct report to the CEO?‑‑‑The fleet master has a direct report to the CEO.
PN144
Are there any other direct reports to the CEO?‑‑‑You would have the health and safety manager, you would have the CFO, you've got the human resource manager, and you've got the engineering and maintenance manager - the general manager.
PN145
Thank you. In your statement you refer to the number of shore-based employees, but you don't set out the number of marine-based employees?‑‑‑Mm-hm.
PN146
Is it fair to say you've got roughly about 280 marine-based employees? Would that be about right?‑‑‑No. That doesn't recall true to me.
PN147
All right. How many do you have, roughly?‑‑‑I believe there are about 160 to 180.
PN148
So roughly twice as many as your shore-based employees?‑‑‑I think the total employees at Sea Swift is about 350 - 330, 350; and about - I guess half of that would be approximately the marine.
PN149
Thank you. Your statement seems to mainly - sorry, I withdraw that. Attachment A to your statement sets out the various places in Queensland and the Northern Territory that the vessels take cargo to and just expresses how frequently they take that cargo. Would it be fair to say that the detail as to how those voyages operate is best understood by Mr O'Halloran and rather than yourself?‑‑‑If you prefer to have more detail to that, absolutely.
PN150
If I wanted to ask, for example, questions about precisely where ships left from, precisely where they voyaged and things like that, that would be more in the understanding of Mr O'Halloran than yourself?‑‑‑Correct.
PN151
Thank you. Also in your statement you talk about bargaining. I see from the minutes that you attended a number of the bargaining meetings. Is that right?‑‑‑I did, yes.
*** LINO BRUNO XXN MR KEATS
PN152
You attended the first meeting?‑‑‑I attended the first meeting, yes.
PN153
And present at this meeting was Mr O'Halloran. Is that right?‑‑‑That's correct.
PN154
You recall him being there?‑‑‑I do, yes.
PN155
Have you read the minutes of that first meeting in preparation of today?‑‑‑No, I haven't.
PN156
Did you read them close to the time that that meeting occurred?‑‑‑I don't recall poring through the minutes after the meeting, no.
PN157
All right. Do you recall who had the obligation to record the minutes?‑‑‑We had our executive assistant present at that first meeting to keep a log of the notes - the meeting notes.
PN158
Forgive me for my pronunciation, that's Sheena Poa?‑‑‑Sheena Poa, yes.
PN159
Your experience with her is that she would take accurate minutes?‑‑‑Yes. She takes minutes for generally the executive, yes.
PN160
So if the minutes record certain things, you wouldn't be in a position to otherwise say that they would be inaccurate? Your experience would be that they would be accurate?‑‑‑From my experience, they would be accurate minutes.
PN161
The minutes record that Mr O'Halloran indicated that he was a bargaining representative for himself and some other marine employees. That's an accurate statement, wasn't it?‑‑‑I don't necessarily recall that particular statement as such. I do recall Bob O'Halloran at the meeting, and as we went around the table certain of us were in different positions, clearly, as part of introductions. But I recall Bob stating that he was there to represent himself, yes.
PN162
In giving the answer that you don't recall the rest of what is recorded in the minutes, you don't have a positive memory that it didn't happen?‑‑‑Again, my recollection of it was we went around the table, we all introduced ourselves, but I don't necessarily recall there being a great deal of detail.
*** LINO BRUNO XXN MR KEATS
I will have one more go and then I will leave it. Do you have a clear recollection that he didn't say that he was the bargaining representative for other marine employees?‑‑‑No, I don't.
CROSS-EXAMINATION BY MR QUINN [10.53 AM]
PN164
MR QUINN: Do you now have a copy of your statement with you in the - - -?‑‑‑I do, yes.
PN165
If I can take you to page 7 of your statement, please. In that paragraph 39 there, the first paragraph of the enterprise bargaining section, you refer to meetings conducted in those days immediately before the vote on the EBA commenced. In the last sentence of that paragraph you say:
PN166
I also ensured that the Darwin base manager followed the same process at that base
PN167
the Darwin base
PN168
(indistinct) employees at Sea Swift's Gove facility.
PN169
How did you ensure that he followed that same process?‑‑‑I instructed him, and he acknowledged.
PN170
You instructed him what?‑‑‑To follow through with the visits to each of the areas where we have employees.
PN171
Presumably didn't just call him and say, "Go visit each of the areas," there were some more detailed instructions you gave him about what to do, what not to do?‑‑‑Certainly. It was around ensuring that, you know, as part of the whole process and prior to the vote, that the employees were obviously fully aware of the process, again, just to reiterate what might have been sent out, and then to update them on other company-associated matters.
PN172
Did you provide him with a briefing paper or a script?‑‑‑No, there wouldn't have been anything like that.
*** LINO BRUNO XXN MR QUINN
PN173
How did you ensure that he did anything at all?‑‑‑Once again, you pick up the phone in this instance, I would have spoken to him, and then I was aware that he travelled to the serious. And then he acknowledged the fact that he did what he had to do.
PN174
And what was it that he acknowledged that he did?‑‑‑He went to those areas, spoke to the employees; there was a question and answer, obviously, around the proposed draft agreement; fielded any questions in the same sense that I did with each of those employees in the depots.
PN175
Just to make sure we're not talking at cross purposes, the Darwin manager you're talking about is Mr Fitch. Is that right?‑‑‑There was Chris Sheppard, who's the GM of the Northern Territory at that time. My instructions were to him to discuss it with his employees at the Darwin facility as well as the Gove facility.
PN176
And, sorry, he was GM, did you say?‑‑‑General manager of Northern Territory.
PN177
Did you give the same instructions to your operations manager?‑‑‑In Darwin or in Cairns?
PN178
No, in relation to the Queensland ‑ ‑ ‑ ?‑‑‑I was there with the Queensland operations manager when we visited - initially was Horn Island, then we went to Seisia, and then we went to Thursday Island.
PN179
Did you conduct all of those meetings ‑ ‑ ‑ ?‑‑‑I did personally - yes, jointly, yes.
PN180
Were there any - again, so we're actually talking - you know, which person we're talking about, the operations manager ‑ ‑ ‑ ?‑‑‑The operations manager in Queensland is Mick Helms, Michael Helms.
PN181
So you and Mr Helms conducted those meetings jointly?‑‑‑Correct.
PN182
And what other meetings were arranged with staff in other locations?‑‑‑Again, I was there personally with our operations manager, Queensland, at the remote depots that I've just mentioned. In the Northern Territory we had Chris Sheppard, our GM of operations, who attended the Darwin, and I believe the Gove - the Gove depot prior to the vote on the agreement.
PN183
And in relation to the Torres Strait depots?‑‑‑That was myself and Mick Helms.
PN184
What depots were they?‑‑‑Horn Island, Seisia and Thursday Island.
*** LINO BRUNO XXN MR QUINN
PN185
Sorry. On what other depots where you have employees were meetings conducted?‑‑‑I don't recall there being any other sort of meetings around that time that we're referring to in that paragraph. We haven't got any other depots.
PN186
I missed that last bit?‑‑‑We've got Weipa as another depot. I met or visited Weipa probably two or three weeks prior to the whole process. I tend to visit those depots as regularly as possible and update employees on current affairs and anything that might be of importance.
PN187
And what about in relation to employees on vessels?‑‑‑Employees on vessels?
PN188
Yes?‑‑‑I understand that Lee Fitch may have had some discussions, obviously, with his marine crew in the Northern Territory, and Terry Russell would have visited around the same time as I was in the north - and visited the operations or any vessels that may have been in port at the time at Horn Island and Thursday Island.
PN189
If we can just talk about those separately in relation to Mr Fitch?‑‑‑Sure.
PN190
Your understanding is what facilities or work locations, if I can put it that way?‑‑‑Mm-hm.
PN191
What locations did he conduct meetings in?‑‑‑Lee would have conducted any sort of discussions in Darwin when the vessels come back to the main port.
PN192
And just when the vessels were in port in Darwin, you say?‑‑‑That's correct. All vessels will at some stage come back to port on a weekly basis to re-load - back-load and re-load, yes.
PN193
Where did he obtain his instructions from in relation to what information to pass through at those meetings?‑‑‑I've got no comment to make on that because I don't necessarily - I didn't provide him personally any instructions to do any briefings.
PN194
Does he report to Mr Shepherd?‑‑‑At that stage he did, yes.
*** LINO BRUNO XXN MR QUINN
PN195
So would you anticipate that any information that he would have provided would have been provided to him by Mr Shepherd?‑‑‑I think Lee - well, Lee was part of the bargaining process, so he would have firsthand information of the process and he may have had discussions with Chris at some stage, but again I can't comment on those discussions because I wasn't party to it.
PN196
He reports through Chris to you?‑‑‑Sorry? Does Chris report to me?
PN197
No, no. Does Mr Fitch report through Chris to you; that's the line of reporting?‑‑‑That's correct.
PN198
So he was - when he was conducting those meetings in Darwin, he was conducting those meetings in his role as a state manager, was he?‑‑‑He was conducting - this is Lee Fitch now you are referring to. He was conducting, obviously, meetings in his capacity as marine manager for the Northern Territory.
PN199
So if we can move to the Queensland meetings now. Can I ask that same question about reporting lines, between yourself and the Queensland - what's his title, Cairns or Queensland operations manager?‑‑‑It would be the operations manager, because the company's grown over time. There would be a title change as such, but he was the operations manager, Mick Elms, that I was with at the time.
PN200
Sorry, that's who you conducted the meeting with?‑‑‑Yes.
PN201
We're back to talking about the meetings that were conducted on the vessel?‑‑‑On the vessels.
PN202
So where would they have been conducted on the vessel?‑‑‑They would have been conducted, I would assume, in the port of Thursday Island, which is Horn Island, Thursday Island.
PN203
And by?‑‑‑Mr Terry Russell.
PN204
And Mr Russell's reporting line is?‑‑‑Mr Russell's reporting line, at that stage, would have been direct to me at that point, simply because of the company structure not yet having been changed at that stage.
PN205
Changed meaning?‑‑‑As we grow, we're changing the structure of the company as any company would, yes
PN206
Well, what's the issue then between - at that time you were saying he reported directly to you?‑‑‑Yes.
*** LINO BRUNO XXN MR QUINN
PN207
And what - he conducted those meetings in his role as - the title is just operations manager?‑‑‑Now you are talking about Terry Russell now?
PN208
Yes?‑‑‑He's a marine manager.
PN209
Marine manager, thank you. So did you provide him with some directions, a script, a briefing, an outline as to what to discuss with employees in those meetings?‑‑‑No script. No, look, no script. No briefing. It would have just been a discussion around, you know, ensuring that there's an opportunity there to field any last minute questions around the - - -
PN210
Sure. But what I'm interested in is what you recall what discussion or briefings or script you did give to him. If you were his manager, that he would have obtained this information - - -?‑‑‑My recollection was it - it was that we were all heading up, so I asked him to be able to be available to head up to the Thursday Island or to Horn Island to have discussions with the crew, just to field again any last minute questions around the vote that was due around that stage, and that's effectively the discussion that would have been had at the time, from my recollection.
PN211
And did you discuss with him that the four-on-four roster would go if the EBA didn't get up?‑‑‑No.
PN212
So where would he have obtained that information from?‑‑‑I can't comment on that.
PN213
You refer to, in paragraph 41 of your statement, from the second sentence there, "Some employees literacy levels may not be exceptionally high." So does that mean various employees are - is that a polite way of saying functionally illiterate?‑‑‑I take offence at that.
PN214
Well, it's a simple question. It's a standard term. Are those employees functionally illiterate?‑‑‑No.
PN215
So what does - is "may not be exceptionally high", does that mean low?‑‑‑I don't think my literacy is exceptionally high either, when you compare it to a scale of someone who is quite intelligent and able to communicate freely.
*** LINO BRUNO XXN MR QUINN
PN216
So is your evidence that everyone, from yourself down in Sea Swift, as far as you are aware, has low literacy levels?‑‑‑No, I don't say that at all.
PN217
Well, that's what you've just told me, is that not - you are not - do not have exceptionally high literacy level?‑‑‑All I'm saying - that there's many levels of literacy. Each of the employees that work for Sea Swift are literate to a certain degree to be able to obtain qualifications and work successfully with Sea Swift. So that's my take on that comment that was raised there.
PN218
So your take is that the level of some employees is quite low?‑‑‑I wouldn't say quite low. There's a scale to things.
PN219
Indeed, but there's a question as to what - whether people are literate or note and you've identified that some employees are not?‑‑‑No, it states there that they might not have a high level of literacy.
PN220
Well, where you've - in the second half of that sentence, "No employee was identified as requiring any specialised or particular explanation," and you go on to say that, "We repeated the process that we went through in 2009." Is that right?‑‑‑That's what it states, yes.
PN221
So were employees in remote depots able to be given an printed version of the EBA?‑‑‑Yes.
PN222
And they were the ones who attended the meetings that you were involved in?‑‑‑Those employees who were there attended the meetings, yes.
PN223
And the ones who were on vessels?‑‑‑The ones that were on vessels would have been on the vessel at that stage, yes.
PN224
half of them would have been?‑‑‑Correct.
PN225
The other half were on a four-by-four roster, so were not at work during that period at all?‑‑‑For that particular meeting, correct.
PN226
Well, there was only one. As I recall, you were saying there were only meetings in that period immediately prior to the vote taking place?‑‑‑Yes, and there was a whole host of other, I guess, communications prior to that.
*** LINO BRUNO XXN MR QUINN
PN227
So in the 2009 or the - approaching the - what became the 2009 agreement, did you investigate if any employees were likely to need special assistance in relation to that process?‑‑‑From recollection in 2009 we went through a very similar process where it was a continual engagement process with our employees. Sea Swift has a fantastic relationship with our employees and have done so for many, many years. If we felt there was anyone or individual in particular that would require special attention, they we will deal with that. That's effectively how we operate. We engage with our employees on a regular basis.
PN228
Did you engage in any process to identify whether they need any specialised assistance or explanation in relation to a complicated legal document?‑‑‑You asked the question, there's a fair amount of support in those depots, if I can talk to Thursday Island just as a particular example, our depot manager there, Daryl Seaton is an indigenous local so there's an element of communication that happens daily. He would have raised that question, whether there would be any issues with anyone within his ranks that did not understand the agreement and was asking questions around it.
PN229
Did he tell you that he raised that question?‑‑‑In 2009? I can't recall that far back.
PN230
2015?‑‑‑He would have raised it, I don't - - -
PN231
Well, that wasn't the question. The question is did he inform you that he's raised the question?‑‑‑He didn't necessarily inform me, no.
PN232
And you didn't undertake any investigations?‑‑‑As part of the communication to all employees, there was ample opportunity once again, not just with the employees themselves, also with managers and supervisors and so forth to raise any concerns that they feel required special attention.
PN233
I take that you're saying that there was no investigation?‑‑‑Separate investigation, no.
PN234
Now, my friend from the Transport Workers Union went through in some detail with you working hours arrangements in various areas.
PN235
Is it correct to say there's limited amount of work by those operations employees that might be called shift work or outside of normal hours?‑‑‑That's correct, limited.
PN236
Do you work longer hours than those staff?‑‑‑Myself personally?
PN237
Yes?‑‑‑I don't think I ever stop working.
*** LINO BRUNO XXN MR QUINN
PN238
Including on a Wednesday morning even when you are well away from the office. So what sort of hours - just on average, what sort of hours a week do you work?‑‑‑Personally, I probably do about 10 hours a day, I guess, contacts hours at work and as we all appreciate, these days with technology, you're never really away from work, are you?
PN239
Appreciate might not be the word, but we understand. So if it's say about 10 hours, is that on the premises?‑‑‑Yes.
PN240
And on average, roughly, outside of the premises you might say?‑‑‑You'd have to add at least another 10 hours or more.
PN241
That would be four hours sleep a night?‑‑‑No, not per day, on a weekly basis.
PN242
So all up a week, in round figures, what would you say you would work?‑‑‑55, 60 hours.
PN243
And that's just part of the job, as far as - that's the nature of your role and comes with the territory?‑‑‑That's the nature of me.
PN244
For those hours that you perform, do you get paid any penalty rates?‑‑‑Penalty rates?
PN245
Overtime hours, overtime rates?‑‑‑No.
PN246
Penalty rates for weekend work, on-call allowances?‑‑‑No.
PN247
You are paid just a salary?‑‑‑Correct.
PN248
Do you have a performance review process associated?‑‑‑Yes.
PN249
Do you have a performance preview process?‑‑‑Yes, there is a performance review process, correct.
PN250
Is that associated with your salary as well, annexed to your salary?‑‑‑Generally they are, yes, and mine is, yes.
*** LINO BRUNO XXN MR QUINN
PN251
Is that an annual process?‑‑‑Generally, yes.
PN252
Is it a - do you get a - you had a guarantee of an annual increase in that salary?‑‑‑My contract of employment or my being an employee of Sea Swift falls under the collective agreement of 2009, as it stands today. So I enjoy the two and a half per cent or fair work pay commission hand down.
PN253
Can we go back a step? You identified that you had a performance review process and you salary was linked to that?‑‑‑Mm-hm.
PN254
So what's the link between your performance review and you remuneration?‑‑‑There's no direct link as such where you say, "Look, you've performed poorly, Mr Bruno. You're not going to get the fair pay, the 2.5 per cent, for the year." There might be a linkage there. I've been with Sea Swift for 21 years, so my thought process is not necessarily the past two or three or four, five years of their last agreement. It's 21 years or 22 years at Sea Swift, we've gone through many different revisions of performance reviews linking it to potential increments above for certain revenue targets and so forth and (indistinct) a BD, business development manager to bring in business to the company. So again, there's been varies linkages in the past. Certainly in past four or five years under this agreement, I've followed exactly what's in that agreement.
PN255
Is it that currently you don't have any performance-related?‑‑‑Currently as we speak, no.
PN256
That's all I have, Commissioner.
THE COMMISSIONER: Thank you, Mr Quinn. Any re-examination?
RE-EXAMINATION BY MR HERBERT [11.15 AM]
PN258
MR HERBERT: Only one matter.
PN259
Mr Bruno, you were asked by the representative of the TWU about the matter of the working of hours that might be described as shift work and you responded to one of those questions by reference to a particular situation which is occurring at the moment as we speak by reason of a vessel being offline and being replaced with another vessel?‑‑‑Correct.
*** LINO BRUNO RXN MR HERBERT
PN260
And you say that there's a truncated time issue. Is that - I think your statement confirmed for the Commission that that's the issue that you've raised in paragraph 30 of your statement?‑‑‑That's correct.
PN261
That's the Newcastle Bay, which is one of the larger vessels is offline at the moment for a refurb?‑‑‑Yes.
PN262
It's been replaced by a slower vessel?‑‑‑Yes.
PN263
And because it has longer steaming times, it has to have shorter loading times to maintain the - - -?‑‑‑That's correct.
PN264
- - - the arrival deadlines, is that - - -?‑‑‑That is true and correct, yes.
PN265
And the individuals that you were talking about in answer to the question who may work longer hours of the night or around-the-clock type hours in the 24-hour period you've referred to in that paragraph; that occurs one day a week?‑‑‑That's correct.
PN266
For a temporary period of the vessel being offline, that's right?‑‑‑For a temporary period, that's correct, yes.
PN267
And is it the case, as I think you've referred in paragraph 31, that after that one 24-hour day, they reverted to the normal work patters for the balance of the week?‑‑‑That's correct, yes.
PN268
I have nothing further of Mr Bruno, Commissioner, might he be excused?
PN269
THE COMMISSIONER: Yes, Mr Bruno. You are free to go?‑‑‑Thank you, Commissioner. Can I just stay in the hearing room?
I might propose that we just have a short adjournment till 11.30.
<THE WITNESS WITHDREW [11.17 AM]
SHORT ADJOURNMENT [11.17 AM]
RESUMED [11.34 AM]
*** LINO BRUNO RXN MR HERBERT
PN271
THE COMMISSIONER: Mr Herbert.
MR HERBERT: Yes, Commissioner. I call the next witness, Robert O'Halloran.
<ROBERT JOHN O'HALLORAN, SWORN [11.35 AM]
EXAMINATION-IN-CHIEF BY MR HERBERT [11.35 AM]
PN273
THE COMMISSIONER: Good morning, Mr O'Halloran, I'm Commissioner Simpson?‑‑‑Good morning, Commissioner.
PN274
I'll give you to Mr Herbert now.
PN275
MR HERBERT: Mr O'Halloran, could you for the record please tell the Commission your full name, your address and your occupation?‑‑‑Robert John O'Halloran (address supplied) and my occupation is as the fleet master for Sea Swift.
PN276
Have you prepared a statement of the evidence that you are able to give in these proceedings and if you'd look at the document in the folder in front of you, is that a copy of the statement that you have prepared and which is signed by you on 10 August 2015 and consists of 36 paragraphs and three attachments?‑‑‑Yes, that's affirmed that that's my statement.
PN277
And are the facts and circumstances set out in that statement and the attachments to the best of your knowledge true and correct?‑‑‑The facts in the statement are to my knowledge true and correct.
PN278
I tender that statement, if it please the Commission.
THE COMMISSIONER: Mr Herbert, I will admit the statement of Robert O'Halloran, made up of 36 paragraphs and attachments A to E as exhibit 2.
EXHIBIT #2 STATEMENT OF ROBERT O'HALLORAN
*** ROBERT JOHN O'HALLORAN XN MR HERBERT
PN280
MR HERBERT: Just one further matter, Mr O'Halloran. In paragraphs 1 and 2, you've put down your background - your more recent background, but prior to your engagement with Sea Swift, what was your connection with the maritime industry generally? What was your - what were you doing before that?‑‑‑Prior to my commitment with Sea Swift, my background in the maritime industry has basically been only on the coastal trade. I have been involved in the fishing industry in Far North Queensland, the Gulf of Carpentaria and the far northern waters. I worked for various companies in the fishing industry and basically towards the end of my time with - in that industry, I was operating a mother ship type trawler where we were actually trawling and in that period of time the - most of the vessels that were fishing were wet boats or kept their product under ice, so they didn't have great durability and the vessel that I was operating was a fairly large vessel with freezer capacity, so we used to take product from independent vessels and processes and freeze it on board.
PN281
And those fishing operations you were involved in before you worked for Sea Swift were in and around the Gulf of Carpentaria and Torres Strait and far northern waters?‑‑‑That's affirmative, yes.
PN282
Yes, thank you and then the owner of Sea Swift at that period of time or prior to Sea Swift was operating a company in Karumba. The company was called Point Seafeeds, they had a couple of vessels that they were operating at that period of time and those vessels were basically fisheries support vessels. So we were operating in the Gulf of Carpentaria at that particular time and we were servicing all the fishing fleet in the Gulf of Carpentaria and the prawn fishing fleet in the Gulf of Carpentaria. So that operation basically entailed going out to various anchorages in the Gulf of Carpentaria. It was basically a fortnight schedule - sailing schedule that we had out of there and then we would provide fuel stores for the vessel, water and then backload the catch that they'd processed on board. In that time, most of the trawlers were freezer vessels and were bringing that back into Karumba. We unload the catch in Karumba and then reprovision fuel and stores and go back out, and service the fishing vessel.
PN283
And when approximately did you first commence work in the maritime industry?‑‑‑Probably nearly - in the early 1970s. Because I can remember the very serious wet season they had in the Gulf of Carpentaria in 1974.
PN284
Thank you?‑‑‑I was there prior to that.
PN285
And you've been continuously involved in the maritime industry in Far North Queensland and the Gulf of Carpentaria from that day to this?‑‑‑That's affirmative.
PN286
That's the evidence of Mr O'Halloran.
PN287
THE COMMISSIONER: Thank you, Mr Herbert. Are we staying with the same batting order?
*** ROBERT JOHN O'HALLORAN XN MR HERBERT
PN288
MR KEATS: I believe I might be up first.
THE COMMISSIONER: All right, thank you.
CROSS-EXAMINATION BY MR KEATS [11.40 AM]
PN290
MR KEATS: Mr O'Halloran, your position as fleet master reports directly to the CEO, that's correct?‑‑‑My position with Sea Swift, besides being the fleet master I'm also the - also what they classify as a designated person ashore. That position is basically a conduit for all the vessels at sea to have access to the higher levels of the company hierarchy in the event of emergency situations and other things associated with the running of the vessel. So in my job with fleet master I'm basically looking after the regulatory requirements of the fleet and also having an impact in the selection of crew and training of crew for out vessels.
PN291
Thank you for that, but to return to my question, do you report directly to the CEO?‑‑‑That's affirmative.
PN292
Thank you. Now, you attended bargaining meetings in relation to negotiations with the agreement that's before the Commission today?‑‑‑That's affirmative.
PN293
That included attending the first meeting, is that correct?‑‑‑That's affirmative.
PN294
And at that meeting, the minutes were prepared by Sheena Poa, is that correct?‑‑‑I believe so.
PN295
You were present. Do you recall that she was - - -?‑‑‑She was at the meeting, yes. And her purpose would have been of documenting the events of the meeting.
PN296
She took that role because she's accepted as being accurate in the way she keeps minutes, is that correct?‑‑‑I would say that's correct, yes.
PN297
Now, the minutes record that in that first meeting, that's 19 January 2015 that you indicated that you were a bargaining representative appointing yourself. Do you recall doing that?‑‑‑I think the question that was asked - by me at that meeting was who I represented within the - within Sea Swift and my comment was that I represented myself and some of the - because I have a close relationship with all the crews, was looking for the information I could pass on to the crews.
PN298
Okay. So that's yes, you said you were representing yourself?‑‑‑Yes.
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN299
And you also said you were going to represent some marine employees, is that right?‑‑‑Right.
PN300
And you said that in the context that you were representing them as bargaining representatives, is that correct?‑‑‑That's affirmative.
PN301
And during those meetings you participated by making various comments in responding to some issues raised by other unions or by management, correct?‑‑‑Well, it was a bargaining meeting so obviously it was a - it was a backwards and forwards conversation about ideas and opinions.
PN302
I'll take it one step at a time. Did you sit silent and not say anything the entire bargaining process?‑‑‑No, I certainly didn't sit silent not say anything.
PN303
Thank you. Indeed, you recall that during one of these meetings, Jamie Leitner, one of the bargaining representatives raise issues about long-term employees not being offered full-time. Do you remember that?‑‑‑Well, it's a topic of conversation that's come up from time to time, but I should imagine it's possible that he raised that issue.
PN304
And did you respond by saying, "The number is very insignificant." Do you remember that?‑‑‑I can imagine that was possibly a reply I might have made.
PN305
Thank you. Now, have you seen the evidence of Bernie Farrelly that was filed and served on Monday this week?‑‑‑Yes, I think I have seen that. Well, I have seen it, yes. I don't know that I've studied it in great detail.
PN306
At the back of that material there was a series of Australian Securities and Investment Commission of Sea Swift Pty Ltd and related companies. Did you have a look at those?‑‑‑Yes, I did.
PN307
I can take you through it all, but it's correct to say that CCF Pty Ltd is owned by a company, 159387550 Sea Swift Finance Pty Ltd. Are you aware of that?‑‑‑I'm aware of that.
PN308
And in turn that's owned by Sea Swift Holdings Pty Ltd?‑‑‑That's correct.
PN309
And you're a shareholder of that company, aren't you?‑‑‑Very small, minor shareholder.
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN310
You own 100,000 shares, is that correct?‑‑‑Yes, that's - yes.
PN311
And when you say you're a small shareholder, that's because there's about - there's a touch over 14 million shares. Is that why you say you're a small shareholder?‑‑‑Yes, I think I'd be fairly small fish in the pool of the owners of Sea Swift.
PN312
Now, as fleet master, you're the person with the key knowledge about what the vessels do, is that correct, at Sea Swift?‑‑‑That's affirmative.
PN313
Thank you. So is your task in preparing your statement that you prepared annexure B, which is a series of two maps, is that right?‑‑‑Affirmative.
PN314
Now, did you prepare those maps yourself, or did you ask someone to do them for you?‑‑‑No, we have - I have an offsider that works for - within the Marine Department, so technical manager.
PN315
Yes?‑‑‑And he usually looks after the more technical aspect of working out of various problems that we might have as far as stability on vessels and loading conditions and a whole range of subjects, and he was involved in - with my input of - of obtaining those maps and putting some information on them, as far as the ports that we go to.
PN316
Who is that technical manager?‑‑‑Trevor Stitt.
PN317
Did you stay Stitt?‑‑‑Stitt, S-t-i-t-t.
PN318
Thank you. Now, just go through the map, and you're welcome to look at them, I believe they are in your folder. They contain what appears to be a red line that shows the voyage route?‑‑‑Yes.
PN319
Feel free to look at it if you need to.
PN320
THE COMMISSIONER: It might be better if - - -?‑‑‑Do we have an A3 version of it, thanks?
PN321
MR KEATS: I have to agree, Commissioner, I had mine enlarged to A2. I couldn't read it.
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN322
THE COMMISSIONER: Yes, we're all getting - our eyesight is all deteriorating, isn't it, year by year.
PN323
MR KEATS: Do you have that, Mr O'Halloran?‑‑‑Yes.
PN324
You will see, if you take the one which has got Cape York Peninsula on the front of it - do you have that one in front of you, because there's two maps?‑‑‑Yes, I've got the Cape York Peninsula one, yes.
PN325
You will see there's what appears to be a red line that goes from Cairns and it wanders up and stops a little bit near below Cooktown, do you see that red line?‑‑‑Yes.
PN326
And then it keeps on wandering all the way up to the Leichardt River?‑‑‑Yes.
PN327
All right. Now, that line, did you put that in or did Mr Stitt put that in?‑‑‑Well, Mr Stitt put that in, because basically that's the route our vessels take.
PN328
All right. What instructions did you give him to prepare that red line?‑‑‑To follow the route that our vessels transverse on a weekly basis.
PN329
Do you know how he did that?‑‑‑He did it on computer.
PN330
Do you know how he determined the route the ships take?‑‑‑Well, from sailing plans.
PN331
Have you seen a map like this before?‑‑‑I've seen very many maps in my period of time at sea, and charts.
PN332
All right. Have you seen this map before?‑‑‑On various occasions in the past, yes.
PN333
You see the area just near Cairns, it's like a limey-green. Do you see that? It's like a big shaded polygon and it extends all the way up to what I might call the Torres Strait Islands. Do you see that green?‑‑‑Yes. Yes, sorry.
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN334
Can you go down to the legend, are you able to read what it describes as the - that area, or is it difficult to read on your version?‑‑‑It's probably difficult to read with my eyesight.
PN335
All right. I've got a slightly clearer one and it says "The area of the Australian territorial sea", do you accept that?‑‑‑I accept that, if that's what it says. Yes.
PN336
Thank you. So to take the route from Cairns - just pausing there, that's where your line haul vessels come out of, isn't it?‑‑‑That's affirmative, yes.
PN337
And you've got two of those, correct?‑‑‑That's right.
PN338
There's a tiny patch of blue and then it's straight into the green from the red line?‑‑‑Yes.
PN339
And then you're basically in the green area until a little bit past, say, Cooktown, is that right?‑‑‑That's affirmative.
PN340
All right. Now, is it just me, or is that red line drawn as a straight line with a ruler?‑‑‑Well, you know, with respect, navigating up through the Great Barrier Reef isn't a straight line by any stretch of the imagination, and the scale of this map here, to be able to put all the doglegs and that that we needed to put in there for the reefs that we go around to avoid running aground would be totally impossible. So basically, on the scale of this map, to go from Cairns to the top there and give us some resemblance of what a voyage is, it would be straight line.
PN341
Thank you. That's the approximation you've made, you've just drawn straight lines, roughly, between the various places where you unload cargo?‑‑‑Well, it's the only way to do it.
PN342
And that's what happened?‑‑‑With this scale, that's what happened, yes.
PN343
Thank you. Just so we're not at odds with each other, over the page, you've got the other map of the Northern Territory. It shows part of the Kimberley Region and part of Arnhem Land and then the coast above or to the north. Do you see that?‑‑‑Yes.
PN344
It's the same story, green is territorial sea and the line is - the line of the voyage is prepared by straight lines because of the approximation we just talked about. Is that correct?‑‑‑Exactly the same, yes.
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN345
Just excuse me one moment. Now, because you've got your Master III you understand the ideas of territorial sea and coastal waters, is that correct?‑‑‑Yes, I do.
PN346
And so if I said to you, "Territorial sea was the 12 nautical miles from the territorial baseline," you'd agree with me?‑‑‑Yes.
PN347
So when you, in paragraph 19, talked about that same area that we just talked about as being the sea as territorial waters, you're just using words that are interchangeable, is that correct?‑‑‑Yes, I should imagine so.
PN348
Thank you. Now, in your statement, particularly around about paragraphs 30 and 31, you talk about certain exemptions for certificates of competencies for masters, do you see that?‑‑‑I do.
PN349
It might be obvious, but I just want to ask this of you, but what licence you have to operate a vessel is dependent on the size of the vessel, is that right?‑‑‑Size or tonnage, yes.
PN350
Thank you. And in your case, I think it's all but two of your vessels are under 80 metres?‑‑‑All of our vessels are under 80 metres.
PN351
I understood, and correct me if I'm wrong, that the Newcastle Bay was 81 metres?‑‑‑You have to have a bit of understanding of length. Could I elaborate?
PN352
Could I ask a different question?‑‑‑Yes, fine.
PN353
When you say it's under 80, are you saying it's under 80 because that's what the certificate of the vessel says when it's in class, as opposed to how you measure it?‑‑‑No, that's not - that's not right.
PN354
All right. So its survey certificate, does it say it's over 80 metres?‑‑‑No, the survey certificate says it's under 80 metres.
PN355
Thank you?‑‑‑I think one is - yes, just under 80 metres.
PN356
That's Newcastle Bay that we're talking about, isn't it?‑‑‑Trinity Bay and Newcastle Bay. Talking about line haul vessels, we have two.
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN357
When you are under 80 metres, there are slightly different licensing rules for vessels, for what your ticket for you master has to be, is that correct?‑‑‑That's correct.
PN358
Nothing further, Commissioner.
PN359
THE COMMISSIONER: All right. Look, just before we go to you, Mr Quinn, I might just raise it with both of you while Mr O'Halloran is in the witness box, but in terms of the legend at the bottom of the maps, I'm just having difficulty reading them. I'm not sure if that's something that we need to deal with now, Mr Herbert or perhaps we could - - -
PN360
MR HERBERT: We can do - we'll try and do something during the lunch hour about that.
PN361
THE COMMISSIONER: Yes, I don't think it's critical, but just - - -
PN362
MR HERBERT: These maps are available on the Internet.
PN363
THE COMMISSIONER: Sure.
PN364
MR HERBERT: Which is where we got them. They can be blown up exponentially.
PN365
THE COMMISSIONER: Yes,
PN366
MR HERBERT: That's a very high resolution copy on the Internet. We will see if we can arrange to do something about that during the break today.
PN367
THE COMMISSIONER: All right then. I just thought I might raise it, particularly given Mr O'Halloran is in the witness box. If that's an issue at all, we will deal with it if we need to, but I don't know that we need to urgently.
PN368
MR KEATS: Can I hand up my copy of it? It's quite legible as to the map.
PN369
THE COMMISSIONER: Sure. Do you have another copy for you?
*** ROBERT JOHN O'HALLORAN XXN MR KEATS
PN370
MR KEATS: I have it electronically, Commissioner.
PN371
THE COMMISSIONER: All right. If you are happy to do that, I'd appreciate that.
PN372
MR KEATS: So if I could tender it, it's the Australian Maritime Jurisdiction in the Arafura and Coral Seas prepared by Geoscience Australia, an agency of the Australian Government.
THE COMMISSIONER: All right. I might give that an exhibit number. We will call that exhibit 3, and that's the map covering the Arafura and Coral Seas.
EXHIBIT #3 MAP COVERING ARAFURA AND CORAL SEAS
PN374
THE COMMISSIONER: All right. Thank you for that.
PN375
MR KEATS: No problem.
THE COMMISSIONER: Mr Quinn.
CROSS-EXAMINATION BY MR QUINN [12.00 PM]
PN377
MR QUINN: Thank you, Commissioner.
PN378
Just a couple of questions, Mr O'Halloran. Do you have a copy of your statement?‑‑‑I've got a copy of my statement, yes.
PN379
At your paragraph 19, you say operations take place within sight of land up to a maximum of approximately 15 nautical miles. I understand that's about 28 Ks, 15 nautical miles; roughly 28 Ks?‑‑‑I'm not too sure what the conversion is. We always talk in nautical miles.
PN380
Unfortunately, you're facing a table of landlubbers here who always talk a very different - well, I'm sorry, I take it back. I withdraw that, Commissioner.
PN381
THE COMMISSIONER: I don't know if my three and a half metre tinnie qualifies.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN382
MR QUINN: Occasionally I rely on mathematical ability. Do you mind relying on it at the moment. I understand that - my maths is that 15 nautical miles is approximately 28 Ks or 17.2 landlubber miles?‑‑‑No worries.
PN383
About 28 Ks, and the horizon is about three miles?‑‑‑It depends on the height (indistinct).
PN384
Indeed, and so you'd have to be approximately 60 metres high - 60 metres above sea level to see 15 nautical miles?‑‑‑Around about that, yes.
PN385
Are any of your vessels 60 metres high?‑‑‑Not high as (indistinct) high from the bridge. No, they're probably in the vicinity of probably about 20 metres.
PN386
So nowhere near high enough to be within sight of the coast?‑‑‑It depends on the height of the coast. Possibly we can't see the beach, but we can probably see the mountain range behind it.
PN387
Yes, but that's not much comfort to a seafarer to see the mountain behind it is, is there? It's the beach that he wants to see?‑‑‑Sorry, I missed your question. Say again?
PN388
I imagine it's not much comfort to a seafarer in a storm to be able to see the mountain. It's the coastline that he wants to be able to see?‑‑‑I don't follow your question, with respect.
PN389
I'll move on. You're identifying that all of your vessels are technically measured at below 80 metres?‑‑‑The length, yes, but - length, yes. Okay, if we're talking about length, yes.
PN390
And they're - on their voyages up and down the coast, the Queensland coast, they're regulated by the Transport Operations Marine Safety Regulation 2004, amongst a bevy of other regulations?‑‑‑No. No, they're - now, with the single jurisdiction, the domestic commercial vessels are under the regulation of the Australian Domestic Law.
PN391
Which - well, it's a little more complicated than that, unfortunately, for everyone. The Australian Domestic Law - can I put it this way, those provisions are largely consistent with the prior Queensland regime, if I can put it that way?‑‑‑That was prior to July 2013, yes.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN392
Yes. Under those arrangements, trading and commercial vessels operating within 50 nautical miles or within the Great Barrier Reef and Torres Strait zone can be skippered by a Master Class IV?‑‑‑That's correct.
PN393
So when in your paragraph 30 you refer to Trinity Bay as an example of one of your two line haul vessels only being required to the master to hold a Master Class IV, that's a reference to those regulatory provisions, is that right?‑‑‑It's reference to those regulatory provisions, yes, for length.
PN394
And so that - - -?‑‑‑Operating in the area that they're operating in.
PN395
Yes, and that Master Class - well, that same vessel could operate up to 50 nautical miles out to sea, still being operated by a - skippered by a Master Class IV?‑‑‑Providing it's operating in the area that it needs to be operating in.
PN396
The regulations provide that they can operate within 50 nautical miles, or the Great Barrier Reef zone or the Torres Strait zone?‑‑‑Yes, there needs to be some clarification on distance in this. The clarification is the exemption for vessels is in the Great Barrier Reef Marine Park, which is federal legislation, relates to the vessels transiting anywhere within the Great Barrier Reef Marine Park - - -
PN397
Indeed and you have that - - -?‑‑‑From Cairns to Torres Strait.
PN398
Yes, and you've provided that information in your statement. This is a different question. This is confirming, as you say, that all those vessels are - Sea Swift vessels - are under 80 metres and they're entitled to operate within 50 nautical miles under a Master Class - 50 nautical miles or the Great Barrier Reef zone or the Torres Strait zone under a Master Class IV?‑‑‑Are we talking about the over 35-metre vessels?
PN399
Under 80-metre vessels?‑‑‑I'm slightly confused here. You're asking me a question about length of vessels. Under 80 metres it's - the way it works is between 35 metres and 80 metres, and between 25 metres and 35 metres.
PN400
Sorry, I'll rephrase the question. Between 35 metres and less than 80 metres, that's the class of vessel that at least your line haul vessels fall into, correct?‑‑‑That's right.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN401
And those vessels are entitled to be operated either by a master class - skippered by a Master Class IV?‑‑‑Within the exacted area.
PN402
If they are in - operating in the Great Barrier Reef region - - -?‑‑‑Or within 50 nautical miles of the coast.
PN403
- - -Torres Strait zone or in 50 nautical miles of the coast. So when you say in your paragraph 30, "Having a Master Class IV as the skipper is a lesser certificate level than if the Trinity Bay was travelling in operations outside that area, in which case the same vessel would require a master to hold a higher Master Class III qualification." What's that area you're referring to?‑‑‑Anywhere that's outside the exemption area.
PN404
Which is 50 miles out to sea? 50 nautical miles out to sea? 51 nautical miles they would require a Master Class III?‑‑‑No, that's not right. If the vessel wasn't operating - if the vessel - if the under 80-metre vessel went out of Cairns and turned right instead of turning left, there would be a different qualification required.
PN405
Once it hit 51 nautical miles?‑‑‑What's 51 got to do with it, with respect?
PN406
With respect, I'll - the Transport Operations Marine Safety Regulation under section 88 - sorry, section 89.
PN407
THE COMMISSIONER: Can you take us to where this is in the material, Mr Quinn? Just so I can stay with you.
PN408
MR QUINN: Unfortunately I have a - I think I may have multiple copies. It's not in the material.
PN409
THE COMMISSIONER: Okay. I don't necessarily need
- - -
PN410
MR QUINN: I may have separate - - -
PN411
THE COMMISSIONER: I don't necessarily need to see it, let's just see where you go with it.
PN412
MR QUINN: The regulation allows for a master class 4 to, master class 4 skipper, number 2:
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN413
To skipper a vessel or a person who operates as its master of a commercial ship, 35 metres or more but less than 80 metres or more, within three areas. Within 50 nautical miles of the coast or in the Great Barrier Reef region or in the Torres Strait zone, be aware of those - - -
PN414
THE COMMISSIONER: Under what regulation?
PN415
MR QUINN: Transport Operations, Marine Safety Regulation 2004, section 89.
PN416
THE COMMISSIONER: But that's no longer a valid regulation.
PN417
MR QUINN: Could I say it is. I'm not sure that we're in a position to debate whether it's a valid regulation. You identified previously that those arrangements reflect the arrangements currently in place under the Commonwealth arrangements. They're also the regulation that remains in place, under the Queensland - - -?‑‑‑With respect, the regulation under the Commonwealth now is the National Standard Commercial Vessel.
PN418
Yes?‑‑‑And that determines the manning.
PN419
Yes, and you've identified previously to the Commissioner that - - -?‑‑‑Previously it was under the USL Code.
PN420
Indeed, and the provisions are the same and what I understand your evidence, your earlier evidence to be?‑‑‑That is correct. The NSCB Code basically mirrors the old ULS Code, with changes.
PN421
Thank you. My friend talked with you about the bargaining meetings that you attended?‑‑‑Mm.
PN422
Did you just rock up to those meetings unannounced?‑‑‑Well, the bargaining meetings - the - the dates and the - and the venues of the bargaining meetings was communicated to all and sundry in Sea Swift and they were certainly the - the - the communication at the time just basically indicated anybody that was interested could attend bargaining meetings. The purpose being to sit down and discuss a way forward for a new enterprise bargaining agreement.
PN423
So people could down tools and head off to the bargaining meeting?‑‑‑Well, if they were - if they - if they - if they had a desire of wanting to find out what was going on, yes.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN424
Marine employees?‑‑‑If they weren't at sea.
PN425
Had - - -?‑‑‑If they were at sea then they could appoint somebody to - talk to somebody to - to go along and absorb the information and pass it on.
PN426
Such as yourself?‑‑‑Mm.
PN427
But you say you weren't authorised in any - in that way by anyone?‑‑‑I didn't have a piece of paper signed by anybody to - to basically say, "I want Bob O'Halloran to be the bargaining representative," no.
PN428
And you never gave any such form to Mr Erbacher?‑‑‑No, I did not.
PN429
And you're aware that Mr Erbacher gave sworn information to the Commission that you were a bargaining representative?‑‑‑Well, I was there for my own - my own sake.
PN430
That's not what you say in your statement:
PN431
I was requested by a number of other maritime employees to report to them on the negotiations.
PN432
Is what you say in your statement?‑‑‑With respect, I have a very good relationship with most of the crews on the vessels. I've been at Sea Swift for a long time and I think I have a fair bit of respect from most of the crews on the vessels so they do rely on me for other things and directing me in their day-to-day operations.
PN433
So did you rock up unannounced or did you have a chat with Mr White beforehand about turning up?‑‑‑Not really.
PN434
Nor Mr Erbacher?‑‑‑I don't understand your - your - your thing of rocking up. It was a - it was a well-communicated event for all employees of the company.
PN435
Well, all employees, at any particular point in time that a bargaining meeting was being carried on in Cairns half of the maritime - marine employees would be at sea, would they not?‑‑‑That's correct.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN436
And unable to attend. They couldn't just down tools and attend a meeting, is that correct?‑‑‑No, they couldn't, but I was ashore.
PN437
Correct. The other half of the marine employees are on leave at that time on their roster, correct?‑‑‑Yes, if they're not at sea they're on leave.
PN438
Yes. Some of those will live in Cairns?‑‑‑Probably most definitely.
PN439
Some of them don't even - or a large, a significant proportion don't even live in Cairns, do they?‑‑‑Well, I don't - I - I can't tell you what the portion of people live in Cairns or not but there's a lot of people out of the Northern Territories that don't live in Cairns.
PN440
Indeed. There are some employees though in the fortunate position of not having to ask for permission from a superior to down tools and attend a meeting, would you fall into that category?‑‑‑Sorry, could you repeat the question?
PN441
Did you have to ask permission from your direct - the person you directly report to, to attend the meeting?‑‑‑No, I did not.
PN442
So you just were able to rock up, if I can go back to my earlier phrase?‑‑‑Yes, I was able to attend without seeking permission from anybody to attend.
PN443
And you were able to attend because you are based in Cairns?‑‑‑I'm an employee. I was interested in what - what the EBA discussions were going to be about.
PN444
And you are physically able to attend or it was practical for you to attend because you're based in Cairns?‑‑‑Correct.
PN445
Wearing your Fleet Master hat for a moment, am I right that you're responsible for establishing appropriate crewing levels for the vessels?‑‑‑That's right.
PN446
Determining what the appropriate crew make up and numbers are for each vessel. Am I right, there's roughly between 15 and 20 cadets at the moment, is that about right?‑‑‑I'm not too sure of the exact number, but that - that - that would probably be around about the number.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN447
Presumably they're in a - there's a range of experience amongst those cadets, including how far they've progressed within the cadetship itself? I mean some of them are young and virtually out of school, others are employees who have worked on vessels previously and are, in a sense, effectively adult apprentices with previous marine experience, is that right?‑‑‑The cadet program, if I could answer your question in the regards to, has a mixture of people, candidates that are not long out of school but we also do have mature aged cadets as well.
PN448
And, correspondingly, with different ranges of experience?‑‑‑Yes, they certainly - there's a - there's a - there's a great range of experience between - people just out of school, first into the workplace and a mature aged cadet - cadet that has possibly been in a - in a - in another associated field. A great deal of difference between experience.
PN449
So if we just talk about the deck officer stream of the cadets, if I can put it that way?‑‑‑Mm hm.
PN450
When you're determining the crewing levels, presumably you allocate - you allocate the cadets, relying upon your knowledge of that different level of experience that each of them have? Well, that's one of the factors that you have to take into account?‑‑‑There's many factors, yes. One - one of the factors is the - is the experience and what qualification do they have to be able to do the job that they're put into.
PN451
So when you determine the job that they're being put into, you've already, at some point in time, identified for this vessel this is the crewing requirements for the vessel, this master, this engineer, these deck crew?‑‑‑Yes, all the vessels have a - all the vessels have a determined number of crew that are on board and applicable qualifications.
PN452
Then you match the cadets into that structure, according to what's appropriate?‑‑‑Well, with the cadet program, in a lot of cases cadets are supernumeraries. A cadet can't take a position on a vessel unless he's got the qualification to basically do that job on the vessel. So in the early stages of the cadet program, most of the cadets are supernumeraries because they don't have the skills levels and in some instances, some of the positions they put them in would be expecting them to get those skills levels would be what we call on the higher risk areas on the vessel. So it is not prudent to put people into those high risk areas unless they've got prior experience.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
PN453
So there's a range, so some of them do slot into those identified positions and some of them though, they don't fit and they are effectively supernumerary crews, if I could put it - - -?‑‑‑After the cadets get qualifications then they will be more into taking a what we call a live position on the vessel. So if there's a live position on the vessel for a master class 4 and a cadet has achieved that qualification, then he can do that - then it's quite possible to utilise him in that position as a - as a mate or a watch keeper.
PN454
Am I right, there's one or two she's in the cadet program as well?‑‑‑I'm very proud to say we do have female cadets, yes.
PN455
When you say they obtain that qualification and slot in, they'd still formally be in their cadetship program, but they've attained a certain level of qualification - - -?‑‑‑Yes, we have a structure in the - in the cadet program where there's a determined period of time where we'll keep the people in the cadet program to get the qualifications that we - that we would like them to get.
PN456
So do go back to the previous point, there's a range and sometimes they're supernumerary sometimes they're not, sometimes the fit into actual positions?‑‑‑A live role.
PN457
A live role, thank you. That's all I have, Commissioner.
PN458
THE COMMISSIONER: All right, thanks Mr Quinn. Mr Herbert, any re-examination?
PN459
MR HERBERT: No, thank you, I have nothing of Mr O'Halloran, might he be excused?
THE COMMISSIONER: Yes. Thank you, Mr O'Halloran, you're free to go. You can stay in the hearing room or leave, as you choose. Thank you.
<THE WITNESS WITHDREW [12.23 PM]
PN461
THE COMMISSIONER: All right, gentlemen, it's 12.30, do we want to press on or have a break, any preference?
PN462
MR HERBERT: We have one more witness. I'm happy, we can have Mr White.
PN463
THE COMMISSIONER: All right, we might press on.
PN464
MR HERBERT: We'd certainly get his evidence-in-chief in.
*** ROBERT JOHN O'HALLORAN XXN MR QUINN
THE COMMISSIONER: Sure.
<FRED WHITE, AFFIRMED [12.25 PM]
EXAMINATION-IN-CHIEF BY MR HERBERT [12.25 PM]
PN466
THE COMMISSIONER: Good afternoon, Mr White, I'm Simpson C, I'll hand you over to Mr Herbert now?‑‑‑Good afternoon, Commissioner.
PN467
MR HERBERT: Mr White, can you tell the Commission, please, your full name, your work address and your occupation?‑‑‑My full name is Fred White, my work address is 41-45 Tingira Street in Portsmith in Cairns, my occupation is managing director and CEO of Sea Swift Pty Ltd. Have you prepared a statement of the evidence that you're able to give in these proceedings and - - -?‑‑‑Yes, I have.
PN468
Does - is the statement you've prepared, does it consist of 23 paragraphs and was signed by you on 10 August 2015, is that correct?‑‑‑Yes, that's correct.
PN469
Are the facts and circumstance - I'm sorry, and it also contains a number of attachments, from attachment A to attachment G2, is that right?‑‑‑I believe so, I don't have those with the statement, but - - -
PN470
You don't? We'll make sure you get them?‑‑‑Yes.
PN471
Mr White, are the facts and circumstances set out in your statement, to the best of your knowledge, true and correct?‑‑‑Yes, that's correct.
PN472
Just, for completeness, we'll make sure you have a copy of that. You confirm that that is a complete copy of your statement? Could you check that it contains the attachments that I - - -?‑‑‑Yes, that's correct.
PN473
Thank you. Mr White, have you recently, on behalf of your company, participated into a Queensland Government inquiry - parliamentary committee inquiry into the issue of coastal sea freight in and around the Queensland coast?‑‑‑Yes, I did. That occurred - - -
PN474
Was there a report handed down by that parliamentary committee in relation to that issue?‑‑‑Yes, there was.
*** FRED WHITE XN MR HERBERT
PN475
Could you look at this, please? Have you extracted for the Commission the reference in the report of that parliamentary committee to the issues raised by Sea Swift and the committees comments and recommendations, being pages 47 to 50 inclusive of the report of the Transport, Housing and Local Government Committee?‑‑‑Yes, that's correct.
PN476
I tender that.
PN477
MR KEATS: Commissioner, just before you receive it, I've only just received it two moments ago, could I just have a moment to finish reading it?
PN478
THE COMMISSIONER: Sure. Yes, no problem at all. I might - I take it you seek to tender Mr White's statement, Mr Herbert?
PN479
MR HERBERT: Yes.
THE COMMISSIONER: We'll mark that as exhibit 4.
EXHIBIT #4 STATEMENT OF FRED WHITE DATED 10/08/2015
PN481
THE COMMISSIONER: I'll just give the respondent parties a minute or two, Mr White, to have a read over that document?‑‑‑Thanks, Commissioner.
PN482
I might do the same.
PN483
MR HERBERT: I apologise for that, Commissioner.
PN484
THE COMMISSIONER: That's all right.
PN485
MR HERBERT: In the hurly burly of getting it together I forgot to give a copy of that extract to the other parties until now. I can provide the parties with a copy of the full report, but it's about 140 pages and we didn't want to chop down any more trees than we could avoid.
PN486
THE COMMISSIONER: Sure.
*** FRED WHITE XN MR HERBERT
PN487
MR KEATS: Commissioner, I object to the tender of the document. My friend, when he rose this morning, outlined the issues between the parties as to matters to be determined by you, Commissioner. They were, essentially; what is the relevant award, what is the boot, whether it's met, and other matters falling under the Fair Work Act. You will not find, in that list of matters, whether there should be a different regime for, to take page 49 at the top:
PN488
Changes to cost for labour and crewing that should be structural changes made to the environment in which Sea Swift operates.
PN489
This goes to, if you like, a submission that might be made, or I anticipate would be made, that for economic reasons a different award should be found than might otherwise apply. This is just of no assistance to you, Commissioner, in determining the actual issues before you.
PN490
THE COMMISSIONER: All right. Mr Herbert?
PN491
MR HERBERT: Well, Commissioner, I don't want to take advantage of the fact that Mr Keats has just come into the matter, but it is a part of the submission made by his union originally in this matter that Mr White's statements, in an email in May, immediately prior to the ballot, were, in some way, inflammatory, misleading, incorrect or otherwise outrageous. Mr White's witness statement goes to the facts of the circumstances under which he made a statement of that kind, one of which being that the company's - to put it in the vernacular, the company's back is up against a financial wall, with massive - - -
PN492
THE COMMISSIONER: Look, okay, I'll allow it in on that basis, Mr Keats. Look, it may or may not ultimately be a critical issue.
PN493
MR HERBERT: It only goes to that issue. I'm not suggesting that this material - to answer Mr Keats' submission, I'm not suggesting for a minute that the cost pressures facing this company can, of themselves, have a bearing on the award that applies, but it goes to explaining the reasons, and the background reasons, why Mr White said what he said to the employees at the time of the ballot.
PN494
THE COMMISSIONER: Well, look, it will be a matter of weight. You might be right, Mr Keats, in the end, it mightn't bear much on it, but I don't want to waste a lot of time having an argument on this procedural issue.
PN495
MR KEATS: Certainly, Commissioner. I particularly note the concession made as to the basis it's tendered.
*** FRED WHITE XN MR HERBERT
PN496
MR HERBERT: Yes.
THE COMMISSIONER: All right. Look, I'll mark it as exhibit 5.
EXHIBIT #5 EXTRACT OF COMMITTEE'S REPORT
PN498
MR HERBERT: Thank you. That's the evidence-in-chief of Mr White.
THE COMMISSIONER: All right.
CROSS-EXAMINATION BY MR KEATS [12.33 PM]
PN500
MR KEATS: Mr White, I understand you're the chief executive officer of Sea Swift, is that correct?‑‑‑That's correct.
PN501
To use the colloquialism, you're the controlling mind of the company, is that right?‑‑‑Your - your words, not mine.
PN502
All right. Besides reporting to a board, you get to run the day-to-day operations of this, is that correct?‑‑‑I oversee the day-to-day operations of the business.
PN503
Between board meetings you make the decisions, as necessary, as to what needs to be done?‑‑‑In order for the organisation to continue, that's correct.
PN504
At that sort of level of management in the business, you were involved in the dealings with the Australian Competition and Consumer Commission, based into the proposed acquisition of certain assets of Toll Marine, is that correct?‑‑‑Yes, I was involved in the ACCC preparation.
PN505
As you correctly set out in paragraphs 12 and 13 of your statement, you made an application for permission for that to occur, because there was concerns about changes to the competitive environment that would occur if it happened, is that right?‑‑‑I - I actually - are you talking in reference to the enterprise bargaining process beginning or are you talking about in reference to the ACCC process itself?
PN506
The ACCC process itself?‑‑‑Yes, I was involved in the ACCC process.
PN507
And your direct competitor and the reason you went to the ACCC was Toll Marine, is that correct?‑‑‑Because of our pending acquisition of Toll Marine assets.
*** FRED WHITE XXN MR KEATS
PN508
Are you aware the ACCC created a statement of issues on 19 February this year, in relation to your proposal?‑‑‑Yes, I am.
PN509
Can I show you that document?‑‑‑Thank you.
PN510
Do you have that? On the first dot point on paragraph 1 it talks about - this is about a proposed acquisition of some business of Toll Marine Logistics Australia's marine freight business, up in Far North Queensland and the Torres Strait and Northern Territory, do you see that?‑‑‑Yes.
PN511
Over on page 5 you'll see there's two maps that talk about the overlap of your business and that of Toll Marine, do you see those two maps?‑‑‑Yes.
PN512
You'll see that in the legend there's a green boat that says Sea Swift and Toll and it talks about the places you go in common. Do you see that on both maps?‑‑‑Yes.
PN513
All right. Do you disagree with the fact that you both goes to those various islands, either the map that's figure A on page 5 or figure B on page 5?‑‑‑Are you talking about at this specific point in time that this was - that this was submitted, because that doesn't reflect what actually occurs now.
PN514
I'm talking about at the date this report as made, which is 15 February 2015?‑‑‑Yes.
PN515
19 February, my apologies?‑‑‑At that point in time that did reflect it, yes.
PN516
Thank you. And if you turn over to page 11 you'll see what's there in a map, set out in a table as to which islands scheduled marine freight went to and that table goes over the page?‑‑‑Yes.
PN517
And it's fair to say that at that time, when the analysis was done, there's a very significant overlap between the places Sea Swift took marine freight and the places that Toll Marine Logistics took marine freight, is that correct?‑‑‑Yes.
PN518
I tender that document, Commissioner.
*** FRED WHITE XXN MR KEATS
THE COMMISSIONER: I'll mark the statement of issues document, prepared by the Australian Competition and Consumer Commission, as exhibit 6.
EXHIBIT #6 STATEMENT OF ISSUES PREPARED BY AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
PN520
MR HERBERT: Is it correct to say that bargaining commenced on 19 January this year, is that right?‑‑‑It would have, that's correct.
PN521
And that your second meeting, I believe, was 20 February this year?‑‑‑I'll refer to this.
PN522
Exhibit B of your statement?‑‑‑Yes. Yes.
PN523
So that when bargaining commenced what was contained in what is now exhibit 6 was reflective of the competition of your business with that of Toll Marine, correct?‑‑‑It would have been.
PN524
You attended bargaining meetings, is that correct?‑‑‑Yes. All bar the first day of the last meeting, or what would be in the minutes as the second last meeting.
PN525
And Bob O'Halloran, he is your fleet master of the business?‑‑‑That's correct.
PN526
And he reports directly to you?‑‑‑That's correct.
PN527
You're aware he's also - I withdraw that. During bargaining you were aware that he indicated he was a bargaining representative?‑‑‑Bob may have done that.
PN528
Your HR manager is a person called Dan Erbacher, is that right?‑‑‑That's correct.
PN529
And he was delegated the task, I assume by you, to prepare the application to this Commission?‑‑‑Yes.
PN530
And to complete the employee's statutory declaration in support?‑‑‑He would have, that's correct.
PN531
You're aware that he's not coming along here to give evidence?‑‑‑That's correct.
*** FRED WHITE XXN MR KEATS
PN532
A decision must have been made to that effect at some stage, preparing this matter?‑‑‑I would assume so. I don't think there was a requirement, necessarily, for all the supporting staff to be available to give evidence for this matter.
PN533
Have you seen the application that was filed on behalf of Sea Swift in these proceedings?‑‑‑Yes.
PN534
So you're aware that Mr Erbach - sorry, Dan Erbacher indicates he received 23 written instruments appointing employees as bargaining representatives, are you aware of that?‑‑‑There was a number, yes.
PN535
That he specifically says that of those he received - he identifies them by name and says one of them by name is Bob O'Halloran, are you aware of that?‑‑‑Yes.
PN536
You would expect Mr Erbacher to complete documents for this Commission honestly and correctly?‑‑‑Yes.
PN537
You've attached the minutes of at least the first three bargaining meetings to your statement?‑‑‑Mm hm.
PN538
And in doing that you re-read those minutes and checked they were accurate, to the best of your recollection?‑‑‑I - I did at the time, that's correct.
PN539
When you say you did that at the time, you did that on 10 August this year?‑‑‑Yes.
PN540
At attachment E you attach the body of the statement of Bernie Farrelly from the MUA, are you aware of that?‑‑‑Yes.
PN541
Paragraph 64 through to 74 Mr Farrelly does an analysis of the boot, in relation to a general purpose hand, do you see that?‑‑‑Yes.
PN542
Feel free to re-read through it, because there's a few paragraphs there. So you're aware that he says that if the Seagoing Industry Award is the relevant award the boot's not met?‑‑‑That's Mr Farrelly's opinion and assertion.
PN543
In your statement you, in no place, put up a calculation that says otherwise, have you?‑‑‑No.
*** FRED WHITE XXN MR KEATS
PN544
I put it to you that that's because you accept that - you agree that the boot wouldn't be met if it was the Seagoing Industry Award?‑‑‑No, that's - I don't think that assertion is correct at all. My reference to Mr Farrelly's statement wasn't around that.
PN545
Nothing further, Commissioner.
THE COMMISSIONER: All right, thanks Mr Keats. Right, Mr Quinn?
CROSS-EXAMINATION BY MR QUINN [12.45 PM]
PN547
MR QUINN: Mr White, can I take you back to your statement and the minutes from the bargaining meetings that you've attached to them?‑‑‑Yes.
PN548
They don't have page numbers, but in relation to the 19 January meeting, the first meeting in the pile, item 12, on the fifth page. The top of that page starts with:
PN549
BF advises they will identify the intimidation and cease it.
PN550
?‑‑‑Yes.
PN551
Found that page?‑‑‑Sorry, which one was that, sorry?
PN552
In the items it starts at 1, the second page has 8, 9, 10?‑‑‑Yes.
PN553
Third page has 11, 12 and I think item 12 carried over onto the fifth page?‑‑‑Yes.
PN554
BF advises they will identify the intimidation.
PN555
That's the top of the page, that's the first thing on the top of the page.
PN556
THE COMMISSIONER: Sorry, which attachment are we looking at, Mr Quinn?
PN557
MR QUINN: It's attachment A.
PN558
THE COMMISSIONER: All right, yes, thanks.
*** FRED WHITE XXN MR QUINN
PN559
MR QUINN: First bargaining meeting, 19 January, one, two, three, the fourth page in, under item 12. Item 12 traverses one, two, three or four pages.
PN560
THE COMMISSIONER: Yes. All right, I'm with you now.
PN561
MR QUINN: Have you found that spot?‑‑‑Yes.
PN562
So if I can take you down about an inch or so below that:
PN563
FW outlined economic conditions in resources sector to be factored into rates.
PN564
Do you see that spot?‑‑‑Yes.
PN565
So is that what you're referring to in your paragraph 17, paragraph 17 of your statement? Is that relevant to that issue of informing the bargaining representatives about the risks to the business?‑‑‑I don't believe so.
PN566
Thank you?‑‑‑I think that's in relation to a particular point.
PN567
So where in that meeting, or any of the other meetings, did you identify to the bargaining representatives that Sea Swift would cease to exist if the agreement didn't get up?‑‑‑I don't think I used those words. I think I - I think I used words to the effect that it would not be business as usual if the agreement didn't get up, and I'm sure I covered that in - if it wasn't earlier on, in some of the meetings that we held to really set the scene of the agreement, it was certainly towards closing. I'm sure I made that point on the last day, as part of closing statements.
PN568
If I can take you to that last day then?‑‑‑Yes.
PN569
So the - these pages are numbered, so page 2 of 1 May minutes. Yes, page 2. The minutes from the meeting of 1 May, and these are numbered. Page 2. Have you found that?‑‑‑Yes.
PN570
So the second dot point on the top of that, down from the top of that page:
*** FRED WHITE XXN MR QUINN
PN571
FW advises that Sea Swift will have to make some tough decisions and advises of current practices made within Sea Swift, re re-fits and vessels et cetera due to capital restrictions.
PN572
?‑‑‑Yes.
PN573
So is that how you made your point?‑‑‑I think - I think in the advising of the current tough decisions, framing it around some of the capital controls that we've had to make and constraints that we've had to make, certainly during - during what has been a very difficult year for us, leading up to these decisions, that it was framed accordingly.
PN574
Framed accordingly as set out in the minutes?‑‑‑Well, the minutes don't record every single word that was made.
PN575
Are they accurate?‑‑‑Well, if they don't record every single word that was made, then they're not accurate but they're a capture of how the information flowed.
PN576
Do you recall, did you use the words, "though decisions"?‑‑‑I'm sure I would have.
PN577
Did you use the word, "death warrant"?‑‑‑I beg your pardon?
PN578
Did you use the words, "death warrant"? "EBAs will be the death warrant to Sea Swift"?‑‑‑I don't recall making that comment.
PN579
That Sea Swift would cease to exist?‑‑‑In its current form.
PN580
If I can take you over to page 13 of that meeting, have you - - -?‑‑‑Yes.
PN581
Page - sorry, point 3, about a third of the way down, of the first dot point, under point 3, item 3? It starts:
PN582
The company is now in a position -
PN583
?‑‑‑Yes.
*** FRED WHITE XXN MR QUINN
PN584
So are the minutes accurate there, in the last sentence of that point?
PN585
If the vote is negative the company will then need to revert to negotiations, however the package will not be presented in the same format.
PN586
?‑‑‑Yes, I think that's fair. That was a fair outline of where we were at. I think I had said, on numerous occasions through discussions, that this agreement should be seen as a package. So it's fair to assume that that comment, saying if the vote is a no, or a negative vote, then we'd have to restart negotiations and the package would not be presented in the same format.
PN587
That would - a negative vote - - -?‑‑‑Yes.
PN588
- - - that EBA going down would be a trigger for - would have to be a trigger for going back to the - going back to the table and then parties adopt whatever position they adopt?‑‑‑Absolutely.
PN589
Am I right, by about - by May this year the even time roster had been in place for about nine or 10 months, would that be right?‑‑‑No, it wasn't that long. I think it was introduced early in the year.
PN590
Late 2014?‑‑‑No, I think - no, I think it was very early this year.
PN591
This?‑‑‑Yes.
PN592
On the first - if - - -?‑‑‑It may well have been - I beg your pardon, yes, sorry, I'm losing track of time here.
PN593
Right, I know that feeling. If the agreement didn't get up and whatever position the parties then might adopt, if there was no agreement in - or no new agreement in place on 1 July there'd be a general pay rise to employees of 2.5 per cent, under the old EBA, or the old EBA, the 2009 EBA?‑‑‑Yes.
PN594
At that point in time you are awaiting a decision from the ACCC, in relation to the spending of tens of millions, can I say, in relation to the acquisition of Tolls?‑‑‑Yes.
*** FRED WHITE XXN MR QUINN
PN595
If you did acquire that work of Tolls, sorry, the operations of Tolls as part of that, you would be acquiring a large number of employees on the - who would be - whose conditions would be regulated by the existing Toll EBAs?‑‑‑No, the agreement was not structured that way, it was an asset agreement. It was not a purchase of the business.
PN596
Those employees or at least some of those employees would continue to operate Toll vessels?‑‑‑Some may, or some may not. I can't make assertions about who would or who would not.
PN597
Well, can I put it to you, it would be likely that you would be offering some of the current Toll employees positions on the former Toll vessels?‑‑‑We may.
PN598
In which case - - -?‑‑‑We would be advertising those roles.
PN599
So, as you said before, a negative role on the EBAs would be a trigger for returning to the table?‑‑‑Yes.
PN600
Returning to the bargaining table?‑‑‑Clearly, that's the - that's the process, isn't it?
PN601
So you to claim to employees, on 14 May, that if the EBA doesn't get up that Sea Swift might cease to exist is just a lie then, isn't it?‑‑‑I don't think I said at all that Sea Swift would cease to exist. I said, "Would cease to exist in its current form," I'm sure. There's a bit difference.
PN602
But you've just told the Commission that the EBA not getting up would be a trigger for nothing other than going back to the bargaining table?‑‑‑No, but I did say, as well, that we would cease to exist in our current form, I'm sure.
PN603
Why would you cease to exist in your current form?‑‑‑Because I could not have people thinking that things would just go on as they had done, given the conditions that we were under. And I think that's perfectly fair and reasonable.
PN604
It's perfectly fair and reasonable to tell people that simply voting not to the agreement will be a death warrant?‑‑‑Your words.
PN605
No, they're your words. They're your words in your email to the staff, of 13 May 2015:
PN606
Vote this EBA up, or the Sea Swift we all know and love will cease to exist. Sea Swift will not and cannot exist in its current form -
*** FRED WHITE XXN MR QUINN
PN607
?‑‑‑Thank you.
PN608
and will be the death warrant to what is a well-respected company.
PN609
So is that fair and reasonable?‑‑‑I think so. I think it states the position quite clearly.
PN610
What does a death warrant mean?‑‑‑That's - - -
PN611
It's a piece of paper that leads somebody - - -?‑‑‑I think I've contextualised that in the next sentence, "in its current form."
PN612
What you said to staff is that it will be the death warrant, in its current form?‑‑‑Mm.
PN613
Well?‑‑‑And I think - I think if - - -
PN614
So what's going to change?‑‑‑So - - -
PN615
You've just told the Commission - if we just go through what you've said, you've just told the Commission that you're in the process of acquiring a major competitor?‑‑‑Yes, provided it is approved.
PN616
Indeed, and that's still - everybody's in limbo still about that?‑‑‑Correct.
PN617
It was entirely unknown, remains unknown. There would be an increase in rates of 2.5 per cent as of 1 July. No other change is going to exist. Sorry, no other change will happen as a result of the EBA going down?‑‑‑I think that's completely not the truth.
PN618
So what was - - -?‑‑‑If the EBA - if the EBA was voted down and we had to go back and re-negotiate a different agreement, it's quite likely that it would result in a significant change in the way the organisation's structured.
PN619
How so?‑‑‑Why wouldn't it be so? If we're under extreme competitive forces like we are, we're assuming that the deal will proceed with Toll.
*** FRED WHITE XXN MR QUINN
PN620
So what are you - - -?‑‑‑If the deal doesn't proceed with Toll - - -
PN621
What are you signing the death warrant to?
PN622
THE COMMISSIONER: If I could just hear the end of the answer, sorry, Mr Quinn?‑‑‑Sorry, Commissioner.
PN623
If you want to finish your answer?‑‑‑Then obviously there's a high degree of uncertainty that exists in the market for us.
PN624
MR QUINN: Which remains, does it not? You remain in limbo?‑‑‑It certainly does.
PN625
So why is voting down the EBA going to be a death warrant?‑‑‑Well, it potentially is. It's another factor that throws some uncertainty into the market for us, doesn't it, as operators?
PN626
On 1 July employees will be getting a 2.5 per cent increase?‑‑‑Yes. Yes, under the old agreement.
PN627
Your offering a higher agreement than that under your proposed EBA?‑‑‑It was 3 per cent.
PN628
There was some difference between you and the unions as to the ultimate wage increase that would flow under their proposals?‑‑‑There was a - there was a reasonable variation, yes.
PN629
So if you went back to the bargaining table there would be some potential accommodation or some failure to obtain any agreement on those issues. How does - - -?‑‑‑And a high degree of uncertainty.
PN630
How does that - pardon?‑‑‑And a high degree of uncertainty for our - for our employees.
*** FRED WHITE XXN MR QUINN
PN631
Well, what you're identifying is that it would be not a high degree of uncertainty, it would be a death warrant to the company?‑‑‑There would be no certainty, would there? So if there's no certainty - if we're in a position where we've got high competition and uncertainty, that's no good for anybody, the organisation or our employees.
PN632
And you consider that a fair and reasonable statement to make to the employees on the eve of a vote?‑‑‑Absolutely.
PN633
You've also said that:
PN634
A no vote tomorrow will risk the ongoing nature of the cadetship program.
PN635
?‑‑‑Yes.
PN636
A no vote tomorrow would maintain the status quo.
PN637
Is that correct?‑‑‑You're assertion is that a no vote would maintain the status quo.
PN638
What would happen on the, shall we say, 15 May if the vote went down?‑‑‑There is a whole range of factors, obviously, that impact on the operation. I can't be certain that any one of those programs would be maintained going forward. I still can't. If we are in an extended period of competition and this deal does not go ahead I still cannot, hand on my heart, say that any of those programs will be maintained.
PN639
And you say it's fair and reasonable to identify to your cadets that their positions are at risk if they don't vote yes to the enterprise agreement?‑‑‑I think it's fair to let anybody know that any position would be at risk, potentially.
PN640
But any position may be at risk at any point in time, given the vagaries of business?‑‑‑Mm.
PN641
This EBA - if the EBA goes down - if the EBA went down on 15 May what trigger would that provide to put the cadetship program at risk?‑‑‑I'm not sure. It would be in the mix with other employees also. Again it goes to the uncertainty that exists.
PN642
You describe Sea Swift as a provider of essential services to remote Northern Australia and - in your email, is that correct?‑‑‑Yes.
*** FRED WHITE XXN MR QUINN
PN643
And that voting no to the EBA will be a death warrant to Sea Swift as that well-respected provider of essential services to Northern Australia?‑‑‑In its current form.
PN644
Do you consider it fair and reasonable to identify to the residents of those communities and their families who work for you that if they don't vote the EBA up they may lose their services?‑‑‑I don't think that was the inference.
PN645
Well, what's it a death warrant to? We go back to the same question. You've identified to employees it's a death warrant to the well-respected provider of essential services to remote Northern Australia. That's telling them that there are services at risk - - -?‑‑‑The service, in its current form, may be at risk.
PN646
Well, that's not what you say, it's not at risk - - -?‑‑‑No, but it's - - -
PN647
- - - you say it will be the death warrant, and you consider that's fair and reasonable to tell these people, in these remote communities - - -?‑‑‑I think you've got to put that in context, to be honest with you.
PN648
Okay, I'll put it in context?‑‑‑When I say, "in its current form".
PN649
And do you say the context is sending out an email in the evening, all - all staff email, in the evening before - on the eve of a vote, means that the words "death warrant" will mean something else?‑‑‑Well, I think, again, again that needs to be put in context. So that email was sent out as a response to a circular that went around encouraging a no vote, on the eve before the vote. So I think it's perfectly within my rights, or I'm perfectly within my rights to be able to respond to that. If an email went around, in the organisation, using the organisation's carrier service, I'm sure I'm well within my rights, as the CEO of the organisation, to spell out the situation and to respond accordingly.
PN650
Well, that's the nub of the issues, isn't it, Mr White, responding accordingly and you've told the Commission that you consider it's fair and reasonable to respond by identifying to employees that it will be a death warrant, by identifying to cadets that their position is at risk?‑‑‑It wasn't just in relation to cadets though.
PN651
But they were singled out for special attention, were they not?‑‑‑In that particular email you may well interpret it accordingly, but I think it was in reference to all employees.
*** FRED WHITE XXN MR QUINN
PN652
But cadets got special attention?‑‑‑They did.
PN653
And employees who work or who work and live or who have families that live in those remote communities got special attention, didn't they?‑‑‑They do get special attention, that's what we exist for.
PN654
They got special attention in the email was my question, sorry? That you wanted to send a special message to them, is that correct?‑‑‑No, I was making reference to the fact of the service that we provide. I think there's a difference. We are in the business of providing essential services, I think that needs to be understood by all.
PN655
You're an owner of the company, are you not?‑‑‑Yes.
PN656
There are various holding companies that - - -?‑‑‑Yes.
PN657
- - - structures that's in place. Do you have a performance related element to your salary package?‑‑‑I wish I did.
PN658
You receive - - -?‑‑‑The answer is no.
PN659
What sort of hours - I hate to ask, what sort of hours do you work a week?‑‑‑A ridiculous amount of hours a week.
PN660
Would you like to put some round figures on the ridiculousness of those - - -?‑‑‑It's probably somewhere around 60 hours a week.
PN661
Do you receive overtime for working those hours?‑‑‑No.
PN662
Do you receive penalty rates for working on the weekends?‑‑‑No. I am a salaried employee.
PN663
At night you work at home. You work on the premises?‑‑‑Yes. I'm a salaried employee, yes.
PN664
You have a contract of employment with Sea Swift?‑‑‑Yes.
PN665
It identifies that salary?‑‑‑Yes.
*** FRED WHITE XXN MR QUINN
PN666
And has words to the effect of, "You will work all hours necessary to perform the role"?‑‑‑(No audible reply)
That's all I have, Commissioner.
RE-EXAMINATION BY MR HERBERT [1.11 PM]
PN668
MR HERBERT: Just on that last question in relation to your wage, I think you said something to the effect that you don't receive - and there may have been over‑talking inadvertently, but you said that you don't receive overtime in relation to any extra hours you might work above a standard working week; but you did say something about a salaried position?‑‑‑It is a salaried position, so it's an all‑encompassing salary.
PN669
Is that salary set to take account of any hours you might work in excess of - - -?‑‑‑In expectation of any extra hours that you may work. That's correct.
PN670
That has been set between you and the company by agreement?‑‑‑Yes.
PN671
You were asked about the minutes. Can I take you back to the minutes. I think you indicated - and it's self‑evident - that they're not a word for word transcript of the proceedings. Is that so?‑‑‑That's correct.
PN672
They are notes taken as to the effect of the conversations as they appear?‑‑‑Yes.
PN673
Mr Quinn, in asking you some questions, didn't take you to - if you could go to page 1 of the 1 May minutes, which is attachment D. Do you have that?‑‑‑Yes.
PN674
I am going to take you to the second dot point on the next page, but if you go to the last four words on page 1, there is a paragraph which starts "The CEO's opening comments" and then "FW", et cetera. That is still a synopsis of your comments when we get to the last four words on that page. Is that right?‑‑‑Sorry, which page are you on?
PN675
Page 1 of the Friday, 1 May - - -?‑‑‑May. I'm sorry.
PN676
You see the last box there, "CEO's opening comments"?‑‑‑Yes.
PN677
"FW provided update." Do you see that?‑‑‑Yes.
*** FRED WHITE RXN MR HERBERT
PN678
All of that commentary down to the last line is still you talking?‑‑‑Yes.
PN679
Well, the notes are the effect of what you said. Then it starts at the end of that line, "If the vote by the ACCC is a no, Sea Swift will need to make some tough decisions"?‑‑‑Correct.
PN680
In fact as we speak, we decision by the ACCC is a no?‑‑‑That's correct.
PN681
And there are proceedings about to be instituted to review that decision, but, as we stand, the ACCC has refused permission for that action?‑‑‑That's correct.
PN682
Is that right?‑‑‑Exactly. The only reason we haven't taken further tough decisions is because we are appealing that decision, so we'll await the outcome of that appeal obviously before we do anything further.
PN683
The word "vote" has been used there, but that is in fact a reference to the decision by the ACCC, not a vote in relation to this agreement. Is that right?‑‑‑Correct.
PN684
The question of whether the ACCC will agree to the proposal is in the ether as we speak?‑‑‑Correct.
PN685
Just in respect of that, you were asked some questions around that; about the what ifs, maybes, in relation to that. If the current appeal is not successful and you're stuck with a decision by the ACCC, that means that Toll remains in place as a competitor. Is that so?‑‑‑That's so, but they have indicated to the market that they may be withdrawing from certain sectors of our market.
PN686
So there is a possible - - -?‑‑‑But we're not sure as to the scope of that yet.
PN687
There is a possibility of that in some, as yet, uncertain sectors in the market. They may simply, as it were, give up and go home in relation to some sectors of that market?‑‑‑That's likely, but not definite.
PN688
Is there also a possibility that Toll might withdraw from the market altogether?‑‑‑That's likely.
PN689
But is there a possibility that some other significantly cashed up entity might come along and purchase Toll and ramp the operation up?‑‑‑Absolutely.
*** FRED WHITE RXN MR HERBERT
PN690
To maintain the competitive situation and then put some serious resources into competing with Sea Swift?‑‑‑Yes.
PN691
Is your crystal ball at the moment - - -?‑‑‑Very cloudy.
PN692
Each of those many possibilities is possible, probable or - - -?‑‑‑No. Look, we're contractually bound at present to take the ACCC "no" decision to the federal tribunal for a final appeal, which we are in the process of preparing for now. The outcome of that will obviously determine which way both organisations go at the end of this, because the contractor that we had with Toll was subject to the approval being given. If the approval is not given and that market is seen as a monopoly market, then anything is possible. We certainly know that there is some other competitive activity in that region at the moment, so it may well be that there is a third scenario where another player comes in and picks up some of the pieces, as well. We're not sure.
PN693
In the event that the competitive environment stays where it was when this ACCC process commenced or gets worse for you - - -?‑‑‑Yes.
PN694
That is, a major competitor steps up to the plate. You've indicated that programs such as the cadetship program and other programs within the business can't be guaranteed?‑‑‑Correct.
PN695
Is that so?‑‑‑That's correct.
PN696
In respect of the outcome of this vote?‑‑‑Yes.
PN697
You did raise the question of cadetships and the position of cadets in your email as being one of the programs that might be at risk if the - - -?‑‑‑By way of example.
PN698
By way of an example?‑‑‑Yes.
PN699
Does that program actually earn net money for the cadets? Do they actually earn a - do they pay their way, as it were, within the business while they're training or is that a cost to the company?‑‑‑It is a significant cost to the company. There are some of those positions that are supernumerary, as well as the training dollars that go into those cadets. That program would probably cost us in the order of a million dollars a year to run.
*** FRED WHITE RXN MR HERBERT
PN700
Being a supernumerary - Mr O'Halloran has given some evidence in relation to that. Being a supernumerary, that effectively means they are simply an extra person on the crew who is not actually, as it were, paying their way in relation to the crew because they're not qualified or experienced enough to assume an operational position?‑‑‑Correct. If they're in a supernumerary role, that's correct.
PN701
So, in effect, if the mandatory crew is full, you're paying five wages to have the job of four people done?‑‑‑Yes.
PN702
As a training exercise for the fifth person?‑‑‑Yes.
PN703
Is that how that works?‑‑‑Yes.
PN704
If you were required to cut things to the bone in relation to the company, is that a program which you may - - -?‑‑‑That would be a program that, given the cost of the program and the supernumerary nature of it, would be one that would be right on the top of the agenda if we had to go into a cost‑cutting exercise.
PN705
In relation to page 2 of the minutes, if you still have that open, you were taken to the second dot point on that page. You have again said, "Sea Swift will have to make some tough decisions" - well, I'll go back to the full sentence:
PN706
FW advises Sea Swift will have to make some tough decisions and advises current practices made within Sea Swift -
PN707
and there are refits and vessels, et cetera. Now, the note says it advises of current practices made within Sea Swift and there some examples?‑‑‑Yes.
PN708
Is that an accurate reflection of the totality of the advice that you are recorded there as having given or are they just - - -?‑‑‑No, that would have been an example probably, so tough decisions would have been around any redundancies necessarily. The reference to the practices made within Sea Swift for refits would have been around the capital constraint nature and the cash constraint nature that the business is in, so it helps demonstrate a point.
PN709
There is a further question from JT. Do you recall who JT is? Jan Thompson?‑‑‑Jan Thompson.
*** FRED WHITE RXN MR HERBERT
PN710
Jan Thompson on behalf AMOU. "Questioned the TML." Now, that's Toll?‑‑‑Yes.
PN711
"High pay rates and profitability of Toll, hence the wanted acquisition by Sea Swift." You advise that this is incorrect and you provided facts around the TML northern Australian profit loss?‑‑‑Yes.
PN712
Can you explain to the Commission what is meant by the TML northern Australian profit loss that's noted there?‑‑‑Yes, I believe at the time Jan was questioning the high pay rates that TML had and the profitability of Toll Marine Logistics more generally; hence, was leading to a conclusion that that's why Sea Swift wanted to acquire Toll Marine. The facts of the matter are that the Toll Marine division that we are looking to acquire - or the assets that we're looking to acquire in the north Queensland and NT market, is losing in the order of between eight and a half and 12 million dollars a year. That wasn't a fact that was known by Jan. I've obviously uncovered that in the course of our preparing for the ACCC process and thought it prudent to point out that it was in no way the way that Jan had portrayed it, and actually put the facts on the table.
PN713
So you weren't seeking to acquire a profit‑making business. You were acquiring some assets from a loss‑making business?‑‑‑Correct. Exactly right.
PN714
Two further dots down:
PN715
FW advised group that Sea Swift wanted to acquire TML even though with their current profit loss due to major contracts that has value to Sea Swift" - that's a little bit - - -?‑‑‑Yes.
PN716
Could you explain to the Commission what that - - -?‑‑‑The rationale, yes. On the face of it, you would quite rightly question, well, why would you pay for something that is a loss‑making division or business. The facts are that there are some significant contracts for supply of goods and services to some of the areas, particularly in the Northern Territory, that have value. Equally, the main growth for Sea Swift in this area would be - and through this acquisition - in the Northern Territory. We are only currently doing around a third of the freight volume in the Northern Territory with the fleet we have in place now. So we would need to acquire - regardless, would need to acquire significant extra vessel fleet and mobile equipment and cargo handling equipment in order to conduct that contract or those major contracts. So combining all that together, the assets required and the value of contracts is really where the value is in the acquisition as we've put it together.
*** FRED WHITE RXN MR HERBERT
PN717
In that sense, you would be able to cherry‑pick contracts and assets from Toll?‑‑‑Yes.
PN718
Rather than just simply move in and continue to operate on a hot seat changeover basis?‑‑‑Exactly. It would allow for - the transaction also allows for a very well‑orchestrated transfer of business for those key clients and customers, as well, because they have operations and stores, et cetera, that still require a regular service.
PN719
The next observation that's made there is "CC". That's Chris Carbone?‑‑‑Carbone, yes.
PN720
Where was he from?‑‑‑Chris Carbone joined us to really run the integration planning for what was going to be this acquisition. When it was delayed, Chris took a decision to leave the organisation. Chris was a Linfox executive who was with us at the time.
PN721
He is recorded as having said that neither Toll nor Sea Swift presently have a sustainable business. Do you recall him saying that?‑‑‑Yes.
PN722
Was that true?‑‑‑Yes.
PN723
You are then recorded as responding to Jan Thompson that, "Toll have higher pay rates, but it is not sustainable"?‑‑‑Absolutely correct.
PN724
You said that at the time?‑‑‑Yes.
PN725
And the higher pay rates are based on what award, to your knowledge?‑‑‑Seagoing Industry Award, as I understand.
PN726
That exchange all occurred on 1 May, which was the last day of the - - -?‑‑‑Of the meetings for the agreement.
PN727
Can I take you forward then in relation to those two. I think Mr Quinn took you to page 13 next. In the middle of that page there, he referred you to the observation that if the vote is negative, the company will then need to revert to negotiations?‑‑‑Yes.
*** FRED WHITE RXN MR HERBERT
PN728
Is that your understanding of the procedure that would be required? If you're going to have an EBA - - -?‑‑‑Yes.
PN729
- - - one proposal having been voted down, you have to go back and continue to negotiate until you get something acceptable?‑‑‑Exactly.
PN730
In that respect then what was your expectation as to what - if it's voted down by the employees, what would be your expectation as to what you would have to do to the package in order to make it acceptable?‑‑‑Well, I think it's quite clear to me - because we had set out that it is a package and it needed to be viewed as a package on numerous occasions through the negotiations. It was going to be voted on a package, so by inference then if that package was voted down, we would need to revert back to the current agreement which would be the Sea Swift 2009 agreement.
PN731
If you go to the top of the page and if you look at page 12, the heading of that box is "FW responds to additional positions put forward". At the top of that page, the last sentence in the first incomplete paragraph:
PN732
The company's current position, having viewed the entire package taking into consideration some requests -
PN733
did you make reference there to the package being an entire package?‑‑‑Yes.
PN734
If you then, as you've indicated, had been required to go back to revert to negotiations - as you've indicated, the balance of the sentence was, "The package will not be presented in the same format"?‑‑‑Correct.
PN735
It's hypothetical, I know, but what in that circumstance did you have in mind that you would be required to do if you had to dismantle the current package?‑‑‑Well, if the current package was not accepted, which included and enshrined things like that even time roster, for example, then we would need to go back to the '09 agreement which did not call for that; so we would need to be looking at what we could to take cost out of the organisation and go back to what we did have.
PN736
The even time roster was a roster which was put forward and accepted under the 2009 agreement. Is that right?‑‑‑It didn't form part of the 2009 agreement.
PN737
It's not provided for in the 2009 - - -?‑‑‑It's not provided for, no, but it was put forward by a submission by management at the time.
*** FRED WHITE RXN MR HERBERT
PN738
The 2009 agreement provides for the ability to change rosters and flexibility in relation to rosters within the organisation. Is that so?‑‑‑Yes.
PN739
It doesn't prescribe any particular roster, but allows rosters to be introduced as and when they're required to meet various requirements. Is that so?‑‑‑Yes.
PN740
It was under that authority that the even time roster was introduced?‑‑‑Yes.
PN741
But it's not mandated in that award?‑‑‑No.
PN742
As easily as it was introduced, it could be removed?‑‑‑Exactly.
PN743
Under the 2009 agreement, if that's where you went back?‑‑‑Yes.
PN744
Is that your understanding?‑‑‑That's my understanding, yes.
PN745
Under the new agreement, however, the even time roster - - -?‑‑‑We've made provision for it.
PN746
You've made express provision for its maintenance?‑‑‑Correct.
PN747
So going back to the 2009 agreement - when I say "going back to", staying with the 2009 agreement, it permitted the company to revert to such rosters as it considered met requirements?‑‑‑Yes, and taking into account the uncertain nature of the situation that we're in. If that uncertainty continued or in fact the competitive landscape got worse for us, then we would need to do whatever we could under that '09 agreement.
PN748
Was the even time roster more or less expensive than the 2/4 and 3/4 rosters previously being worked?‑‑‑More expensive.
PN749
Significantly so?‑‑‑Yes, considerably so.
PN750
So if there was to be a cost saving involved, is that, unlike the cadetship program and other things - - -?‑‑‑Absolutely.
*** FRED WHITE RXN MR HERBERT
PN751
- - - one of the measures that might have to be removed in order to cut costs?‑‑‑Yes.
PN752
And you had the right to do that under the 2009 arrangement?‑‑‑Absolutely.
PN753
Just finally in relation to page 13 that you were taken to, there is a comment there by "LB". That was made in your presence. That would be Lino Bruno?‑‑‑Bruno, yes.
PN754
It says:
PN755
Concurred with Fred's above point, advising the past three years have been very tough. All that has been presented -
PN756
et cetera.
PN757
The agreement provides the employees in the company a fair amount of assurance over the next four years.
PN758
?‑‑‑Yes.
PN759
That was Mr Bruno's contribution or the summary of the note taken - view of his contribution?‑‑‑That's right.
PN760
You were also taken to a - it's exhibit 6. I don't know if you still have a copy of that. It's a statement of issues that was given to you by Mr Keats?‑‑‑Yes.
PN761
Could you go to that, please. You were taken by Mr Keats to page 5 and the maps on that page which showed an overlap?‑‑‑Yes.
PN762
There was a table that seemed to show the same thing in writing on page 11, as to the current overlapping routes for scheduled marine freight?‑‑‑Yes.
PN763
You were taken to those. You said at the time when you were being asked those questions, was that true, you said - was it true then or now, because the position is different now, and you were asked to confine your evidence to the position then?‑‑‑Yes.
*** FRED WHITE RXN MR HERBERT
PN764
What differences have occurred since that time to these overlaps?‑‑‑The position right at present is that Toll have currently withdrawn their vessel from the outer Torres Strait to provide re‑fit coverage in the Northern Territory, so we are the sole provider of the service in the Torres Strait right at present - in the outer Torres Strait.
PN765
If we take the first chart on page 5, all the green barges would be converted to red buoys?‑‑‑Correct.
PN766
That's what that symbol means?‑‑‑Right at present.
PN767
Yes?‑‑‑Now, this will change again in coming weeks as vessels start to come back from re‑fit, but right at the moment, we are providing the entire service.
PN768
But all of that again is subject to what happens in relation to the ACCC arrangements or if Toll - - -?‑‑‑Correct, or whether - - -
PN769
- - - decides to send its vessel back into what you've described as a loss‑making business?‑‑‑Correct.
PN770
What about the second map in the Northern Territory. Does that remain roughly the same or are there some differences you're aware of there?‑‑‑No, that's approximately the same.
PN771
I have nothing more. Thank you, Commissioner. Might Mr White be excused.
PN772
THE COMMISSIONER: Yes. Thank you, Mr White. You're free to go?‑‑‑Thank you, Commissioner.
Stay in the hearing room if you wish to?‑‑‑Thank you.
<THE WITNESS WITHDREW [1.33 PM]
PN774
THE COMMISSIONER: That concludes the witness evidence in the applicant's case?
PN775
MR HERBERT: Yes.
*** FRED WHITE RXN MR HERBERT
PN776
THE COMMISSIONER: All right. Obviously we're overdue for a lunch break. Can I just ask the respondents what the availability of Mr Farrelly and Mr Vieritz is this afternoon.
PN777
MR QUINN: They're available across the afternoon, Commissioner.
PN778
THE COMMISSIONER: All right. Are you in a position to tell us who is going to go first?
PN779
MR QUINN: We are anticipating - - -
PN780
MS CERRATO: Russell Vieritz will go first.
PN781
THE COMMISSIONER: All right. Are you content to reconvene at 2.30?
PN782
MR QUINN: Yes.
PN783
THE COMMISSIONER: We will see you then. We'll adjourn.
LUNCHEON ADJOURNMENT [1.33 PM]
RESUMED [2.36 PM]
PN784
THE COMMISSIONER: Ms Cerrato?
MS CERRATO: I'd like to call Russell Vieritz.
<RUSSELL IAN VIERITZ, AFFIRMED [2.36 PM]
EXAMINATION-IN-CHIEF BY MS CERRATO [2.37 PM]
PN786
THE COMMISSIONER: Good afternoon, Mr Vieritz. I'm Commissioner Simpson?‑‑‑Good afternoon.
PN787
MS CERRATO: Could you please state your full name and address for the record?‑‑‑My full name is Russell Ian Vieritz. My address is (address supplied).
*** RUSSELL IAN VIERITZ XN MS CERRATO
PN788
Did you make a statement for the purposes of these proceedings?‑‑‑I did.
PN789
Do you affirm that the contents of your statement are true and correct to the best of your knowledge?‑‑‑They are.
PN790
Do you have a copy of that statement?‑‑‑I do.
PN791
Thank you, Commissioner.
PN792
THE COMMISSIONER: You seek to tender that?
PN793
MS CERRATO: Sorry, yes. I seek to tender that.
THE COMMISSIONER: All right then. I'll admit the statement of Russell Vieritz, made up of 20 paragraphs, as exhibit 7.
EXHIBIT #7 STATEMENT OF RUSSELL VIERITZ
PN795
THE COMMISSIONER: Gentlemen, any questions?
MR KEATS: None from me, Commissioner.
CROSS-EXAMINATION BY MR HERBERT [2.38 PM]
PN797
MR HERBERT: Mr Vieritz, you have said in paragraph 2 of your statement that the evidence is based either on your own observation and experience or is "information provided to me by employees of the applicant." There are various bits of information that you then provided in the statement. You haven't distinguished between those that you know of your own knowledge and those that have been communicated to you by others, have you?‑‑‑Yes, that's correct.
PN798
Do you have any other particular role in Cairns? I mean, what is your role in the Cairns area?‑‑‑I'm the Far North Queensland organiser for the Transport Workers Union.
PN799
Where are you based?‑‑‑In Cairns.
PN800
The heading above paragraph 3 is Distribution Facilities?‑‑‑Mm‑hm.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN801
Have you called them that because the word "distribution" is in the name that is used in the web site? Is that why you've used the word "distribution facilities"?‑‑‑I actually commonly use that term as part of my work; just a distribution facility.
PN802
They're called "distribution centres" on the web site. You just use "distribution facilities" as a term that you use?‑‑‑That's correct, yes.
PN803
You say in paragraph 4:
PN804
Freight can be dropped off or picked up by customers or agents.
PN805
The freight that you're talking about there is all sea freight, is it not, to your knowledge?‑‑‑I would agree with that, yes.
PN806
Your understanding is everything that goes in or out of these centres is either on its way to being placed on a ship or it's on its way back from being delivered to that place by a ship?‑‑‑That would be right, yes.
PN807
There is no circumstance under which Sea Swift, for example, picks up or is delivered of freight which it drives by road to another land based location without there being a ship in between?‑‑‑Excepting for potentially where they pick up from areas in Cairns and drive straight to the wharf. Is that what you're talking about?
PN808
No. Driving to the wharf is to put it on a ship?‑‑‑That's right, yes.
PN809
Every item of freight that you're aware of that comes into the possession of Sea Swift, goes directly to a ship or has come directly off a ship. Is that right?‑‑‑Yes.
PN810
Sea Swift doesn't, for example, go down to the tyre depot and pick up a tyre and take it out to the machinery company, does it? It doesn't do any land to land transfers, does it?‑‑‑No. That would be correct, yes.
PN811
It's all land to ship transfers both ways?‑‑‑Yes.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN812
In that sense, you'd accept, wouldn't you, that if you personally wanted to take your tinny around to Weipa because you're thinking of moving up there and you dropped it off here - you drop it off at the distribution centre, as it's called, for the purposes of its sea transport to Weipa. Is that right ?‑‑‑That's right, yes.
PN813
The trip to get it from the shed in Tingira Street to the wharf is for the purpose of putting it on a ship, not for any other reason?‑‑‑If I took it to their distribution facility, or centre as you call it, yes.
PN814
In that sense that would be, you would expect, about a three‑kilometre trip on a road and about a 2000‑kilometre trip by sea. That's how that trip would be made up if you were going to send something to Weipa?‑‑‑That's right.\
PN815
That's how it works?‑‑‑Yes.
PN816
As you say in paragraph 4, in the second sentence:
PN817
Freight that is dropped off is consolidated and loaded into the applicant's trucks for transport to the wharf -
PN818
and it is only for transport to the wharf. That's the only place it goes once it has arrived at that centre?‑‑‑That's my understanding, yes.
PN819
You say in the last sentence in that paragraph:
PN820
Employees are also involved in the unloading of the trucks which transport freight from the wharves to the distribution facility.
PN821
That's the backload of any freight that comes back the other way. It goes from ship to the distribution centre, it's unloaded, it's unpacked and customers pick it up from there?‑‑‑But that's not the only time that that occurs, because occasionally they'll take it straight from the wharf to the customer.
PN822
We'll come to that. You have then dealt with that in the issue of road transport. You say:
PN823
The applicant operates a number of trucks -
PN824
et cetera.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN825
Trucks are used to deliver direct to customers and pick up directly from customers.
PN826
What circumstance are you aware of where Sea Swift ever uses a truck to pick up freight from a customer?‑‑‑We've got the gas cylinders.
PN827
Which gas cylinders? Have you seen this with your own eyes?‑‑‑There are gas cylinders that turn up in the cages at the wharf, as I understand it, yes. Now, this is - with regard to seeing them loaded onto the Sea Swift trucks, no, I haven't seen it with my own eyes. This is an undertaking to me from a member of our union.
PN828
Gas bottles are delivered to the wharf on a Sea Swift truck?‑‑‑That's correct.
PN829
Are you sure it's not the other way around; the gas bottles are transported from the wharf to a depot for one customer of Sea Swift?‑‑‑I believe it's one customer, yes, but I believe they also pick up and deliver back there; so they do backload, too, in the wharves.
PN830
Your information is that that is for the purposes of loading those gas bottles onto a ship or for the purposes of taking those gas bottles off a ship and returning them to their owner?‑‑‑Or both.
PN831
That's the information you received, is it?‑‑‑Yes, that's correct.
PN832
Have you seen the evidence of Mr Bruno in these proceedings? Did you read his statement?‑‑‑Yes. I did, yes.
PN833
He says:
PN834
There is one customer in relation to which they drop off gas bottles and that is a very far northern regional council. They have an arrangement to drop their gas bottles off at BOC. That is the only customer in respect of which they deliver anything to anywhere, other than their own depot in Cairns.
PN835
You'd accept that to be correct?‑‑‑I'm unaware as to the exact details of that, but if you're telling me that's the truth, well, then I'll take it on face value.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN836
Very fairly, you've said that you haven't actually witnessed this. This is one of the pieces of information that has been provided to you by somebody else?‑‑‑That's right. That's correct.
PN837
You would accept that Mr Bruno is probably a bit closer to the action than you?‑‑‑I'd have to say that without going and watching and seeing, yes, for sure.
PN838
Similarly, did you read the evidence that suggested that the reference you make in paragraph 13 of your statement to live crayfish, is not something that's occurring at the moment? It did occur in the past and it's not occurring now?‑‑‑I actually haven't seen the statement by Mr Bruno. I've had time to confer with members on that matter and their opinion is that it is a regular weekly delivery, and the only time it doesn't occur is when it's rough weather and it might be bi‑weekly at that point. I can only go by what I've been told.
PN839
That's hearsay information provided to you by one of your members on the site who isn't here. I need to understand where this is coming from, so I can - - -?‑‑‑It's coming from the members.
PN840
If I was to suggest to you, for example, that Newcastle Bay is the only vessel that actually can practically do that job and it has been offline for some time on a refurb. It's not actually able to perform - the relief vessel is not able to perform that function?‑‑‑As I understand it, that's potentially true, because I've read Mr Bruno's statement, yes.
PN841
Yes. Also the reason for that delivery - did your member explain to you the reason for why that is done?‑‑‑I'll just clarify the position on member and members; I won't divulge either way, but with regard to the explanation as to why it was done, no.
PN842
Can I suggest to you that you'd expect with live crayfish, they're required to have clean water pumped through the storage tank on a - - -?‑‑‑It might get messy if it didn't, yes.
PN843
- - - continual basis, yes?‑‑‑Yes.
PN844
It could be a self‑defeating exercise if you didn't - - -?‑‑‑They wouldn't be very live, would they, no.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN845
You'd also accept that the water in Smith Creek or in Trinity Inlet is not exactly the most desirable clean, tropical, pristine water?‑‑‑I don't know.
PN846
Well, you live in Cairns. You'd expect that ship that pulled into Trinity Inlet with live crayfish on board that needed fresh, clean water to be pumped through the tanks - that those crayfish probably wouldn't survive very long if they were sat there to wait for - if there was any delay in getting them off the ship?‑‑‑I couldn't comment on that. I don't know.
PN847
Your member, members, whichever it is, didn't tell you about that detail. They didn't fill you in as to why that situation occurs when it did occur?‑‑‑No.
PN848
That they need to be off the ship then and there or they might die?‑‑‑No, didn't - - -
PN849
But absent the situation of the gas cylinders and the crayfish, there are no instances in Cairns where any material is moved anywhere other than a shed. You'd accept that, that your members told you about?‑‑‑Can you run that past me again, because I'm just trying to clarify - - -
PN850
Yes. Except for the instance that you've given of some gas bottles - - -?‑‑‑Yes.
PN851
- - - which I've suggested to you is one very remote council in north Queensland and the past tense situation with the tropical rock lobsters, your members weren't able to tell you of any other situation where Sea Swift moved anything by land from their ships to anywhere other than the shed. Everything else goes to the shed in - - -?‑‑‑If we're talking about Cairns?
PN852
Yes?‑‑‑Cairns only?
PN853
Yes?‑‑‑Yes, I'd agree.
PN854
Again, you've seen the evidence of Mr Bruno and he has indicated in some detail what goes where everywhere else. Every other location, being Horn Island, Thursday Inland, Seisia and Weipa, the items which are moved in the vehicles which Sea Swift has in those locations are all items which have been brought to that place by ship?‑‑‑That's right.
PN855
They are taken, with the information you've received - so to the extent that they move by road at all, it is to complete the sea voyage by taking them to the eventual customer if the customer doesn't pick them up themselves?‑‑‑I'd agree with that.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN856
And it's mostly fuel, in quantum terms?‑‑‑I couldn't tell you the quantum terms. I'm not aware of that exact fine detail.
PN857
Again, on the remote islands - you've referred to some of the remote islands - they do have some tricky little machinery that they take ashore in a little barge off the ship and they use that machinery, be it tractor, trailer, whatever it be, to deliver stores essentially to the shop or the store for the island from the ship?‑‑‑Yes, that's right.
PN858
You get them there in a big hurry so they're not sitting out in the sun spoiling, et cetera. Frozen product and that sort of thing can be off the ship and in the store in a very limited amount of time. That's how that works, is it not?‑‑‑It is, but there are also other contracts. There is the Rio Tinto contract, there is the airline - - -
PN859
Yes, we'll come to that?‑‑‑Okay.
PN860
I'm talking about the very remote islands where the communities there depend upon having their fruit and vegies and their frozen product properly cared for in transit?‑‑‑Yes, that's right.
PN861
So that they can be pulled out of the freezer on the vessel, put on a vehicle which goes ashore which could immediately drive up so they don't have to be shipped through three sets of hands and thaw out in the sun?‑‑‑It could be that or it could be that there's no road, or something along those lines, yes.
PN862
No road or, in many of those cases, there is no transport infrastructure of any kind - - -?‑‑‑That's correct.
PN863
- - - in those locations. Is that right?‑‑‑Yes, that's correct.
PN864
So in order to get the sea freight actually in the hands of the customer, in some cases it's necessary to provide a set of wheels for the last part of the journey. That's essentially the way it comes down, isn't it?‑‑‑For some customers.
PN865
Yes?‑‑‑Yes.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN866
Well, some customers - all of that product in all those other outports, I'm suggesting to you - not just Cairns. I'm talking about all the other Queensland and Gulf of Carpentaria outports. Every single item that is put on a set of wheels gets there to that location, that port, by a ship operated by Sea Swift?‑‑‑That's would be right, yes.
PN867
In that sense every single journey that is undertaken is the end part of a sea journey for that cargo?‑‑‑That would be correct, yes.
PN868
Again, as I said to you before, you may have a 2000‑mile journey by sea and a two‑mile journey by road for that piece of freight?‑‑‑Or 20 or 30 or further.
PN869
Well, it's not 20 or 30 or further. Where do they travel 20 or 30 or further?‑‑‑My understanding - and I'll stand corrected. This is obviously from members, but the Rio Tinto site can be up to 20 kilometres away.
PN870
20 kilometres?‑‑‑Yes.
PN871
Out of Weipa, that would be?‑‑‑Out of Weipa, yes.
PN872
Again, 2000 miles, 20 kilometres; the purpose of that trip is not to operate a road freight business around Weipa. It is to get the product off the ship and into the customer's - - -?‑‑‑Or back again, yes.
PN873
Or back again?‑‑‑That's correct.
PN874
In the case of back freight?‑‑‑That's right.
PN875
Well, when say back again, what back freight comes back from Weipa?‑‑‑The stuff from Rio Tinto that needs to come back.
PN876
Who delivers that? Rio Tinto have vehicles of various kinds, do they not?‑‑‑My understanding of the stuff that is done from Sea Swift, is done by Sea Swift to Rio Tinto.
PN877
The delivery to the customer in some instances is done by Sea Swift - - -?‑‑‑That's correct.
PN878
- - - where it's not collected on the wharf?‑‑‑That's right.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN879
So it's not universal. Not everything that they take to Rio Tinto or anywhere else is delivered by some sort of road transport in Weipa, is it?‑‑‑I couldn't be clear on that, but my reading of what was said to me is that the stuff that's delivered under the contract that Sea Swift has for Rio Tinto, is delivered by Sea Swift to Rio Tinto to the various sites. I'm unaware of any other contract that is based in Weipa that actually does the road transport delivery of that freight from Sea Swift's vessels to Rio Tinto.
PN880
That is your reading of what you were told by other people?‑‑‑Absolutely.
PN881
There's not much point in me pressing you in relation to the truth of that, is there, because you don't know, do you? You only know what you've been told?‑‑‑That's right.
PN882
In paragraph 19, you talk about employees using forklifts on remote islands to deliver to customers. The forklift driver in that situation is a member of the ship's crew. You understand that?‑‑‑(No audible reply)
PN883
Who uses the forklift on the ship and then uses it go ashore and - - -?‑‑‑I'm not a hundred per cent clear on that, but I do understand that the Sea Swift employees use the forklift to deliver the - - -
PN884
Yes, but you don't suggest that the ship carries a dedicated forklift driver for the four times they might actually run a forklift ashore. It's a member of the ship's crew who handles the cargo and operates the vessel, and does all those other multiskilled things. The going ashore with a forklift is, I suggest to you, an extremely incidental part of their overall duties. Would you accept that on the information you have?‑‑‑I wouldn't be able to refute it.
PN885
No. Well, you wouldn't expect, would you, that they would piggyback a dedicated forklift driver for three trips ashore on a five‑day journey on the crew of a vessel that was under the sort of economic constraints that this company is under. You wouldn't expect them to do that, would you?‑‑‑No.
PN886
And your information is that that doesn't happen?‑‑‑Well, my information isn't as concise as to whether or not that's done.
PN887
All right. Thank you, Commissioner. I have nothing further.
*** RUSSELL IAN VIERITZ XXN MR HERBERT
PN888
THE COMMISSIONER: Thank you, Mr Herbert. Ms Cerrato, any re‑examination?
PN889
MS CERRATO: No, Commissioner.
THE COMMISSIONER: Thank you, Mr Vieritz. You're free to leave or stay in the hearing room, if you wish?‑‑‑I'd like to hang around. Thank you.
<THE WITNESS WITHDREW [2.55 PM]
PN891
THE COMMISSIONER: Mr Quinn?
MR QUINN: Commissioner, if I could call Mr Farrelly.
<BERNARD JAMES FARRELLY, AFFIRMED [2.57 PM]
EXAMINATION-IN-CHIEF BY MR QUINN [2.57 PM]
PN893
THE COMMISSIONER: Good afternoon, Mr Farrelly?‑‑‑Good afternoon, Commissioner.
PN894
I don't need to introduce myself?‑‑‑No.
PN895
MR QUINN: Mr Farrelly, could you state your name for the record, please?‑‑‑Bernard James Farrelly.
PN896
I understand you have made two statements in relation to this matter. Is that correct?‑‑‑That's correct.
PN897
The first one, dated 23 July 2015?‑‑‑That's correct.
PN898
The second, dated 25 August 2015?‑‑‑That's correct.
PN899
Are the contents of those statements true and correct to the best of your knowledge and belief?‑‑‑Correct.
PN900
I tender both of those statements, please, Commissioner.
*** BERNARD JAMES FARRELLY XN MR QUINN
THE COMMISSIONER: All right. I'll admit the statement of Bernard Farrelly, dated 23 July 2015, made up of 74 paragraphs, as exhibit 8.
EXHIBIT #8 STATEMENT OF BERNARD FARRELLY DATED 23/07/2015
THE COMMISSIONER: The statement in reply, dated 25 August, made up of 18 paragraphs, exhibit 9.
EXHIBIT #9 STATEMENT IN REPLY OF BERNARD FARRELLY DATED 25/08/2015
PN903
MR HERBERT: Commissioner, in relation to exhibit 9, I formally object to those parts of paragraph 15 which purport to paraphrase or otherwise selectively quote from a transcript which is attached. The transcript speaks for itself and I just make the formal objection in case it be suggested at the end of these proceedings that there has not been an objection to the matter being presented in that way. I instance, for example, on the fourth line of paragraph 15:
PN904
Mr Russell explicitly informed employees multiple times that if they vote against the proposed agreement, the company will remove the even time roster currently in place and put them back on the old roster, and implied that jobs would be lost when that happened -
PN905
et cetera. That's a fairly creative re‑enactment of a conversation at which Mr Farrelly was not present. The question of what was inferred and what was implied in those words is a matter for you, Commissioner, and not to be creatively reassembled or re‑enacted by Mr Farrelly. He wasn't there. He didn't participate in the conversation. He can't properly suggest what might be implied with such a conversation. The implication arises from the words that he used and the transcript is now in evidence. I formally object in that regard.
PN906
I understand that in the ordinary course, Commissioner, you would have the capacity to deal with it, but I wanted to put on the record the fact that we did object to statements of that kind coming from this witness who wasn't a party to that conversation.
PN907
THE COMMISSIONER: All right. Thanks, Mr Herbert. Mr Quinn?
PN908
MR QUINN: The transcript says what the transcript says, Commissioner.
PN909
THE COMMISSIONER: All right.
*** BERNARD JAMES FARRELLY XN MR QUINN
PN910
MR QUINN: The paragraph does no more than point the Commission to the relevant elements of the conversation.
PN911
THE COMMISSIONER: I've heard the objection, Mr Herbert, and I'll bear it in mind as I deal with this evidence.
PN912
MR HERBERT: Thank you.
PN913
THE COMMISSIONER: Mr Quinn?
PN914
MR QUINN: I have nothing for the witness, Commissioner.
PN915
THE COMMISSIONER: All right. Thank you. Anyone else from the bar table before I go to Mr Herbert?
PN916
MR KEATS: No, Commissioner.
MS CERRATO: No, Commissioner.
CROSS-EXAMINATION BY MR HERBERT [3.01 PM]
PN918
MR HERBERT: Mr Farrelly, in your statement you refer to the classifications. I refer here to paragraphs 8, 9, 10 and following. You have referred to the Uniform Shipping Laws Code and you've taken some classifications out of that in the succeeding paragraphs, but do you accept, in effect, what you say in paragraph 8, that:
PN919
The Uniform Shipping Laws Code provides standards for the design, construction and operation of domestic commercial vessels in Australia.
PN920
That's its purpose?‑‑‑Yes, I do.
PN921
In so doing, it prescribes standards by reference to where those vessels - the sort of conditions in which particular vessels might subsequently be found to operate and it does so because the rougher the water or the further the distance or whatever, the more extreme the climatic or likely conditions to be encountered, then the stronger the vessel needs to be, the more crew it needs to have and the more safety precautions need to be taken. That's generally how it works, isn't it, in very simple lay terms?‑‑‑Generally, yes.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN922
So there is no attempt made in that document to deal with the question of what is or is not a body of water within the Australian coastline or any of the concepts that are expressed in the awards that we have, is there?‑‑‑Can you just rephrase that.
PN923
I'll withdraw that question and I'll ask this: because that is the purpose of the Uniform Shipping Laws Code, it prescribes the sorts of areas that you've referred to such as sheltered waters, seagoing and things of that kind, as being the broadest generic description there could be in order to provide a very wide area within which design and safety classifications, et cetera, might be fitted. That's all that it does by referring to things such as sheltered waters and seagoing, and some of the expressions you put in here. It's for the purposes of prescribing how safe the vessel needs to be and what its manning conditions might be and things of that kind?‑‑‑My reference to the National Standard for Commercial Vessels, which is the new uniform - AMSA national regulation or framework, you might say, was to provide a definition for what going to sea means as opposed to what we believe and what is enclosed‑type waters and ports and harbours in respect to that award.
PN924
But it's the setting of categories of areas, if you like, for the purposes of the establishment of the standards that might apply to the construction and manning of that vessel. It says nothing about what vessels classified under that standard might do or where they might go?‑‑‑It includes operation of those vessels.
PN925
Yes, but it doesn't tell you where they're going or what they're doing, does it?‑‑‑No.
PN926
It simply tells you where they're qualified to go and what they're qualified to do with that meaning and that construction. Isn't that right?‑‑‑That's right. Once again, the point in that statement is to define under the provisions of that regulation the difference between going to sea in terms of what's involved in the construction, operation, et cetera, and safety.
PN927
You've set down the categories and definitions relevant to the Sea Swift fleet, you say. All those classifications, et cetera, do is say what are the outer limits of where that vessel might go whilst it holds that classification. Isn't that right?‑‑‑That's right.
PN928
So you might have a 1C, for example, which is the highest classification. That 1C classified vessel might steam up and down Trinity Inlet and never go outside the leads in terms of its operation. That's so, isn't it?‑‑‑Correct.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN929
So that the actual classification attaching to the vessel doesn't tell you where it is actually being used and has nothing to say about where it's being used?‑‑‑The classification of the vessel provides the capacity of the vessel to go into a region. That's right.
PN930
It tells you where it can go, not where it does go?‑‑‑No.
PN931
Those descriptions that you've referred to are only for the purposes of setting some limits as to how far that vessel can go. It doesn't say anything about where that vessel is operating?‑‑‑No, but once again my reference to those classifications are how the regulator, AMSA, defines vessels in terms of where they can go under their provision to support the difference between enclosed waters and going to sea.
PN932
It's the outer limits of where they can go. That's right, isn't it. A vessel which is classified for sheltered waters in those circumstances. The definition of sheltered waters that is used doesn't - there isn't a line on the map anywhere that prevents that vessel from crossing a line, is there? You can't say that a vessel, for example, which is classified as 2B - that there's a line on a map anywhere that tells you where that vessel can't pass?‑‑‑Correct.
PN933
The definitions that you have - you put what you say are the classifications relating to those Sea Swift vessels. You have not in fact put down all their vessels. Is that right?‑‑‑That's correct?‑‑‑
PN934
Why did you leave out some?‑‑‑Because I guess the point of the exercise in my statement is to illustrate primarily the difference between enclosed waters for the purposes of the Ports, Harbours and Closed Waters Award and the Seagoing Award in regard to Sea Swift vessels generally. This wasn't intended to be a critique of every vessel of the 29 or whatever there is.
PN935
You see, that being so, you understood, didn't you, that part of the reason why you were giving evidence was to deal with the question as to whether what is the substantial location - sorry, what is the location of the whole or substantial operations of Sea Swift. You have only dealt with 10 out of the fleet of vessels, so that you haven't even dealt with 50 per cent of the vessels in the fleet as to what their classification might be and therefore where they may go?‑‑‑A significant proportion of our membership work on the vessels that we're talking about and then a significant proportion of the marine employees work on the vessels that I've listed in here, and our argument is that their conditions of employment are provided for in the agreement.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN936
If we take the Temple Bay, where does the Temple Bay actually operate? That's number (e) in paragraph 12 of your statement on page - - -?‑‑‑I'd have to look at my papers. I couldn't tell you straight off the cuff. The smaller vessels - I mean, I could tell you, but I'd have to look in - - -
PN937
You don't for the moment recall where the Temple Bay operates?‑‑‑Not recall, no.
PN938
The Marlow Trader, where does it go?‑‑‑The Marlow Trader is in the Northern Territory, I believe.
PN939
You don't know what its normal operations are? It could be tied up for 11 months of the year?‑‑‑Well, the purpose of it is up there to carry cargo around the Northern Territory. The vessels in the Northern Territory, some vessels - well, there are two parts of the operation. The primary part of the operation in the Northern Territory is to carry cargo from Darwin around to the coastal communities, as provided for later, and if there is a vessel up there that's used for project work - I appreciate that the company has got quite a flexibility on what they do with their vessels in terms of project work that might come up from time to time.
PN940
Of the 10 vessels, five of them are tugs. Is that right?‑‑‑There are a number of tugs, yes.
PN941
Aphros, Arjuna II, Cossack, Agros and Arion?‑‑‑Mm‑hm.
PN942
The 10 you have spoken of, five of them are tugs. Have you examined whether the operation of those vessels is covered by the Marine Towage Award or may be covered by the Marine Towage Award?‑‑‑Well, in the proposed EBA it's certainly not. We have mentioned - - -
PN943
No, but did you examine - because you've examined for the rest of your statement the question of the operation of the Ports, Harbours and Enclosed Waters Award. Did you examine the possible coverage of the Marine Towage Award in relation to those vessels?‑‑‑The focus of my statement is - the focus is on, I guess, the cargo side of it. Yes, I agree with you that there are a number of tugs and those tugs operate in towage.
PN944
If a tug operates in towage, even if the towage involves the conveying of cargo from one port to another, that still on its face is covered by the Marine Towage Award, isn't it? Is that right?‑‑‑(No audible reply)
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN945
You're nodding. You have to - - -?‑‑‑I'm not a hundred per cent - I can't a hundred per cent describe the scope of the Towage Award, but, basically, yes. Say, for instance, the job of Cossack; it tows dumb barge from Thursday Island to Horn Island and back. Yes, that would - - -
PN946
That would be a marine towage operation?‑‑‑Can I also add that on the tugs - the cargo vessels are the primary - the significant proportion of our members' work, cargo vessels.
PN947
But, you see, if the tugs aren't covered by the Seagoing Industry Award because they're covered by the Towage Award, then 50 per cent of the vessels you've referred to where you say the majority of members are not covered by the Seagoing Industry Award in their operations - - -?‑‑‑50 per cent of the vessels described in that part of the statement - - -
PN948
Yes?‑‑‑And that's in terms of the regulatory - the AMSA's National Standard for Commercial Vessels - 50 per cent are, of that part of the statement, yes.
PN949
Yes?‑‑‑And, once again, that part of the statement is about - anyway, that's - - -
PN950
All right. You see, I'm wondering if you take those five vessels out of paragraph 12 and the Temple Bay, I suggest to you, operates - it's a very small vessel?‑‑‑Yes.
PN951
It spends 90 per cent of its time parked up the Lockhart River. Did you know that?‑‑‑No.
PN952
When one of the line haul vessels or whatever comes past, it anchors off the beach and the Temple Bay comes out, transships and goes back up the Lockhart River or onto the ramp on the beach at Lockhart River. That's all it does. Are you aware of that?‑‑‑Not specifically, no.
PN953
If it doesn't ever go any more than from the Lockhart River to a mile off shore at the most and pick up cargo and go back up the Lockhart River or come up the ramp, you'd accept that's not exactly - even by your own generous definition, that's not exactly what you'd call a seagoing voyage?‑‑‑I would like to point out that it would be an interesting comparison on the percentage of Sea Swift's work and the marine employees that are working on the - - -
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN954
But my question, would you accept that something that lives up the Lockhart River for five days a week and for whatever the time might be - the vast majority of its time - it intercepts or one of the line haul vessels stops there and transships and keeps on going within literally a stone's throw of the beach, you'd accept that's not exactly a seagoing voyage by the Temple Bay?‑‑‑I'd accept there's the possibility of a very small percentage of Sea Swift's operation that come under that definition, yes.
PN955
In relation to the Temple Bay, that would not be a seagoing voyage. Would you accept that?‑‑‑On the basis of that percentage of work that the Temple Bay does and our members that work on that vessel - - -
PN956
We'll come to that shortly, but I'm just - - -?‑‑‑I agree with you.
PN957
You agree?‑‑‑Yes.
PN958
I was hoping you had said yes in the middle there somewhere, Mr Farrelly. So you agree that's not a voyage to sea with the Temple Bay. Just going through what you've said here, because I'm just wondering how and what sort of calculations might have been done here - but if you scratch the Temple Bay off the list as being one which is not a vessel whose operations would ordinarily be covered by the Seagoing Award, just that vessel - I'm not talking about anything bigger than that - - -?‑‑‑Excuse me, can I just - that's on the basis of what you've just said.
PN959
Yes?‑‑‑I initially said I don't know what it does.
PN960
Yes. There is other evidence about that?‑‑‑Okay. That's fine, but I'm not - okay.
PN961
To be fair to you, Mr Farrelly, I was putting that to you in case you had some knowledge about it; to give you the opportunity to accept it or deny it. From what you say, you don't accept it or deny it because you just don't know?‑‑‑Not specifically the Temple Bay, no.
PN962
You see, if you take the Temple Bay off that list and then you take Aphros, Arjuna II, Cossack, Agros and Arion, for example, if they were covered by the Marine Towage Award in relation to their operations, that would be six of the 10 vessels here, leaving aside the numbers of crew, et cetera; but six of the 10 vessels that would be out of the loop so far as an assessment of the application of the Seagoing Industry Award in relation to my client. Would you accept that?‑‑‑Possibly, yes.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN963
But you haven't investigated that matter any further in order to determine whether there is a whole or substantial coverage of the Seagoing Industry Award, by adding up the crews and the crew miles and the ship miles and the amount of time spent in operations going to various places and then taking out the vessels that aren't going to seat. You haven't done any of that?‑‑‑I've done a lot of mapping of our membership, which is significant - - -
PN964
No, the vessels, not your membership. That might be a completely different thing. You might have a lot of members in small places or no members in big places. That doesn't tell me about the mapping of the operations of the vessels to understand how many of Sea Swift's vessels actually go to sea and how often they go to sea, and how much of a proportion of the business is going to sea. You haven't done that, have you?‑‑‑For the purpose of the work that I've done, is how much proportion of the employees that are covered by the agreement go to sea.
PN965
Not the ships?‑‑‑The small vessels might have one or two people on them. I mean, the Cossack in the Northern Territory, you know - I mean, I've been up there and I've spoken to the skipper. It has got a very small crew, so the focus of my statement is around the conditions of employment and where a significant proportion of the marine employee work.
PN966
Where do we find the results of this analysis you've done; mapping your members as distinct from mapping the operations? Where do we find that analysis in your statement? Have you got the figures here somewhere that I didn't see?‑‑‑No. They're not in my statement, no. Excuse me.
PN967
Well, you see, it could be that you might have a very busy ship, tug and barge operation earning a large amount of money for the company and flat out busy all the time. It could be a significant part of the company's operations, but it might have slightly less crew than another vessel that goes once a fortnight and is a very small part of the company's actual operations?‑‑‑Yes.
PN968
You'd accept then that the numbers of crew involved in that do not bespeak the nature and the quantity of the operations. Do you agree with that?‑‑‑The reason why we're here is talking about the work that's provided - the conditions of employment.
PN969
Yes?‑‑‑The work that's provided for in the EBA.
PN970
Yes?‑‑‑If there is one vessel that employs three people, it makes a lot of money, that has got nothing to do with the EBA that covers 150 people.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN971
And it might run around in a port or in a harbour all day every day, and the other ship might go out to sea once a month; then obviously in terms of the overall nature of the operation of that business, the one that's going around the harbour all day every day will loom very large in the assessment, won't it, compared to the ship that goes out to sea once a month. You'd accept that, wouldn't you?‑‑‑I'd accept that the majority of employees that are covering the marine section, the agreement should reflect their conditions.
PN972
Yes?‑‑‑So, not the business case for us.
PN973
The analysis that I refer to, that is, what are the actual vessels doing and where are they going and are they going to sea etcetera, you haven't done any of that by reference to the vessels. You say you've done it by reference to where your employees are, but you haven't provided that information to the Commission. Is the result of your evidence?‑‑‑In my mapping of where the cargo is shipped around the coast, in Northern Territory and Torres Strait, where a significant proportion of our members work, are depicted in the statement and that was where I focussed that, on that answer.
PN974
You haven't provided the results of your mapping in your statement?‑‑‑I haven't focussed on towage or operation. As I say, it's a very small proportion of the workforce.
PN975
Can I take you to - - -?‑‑‑Can I just add that for the purposes of the Commission, my understanding from the membership is that the people who work in towage, the project work etcetera, not just the towage, but the project workers which I understand is the primary reason for the towage is that a lot of them are casual and as a consequence, people move.
PN976
Thank you for that. Paragraph 15, you have referred to Seagoing Industry Award. It refers to the operation of vessels trading as etcetera, which in the course of such trader operation proceed to sea, the voyage is outside the limits of bays, harbours or rivers. How do you say that this Commission, for example, establishes, or the parties establish where the limits of each bay, harbour and river in Australia is to be determined? Do you have a view about that?‑‑‑
PN977
MR QUINN: Commissioner, that's a question of law, I don't know if that's an issue for the witness, is it?
PN978
THE COMMISSIONER: It's in evidence.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN979
MR QUINN: Commissioner, I think that's a question of law and I object to the question on the basis that it's not appropriate for the witness to be giving evidence as to those conclusions that are precisely the conclusions the Commission needs to be drawing.
PN980
MR HERBERT: It's a question of fact, Commissioner. Well, where is the line; where is the limit?
PN981
MR QUINN: Well I think it's an issue of fact. It's asking for his opinion about an issue of law. It's not an issue of fact.
PN982
THE COMMISSIONER: Mr Farrelly goes on to give evidence about - includes in his evidence, as I recall, statements about certain ports and the boundaries of those ports.
PN983
MR HERBERT: Paragraph 18.
PN984
THE COMMISSIONER: I think I'll allow the question. I'm alive to the reasons for why you've put the objection, but look, I think I'll allow the question and just monitor to see where this evidence might go and we'll just see how we go question by question on this I think Mr Herbert.
PN985
MR KEATS: For the purpose of the record, can I join in the objection. I support the second limb that is that effectively the question being asked goes to the conclusions you must draw, Commissioner. I think the opening of my friend today was that there wasn't a clear way of doing it, that was the position he put in opening and that there should be a fair and reasonable way that applies across the country. He's now asking this witness to give that methodology, but at the end of the day that is your task. So I join that objection.
PN986
THE COMMISSIONER: I'll allow this question on the basis that I've already ruled. We'll just see where we go.
PN987
MR HERBERT: Thank you, Commissioner. You see what I'm - I'll withdraw the question Mr Farrelly and I'll take you to paragraph 18. In paragraph 18 you have purported to talk about how limits of ports are established. See that? You have in your evidence declared that the limits of those harbours are established by the Transport Infrastructure Ports Regulation 2005 Schedule 1, and then you've got a map. You say those are the limits of those ports, that's right, that's what you say, isn't it?‑‑‑I use those as examples, as depicted under those transport structure.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN988
Those ports you say, those are the limits. My question to you is then, and therefore you've got a number of them like that. Do you have your annexures?‑‑‑I haven't got them with me.
PN989
Annexure BF4 you remember because you've done this of course Mr Farrelly, that you've got a number of these charts that you produced and they've got very fetching purple blotches on them which you say, in your evidence, are the limits of those ports. Is that right, is that correct?‑‑‑I say they are the limits in accordance with where I got that information.
PN990
They're the limits prescribed in that legislation, that regulation for those ports for the purposes for which that regulation exists. That right?‑‑‑It's in accordance with where I got the reference material.
PN991
You see, that reference material and that regulation, you'd accept don't you, relates to the limits of ports which have been declared as such under relevant legislation. That is declared ports under the control of the Ports Corporation, or whomever. That's right, isn't it?‑‑‑If that's the definition in that, yes. Under for instance the Transport Infrastructure Ports Regulation etcetera.
PN992
Yes?‑‑‑If what you're saying is there, yes.
PN993
You produced this material. I'm really asking you whether you understand what it actually is, because you said that those are the limits of those ports. Now they're limits that are set by the state government in relation to those particular ports, for the purposes of the various revenue raising and other regulations encouraged by the state government, that is, if one comes within the limits of those ports under various circumstances, if it's a commercial vessel, there are fees to be paid and other consequences. Is that right?‑‑‑If that's what the definition and criteria under those regulator or state government authority.
PN994
Were there any other harbours or ports or bays that you haven't got here that are declared ports under that regulation that you've referred to in paragraph 18, is that the limit of them?‑‑‑I'm not sure.
PN995
You've got Cairns, Weipa, Port Kennedy, which is Thursday Island and Horn Island and Cape Flattery. You haven't mentioned any other bays or harbours or inlets?‑‑‑If the question is have I excluded any for any purpose, no.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN996
But you see, what do you say, because you're declaring questions here in your evidence about ports and the limits of ports and how you find the limit of a port, what happens if you've got a bay or a harbour that isn't a declared port. How does one establish in your view, or do you have a view, as to how one establishes what the limits of that bay or harbour are?‑‑‑I haven't sought to define that in here, but I thought that would be a general, anyway.
PN997
You don't know. If somebody is operating within a bay or a harbour on the Queensland coast, it's important for the purposes of the application of the Sea Going Industry Award and for the Ports Harbours Award to know if that operation is inside or outside the limits of that bay or that port or that harbour or that river. Is that right?‑‑‑That's right, yes.
PN998
If it's not a declared port, such as the ones that you've indicated there with a port authority or a port corporation or deep ports corporation controlling it, you don't have any information at all as to how the question of the leaving of those port limits might be determined? Where the line is that you have to cross to leave the port?‑‑‑No.
PN999
You say in paragraph 19 the boundaries for seagoing operations and sheltered water operations under the NSCV are established and there are by that regulation that you've referred to, and then annexure, you say BF5 contains maps identifying Queensland's designated sheltered waters, relevant to this map and that's around the ports of Cairns, Weipa and Port Kennedy. What about the other ports and harbours in Queensland? Is this all there was by way of designation in this part of the world, that is designated sheltered waters in this part of the world?‑‑‑No, they're just examples that are relevant to this, but I didn't include everywhere, if there are others.
PN1000
If there are others? You don't know if there are any more?‑‑‑I didn't look.
PN1001
I see. If there is a port or a harbour in or about Mornington Island for example, and there's no designated smooth waters or sheltered waters around there, it's not a designated port in accordance with the ports' regulations, how does one tell when one has left that port? Do you have any information or do you have any ideas about how that could happen?‑‑‑No.
PN1002
Can I take you forward to paragraph 24. Marlow Explorer, Marlow Trader, Marlow Warrior operate regular routes from Darwin to the Tiwi Islands. Do you say from Darwin to the Tiwi Islands is smooth waters or sheltered waters or a bay or a harbour? Do you have a view about that area?‑‑‑No.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1003
You don't have a view? You then say that - and they travel across the northern coast of the Gulf of Carpentaria. The regular trip to Gove, the last sentence of paragraph 24, the regular trip to Gove and Groote Eylandt also involves a trip across open waters of the gulf around 30 nautical miles. Did you measure the rest of the length of the voyage to ascertain what percentage of that voyage the 30 nautical miles was?‑‑‑No.
PN1004
It's many hundreds of nautical miles across to that point, isn't it and 30 nautical miles is just the one short leg of that operation at the end of a very long journey, isn't it? Do you accept that?‑‑‑Yes.
PN1005
The rest of that journey is tucked in very close to the coast. It's in amongst the Tiwi Islands, in amongst a range of islands on the north coast of Arnhem Land. It goes through the vessels. At the south end of the vessels, it comes down and joins in and goes in behind the Groote Eylandt and those areas, doesn't it?‑‑‑I've got to rely on the information from my colleagues in Northern Territory and the conditions of employment that apply to those Tiwi Islands Pacific runs. From my understanding it's been based on the Seagoing Award.
PN1006
That's what you're told, is it?‑‑‑This whole statement is about what I understand from my - - -
PN1007
You understand from what you've been told?‑‑‑But I can't - like I said, the Tiwi Island part of the operation - - -
PN1008
When you say your members operate under the Seagoing Industry Award conditions, who is their employer?‑‑‑Who was their employer?
PN1009
Well, who is their employer, these members who've told you this thing that you've just described?‑‑‑I can't say. All I'm saying is that my colleagues in Northern Territory have told me that this award hasn't applied to anything outside what is regarded as inshore work. That's the enclosed waters.
PN1010
Something regarded as inshore work. Is that the expression that's used, I'm sorry. Do you know a company called SeaLink operates in Northern Territory?‑‑‑Not specifically.
PN1011
Not specifically. Can I show you - - -?‑‑‑I know of them in South Australia.
PN1012
Are you aware of the SeaLink NT Enterprise Agreement?‑‑‑No.
PN1013
Have you heard of that?‑‑‑No, I haven't.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1014
I'll hand you this up. SeaLink NT Enterprise Agreement 2014-2018. Have you seen that before?‑‑‑No, we've got many many agreements nationally. I'm not aware of all of them.
PN1015
Not aware of all of them. I see. If we go to page 41 of that document to start with, actually page 40 to start with. You see there are signatures there to the agreement and then following that, there's an undertaking. On page 41 there's a name there that looks like Michael Dolman, Level 2, 365 Sussex Street. That sounds like a union address. Are you aware of who that might be?‑‑‑That's right, he's the recently retired Deputy National Secretary.
PN1016
Of your union?‑‑‑Yes. They're the National Secretary and the Deputy National Secretary, sign all EBAs.
PN1017
It's signed by him on 9 October 2014, that right? If you then go to the application of that agreement, clause 7.1. "Notice is given of knowledge of scope of work which applies to vessel operations and marine engineering in the provision of tourism, passenger and cruise ship services to Mandora, Tiwi Islands and the operation of vessels of any type wholly or substantially within a port, harbor or other bodies of water within the Australian coastline." See that? That seems to be it's operating in the waters between Darwin and the Tiwi Islands and thereabouts. That's the intention of it?‑‑‑On the face of that. I can't say the intent because I've got nothing to do with it.
PN1018
On the face of that, that's what it says?‑‑‑Can I just finish with Mick Dolman as the Deputy National Secretary and Paddy as the Secretary, sign all agreements as part of our rules, once they're endorsed by the National Council. I'm not a national councilor. I'm not au fait with all the agreements in Australia.
PN1019
You see, you did say however, you earlier ventured the opinion that vessels operating in the Tiwi Islands area were operating under the terms and conditions of the Seagoing Industry Award?‑‑‑If this intent is correct, I was talking about vessel that fall under the definition of inshore vessels and underpinned by this award. Once again, I can't vouch for the intent of that scope because I had nothing to do with the agreement.
PN1020
You'll accept then, just looking at the face of that agreement, that that agreement actually expressly appears in paragraph 2. "To have applied the Ports, Harbours and Closed Water Vessels Award." See that, paragraph 2 on page 6. Jurisdiction and award relationship. "... accept or otherwise stated extinguish applicable national award Ports, Harbours and Closed Water Vessels Award 2010." Can you see that?‑‑‑Which page is it?
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1021
It's been cut off at the bottom I'm sorry?‑‑‑What clause?
PN1022
It's the third sheet of paper and it's on the back of the third sheet of paper and it's clause 2. The heading at the top of the page is Part 1 operation of the agreement. See that?
PN1023
THE COMMISSIONER: Yes, the copy I've got I think has pages back to front. Five and four are flipped over.
PN1024
MR HERBERT: Yes, they are stapled or been put the wrong way around. Well you see, just jumping forward a little bit?‑‑‑Can I just make - all right, go ahead.
PN1025
Mr Farrelly, in your second statement that we received yesterday, you have said that the question of inshore waters etcetera has a particular meaning and this is the way that this all works and the seagoing industry award is applied in all these situations. One of the agreements that you referred to was a SeaLink South Australia agreement, that right?‑‑‑Yes.
PN1026
But you didn't refer to the SeaLink Northern Territory agreement which actually says something quite different?‑‑‑I referred to the South Australian agreement because the issue came up about broad coverage that I was aware of some years ago.
PN1027
Yes, the matter went to the Commission at one stage and it was resolved without the Commission having to make a ruling?‑‑‑That's right.
PN1028
Did you not search any further to see whether your union had concurred in the application of the ports, harbours award in relation to vessels which leave ports and head off across bodies of water and go to other offshore islands? Did you bother to find that out?‑‑‑No.
PN1029
In your travels, you didn't know about this award? The reason why you didn't produce this award to the Commission by way of illustration with this agreement - the reason why you didn't produce this agreement, when you produced all the other agreements, the hundred odd pages of them you produced yesterday, you didn't produce this agreement because you didn't know about it? Is that right?‑‑‑No, and the hundred odd pages or so isn't every agreement that we've got in Australia, either.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1030
I'm not suggest it is?‑‑‑There are many others left out.
PN1031
But you produced a raft of agreements where you say Seagoing Industry Award applies but this one, you'd accept, it's application has some significant similarities to an area of operations of my client and yet the Ports Harbours Award was applied and your client signed off on undertakings in that regard?‑‑‑I would have to examine this agreement and have a look at the provisions in it and if the provisions in it exceed or fit in with what we see fit, then it's pedantics or over and above which are not in the agreement up there of the award, and it's pedantics on what award it is, because the provisions are way above. But I cannot comment on the intent or the negotiation of this agreement and this agreement was not the only agreement I left out.
PN1032
Well that's true Mr Farrelly, I'll come to the other one shortly. Can I tender that agreement, Commissioner. The SeaLink NT Enterprise Agreement 2014-2018.
THE COMMISSIONER: Yes, I'll mark the SeaLink NT Enterprise Agreement as exhibit 10.
EXHIBIT #10 SeaLink NT Enterprise Agreement 2014-2018
PN1034
MR HERBERT: Did you say before that your union was prepared to only accept or acknowledge the application of the Ports Harbours Award in situations where the work being done is inshore work?‑‑‑In my experience, that's right.
PN1035
Some understand that, because inshore is not an expression used in either of the awards and comments on these proceedings. What is mean by inshore work?‑‑‑Can I just say, or, where the conditions to the agreement far exceed either award and to the point where there's no argument about it's the conditions in the agreement, the integrity of the agreement that overwhelms everything. We use the award to support the claims and the negotiations in the agreement. Some of those agreements have provisions far in excess of either award, but it's not relevant.
PN1036
If the applicable safety net boot test - if the applicable award in relation to the agreement is in fact the Seagoing Industry Award, you would expect that to be said so in an application to the Commission and the union you'd expect wouldn't accept another award being said to the Commission to apply when it actually didn't apply, surely?‑‑‑I can't answer that because my role isn't to oversee negotiating of all of our agreements nationally. Our members' primary focus is the conditions within the agreement.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1037
To return to my question, what is it, what do you mean by, when you have given evidence as you have, that the union would accept that the coverage of the Ports Harbours Award in relation to what you describe as inshore work? What do you mean by inshore work? What do you mean by it, when you give your evidence here?‑‑‑Inshore work is work that's normally conducted around ports and harbours. I mean a lot of the agreements we do are around companies that set up and have set up around service project work like Hay Point etcetera, Gladstone, and those operations primarily are about transferring crews, cargo etcetera, moorings, dive support if need be. Those vessels do go out from port to port to go to another project for instance, but the focus of their operation is within the port or within a certain boundary.
PN1038
If you look at this agreement, see if you have seen this in your travels. Have you encountered this agreement in your travels? Does that look familiar to you?‑‑‑I don't know about it.
PN1039
Would you look at the decision of the Commission which is on the back of the first page. Paragraph 3 of the decision, "Maritime Union of Australia being the bargaining representative of the agreement has given notice under section 183 of the Act. The organisation wants the agreement to cover it." Your union has applied to be covered by the agreement and somehow or other this hasn't come to your attention? Is that correct?‑‑‑Are we a signature to it?
PN1040
What's the answer to my question Mr Farrelly, has this agreement been brought to your attention, or not?‑‑‑Sometimes if an agreement is negotiated we are not a signatory to it, but we are covered by it, so that we can continue to represent our members.
PN1041
I understand the process Mr Farrelly. My question to you is, was this agreement brought to your attention when you were looking for agreements to attach to your affidavit yesterday as to what is or is not inshore or offshore work?‑‑‑No, it certainly wasn't.
PN1042
According to the Commission's decision, the MUA did apply and was aware of it because it applied to be covered by it and if you have a look in paragraph 2, on page 4, 2.2 you aim to extinguish the applicable national modern awards, Ports Harbours and Closed Water Vessels Award, see that?‑‑‑Once again, can I say that doesn't necessarily mean we agree with it.
PN1043
Did you challenge it?‑‑‑I'm not sure, but we're applying to be a party to it, covered by it I should say, so that we can continue to represent our members.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1044
You see paragraph 7, 7.1, "parties to this agreement acknowledge the scope of work to which this agreement applies, vessel operations, travel term operations and marine engineering and the provisions tourism passenger and cruise ship services to Magnetic Island, Palm Island, the regional waters between Port Douglas and Airlie Beach and other waters." See that?‑‑‑I - - -
PN1045
An agreement to which your union sought to become covered, the second one now, that's the SeaLink Queensland as well as SeaLink NT, applied the Ports Harbours Award in relation to regional waters between Port Douglas and Airlie Beach. You didn't challenge that as being that this award isn't the appropriate boot test award?‑‑‑I can't answer that, no.
PN1046
No, because this didn't come to your attention at all. Well, somebody on behalf of your union didn't challenge that. If we then go to a little bit of local geography, do you know the areas between Palm Island, for example? Did you know that SeaLink for example operates a regular service to Palm Island from Townsville?‑‑‑I don't know anything about SeaLink. I know there's an operator that runs across to - - -
PN1047
To Magnetic Island, yes. Townsville and Palm Island are quite a significant distance apart, I suggest to you. They're about 60 to 80 kilometers apart. Are you aware of that? That you would leave the port of Townsville and travel 60 to 80 kilometers across what I think you would describe as open waters to get there. Were you aware of that? Townsville to Palm Island?‑‑‑I don't exactly know the distance. I've actually travelled it in a vessel. I worked on a prawn trawler once, many years ago and I've done the route but I don't know how many kilometers it is. Once again I can't say the branch wouldn't have negotiated that, the (indistinct) in the national office. Aware of all the agreements, I'm afraid.
PN1048
Commissioner, if there's no point if you know nothing about it Mr Farrelly, and it wasn't brought to your attention within the union when you were doing your research for this case, there's not much point in me pressing you even further in relation to that, so I won't ask any more questions about it.
PN1049
Commissioner, might I tender that agreement.
THE COMMISSIONER: All right. I'll admit the SeaLink Queensland Enterprise Agreement 2012-2016 as exhibit 11.
EXHIBIT #11 SEALINK QUEENSLAND ENTERPRISE AGREEMENT 2012-2016
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1051
You'd accept on the face of it then, there are those two agreements where operations are being conducted in the Northern Territory and north Queensland waters and the scope of the agreement is to allow such operations to be conducted in regional waters from Port Douglas to Airlie Beach. In both of those instances, the Ports Harbours and Enclosed Waters Award was approved by the Commission for application to that operation. You accept that those - - -?‑‑‑Well the agreements have registered, yes.
PN1052
The two agreements have been registered and that on both occasions your union was a participant in that process and sofar as the records of the Commission disclosed, did not challenge it. Do you accept that?‑‑‑On that date, on face value, I guess, yes.
PN1053
When you go to the other agreements that you produced and attached to your second statement where parties have agreed on which award might apply to their operations or why, then there are at least two agreements where the other result has been achieved in relation to what on the face of it appears to be what you would call off-shore operations, isn't that right?‑‑‑It appears so, yes.
PN1054
It's a pretty mixed batch?‑‑‑I've come up with two, neither that I would consider reflects the broader operation that - anyway, I accept that.
PN1055
From Airlie Beach to Port Douglas, about a third of the Queensland coast, is it? Perhaps not, perhaps a quarter. A long run, and regional waters in that area?‑‑‑One agreement.
PN1056
I'll come back to your first statement, if you wouldn't mind. Sorry to jump around like this but paragraph 43 of your first statement?‑‑‑Yes.
PN1057
That email that you've referred to there was won after the ballot had closed and been counted and the result was known. Is that right?‑‑‑Yes.
PN1058
From paragraph 48 and onwards, you talk about indigenous employees?‑‑‑48?
PN1059
48 to 51. How long is it since you've lived and worked in the Torres Strait?‑‑‑Lived and worked?
PN1060
Yes?‑‑‑I've never lived and worked or worked there.
PN1061
I beg your pardon?‑‑‑I've never lived or worked there.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1062
Never lived or worked there. How long since you visited there and spoke to indigenous employees of Sea Swift? Any indigenous employees of Sea Swift?‑‑‑A few months.
PN1063
A few months. You say nothing here about the capacity of any indigenous employee of Sea Swift to communicate in and understand the English language, have you?‑‑‑Can you repeat that?
PN1064
You've said nothing about the capacity of any particular indigenous employee of Sea Swift and their capacity to communicate in and understand the English language, have you?‑‑‑These issues were raised to me by people in the Torres Straits.
PN1065
European, white, Anglo persons?‑‑‑No, no. I've been up there and met on a number of occasions the community and traditional land owner, leaders, traditional leaders, community leaders and employees.
PN1066
Employees in what capacity?‑‑‑Just basically this reflects those conversations.
PN1067
You spoke to community leaders who are not employed by Sea Swift?‑‑‑With employees.
PN1068
And with employees. In what classifications of work are we talking about that you - - -?‑‑‑General. I'm not going to identify who's who because I'm just not.
PN1069
Well I'm asking you to Mr Farrelly because the significant majority of those persons are persons whom your union has no capacity to industrially represent. You understand that, don't you?‑‑‑No, I don't.
PN1070
You're engaged as shed hands, core based employees and your union doesn't represent them. They are in fact represented by the AWU in that part of the world?‑‑‑Are they? We have constitutional capacity to represent them.
PN1071
I see, and can I suggest to you that you don't have constitutional capacity to represent them, but you will - undoubtedly I'll be told that's a matter of law.
PN1072
MR QUINN: Commissioner, is there a purpose to this line of questioning? The issue is there - - -
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1073
THE COMMISSIONER: Perhaps we can move on.
PN1074
MR HERBERT: Thank you, Commissioner. Have you read the evidence of Mr Bruno in relation to his employees after 20 years employment with the company?‑‑‑Yes.
PN1075
Have you read what he said there about the employees and the extent to which they are required to attain firstly induction into the company and secondly, the many and various qualifications that they have. They are required to undertake examinations and tests in the English language. Some of them, up to 100 questions have to be answered in English?‑‑‑I mean, I read it but I can't know it verbatim.
PN1076
No, but you don't challenge any of that, do you? You don't say and you can't say, and you haven't put anything in response to say that any of that is not true. You don't say that all of those tests and qualifications and things that have been referred to by Mr Bruno in his evidence, that Sea Swift employees have not had to undertake those tests. You don't say that, do you?‑‑‑No, I'm not going to challenge, no, of course no.
PN1077
If Mr Bruno's evidence is to be accepted, there is a very significant level of literacy amongst Sea Swift employees to enable them to climb up the vocational ladder the way that very many of them are doing. Do you accept that?‑‑‑Yes.
PN1078
There are very significant educational facilities in that part of the world, where all of the curricula and all of the teaching is in the English language. You'd accept that?‑‑‑Yes.
PN1079
There are grade 1 to 12 schools and things of that kind in north Queensland now and that the indigenous peoples of the Torres Strait are amongst indigenous people in Australia, generally, possibly the most literate and highly educated of all. Do you accept that?‑‑‑I can't go on the level of - I can't comment on where they stand in that framework, I don't know.
PN1080
One employee on Thursday Island has risen from a general shed hand to being the Depot Manager, a Thursday Island person. Do you understand that?‑‑‑I applaud that.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1081
You have not brought forward a single example of somebody who claims to be or has told you that they could not understand what was going on because they're not proficient in the English language. That is so, isn't it, in your evidence?‑‑‑I haven't used examples of employees or members and their names.
PN1082
Thank you Commissioner, I have nothing further.
PN1083
THE COMMISSIONER: Any re-examination, Mr Quinn?
PN1084
MR QUINN: No, Commissioner. That's the evidential case for the MUA.
THE COMMISSIONER: All right, thanks, Mr Quinn. Thanks, Mr Farrelly, you're free to go.
<THE WITNESS WITHDREW [4.00 PM]
PN1086
THE COMMISSIONER: It appears to be that we've concluded the witness evidence in this matter. That leaves issues of inspections tomorrow and then the issue of closing submissions. Have the parties conferred at all about that or?
PN1087
MR HERBERT: Not as yet. Things have moved on even a bit more quicker than we thought. We're a lot better than we thought we were.
PN1088
THE COMMISSIONER: Yes. Do you want to have a chance to have a chat with each other. Just happy to have a discussion about it.
PN1089
MR HERBERT: One thing, Commissioner, about the inspections, what we had proposed to do was all the parties here at the Bar Table to gather at the Sea Swift office tomorrow morning and then we will get on the bus and then go to a designated point wherever your accommodation might be or wherever you might be having breakfast in town and pick up you and your associate and then we would proceed on the inspections from there. Then depending on where everyone wanted to be, that the bus would then bring everyone here and drop them off here at the end of that process. We understand that you don't have a car immediately available and we thought it would be better if the bus comes to you, rather than having to get a cab to where it will be.
PN1090
THE COMMISSIONER: I'm content with that approach.
PN1091
MR HERBERT: If any other parties are in a similar position and don't have transport down to Tingara Street, or they don't know where it is, if they let us know now, because we'll have to make those arrangements with the bus driver. As things presently stand, the bus I think is due at the Sea Swift office at 9am. We can leave at whatever time needs be after that to coordinate, to pick you up Commissioner and then go from there.
*** BERNARD JAMES FARRELLY XXN MR HERBERT
PN1092
THE COMMISSIONER: I can give you the address of the hotel where we are staying and you can swing past and pick us up.
PN1093
MR HERBERT: We can liaise with your associate about that and we'll swing past and pick you up.
PN1094
THE COMMISSIONER: With my associate. About quarter past nine, perhaps.
PN1095
MR HERBERT: We are attempting to organise it so nobody needs to get off the bus and that the whole thing will be done as a drive through to all of the relevant places that we need to do. Then we'll come back here, everybody disembark here and we'll commence the proceedings tomorrow. Now having got to that point, it would appear that unless there's anything else arising, that it might be appropriate to embark on the submissions tomorrow and I don't know if any party wants to have a little bit more time, but my proposal would be that as the applicant we go first, make the case that we wish to make, now that we're enlightened as to what it is that is said against us, then allow the other parties to respond and then we have a right of reply.
PN1096
THE COMMISSIONER: All right.
PN1097
MR HERBERT: I don't know how long the other parties will be and whether they propose to put anything in writing and as I did indicate this morning, if it got to the point where any party things that they need to think a bit more about what's happened here and they want to put on a written submission to supplement the oral submissions, but certainly my preference would be that now that the evidence is fresh in everyone's minds, even if the submissions are concluded tomorrow, those issues ought to be addressed while the Commission has the matters fresh in your mind and the inspection fresh in your mind so we can explain what we are talking about.
PN1098
THE COMMISSIONER: Sure. Thanks Mr Herbert. Mr Quinn?
PN1099
MR QUINN: Commissioner, housekeeping, I don't want to be a stalker, but I might well be staying at the same hotel as you are for all I know, but I might find out where you are and arrange potentially for the bus to meet at your hotel rather than us going down to Sea Swift.
PN1100
THE COMMISSIONER: We're at Ridges, aren't we? Ridges on the Esplanade.
PN1101
MR QUINN: I know very little about Cairns, but I did notice on the way in that there's about three or four Ridges, so I'm not sure, but I'll find out from your associate. So we'll find out which Ridges and potentially when, is the easier.
PN1102
MR HERBERT: The two pick up points will be at Sea Swift at Bowen Ridges on the Esplanade, so the parties can be at either one.
PN1103
THE COMMISSIONER: All right. Now any view from your perspective Mr Quinn? Are you content for us to go to closing submissions after we get back from our inspections tomorrow, or perhaps even after a luncheon break?
PN1104
MR QUINN: Two things, Commissioner, I expect after a potentially early, depending on the - wait for the inspection after the luncheon break which may well be an early break. We'll review what's on hold and might hope for written submissions as envisaged by Mr Herbert. Also willing to proceed at least in some form, potentially have oral submissions tomorrow afternoon.
PN1105
THE COMMISSIONER: Mr Keats?
PN1106
MR KEATS: Commissioner, I'm hopeful to actually have some written submissions tomorrow. Hopefully I'll be able to proceed tomorrow, some time during the day.
PN1107
THE COMMISSIONER: All right, thank you. Ms Cerrato?
PN1108
MR CERRATO: I'll certainly have some oral submissions prepared for tomorrow, but I can't guarantee the written submissions at this stage.
PN1109
THE COMMISSIONER: All right. Anything arising out of that for you Mr Herbert?
PN1110
MR HERBERT: At this stage can we say that we'll be leaving the Sea Swift depot at Tingara Street at about 9.15. We'll probably be at Ridges on the Esplanade at around about 9.30ish, so any parties who want to be picked up either one of those places, they will be the two designated drop off points, unless somebody pays me $10 in which case I'll speak to the driver on their behalf.
PN1111
THE COMMISSIONER: All right, thanks, Mr Herbert. Just a last point, so having heard everything that I've heard from everyone at the Bar Table, it would sound to me like for those of us who want to go home tomorrow night, who aren't located in Cairns, it would be pretty safe to book a flight. Is that a fair position or not?
PN1112
MR KEATS: An after hours flight, yes.
PN1113
THE COMMISSIONER: An after hours flight, yes. All right, thanks everyone. We'll adjourn and we'll see you in the morning.
ADJOURNED INDEFINITELY [4.06 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LINO BRUNO, SWORN........................................................................................ PN84
EXAMINATION-IN-CHIEF BY MR HERBERT.............................................. PN84
EXHIBIT #1 WITNESS STATEMENT OF LINO BRUNO DATED 10/08/2015 PN95
CROSS-EXAMINATION BY MS CERRATO................................................. PN105
CROSS-EXAMINATION BY MR KEATS....................................................... PN141
CROSS-EXAMINATION BY MR QUINN....................................................... PN163
RE-EXAMINATION BY MR HERBERT......................................................... PN257
THE WITNESS WITHDREW............................................................................ PN270
ROBERT JOHN O'HALLORAN, SWORN...................................................... PN272
EXAMINATION-IN-CHIEF BY MR HERBERT............................................ PN272
EXHIBIT #2 STATEMENT OF ROBERT O'HALLORAN........................... PN279
CROSS-EXAMINATION BY MR KEATS....................................................... PN289
EXHIBIT #3 MAP COVERING ARAFURA AND CORAL SEAS............... PN373
CROSS-EXAMINATION BY MR QUINN....................................................... PN376
THE WITNESS WITHDREW............................................................................ PN460
FRED WHITE, AFFIRMED............................................................................... PN465
EXAMINATION-IN-CHIEF BY MR HERBERT............................................ PN465
EXHIBIT #4 STATEMENT OF FRED WHITE DATED 10/08/2015............ PN480
EXHIBIT #5 EXTRACT OF COMMITTEE'S REPORT............................... PN497
CROSS-EXAMINATION BY MR KEATS....................................................... PN499
EXHIBIT #6 STATEMENT OF ISSUES PREPARED BY AUSTRALIAN COMPETITION AND CONSUMER COMMISSION.................................................................... PN519
CROSS-EXAMINATION BY MR QUINN....................................................... PN546
RE-EXAMINATION BY MR HERBERT......................................................... PN667
THE WITNESS WITHDREW............................................................................ PN773
RUSSELL IAN VIERITZ, AFFIRMED............................................................ PN785
EXAMINATION-IN-CHIEF BY MS CERRATO............................................ PN785
EXHIBIT #7 STATEMENT OF RUSSELL VIERITZ.................................... PN794
CROSS-EXAMINATION BY MR HERBERT................................................. PN796
THE WITNESS WITHDREW............................................................................ PN890
BERNARD JAMES FARRELLY, AFFIRMED.............................................. PN892
EXAMINATION-IN-CHIEF BY MR QUINN.................................................. PN892
EXHIBIT #8 STATEMENT OF BERNARD FARRELLY DATED 23/07/2015 PN901
EXHIBIT #9 STATEMENT IN REPLY OF BERNARD FARRELLY DATED 25/08/2015 PN902
CROSS-EXAMINATION BY MR HERBERT................................................. PN917
EXHIBIT #10 SEALINK NT ENTERPRISE AGREEMENT 2014-2018... PN1033
EXHIBIT #11 SEALINK QUEENSLAND ENTERPRISE AGREEMENT 2012-2016............................................................................................................................... PN1050
THE WITNESS WITHDREW.......................................................................... PN1085
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URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/512.html