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Fair Work Commission Transcripts |
TRANSCRIPT
OF PROCEEDINGS
Fair Work Act
2009
1052450
DEPUTY PRESIDENT GOSTENCNIK
AG2015/2708
s.185 - Application for approval of a single-enterprise agreement
Application by Broadsword Marine
Contractors Pty Ltd
(AG2015/2708)
Perth
9.08 AM, MONDAY, 14 SEPTEMBER 2015
PN1
THE DEPUTY PRESIDENT: Good morning. Mr Caspersz, you continue to appear for the applicant?
PN2
MR CASPERSZ: Thank you, Deputy President, I seek permission to appear together with my learned friend Mr HULMES, on behalf of the applicant.
PN3
THE DEPUTY PRESIDENT: Yes, thank you. Mr Edmonds, for the MUI?
PN4
MR EDMONDS: Yes, sir, thank you, sir. There's no objection to my friends.
PN5
THE DEPUTY PRESIDENT: Mr Niven?
PN6
MR NIVEN: Yes, no, I appear on behalf of the Australian Institute of Marine and Power Engineers and there's no objection, your Honour, to the appearance.
PN7
THE DEPUTY PRESIDENT: Ms Thompson, you're in Melbourne?
PN8
MS THOMPSON: Yes, your Honour. I have no objection to his appearance.
PN9
THE DEPUTY PRESIDENT: I'm satisfied having regard to the complexity of the matter, the matter be dealt with more efficiently were I to grant permission for the applicant to be represented by a lawyer and I do so Mr Caspersz. How do the parties wish to proceed this morning?
PN10
MR CASPERSZ: Thank you, your Honour. Ultimately, we're in the hands of the Commission of course but if it's convenient for the Commission and the other parties - - -
PN11
THE DEPUTY PRESIDENT: You're in my hands, I would have hoped you would have settled your differences and I wouldn't have to be here but - - -
PN12
MR CASPERSZ: There has also been that hope, Deputy President. I'd simply suggest in the usual way. The applicants open, lead their evidence, the objectors open, lead their evidence and close their case and then the applicant close after that.
PN13
THE DEPUTY PRESIDENT: Yes, all right. Is that satisfactory to the - - -
PN14
MR NIVEN: Yes, your Honour. I just wanted to raise one point at the outset and I've had the opportunity to mention this to Mr Caspersz earlier is that the witness I had planned to be here today, Mr Steve Valeriani, is unfortunately incapacitated due to a back injury and so he won't be able to attend. So we've already had some discussions with Mr Caspersz about that, so I just wanted to make you aware at the outset that he's not available. I understand we have to have an argument in the first instance in relation to the late filing of his witness statement.
PN15
THE DEPUTY PRESIDENT: We'll deal with that in due course, I think Mr Caspersz(sic). Have a seat.
PN16
MR NIVEN: Thank you.
PN17
MR CASPERSZ: Thank you, your Honour. As you're aware, your Honour, this is an application by the applicant for approval of an enterprise agreement that is set out in the application that's been filed. The agreement is an agreement made between the applicant and its employees. In these proceedings I refer to it as the BMC Agreement or this agreement or just simply "the agreement", if that's convenient. As far as the opening statement is concerned, your Honour, subject to your direction I don't intend to say a lot. There's been copious quantifies of materials filed. The issues are quite transparent, fundamentally it comes down to what the Commission is satisfied as required by the Act in relation to the approval requirements.
PN18
The applicant has three witnesses, your Honour. There is Mr Ben Matthews who - Benjamin Matthews who has had a witness statement filed in anticipation of these proceedings, in accordance with the directions of the Commission. There is also Mr Clarence Paul, similarly had a witness filed in these proceedings in accordance with the Commission's directions, as well as finally Mr Witcombe, Robert Witcombe - W-i-t-c-o-m-b-e - who has had a witness statement also filed in these proceedings.
PN19
In addition to that your Honour would be aware that there is notice to produce that was issued to an organisation Cirrena, that's C-i-r-r-e-n-a - IVS Pty Ltd. In relation to documents concerning the actual vote that was undertaken in this matter of employees of the applicant. I understand that in response to that subpoena the proper officer from the organisation is here, so that is another witness on behalf of the employer.
PN20
Your Honour, I'll be assisted in these proceedings with the leave of your Honour by Mr Hulmes, in particular Mr Hulmes will call on the notice to produce and deal with that, we'll have some short submissions to make there, and also he will deal with the statement of Mr Witcombe and then I will rise to deal with the remaining part of the case with your permission.
PN21
THE DEPUTY PRESIDENT: Yes. That's fine, Mr Caspersz.
PN22
MR CASPERSZ: The only other thing I'd like to clarify further, your Honour, is that in accordance with the usual practice I assume that my friends will each want to cross-examine the applicant's witnesses and they are entitled to do so. I also assume, of course, that duplication will be kept to a minimum in order that the witnesses aren't unduly inconvenienced. Otherwise, your Honour, I would ask Mr Hulmes to call on the subpoena.
PN23
MR HULMES: Thank you, your Honour. I'd like to call on the subpoena or the notices to produce and to attend both dated 20 August 2015. The notice to attend directed towards Mr Matthew Petrich of Cirrena IVS Pty Ltd and the notice to produce to the proper officer of Cirrena IVS Pty Ltd. I understand that Mr Petrich is outside the court room.
PN24
THE DEPUTY PRESIDENT: While we're looking for Mr Petrich, are the unions intending to cross-examine?
PN25
MR EDMONDS: No, sir, we're not.
PN26
MR NIVEN: No, your Honour.
PN27
THE DEPUTY PRESIDENT: He's done a runner, Mr Hulmes. Perhaps I might just stand the matter down for five or 10 minutes and we'll locate him and then resume.
PN28
MR HULMES: Thank you, your Honour. That will be excellent. Thank you very much.
SHORT ADJOURNMENT [9.15 AM]
RESUMED [9.23 AM]
PN29
THE DEPUTY PRESIDENT: Yes, Mr Hulmes.
PN30
MR HULMES: Thank you for that break, your Honour, and apologies for the hiccup. I will now call Mr Matthew Petrich.
THE DEPUTY PRESIDENT: Yes.
<MATTHEW JOHN PETRICH, SWORN [9.24 AM]
EXAMINATION-IN-CHIEF BY MR HULMES [9.24 AM]
PN32
MR HULMES: Thank you, Mr Petrich. Are you here under a notice to attend dated 20 August 2015?‑‑‑I am. That is correct.
PN33
Did you also receive a notice to produce document dated 20 August 2015?‑‑‑I did. I have.
PN34
Do you have those documents with you today?‑‑‑The documents to produce or the documents that you require?
PN35
The documents you are required to produce?‑‑‑You require. Yes, I do.
PN36
Before you hand those documents, could you just describe what those documents are?‑‑‑The documents I have here is a summary of each individual voter in the vote as requested, the mobile phone number that we were supplied by Broadsword, when they registered their vote, what the vote was and how, what method of voting they used.
PN37
When you say what the vote was?‑‑‑Whether they responded "Yes", "No," or abstained from that individual vote.
PN38
In relation to each employee?‑‑‑Correct.
PN39
We would like to tender those documents?‑‑‑These are documents - I also have documents relating to - that were provided to the employees prior to their voting, the instructions how to vote. I don't know if they are relevant.
PN40
Certainly. Hand those up. Thank you. Your Honour, when we requested these notices to produce and to attend, we did so under cover of a letter dated 17 August 2015 in which we foreshadowed that we would seek a confidentiality order in relation to those documents. The documents are obviously at least in part highly confidential as they disclose the way that each employee voted in the vote and we would seek an order that those documents not be disclosed to any of the parties in the proceedings, including the applicant.
PN41
We would also seek an order that those documents be returned to Cirrena IVS after the conclusion of the appeal period in relation to the matter or alternatively destroyed.
*** MATTHEW JOHN PETRICH XN MR HULMES
PN42
MR EDMONDS: We have no concerns with those orders, sir. We have got no questions about this. There is no concerns either of those orders and there are no questions from us, at least at this stage.
PN43
THE DEPUTY PRESIDENT: All right. Do you want these documents marked as exhibits in the proceeding?
PN44
MR HULMES: Yes, we would, Your Honour.
THE DEPUTY PRESIDENT: I will mark them as a bundle. That might be the most convenient. I will mark the documents that are produced pursuant to an order made by me earlier in these proceedings by Mr Petrich as Exhibit 1.
EXHIBIT #1 DOCUMENTS PRODUCED BY MR PETRICH PURSUANT TO ORDER
PN46
THE DEPUTY PRESIDENT: I will make a further order that the documents and the contents therein are confidential and not to be published or given to any party in these proceedings.
PN47
MR HULMES: Thank you, your Honour.
PN48
THE DEPUTY PRESIDENT: What I will do with the documents is keep them on file with a note that they are to be destroyed following the clear indication that there is no appeal in these proceedings.
PN49
MR HULMES: Thank you, your Honour.
PN50
THE DEPUTY PRESIDENT: You have no cross-examination?
PN51
MR EDMONDS: No, your Honour.
PN52
THE DEPUTY PRESIDENT: Ms Thompson?
PN53
MS THOMPSON: No, your Honour.
*** MATTHEW JOHN PETRICH XN MR HULMES
THE DEPUTY PRESIDENT: Thank you for your evidence. You are excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [9.28 AM]
PN55
MR HULMES: Thank you, your Honour. We have earlier filed in these proceedings a witness statement of Mr Robert Witcombe, dated 6 August 2015. We understand that there is no objection to that witness statement going in by consent, although I haven't had the chance to confirm that with Ms Thompson in Melbourne.
PN56
MR EDMONDS: It is being tendered consent, sir, suffice to say that - - -
PN57
THE DEPUTY PRESIDENT: You don't propose to cross-examine?
PN58
MR EDMONDS: No.
PN59
MR HULMES: Apologies if I spoke for my friend.
PN60
MR NIVEN: No, your Honour. I have no objection to cross-examine.
PN61
THE DEPUTY PRESIDENT: Ms Thompson?
PN62
MS THOMPSON: No, your Honour. I am actually having difficulty listening to hearing the MUA lawyer and yourself at times. Mr Hulmes is fine, but could the microphone go a bit closer.
PN63
THE DEPUTY PRESIDENT: All right.
PN64
MS THOMPSON: Thank you.
PN65
THE DEPUTY PRESIDENT: Neither Mr Edmonds nor I would do well on the voice, but we will endeavour to speak up. All right. So I take it you don't wish to cross-examine Mr Witcombe, Ms Thompson?
PN66
MS THOMPSON: No, your Honour.
*** MATTHEW JOHN PETRICH XN MR HULMES
THE DEPUTY PRESIDENT: Thank you. All right, well, I will mark. We don't need Mr Witcombe to affirm the contents of his witness statement. I will mark the witness statement of Mr Robert Wi which comprises seven paragraphs is dated 6 August 2015 and has two attachments as exhibit 2.
EXHIBIT #2 WITNESS STATEMENT OF MR ROBERT WITCOMBE COMPRISING SEVEN PARAGRAPHS DATED 06/08/2015 WITH TWO ATTACHMENTS
PN68
MR HULMES: Thank you.
PN69
THE DEPUTY PRESIDENT: Mr Caspersz.
MR CASPERSZ: Thank you, your Honour. Your Honour, I call Benjamin Matthews.
<BENJAMIN JOHN MATTHEWS, AFFIRMED [9.31 AM]
EXAMINATION-IN-CHIEF BY MR CASPERSZ [9.31 AM]
PN71
THE DEPUTY PRESIDENT: Yes, Mr Caspersz.
PN72
MR CASPERSZ: Thank you, your Honour.
PN73
Mr Matthews, for the record, your full name is Benjamin, B-e-n-j-a-m-i-n, Matthews, M-a-t-t-h-e-w-s?‑‑‑That's correct.
PN74
You are employed by Skilled Group, Level 2, 600 Murray Street, West Perth, as General Manager Employee Relations?‑‑‑That's correct.
PN75
Mr Matthews, you have had prepared for you a witness statement in these proceedings on behalf of the applicant which is a company called Broadsword Marine Contractors Pty Ltd?‑‑‑That's correct.
PN76
Could you please identify this document?‑‑‑Yes, that's the one.
PN77
Is that the witness statement?‑‑‑It is.
*** BENJAMIN JOHN MATTHEWS XN MR CASPERSZ
PN78
The document I have is a two-page document that has got 12 paragraphs. Is that the document that you have?‑‑‑That's the document I have.
PN79
Do you require any corrections or amendments to this document before I tender it? Take a minute to peruse it?‑‑‑No, I don't.
PN80
Are the contents of this document true, accurate and correct to the best of your knowledge, information and belief?‑‑‑They are.
PN81
I tender the witness statement of Mr Benjamin Matthews sworn, I believe, on 6 August 2015.
PN82
THE DEPUTY PRESIDENT: Thank you. Any objection?
PN83
MR EDMONDS: There is no objection to that statement being tendered, sir.
PN84
THE DEPUTY PRESIDENT: Ms Thompson, any objection?
PN85
MS THOMPSON: No, your Honour.
THE DEPUTY PRESIDENT: I will mark the statement of Benjamin Matthews dated 6 August 2015 comprising 12 paragraphs with no attachments as exhibit 3.
EXHIBIT #3 STATEMENT OF BENJAMIN MATTHEWS DATED 06/08/2015 COMPRISING 12 PARAGRAPHS WITH NO ATTACHMENTS
PN87
THE DEPUTY PRESIDENT: Cross-examination or do you wish to wait for further - - -
PN88
MR CASPERSZ: May I just ask the witness a couple of questions, your Honour, in relation to the statement and the application.
PN89
THE DEPUTY PRESIDENT: Yes, all right.
PN90
MR CASPERSZ: First, in relation to the application, Mr Matthews, are you familiar with the comparative table that was filed with the application for the purpose of the BOOT?‑‑‑I am.
*** BENJAMIN JOHN MATTHEWS XN MR CASPERSZ
PN91
Can I please hand you a copy of this and just for the assistance of the Commission ask you to explain how this table works? Perhaps you can just take a couple of provisions.
PN92
THE DEPUTY PRESIDENT: Mr Caspersz, so that we are all working off the same document, is this the document comprising 31 pages that was attachment 2 to the employer statutory declaration?
PN93
MR CASPERSZ: Yes, that is correct, your Honour. That is correct, your Honour.
PN94
THE DEPUTY PRESIDENT: Yes.
PN95
MR CASPERSZ: For the sake of convenience, Mr Matthews, I have just tabbed with a blue tab where in the application that document is. Can you go to that blue tab? That is a document headed up: "Attachment 1, BMC WA Enterprise Agreement 2014, translating classifications table." And next to it or after it, immediately after it, is a document headed: "Attachment 2, BMC WA Enterprise Agreement 2014, improvements and reductions." That is the comparison table that has been prepared for the purpose of the BOOT in the application?‑‑‑That's correct.
PN96
Can I just, as I say, by way of assistance to the Commission, ask you to explain how that table operates by reference perhaps to a couple of provisions, maybe just going through to, for example, the hours provision?‑‑‑Sure.
PN97
I am sorry. The roster arrangements provision which is on page 7 of the document?‑‑‑Sure.
PN98
So you have got the three columns. Just explain what all of that means?‑‑‑Yes.
PN99
THE DEPUTY PRESIDENT: I think that was a question to you, Mr Matthews?‑‑‑Yes, yes, yes, sorry.
PN100
MR CASPERSZ: Can you explain that provision there or how the table works in relation to that?‑‑‑It's a comparison between the Broadsword Enterprise Agreement and the relevant provisions from the Ports, Harbours and Enclosed Water Vessels Award and the Marine Towage Award 2010. So it is comparing the hours clauses against the awards.
*** BENJAMIN JOHN MATTHEWS XN MR CASPERSZ
PN101
On page 7 you have got a heading in the left-hand column: "13 Roster Arrangements." What do you understand what that refers to?‑‑‑That refers to the roster arrangements under the Broadsword WA Enterprise Agreement 2014.
PN102
Then if you go - actually you need to go back to page 6. In the second column there is reference to point 18: "Ordinary hours of work and rostering." What does that refer to?‑‑‑That refers to the ordinary hours and rostering under the Ports, Harbours and Enclosed Water Vessels Award.
PN103
Then next to it at point 20: "Hours of work and rostering." What does that refer to?‑‑‑That refers to hours of work and rostering under the Marine Towage Award 2010.
PN104
Then the commentary under the column "Comments," whose commentary is that supposed to be?‑‑‑That is the commentary from the company in reference to comparing the relevant provisions of the awards against the agreement.
PN105
Thank you. If I can just take you to one other provision. If you go to page 10 and just take us through a similar process starting with the left-hand column, point 15, "Classifications and rates of pay." What does that refer to?‑‑‑That refers to the annual salaries and the working day rates under the Broadsword WA Enterprise Agreement 2014.
PN106
Next to it, point 13?‑‑‑That's the minimum wages or the minimum rates for each classification under the Ports, Harbours and Enclosed Water Vessels Award 2010.
PN107
Next to it, point 13 again?‑‑‑That's the minimum wages or wage rates for each classification under the Marine Towage Award 2010.
PN108
The commentary next to it?‑‑‑That's our commentary on the comparison between the salaries and the working day rate under the Broadsword Agreement compared to those under the referenced awards.
PN109
Thank you. You can put that aside. One final question in relation to your witness statement, Mr Matthews. Was there a business rationale behind seeking and making the BMC Agreement?‑‑‑There was.
*** BENJAMIN JOHN MATTHEWS XN MR CASPERSZ
PN110
Explain to the Commission what it was?‑‑‑There was a need for Broadsword to have an agreement in the inshore port to port towage space given a number of competitors had agreements in this area and it was generally, if we want to win long-term work or medium to long-term work, there is a requirement to have a registered agreement in place covering that work.
PN111
Thank you, Mr Matthews. No further questions.
PN112
THE DEPUTY PRESIDENT: Thank you. Cross-examination?
MR EDMONDS: Yes, sir. Thank you, sir.
CROSS-EXAMINATION BY MR EDMONDS [9.40 AM]
PN114
MR EDMONDS: So, Mr Matthews, you are the Employee Relations Manager with Skilled Group?‑‑‑That's correct.
PN115
As part of that, you assist Broadsword with their IR matters as well?‑‑‑That's correct.
PN116
Have you been involved with Broadsword since October of 2014 at the very least or before then, August 2014?‑‑‑I had involvement with Broadsword probably earlier than that; probably around about July 2014.
PN117
So you were involved in the decision to issue the NERR in August 2014; is that correct?‑‑‑No, I was working largely with ONZA on the Gorgon Project, but I had day to day dealings with various skilled offshore and Broadsword employees.
PN118
But you are aware of the decision to issue that document in that time, August 2014?‑‑‑I am aware that a NERR was issued, yes.
PN119
It was issued to six employees. You are aware of that?‑‑‑I am aware of that, yes.
PN120
There was a ballot or an agreement conducted in or around 20 October; is that correct?‑‑‑I am aware of that, yes.
PN121
It approved an agreement?‑‑‑Not to my understanding.
PN122
The ballot in October?‑‑‑No, my understanding was that the voting process was changed, therefore there was not a validly made agreement.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN123
Then the voting process was changed?‑‑‑It went from a postal ballot to a text ballot just due to the issues with the Broadsword employees is what I understand, therefore the agreement wasn't validly made on the basis that the voting method was changed midway through the access period.
PN124
You said the ballot process was changed during the voting period; is that what you are saying?‑‑‑That's my understanding. I wasn't intimately involved with it, but that's my understanding.
PN125
But you explained to the employees at a later date that that was the technical problem and that was why the application was withdrawn in November; is that correct?‑‑‑I didn't explain that.
PN126
You didn't explain what the technical difficulty was. You just said there was a technical difficulty to employees?‑‑‑No. What I am saying is I didn't explain it.
PN127
Did anyone explain that?‑‑‑I would have thought Clarence Paul, perhaps, or Mark Wakelin might have explained that to the employees.
PN128
Did that come up in the road show you had with the employees in April-ish for this agreement? Did you explain to employees then that that was withdrawn due to a technical difficulty?‑‑‑We explained the history of the agreement, okay, which included the first run and also the second run when there was a "No" vote. So, just on the basis of providing some history to the employees.
PN129
So you said there was a technical difficulty but you didn't explain to employees what that technical difficulty was?‑‑‑No, we did.
PN130
Sorry?‑‑‑Yes, we did. We explained in general terms that the first vote didn't get up due to technical problems and because of that reason it went to a revote and there was a "No" vote when it was revoted in January 2015.
PN131
So that was the start of this year there was a further vote?‑‑‑Yes.
PN132
Of the same agreement you had put out in October?‑‑‑Yes.
PN133
That got voted down?‑‑‑It got voted down narrowly from memory, yes.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN134
Then the agreement was changed, wasn't it, between the agreement that was balloted in January and the agreement that was balloted in October. It was changed with this most recent agreement, wasn't it?‑‑‑It was changed slightly with respect to wage increases from memory.
PN135
That change in relation to wage increases was to change the wage increases from three per cent per year to CPI or market performance. That is correct, isn't it?‑‑‑Yes.
PN136
Why did you choose to ballot again in April of this year? What precipitated that decision?‑‑‑Well, we're always keen to get an agreement up for Broadsword. Really low utilisation rates, the company was struggling, so we just continued on with what we wanted to do in July 2014. Thus, we needed an agreement. We needed to win some work and with the tenders that we were putting in for, the clients were asking us what registered agreement we had in place to cover the work. So it was important.
PN137
So was there a particular project which precipitated your desire to have an agreement in place?‑‑‑No, because back in July 2014 we were basing the needing an agreement on a number of a tenders that we were applying for.
PN138
No, no, sorry. I am talking about April 2015, this year. You made the decision that you wanted to put the agreement out to ballot again. You communicated that to Clarence Paul in April of 2015?‑‑‑M'mm.
PN139
Was there a particular project on the books at that point in time that you needed an agreement for?‑‑‑Yes, we had the Dockwise contract.
PN140
The which contract?‑‑‑Dockwise.
PN141
Which one is that one?‑‑‑That's involving the vessel, the LANPAN 29. So that's port to port towage between - largely between the Port of Dampier and the Port of Ashburton for Dockwise, yes.
PN142
That is the LANPAN 29?‑‑‑Yes, that's right.
PN143
You currently have employees on the LANPAN 29, don't you?‑‑‑Yes, we do. Broadsword have currently got 11 employees, I think it is on each site.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN144
That work started in May of this year, didn't it?‑‑‑The first day commenced 8 May 2015.
PN145
You started advertising for employees for that project on 2 May of this year; is that correct?‑‑‑We started looking for employees earlier than that. I guess we feverishly started recruiting in and around May 2015 because we didn't get a confirmed start date, as you probably know what it's like in the industry, until later in the piece.
PN146
But you had won the contract earlier than May of 2015, though, hadn't you?‑‑‑Yes, we were notified that we were successful.
PN147
When did they notify you of that?‑‑‑It would have been - could have been around February/March, I think, 2015. Around about then, I think.
PN148
Did you have a certain group of employees in mind at that point in time to undertake that project?‑‑‑No. We were looking at Broadsword employees. We were looking at any employees within the greater group that had the right tickets and were available at the time to perform the work.
PN149
So when did you start to identify particular employees to go onto that project?‑‑‑Identified probably early May, just before the start date.
PN150
But you were aware before then that you needed employees on that project?‑‑‑Well, we were aware that we needed employees for the project. We didn't have any specific start dates but there was already a fair bit of activity with respect to who we would be employing and we were obviously checking to see who was coming off other jobs, who was finishing up on various projects. But you don't push the button until you actually know when you have got a start date, which didn't happen until early May from recollection.
PN151
So did you have an idea in April that the start date was going to be at the start of May?‑‑‑No.
PN152
You had no idea?‑‑‑Had no idea when the exact start date was going to be in April. But we obviously knew it was coming up, yes.
PN153
You brought the vessel down, though, didn't you? You brought the LANPAN 29 down from Singapore, didn't you?‑‑‑Yes.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN154
So you knew that by the time the vessel got here it would be time to start?‑‑‑No, it doesn't work that way. There is a lot of bridge to go under the water before you actually start. So there's a lot of things that have to occur, whether it's down in Henderson getting the vessel right for the project requirements, going through the OBIDs, going through the inspections, getting the go ahead from Dockwise who then get the go ahead from Bechtel. It's not a simple case of you get the vessel here that you start the next day.
PN155
So when did you bring the vessel down from Singapore?‑‑‑Off the top, I can't recall the date. But it would have been roughly around mid to late April.
PN156
You started then. The employees started. Sorry, you started identifying employees on 2 May and the project started on 8 May; is that correct?‑‑‑Well, they're your words. What I'm saying is we really started identifying employees to a greater extent when we got the word that we were going to commence roughly around 8 May. But we had been recruiting actively and looking at all different options for employment prior to that date, prior to the - prior to May.
PN157
You are applying this agreement to the work being undertaken by the LANPAN 29 employees, aren't you?‑‑‑That's correct.
PN158
Even though this agreement isn't approved, you are still applying it to the work?‑‑‑That's correct, yes.
PN159
If this agreement wasn't in place or you weren't seeking to have this agreement put in place, which agreement would apply to the work being undertaken by employees?
PN160
MR CASPERSZ: I object to that. That is asking the witness to speculate on something without any notice and it is actually asking the witness for some sort of legal opinion in relation to the application. I object to it on that basis.
PN161
MR EDMONDS: This witness has significant experience in this area over 20 years. He is aware of the IR of the group. He is aware of the agreements in place. He is aware of the nature of the work.
PN162
THE DEPUTY PRESIDENT: But if the issue of what agreement might have been the applicable instrument had this instrument not been made, that is relevant to a matter that you wish to raise. You can make submissions about that, can't you?
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN163
MR EDMONDS: Sorry, sir. I am struggling to hear you.
PN164
THE DEPUTY PRESIDENT: You can make submissions about that. It calls for, effectively, a legal conclusion, doesn't it?
PN165
MR EDMONDS: Certainly, sir. I will move on from that question.
PN166
You obviously didn't need an agreement in place to win the LANPAN work because you won the contract around February of 2015; correct?‑‑‑Yes, it's predicated on having a registered agreement in place before the work commences.
PN167
So the reason why you went to a ballot in April then was to ensure that you had an agreement to prove - - -
PN168
THE DEPUTY PRESIDENT: Mr Edmonds, you keep saying April. The ballot was on 1 May.
PN169
MR EDMONDS: Yes, but the decision - - -
PN170
THE DEPUTY PRESIDENT: I understand that.
PN171
MR EDMONDS: The decision to go to ballot was made before then because obviously your access period and those sort of things occurs before then.
PN172
THE DEPUTY PRESIDENT: Yes.
PN173
MR EDMONDS: So the decision was made to at least commence the access period and to undertake a ballot because the LANPAN 29 was going to come online and you needed to have an agreement in place prior to that work starting?‑‑‑The agreement would have gone ahead with the vote regardless, but there was a level of probably urgency from our client that we have a registered agreement in place which is under their IR contractual arrangements with Bechtel. But either way we would have gone ahead with the inshore agreement. We had had two go's at it. We weren't going to give up.
PN174
But the decision to do it at that particular time was to ensure you had an agreement in place before the LANPAN 29 project started?‑‑‑Yes. Having said that, we would have gone ahead with it regardless around about that time.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN175
But at some point you would have gone ahead with it because at the very least in April you were still talking to the objectors about the inshore agreement, weren't you?‑‑‑I wasn't.
PN176
But Mark Wakelin was and Clarence Paul was, weren't they?‑‑‑I understand Mark Wakelin out of courtesy responded to a number of emails from the union, yes.
PN177
I will put this to you. But for the LANPAN 29 project coming on board, you wouldn't have made a decision to go to ballot on 1 May; is that correct?‑‑‑No.
PN178
So contrary to what you just said previously, it wasn't because you needed an agreement in place before that project could start.
PN179
MR CASPERSZ: I object to it. In my respectful submission, it is not exactly the evidence given by the witness.
PN180
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds, it does suffer from the flaw that - - -
PN181
MR EDMONDS: Sorry?
PN182
THE DEPUTY PRESIDENT: Your question suffers from the flaw that it has inherent in it a proposition with which this witness appears to disagree.
PN183
MR EDMONDS: Right.
PN184
I will put this simply to you then. Isn't it the case that you made a decision to have a ballot on 1 May so that you didn't have to ballot the LANPAN employees as well?‑‑‑No.
PN185
You participated in the road show with Mr Clarence Paul to roll out the proposed agreement, didn't you?‑‑‑I did.
PN186
You met employees in Exmouth and Point Samson?‑‑‑We did.
PN187
You rang a number of employees. You left messages for a number of employees as well, didn't you?‑‑‑Yes, messages and emails, yes.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN188
At those meetings with employees, did you discuss the proposed agreement in relation to the concept of project rates?‑‑‑Yes.
PN189
What did you say to those employees about project rates?‑‑‑In general terms we referred to that clause as essentially a project uplift rate. If there is any client requirements that apply on a major project, for example, Gorgon, where they have a retention or continuity allowance that may be above and beyond what you would normally have in an agreement, we have got the flexibility in the agreement to tailor it and provide for those more beneficial conditions.
PN190
That is at the discretion of the company, isn't it?‑‑‑No, I wouldn't put it that way.
PN191
What clause 12.2 of the agreement says is: "That notwithstanding the above, the company made provide for varied terms and conditions of employment for employees working on major projects." So at the discretion of the company you can offer conditions different to what is in this agreement, can't you?
PN192
MR CASPERSZ: If my friend is putting to the witness that on proper interpretation the provision is at the discretion of the company, then that is one thing, in which case the question would objectionable because he is asking for a legal opinion. If he is asking the witness what his understanding is of that provision, that is quite another point. I would ask that my friend clarify which question he is putting to the witness.
PN193
MR EDMONDS: Can I put this to you? Which part of clause 12 of the agreement provides for employees to have a say on the project rates that they receive?‑‑‑I don't have the agreement in front of me. Perhaps you could read out the clause.
PN194
I am happy to hand the agreement up to you.
PN195
MR CASPERSZ: My friend is asking the witness for a legal opinion and I object on that basis.
PN196
MR EDMONDS: I am asking this witness what he explained to employees about what the agreement means.
PN197
MR CASPERSZ: I have no objection to the witness being asked that question.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN198
THE DEPUTY PRESIDENT: Yes.
PN199
MR EDMONDS: So what did you tell employees about clause 12 and project rates?‑‑‑I thought I answered that.
PN200
I am asking you again. What did you tell the employees about clause 12 and project rates?‑‑‑We told the employees that should there be a project requirement where there is a client imposed allowance or certain conditions which are generally more beneficial to the employees that would have the ability in the agreement to - and I think if you read that clause, I don't have it in front of me - to reach - to set down those terms as to where they are beneficial and apply them just to ensure we have got the flexibility to work on major projects like Gorgon. So it is quite clear in the agreement, it is quite clear to employees, that this agreement is able to be flexed up, if you like.
PN201
Is able to be flexed up, you say?‑‑‑That's correct, yes.
PN202
So it can't be flexed down then, in your view?‑‑‑That's correct.
PN203
So no conditions can be less than what is provided for in the agreement. They can only be more than what is provided for in the agreement?‑‑‑Yes. I think you understand that particular clause.
PN204
That is what you explained to employees is that they can only be better than what is in the agreement, not worse?‑‑‑Yes, that's correct. That is the intent of that clause.
PN205
Did you talk to employees about a roster arrangement in the agreement itself?‑‑‑Yes. We didn't go into too much detail because we asked the employees to read through the agreement and the summary that was provided. They were of the understanding that it's a typical clause in inshore agreements where it's a 28/28 or four week on, four week off roster then it could be subject to operational requirements dependent on the project that employee might be on.
PN206
So it could be a longer roster than four weeks on and four weeks off?‑‑‑I think there is a reference to five weeks on, five weeks off.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN207
Could it be six weeks on and six weeks off?‑‑‑It could be that it's day to day work. There could be different arrangements depending on the scope of work and the continuity that we have. It's sometimes difficult to lock in a roster until you actually understand the scope of work from your client.
PN208
So it could be anything?‑‑‑No, I wouldn't say it could be anything. I think it's predicated on a 28/28 which is what is being worked on a long-term contract such as the Dockwise contract.
PN209
But there would be nothing, for example, that would prevent you from moving to a ten and two if that met project requirements, four and one, or anything, any other combination like that, is there?‑‑‑I would find that it would be unlikely we would agree to change a roster to 10 weeks. Are you saying 10 weeks, two weeks off?
PN210
Ten and two or four and one, if that is what the project required, there would be nothing to stop you from doing that, would there?‑‑‑I think the even time in 10, it's quite clear when there's references to 28/28, 35/35, in the particular clause.
PN211
But there is no particular clause that says even time roster, though, is there?‑‑‑When there is not a roster able to be worked, it would be the day rate. So it would be employees working a day rate for when the work is available. You wouldn't be able to afford to have a roster in that case.
PN212
This agreement that you have put out now changed the wage increase formula from the agreement that was distributed in October and in January and February, didn't it?‑‑‑Yes, it did.
PN213
Did you explain that to the employees?‑‑‑We explained the wage increase clause, yes.
PN214
What did you say what is exactly meant by "marked performance"?‑‑‑Market performance depends upon the profitability and performance, the best utilisation rate of the company.
PN215
How does that translate into a wage increase? How did you explain to employees how that translated into a wage increase?‑‑‑Well, you get the greater of that or the CPI increases which is stipulated in the agreement.
PN216
The greater of what? The greater of market performance?‑‑‑Whichever is deemed greater. So the company can decide to apply a higher percentage than the CPI or it can apply the CPI increase.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN217
Depending upon market performance. But how is that market performance measured and translated into a wage increase? How did you explain to employees how that worked?‑‑‑It would be simply adjusting a percentage than would be higher than the CPI if we performed well.
PN218
If you performed well. So what is the measure of "well" then?‑‑‑Better than we currently are performing which is 11 per cent best utilisation rate and we are losing $500,000 a month. So better than that - much better.
PN219
So what would the wage increase be if it was 25 per cent?‑‑‑Well, you are asking me to do a calculation for you?
PN220
You have just said it will be on the basis of market performance and you explained to employees how improved market performance would translate into a wage. So I am asking you how that would work. How would that measure occur? How would they be able to determine what that wage increase should be?‑‑‑How would the employees be able to determine it?
PN221
Yes, yes?‑‑‑Well, it wouldn't be the employees that determine it. It would be the company.
PN222
So it is to simply say it is at the company's discretion to pay more than CPI if they think that the employees warrant it?‑‑‑No, if we believe the company has exceeded expectation and performed well, we would look at a percentage, market-tested percentage, that would apply above and beyond the CPI, if we perform well for that year.
PN223
But there is no objective measure to that. That would be at the discretion of the company?‑‑‑Well, yes, it would be.
PN224
Did you explain to the employees that that would be that the discretion of the company?‑‑‑I think it's self-explanatory in the actual clause.
PN225
No, no. I am not worried about what is self-explanatory in the agreement. I want to know what you explained to the employees. When you were rolling the agreement out, you said to them wage increases are based on market performance. Did you also say to them that: "We will look at the market performance and it at our discretion make a decision as to whether or not you will be entitled to a wage increase above CPI"?‑‑‑When we communicated to employees, we went through the basic provisions in layman's terms of that clause which was the CPI or if the company performed or exceeded expectations well, the company could then determine a percentage above the CPI if the company did well. So there is an impetus for employees and the company to do well.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN226
That explanation will be reflected in the actual minutes of those road show minutes, will they?‑‑‑I'm not sure if that is reflected in the minutes or not.
PN227
H
PN228
Have you seen the minutes of that road show meeting prepared by Mr Paul?‑‑‑I vaguely recall seeing an email.
PN229
An email?‑‑‑Yes.
PN230
Did you check to see that that was accurate?‑‑‑Did I check to see if the actual CPI increase or wage increase clause, the way it was communicated was accurate, yes.
PN231
You did?‑‑‑I'm saying if - I haven't got the document in front of me, so - - -
PN232
I am asking if you checked that document when it was sent to you to ensure that that explanation that you have just given here was actually reflected in the minutes and is accurate?‑‑‑It's probably unlikely that the minutes captured every nuance and every word of what was communicated to employees.
PN233
Because you can't really recall what was said at those meetings, can you?‑‑‑I don't have the document in front of me, but I can recall what was said at the meeting. I was there.
PN234
You were there and you can recall it in intimate detail or - - -?‑‑‑I can recall it as I have just recalled.
PN235
You also explained to employees in that road show that the scope of the agreement does not seek to cover work that is subject to the offshore industry agreement; is that correct?‑‑‑The offshore oil and gas industry, yes, that's right.
PN236
Which is in relation to vessels that service and work within the offshore oil and gas operations such as oil rigs, platforms and floating production facilities. However, it would allow you, the scope of the agreement, to do jobs to and from Barrow Island, wouldn't it?‑‑‑It would.
PN237
Which is work that at this point in time is covered by the offshore oil and gas industry agreement, isn't it?‑‑‑No.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN238
Would you agree with the proposition that work on the Barrow Island project is covered by a particular Gorgon agreement which incorporates an RCA payment, a retention and continuity allowance?
PN239
MR CASPERSZ: I object to that. I let the first one go, Deputy President. That one is plainly a question asking for a legal opinion. Further, the particular document hasn't been put to the witness. I have no objection if the witness has asked for his personal understanding of what it all mean, but I do object if a legal opinion is being sought.
PN240
MR EDMONDS: Do you have employees currently engaged on work under the Gorgon RCA Agreement?
PN241
MR CASPERSZ: That suffers from the same vice if what is sought is a legal opinion as to the application of a particular agreement.
PN242
MR EDMONDS: Do you have employees that you are currently paying as if they were covered the Gorgon RCA Agreement?‑‑‑Are you referring to Broadsword employees?
PN243
Yes?‑‑‑No.
PN244
Sorry?‑‑‑No.
PN245
You also do work for Skilled Offshore, is that correct?‑‑‑No.
PN246
You don't do work for Skilled Offshore?‑‑‑That's not in my remit. I work with people that work for Skilled Offshore.
PN247
In the process of preparing your comparisons to the Towage Award and the Inshore Ports Award, you didn't do a comparison to the Offshore Oil and Gas Award, did you?‑‑‑No.
PN248
So you don't know if that passes the BOOT in comparison to the Offshore Oil and Gas Award, do you?
PN249
MR CASPERSZ: I object to that. That question is premised on the fact that the offshore award was a relevant modern award. That is a matter of submission.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN250
MR EDMONDS: No, I am asking the question if he has done a comparison as against the Offshore Oil and Gas Award.
PN251
THE DEPUTY PRESIDENT: He has already said "No" to that.
PN252
MR EDMONDS: Yes.
PN253
THE DEPUTY PRESIDENT: I am not sure that he can take the matter much further. Having not done a comparison he can hardly express a view.
PN254
MR EDMONDS: I didn't ask - I asked if he had done the comparison as against the Offshore Oil and Gas Award.
PN255
THE DEPUTY PRESIDENT: Then you asked: "So you don't know whether that passes the BOOT in relation to that?" It is that latter question that Mr Caspersz objects to and I don't think this witness can answer given that he said "No" to the first.
PN256
MR EDMONDS: Yes. You said in your evidence in the witness box today that you needed an agreement that would enable you to cover the inshore port to port towage space; is that correct?‑‑‑I think words to that effect.
PN257
Why then did the NERR for this agreement also incorporate the proposition of project work as well?‑‑‑It would be referred to in the scope of the agreement.
PN258
The NERR - and just refresh my memory - referred to an agreement that is proposed to cover employees that are engaged by Broadsword Marine contractors on inshore maritime operations or on project work within Western Australia and who are intended to be covered by the agreement. So the agreement is intended to cover two different groups of employees, isn't it? Those on inshore maritime operations and those on project work. That is correct, isn't it?‑‑‑They're one and the same thing with the current contract we have. It's a project but it's inshore port to port towage, the Dockwise contract.
PN259
But on your current contracts, the inshore work is the project work; is that correct?‑‑‑Yes, yes.
PN260
But that is only on the current contracts. Who knows what is going to happen in the future?‑‑‑I can't predict what is going to happen in the future.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN261
Indeed, indeed. Now, you prepared the list of employees to be balloted for this agreement and sent it to Clarence Paul, didn't you?‑‑‑Clarence and I did it together with the operations managers and coordinators (indistinct).
PN262
Yes. On 23 April you prepared an Excel spreadsheet containing the names that Chester and Kelly had provided. On 23 April 2015 you sent Paul - and you say "and email," but I presume you mean an email attaching that spreadsheet?‑‑‑Correct.
PN263
That spreadsheet is accurate, isn't it?‑‑‑Correct.
PN264
Every employee on that spreadsheet should have been balloted for an agreement and no others?‑‑‑You are asking for my opinion? Yes.
PN265
Yes, well, since you prepared it. So only those 14 contained on that spreadsheet should have been balloted. No-one else who fell within the scope of that agreement, in your opinion?‑‑‑Correct.
PN266
That is a total of six MUA, one AMPI and seven from the Maritime Officers Union?‑‑‑I didn't ask them if they were union members.
PN267
But you identified them by way of the classification as to which union they would have fallen into?‑‑‑I think you will find there is 12.
PN268
I have got your spreadsheet here and I think you will find it is 14?‑‑‑You might have found an earlier spreadsheet.
PN269
THE DEPUTY PRESIDENT: Is this the spreadsheet that is attachment 15 to Mr Paul's statement? Is that the one?
PN270
MR EDMONDS: It is attachment 9 to Mr Paul's witness statement.
PN271
THE DEPUTY PRESIDENT: Nine.
PN272
MR EDMONDS: If you physically count them up you will see there are 14?‑‑‑I don't have it in front of me.
*** BENJAMIN JOHN MATTHEWS XXN MR EDMONDS
PN273
If you go to your table at the end, you will see there is 14. In light of the fact that you provided a list of 14 employees, are you concerned about the fact you only rolled the agreement and its materials out to 12 employees?‑‑‑No.
PN274
Are you concerned about the fact that only 12 employees were balloted and not 14 as provided for in your spreadsheet?‑‑‑No. A fairly chosen group was 12. You might have an earlier spreadsheet. I don't know. I don't have it in front of me.
PN275
I suppose we will ask Mr Paul about that then, won't we?‑‑‑No, you won't.
PN276
No further questions for this witness, sir.
PN277
THE DEPUTY PRESIDENT: Yes, thank you. Mr Niven.
MR NIVEN: Yes, Your Honour. I just have a couple of questions following that cross-examination.
CROSS-EXAMINATION BY MR NIVEN [10.14 AM]
PN279
MR NIVEN: Mr Matthews, can I just go back to that table that you referred to before as attachment 2? You gave an explanation of how that table works?‑‑‑Yes.
PN280
I am just interested if you can explain the gaps in that table, particularly as you go through, on the left-hand column you have got the BMC WA Enterprise Agreement. You compared it to Ports, Harbours and Maritime Award. But as you move through - perhaps I can take you to it a specific example, on page 8 at point 5, and at page 14 at point 8, it is just blank in the BMC column?‑‑‑Okay.
PN281
What do those blank represent or what do they not showing as appears in the agreement?
PN282
THE DEPUTY PRESIDENT: Isn't the explanation in the comments section?
PN283
THE WITNESS: You took the words right out of my mouth.
PN284
MR NIVEN: Yes, you might be right. I guess the comment section is also blank for many pages?‑‑‑We didn't think it was worth having a heading.
*** BENJAMIN JOHN MATTHEWS XXN MR NIVEN
PN285
THE DEPUTY PRESIDENT: In relation to item 5, it is not.
PN286
MR NIVEN: I understand how that works. Thank you. I have no further questions, your Honour.
PN287
THE DEPUTY PRESIDENT: Thank you. Ms Thompson.
MS THOMPSON: Thank you, your Honour. Just a few clarification question.
CROSS-EXAMINATION BY MS THOMPSON [10.16 AM]
PN289
MS THOMPSON: You said that no Broadsword employee gets paid the offshore oil and gas rates. Could you please clarify? We understand that the LANPAN 29 was paid the offshore oil and gas rates on the delivery job. Is that correct or not?‑‑‑Just to answer your first question, I didn't say that.
PN290
Would you like to answer the second question? What were the LANPAN 29 delivery crew paid?‑‑‑They were Skilled Offshore employees paid under the offshore EBA for the delivery voyage is my understanding.
PN291
In relation to the representational rights that was issued in August, you understand that that agreement - you say the agreement wasn't approved. We understand from the form 17 that was lodged by the company that the agreement was made in accordance with section 181. Is that your understanding or are you saying that the agreement was never made by the employees?‑‑‑Yes, I am going to give a technical answer but I explained that the vote was changed, therefore the agreement was withdrawn on that basis. We didn't believe it would be approved or was validly made given that the voting process was changed.
PN292
The agreement was made by the employees. It was lodged by the company to be approved by the Commission. When did you become aware that there was some issue with the voting?‑‑‑As I said before, I wasn't intimately involved in that process so it is probably not a question I can answer.
PN293
Are you aware there was a discontinuous notice lodged with the Commission?‑‑‑I am aware that - I am aware that Broadsword discontinued or withdrew - whatever words you might want to use - the application based upon the voting method was changed. Otherwise they would have gone ahead and registered it. That was the whole idea.
*** BENJAMIN JOHN MATTHEWS XXN MS THOMPSON
PN294
That comes to my next question. With your 20 years of experience, if you discontinued the agreement does that mean that the employee representational rights is also discontinued for that matter?
PN295
MR EDMONDS: I object to that question.
PN296
THE DEPUTY PRESIDENT: That is a legal argument you can make later. Ms Thompson, I am not sure this witness is in a position to express a view and even if he were to express a view I am not sure it would be helpful to me.
PN297
MS THOMPSON: Thank you, your Honour. That is my questions.
PN298
THE DEPUTY PRESIDENT: Yes, thank you. Any re-examination, Mr Caspersz?
PN299
MR CASPERSZ: No re-examination, your Honour.
THE DEPUTY PRESIDENT: Yes, thank you. Mr Matthews, thank you for your evidence. You are excused?‑‑‑Cheers.
<THE WITNESS WITHDREW [10.20 AM]
MR CASPERSZ: Your Honour, I call Clarence Paul.
<CLARENCE DESIRE PASCAL PAUL, AFFIRMED [10.21 AM]
EXAMINATION-IN-CHIEF BY MR CASPERSZ [10.21 AM]
PN302
THE DEPUTY PRESIDENT: Yes, Mr Caspersz.
PN303
MR CASPERSZ: Thank you, your Honour.
PN304
For the transcript, Mr Paul, your full name is Clarence - is that Desire?‑‑‑Yes.
PN305
D-e-s-i-r-e, Pascal, P-a-s-c-a-l, Paul, P-a-u-l?‑‑‑Yes.
PN306
You are employed by Skilled Offshore Pty Ltd as an industrial relations advisor?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XN MR CASPERSZ
PN307
You have had prepared for you a statement that has been filed in these proceedings on behalf of the applicant, Broadsword Marine Contractors Pty Ltd?‑‑‑Yes.
PN308
Since having that statement prepared, Mr Paul, have you had amendments to that statement to insert aliases in respect of the employees?‑‑‑Yes, I have.
PN309
Can you please peruse a copy of this document that I am going to hand to you? I understand a copy of this document has already been provided to my friends, but not the Commission. Just take a minute to peruse that document and confirm, if you would, that that is the document that has been, if you like, amended to insert the aliases. For example, look at attachment 3 to that document. That is on page 13, your Honour, of the copy that was filed with the Commission. Have you got attachment 3 to that document?‑‑‑Yes, I have.
PN310
On my copy of the document which is filed with the Commission, attachment 3 under the heading "Email address" does not have any text. Does your document have some text under there?‑‑‑Yes, it has.
PN311
So what is the text on your document?‑‑‑It's an email address that says attachment 3 from Ms Briony Cobb to myself.
PN312
Is there reference to employees C, A and B?‑‑‑Yes.
PN313
On your attachment 3?‑‑‑Yes.
PN314
Thank you. Was your statement amended similarly to include the references to the employees by A, B, C, D, et cetera?‑‑‑Yes, that's correct.
PN315
Just peruse the rest of that statement and make sure that otherwise it is as you intended. The document I have, for your information, goes to eight pages, the body of it, and there are a number of attachments which go to attachment 19. On the last page of the statement down the bottom I have got the number "88"?‑‑‑Yes, that's correct.
PN316
Were there any other amendments or corrections to this statement that you require before I tender it?‑‑‑No.
*** CLARENCE DESIRE PASCAL PAUL XN MR CASPERSZ
PN317
Are the contents of the statement true, accurate and correct to the best of your knowledge, information and belief?‑‑‑Yes, it is.
PN318
Your Honour, I tender the witness statement of Mr Paul amended to include the aliases. The Commission does not yet have a copy of that, so with your permission, your Honour, I tender that as the - - -
PN319
THE DEPUTY PRESIDENT: Is it still dated 6 August or does it bear some other date?
PN320
MR CASPERSZ: Is that still dated 6 August?
PN321
THE DEPUTY PRESIDENT: The first line.
PN322
MR CASPERSZ: On the first line of the statement?‑‑‑Yes, yes, it is. Yes, it is.
PN323
THE DEPUTY PRESIDENT: Any objection?
PN324
MR EDMONDS: No, there is no objection to that statement. Thank you, your Honour.
PN325
THE DEPUTY PRESIDENT: Any objection, Ms Thompson? Ms Thompson, any objection? I think she might have frozen. Yes, she has. Ms Thompson, are you still - - -
PN326
MS THOMPSON: Yes.
PN327
THE DEPUTY PRESIDENT: I am sorry. Any objection to the tender of the statement?
PN328
MS THOMPSON: No, your Honour.
PN329
THE DEPUTY PRESIDENT: Thank you.
*** CLARENCE DESIRE PASCAL PAUL XN MR CASPERSZ
PN330
MR EDMONDS: Sorry, sir. I should clarify my position. There are a number of statements in Mr Paul's evidence that is hearsay and at least at the moment I am looking at paragraphs 9, 14, 20, 21, 25, 33, 46, 47. I don't press those objections. There are problem a few others in there that I might have missed. I don't press those objections on the basis that they should not be included in the statement, but I simply say that - - -
PN331
THE DEPUTY PRESIDENT: Your submission is about weight.
PN332
MR EDMONDS: It becomes a question of weight more than anything.
THE DEPUTY PRESIDENT: I understand. All right. I will mark the witness statement once I receive it of Clarence Desire Pascal Paul comprising 53 paragraphs dated 16 August 2015 together with the attachments marked one through 19 as Exhibit 4.
EXHIBIT #4 WITNESS STATEMENT OF CLARENCE DESIRE PASCAL PAUL COMPRISING 53 PARAGRAPHS DATED 16/08/2015 WITH ATTACHMENTS MARKED 1 TO 19
PN334
THE DEPUTY PRESIDENT: Any examination, Mr Caspersz?
PN335
MR CASPERSZ: Just one small point, Your Honour.
PN336
Mr Paul, in relation to the aliases that we have already spoken about, have you had prepared for you a list of employee names in relation to those aliases?‑‑‑Yes.
PN337
Can you please identify this document? Is that the list of employee names and aliases that you have had prepared?‑‑‑Yes, it is.
PN338
So, for example, there is a name next to employee A?‑‑‑Yes.
PN339
A name next to employee B, et cetera, down to employee P?‑‑‑Yes, that's correct.
PN340
Thank you, your Honour. I tender this list. It is a one-page document, your Honour. It is undated, but it is headed: "List of employee names and aliases." I tender it under the same circumstances as the applicant seeks to rely on the documents brought to the tribunal today by Cirrena, namely confidentiality for the inspection of the Commission alone in the event that it becomes necessary.
PN341
THE DEPUTY PRESIDENT: Any objection to that course?
*** CLARENCE DESIRE PASCAL PAUL XN MR CASPERSZ
PN342
MR EDMONDS: as I said there is not and we don't intend to.
PN343
THE DEPUTY PRESIDENT: Mr Nevin?
PN344
MR NIVEN: No, your Honour.
PN345
THE DEPUTY PRESIDENT: Ms Thompson, any objection to that course?
PN346
MS THOMPSON: No, your Honour.
PN347
THE DEPUTY PRESIDENT: All right.
PN348
MS THOMPSON: But can I just clarify? On the list, if there is P, is there 16 names on this list or how many names are on the list?
PN349
MR CASPERSZ: Are there 16 on the list, Mr Paul? On my count there are?‑‑‑Yes, there is.
PN350
THE DEPUTY PRESIDENT: Yes.
PN351
MS THOMPSON: Thank you.
PN352
MR CASPERSZ: I tender that document.
PN353
THE DEPUTY PRESIDENT: I don't have a copy.
PN354
MR CASPERSZ: I am sorry, your Honour.
THE DEPUTY PRESIDENT: All right. I will mark the document which is entitled "List of employee names and aliases" and has a list of aliases of employees A through P together with corresponding names as exhibit 5.
EXHIBIT #5 DOCUMENT ENTITLED "LIST OF EMPLOYEE NAMES AND ALIASES" CONTAINING LIST OF ALIASES AND EMPLOYEES A THROUGH P, TOGETHER WITH CORRESPONDING NAMES
*** CLARENCE DESIRE PASCAL PAUL XN MR CASPERSZ
PN356
THE DEPUTY PRESIDENT: That document is to be treated the same way as exhibit 1.
MR CASPERSZ: Thank you, your Honour. No further questions.
CROSS-EXAMINATION BY MR EDMONDS [10.30 AM]
PN358
MR EDMONDS: Thank you, Mr Paul. You are employed by Skilled Offshore Pty Ltd. You have been in this position since 30 March 2014. Can you tell me where you worked before then?‑‑‑I worked at Water Corporation.
PN359
But you are experienced in IR, though, aren't you?‑‑‑Yes.
PN360
You have been assisting in the discussions with Broadsword Marine and the unions, haven't you, for this new agreement?‑‑‑Yes, I have.
PN361
You are also familiar with the concept of the rosters in the maritime industry as well, aren't you, an even time roster?‑‑‑Yes.
PN362
The way an even time roster works, isn't it, that you have employees working perhaps four works on or five weeks on and another group of employees who are on a leave arrangement essentially for four or five weeks at a time as well. Isn't that the case?‑‑‑Yes.
PN363
That applies to casual employees as well, doesn't it?‑‑‑Yes, it does.
PN364
So it is not just full time employees or permanent employees. It is casuals work on that same sort of roster?‑‑‑Yes.
PN365
So at any one time you might have equal numbers of employees or very close to equal numbers on leave and employees at work on the basis that you have got alternating swings that work every four weeks and they take over from each other every four weeks. Is that the case?‑‑‑Can you repeat that, please?
PN366
At any one time on a particular vessel, you might have three employees on a particular vessel who do a four week swing on that particular vessel. And there is another group of employees on leave at that time who are on four weeks of leave and they alternate on that particular vessel for any sort of long-term contract, don't they?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN367
So effectively half of your workforce at any one time might be on paid leave or half of the workforce that would be covered by this agreement would be on leave and half would be at work and they exchange places with each other?‑‑‑Yes.
PN368
You say at paragraph 16 of your statement that you received an email from - sorry, at 15 you received an email from Cobb on 1 August of 2014. From the email you received from Cobb, you say: "It was apparent to me that as at Friday, 1 August 2014, there were three employees at Point Samson who would be covered by the proposed agreement who were working on that day"?‑‑‑Yes.
PN369
Can I infer from that that there were also three employees who were on some sort of leave at that time who weren't working on that day?‑‑‑No.
PN370
So there was no alternate swing for those employees at Point Samson. Is that what you are saying?‑‑‑No.
PN371
So that vessel in question at Point Samson which is - you will have to help me here - the vessel that was working at Point Samson, first of all, was 2014, was the Alkira; is that correct?‑‑‑Yes.
PN372
That had no alternate swing?‑‑‑No.
PN373
Why was that?‑‑‑It was performing inshore maritime work, not offshore oil/gas.
PN374
Do employees who perform inshore maritime work also have an alternate swing as well who work four weeks on, four weeks off, or five weeks on, five weeks off?‑‑‑Are you asking about this specific figurine?
PN375
Yes?‑‑‑I'd have to refresh my memory about the agreement.
PN376
About this proposed agreement?‑‑‑Yes.
PN377
I have only got the one copy, I am afraid. The roster arrangements say at 13.1 that the normal working arrangement will consist of an even time roster usually requiring employees to work 28 days on duty and to have 28 days off duty not at work. So it is proposed in this agreement that employees would be working an even time roster?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN378
The agreement that preceded this which applied to Broadsword employees performing inshore work also had an even time roster as well, didn't it?‑‑‑Are you asking me if there was a previous agreement?
PN379
Yes?‑‑‑There was no previous inshore agreement.
PN380
So the employees working on the Alkira at that time were covered simply by the award; is that correct?‑‑‑Correct.
PN381
(Indistinct) award?‑‑‑I'm not sure.
PN382
But there was no alternate swing for the employees on the Alkira to take over when those three employees working on 1 August commenced their leave period?‑‑‑I'm not sure about the specific arrangements of the Alkira.
PN383
At paragraph 21 of your statement, you say - sorry, if I can just take you back a little bit. Paragraph 20, it became apparent to you from Cobb's email that she had not identified employees working out of Exmouth. So you contacted Peter Chester on or about 5 August 2014 and he identified that there were, in paragraph 21 of your statement, that there was only one vessel that Broadsword had operating out of Exmouth. That was the Jane Virgo. And that another three employees had been working on the Jane Virgo on 1 August 2014 and that is employees D, E and F. That is correct?‑‑‑Yes.
PN384
Did the Jane Virgo have an alternate swing as well that operated that vessel at the time those three employees who were working on the Jane Virgo at that time were on their leave swing?‑‑‑I'm not sure about the specific information.
PN385
Did you ask those employees whether there was an alternate - sorry - those particular managers, the operations managers, whether there was an alternate swing that performed work on the Jane Virgo and the Alkira?‑‑‑I didn't ask that specific question.
PN386
Because they are quite particular in what they say to you: "On 1 August, only these there employees were working." That is correct, isn't it?‑‑‑Yes.
PN387
That would be a master, an engineer and a deckhand, to the best of your knowledge?‑‑‑To the best of my knowledge, yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN388
Those were the only six employees who were given an NERR at that time. That is correct, isn't it?‑‑‑Well, it was in my statement that those employees were given an NERR.
PN389
There were no other employees given an NERR for this agreement, were there?‑‑‑No.
PN390
So it was only those six employees. Are those six employees still engaged by Broadsword and do they still do work for Broadsword?‑‑‑I am not sure.
PN391
Did those six employees vote for this proposed agreement on 1 May 2014?‑‑‑I believe a couple did.
PN392
So of the six, perhaps only two voted?‑‑‑I'm not sure about the specific numbers.
PN393
So of the 12 that voted, 10 of them might not have received an NERR?‑‑‑I'm not sure.
PN394
Do you know how many employees Broadsword had at 1 August 2014 who were engaged on inshore maritime operations or on project work?‑‑‑The total number of employees?
PN395
Yes, engaged on inshore maritime operations and project work?‑‑‑On 1 August did you mention?
PN396
Yes?‑‑‑There were three employees, I believe.
PN397
What steps did you take to identify any employees engaged on project work at that time?‑‑‑I contacted the operations manager and Ms Cobb as well seeking information of any employee that was performing project inshore maritime work.
PN398
Sorry?‑‑‑Any employee that was performing inshore maritime work.
PN399
I understand you have asked them about inshore maritime operations. So what separate enquiries did you make about people engaged in project work?‑‑‑That's all I sought information.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN400
Because of course the NERR, if you have a look at attachment 2, proposes an agreement for employees on inshore maritime operations or project work within Western Australia?‑‑‑Yes.
PN401
So not inshore maritime operations or project work on inshore maritime operations?‑‑‑Can you repeat that?
PN402
Inshore maritime operations or project work. So two different types of entities?‑‑‑Yes, yes.
PN403
What did you mean by "project work" at that time?‑‑‑Project work is inshore maritime work that Broadsword will tender for from major clients.
PN404
Why didn't you just say "inshore maritime work" in the NERR? Why did you specifically mention "project work"?‑‑‑I can't recall why.
PN405
You say at paragraph 9 of your witness statement that in various conversations with Mark Wakelin he said that Broadsword also aspired for the vessels to perform more regular work on specific major projects for particular clients. That Broadsword had submitted tenders to perform such work. That is over and above inshore maritime work, isn't it?‑‑‑Can you repeat that, please?
PN406
At paragraph 9 of your statement you say that Mark Wakelin told you that Broadsword also aspired for vessels to perform work on specific major projects for particular clients and that Broadsword had submitted tenders to perform such work. That is separate to inshore maritime work, wouldn't you agree?‑‑‑No, not necessarily.
PN407
Because you don't know what Mark Wakelin meant at that point in time?‑‑‑I believe it was a generalised comment.
PN408
So you don't know what work he aspired to do at that time or what work he intended would be captured by the agreement?‑‑‑I think it was a generalised comment.
PN409
Mark Wakelin is your boss, isn't he?‑‑‑Correct.
PN410
Is Mark Wakelin Mr Matthews' boss as well?‑‑‑I beg your pardon?
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN411
Is Mark Wakelin Mr Matthews' boss as well?‑‑‑No.
PN412
Is Mr Matthews Mr Wakelin's boss?‑‑‑No.
PN413
However, Mr Wakelin is your boss?‑‑‑Yes, he is.
PN414
He was involved in the discussions for the agreement and he was involved in the drafting of the ultimate scope of the agreement, wasn't he?‑‑‑Yes.
PN415
So he had a view about whether or not the scope of the proposed agreement would cover project work separate to inshore maritime work, but he is not giving evidence today, is he?‑‑‑I can't say what Mr Wakelin had thought at that time.
PN416
I think that is the problem I am identifying. You can't say what he thought and you can't say what is in his mind and he is not giving evidence here to tell us those things. So is it fair to say that you took no steps to identify employees engaged on project work at the time you issued the NERR?‑‑‑No, that's not fair.
PN417
So can you tell me what steps you did take?‑‑‑Well, I sought information from Mr Munyard and Ms Cobb about employees engaged at Point Samson and Exmouth performing inshore maritime work and any work that was considered inshore maritime work and project work.
PN418
You don't say anything about project work, though, do you, in your witness statement?‑‑‑No, I don't.
PN419
You are just coming up with this now in response to my questions?‑‑‑Yes, clarifying it.
PN420
But it is not in your statement?‑‑‑No.
PN421
When you did your statement you probably had a better recollection of what you had done then. It is only now that it has come into your mind that you also enquired about project work?‑‑‑Yes.
PN422
Of course, the difficulty with the information that was produced to you is that Ms Cobb didn't produce any sort of fulsome information to you and you had to go back and have another go with Mr Chester as well, didn't you?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN423
But what Mr Munyard said to you is he only identified the vessels operated out of Point Samson or Exmouth as the Jane Virgo and the Alkira and he didn't identify any project work as well. Just those two vessels performing inshore maritime work?‑‑‑Just those two vessels, yes.
PN424
Did you specifically ask him about project work?‑‑‑No.
PN425
Did you specifically ask them about the alternate swing or did you specify to them you only wanted to know about employees working on 1 August 2014?‑‑‑I can't recall.
PN426
So it is possible there was an alternate swing, another six employees that would be covered by this agreement who didn't get an NERR?‑‑‑I am not sure.
PN427
Do you know how many employees Broadsword had at 1 August 2014 in total?‑‑‑No, I'm not sure.
PN428
There was a ballot for an agreement in October of 2014?‑‑‑Yes.
PN429
That was based upon this NERR that was issued in August; that's correct?‑‑‑Yes.
PN430
The ballot approved that agreement, didn't it?‑‑‑Yes.
PN431
Then an application is made to the Fair Work Commission?‑‑‑Yes.
PN432
It was withdrawn subsequent to that?‑‑‑Yes.
PN433
Do you know why that was withdrawn?‑‑‑We found out that there was a technical error and we withdrew the application to re-go to a vote.
PN434
Can you tell me what that technical error was?‑‑‑We modified the method of voting during the access period.
PN435
There was no new notice of employee rights sent out after that, was there?‑‑‑No.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN436
So still only the six employees of which two were still around to vote on 1 May of this year?‑‑‑Sorry, can you repeat that?
PN437
So it was still only the six employees who received that notice of which only two were around to vote in May of this year?‑‑‑There may. I'm not sure how many employees.
PN438
The agreement was re-balloted in January of this year and that ballot was lost, wasn't it?‑‑‑Yes.
PN439
That was the same agreement that was balloted in October of 2014?‑‑‑Yes.
PN440
So the same in substance. Everything was identical?‑‑‑I don't know whether - I can't be certain a hundred per cent.
PN441
Obviously the dates had probably changed on it, but in substance it was identical?‑‑‑In substance.
PN442
How many employees were actually part of that vote at that time?‑‑‑I can't recall.
PN443
Was every relevant employee a part of that ballot?‑‑‑Yes.
PN444
That ballot was lost and as part of the road show for the new agreement which was to be balloted on 1 May 2014, you spoke to employees, didn't you?‑‑‑Yes, I did.
PN445
With Mr Matthews?‑‑‑Yes.
PN446
You made notes of those discussions?‑‑‑Yes.
PN447
You made handwritten notes and you converted them into an email that you sent to a number of people and that email is found at attachment 12. If you wouldn't mind turning to attachment 12. And that is essentially a summary of the meeting, isn't it?‑‑‑Yes, it is.
PN448
That is from your handwritten notes you have turned that into an email?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN449
If I can ask you to look down at point 4 of that, the people present at that meeting were employees H and I and G. Had any of them received an NERR at that time?‑‑‑Point 4?
PN450
Sorry, if I ask you just to take a step back. Sorry, I shouldn't have done it that way. Attendees at that meeting were employees H, I and G?‑‑‑Yes.
PN451
So only three employees at that meeting?‑‑‑Yes.
PN452
Then at point 4, they say they were upset that they didn't get to vote. Is that a reference to the vote that occurred in December of 2014 and January of 2015?‑‑‑Just the vote on January 2015.
PN453
So all three of those employees didn't get to vote in that ballot?‑‑‑I don't know whether it was all three.
PN454
But at least some of them didn't get to vote?‑‑‑Some of them.
PN455
So why didn't they get to vote on the agreement at that time given the work they are doing shortly thereafter is covered by the proposed agreement? Where were they at that time?‑‑‑They were - sorry, can you repeat that because that is two questions there.
PN456
I am just wondering why employees H, I and G didn't get a vote in December/January?‑‑‑Because on the day of the vote they weren't employed by - they weren't working for Broadsword.
PN457
They weren't working because they were on leave as part of their off-swing; would that be correct?‑‑‑No, they were just not working.
PN458
Did they receive an NERR?‑‑‑I'm not sure.
PN459
Had they worked before that vote was taking place?‑‑‑On which vote?
PN460
The one in December and January?‑‑‑Are you asking me whether they worked?
PN461
Yes?‑‑‑I'm not sure whether they worked.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN462
I am just wondering why they would be upset that they didn't get a vote. If they weren't employees of Broadsword at that time then obviously there would be no reason for them to have a vote?‑‑‑Yes, that's correct.
PN463
So why would they be upset about it?‑‑‑Because they were part of Broadsword.
PN464
So what were they doing at that time that meant they didn't get a vote?‑‑‑I'm not sure.
PN465
Is it possible they were in their off-swing and that is why they didn't receive a vote?‑‑‑I'm not sure, sorry.
PN466
So you can't shed any sort of light whatsoever on why they didn't get a vote?‑‑‑Yes, that's correct.
PN467
Similarly, if I can direct you to attachment 14 to your witness statement, it is a further meeting. This one is in Exmouth, I think?‑‑‑Yes.
PN468
With employees D and L. They are also upset that they didn't get a vote. Can you tell me why they didn't get a vote on the agreement, the December/January agreement?‑‑‑Can you repeat that, sorry?
PN469
Can you tell me why employees D and L actually didn't get a chance to vote on the December and January agreement in 2014?
THE DEPUTY PRESIDENT: Just before you answer that, can I just ask the witness to step out of the room?
<THE WITNESS WITHDREW [10.53 AM]
PN471
THE DEPUTY PRESIDENT: Mr Edmonds, I just asked the witness to step out of the room because I think he might be a little bit confused about what it is you are putting to him. You are suggesting that these are notes that he took about their concerns at the meeting?
PN472
MR EDMONDS: Yes, yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN473
THE DEPUTY PRESIDENT: That is not how I read the note, in fairness. If I look at his handwritten note at attachment 13, he says: "I called the guys after the 'no' vote. They didn't like the idea that they weren't given a chance to vote." So this is his notes of a discussion in January after the vote, not at this meeting. Paragraph 4 in attachment 14 and in the earlier paragraph are introductory comments by him about what he learned having spoken to the crew in January, not a note about what these employees told him at that meeting.
PN474
MR EDMONDS: Certainly.
PN475
THE DEPUTY PRESIDENT: It is a matter for him, but it just seems to me that I am not sure that he understands precisely what you are asking him. He seems to be agreeing with propositions that you are putting that this was feedback that those employees gave at this meeting conducted in April. But that is not how I read his note.
PN476
MR EDMONDS: All right.
PN477
THE DEPUTY PRESIDENT: In any event, I am just raising it because I do apprehend that he is misunderstanding his own note.
PN478
MR EDMONDS: Yes. Those same points aren't borne out for attachment 11 which is the handwritten notes for the meeting that occurred at Point Samson where those crew also said they were upset they didn't get to vote. But I take your point on board, sir, and I will - - -
PN479
THE DEPUTY PRESIDENT: But his paragraph 12 is in terms the same. Sorry, paragraph 4 of 12 which is the typed version: "I noted that I called the crew following the last result. The crew's main feedback was that they were upset they didn't get a vote."
PN480
MR EDMONDS: Yes.
PN481
THE DEPUTY PRESIDENT: So this is a conversation he appears to be having following the last vote rather than a conversation that he is having on 21 April.
PN482
MR EDMONDS: Right. So rather than this particular employees, it was - - -
PN483
THE DEPUTY PRESIDENT: It was the ones who voted last time or didn't vote last time. Yes, the crew that were on. I am not sure because he obviously didn't call this crew because they were there at the meeting. So it is a reference to the conversation that occurred some time, presumably by telephone or radio, in January.
PN484
MR EDMONDS: I am happy to go back.
PN485
THE DEPUTY PRESIDENT: You might clarify that. I am just concerned that he is not properly understanding.
PN486
MR EDMONDS: Yes. I am happy to go back and clarify those points, sir.
PN487
THE DEPUTY PRESIDENT: That is why I asked him to leave.
PN488
MR EDMONDS: Yes, and it may well assist my case further.
PN489
THE DEPUTY PRESIDENT: Well, it may or may not, but I was just concerned that he didn't appreciate the nature of the questions.
MR EDMONDS: Yes, yes.
<CLARENCE DESIRE PASCAL PAUL, RECALLED [10.58 AM]
CROSS-EXAMINATION BY MR EDMONDS [10.58 AM]
PN491
MR EDMONDS: Sorry, if I can just take you back to attachment 2, Mr Paul, in particular to point 4. These are part of your statements at the start of the meeting; is that correct?‑‑‑Yes.
PN492
At point 4 you said: "I noted that I called the crew following the last result for some 'lessons learnt'" in inverted commas. "The crew's main feedback were they were upset that they didn't get to vote"?‑‑‑Yes.
PN493
That was in relation to the December/January agreement; is that correct?‑‑‑Yes.
PN494
So was that this crew, employees G, H and I, or is that a different crew?‑‑‑I'm not sure the specific - which crew.
PN495
Which crew did you speak to who were upset that they didn't get to vote?‑‑‑Sorry?
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN496
Which crew were you up to? Sorry. You say you note you called the crew following the last result. The crew's main feedback were they were upset they didn't get to vote in December/January. Whose feedback was that?‑‑‑I think it was the general feedback from the crew, from - in that meeting.
PN497
From this crew, employees G, H and I?‑‑‑I don't know.
PN498
So you don't know who fed back that they were concerned they didn't get to vote?‑‑‑Well, it was a general comment. I'm not sure specific which crew.
PN499
So some people didn't get to vote in December/January. They were unhappy they didn't get to vote. You don't know who they were and you don't know why they didn't get to vote?‑‑‑Well, I do know why they didn't get to vote. I don't know who they were.
PN500
Sorry, you don't know who they were?‑‑‑I don't know who they were but I do know why they didn't get to vote.
PN501
Why didn't they get to vote?‑‑‑They weren't working for Broadsword on the day of the vote.
PN502
The day of the vote?‑‑‑Yes.
PN503
Were they employees of Broadsword at any time immediately before or after that?‑‑‑They could be, yes.
PN504
They could have been?‑‑‑Yes.
PN505
But in your mind in order to vote they have to be working on that day; is that correct?‑‑‑Yes.
PN506
THE DEPUTY PRESIDENT: Were they casual employees?‑‑‑Yes, they were.
PN507
MR EDMONDS: Could some of them have been on leave at that time?‑‑‑I'm not sure.
PN508
So some of them could have been on paid leave, though?‑‑‑Perhaps.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN509
Presumably the reason why you rang them after the failed vote in December and January was because they would be covered by the inshore agreement in relation to their work?‑‑‑Why I rang them after the failed vote?
PN510
Yes?‑‑‑Yes.
PN511
Because otherwise there would be no sense seeking feedback from people who weren't employed by you who had no entitlement to vote. This is the people who would be covered by that and you rang for feedback in relation to the proposed agreement and why it had failed?‑‑‑Yes.
PN512
Those comments are also true in relation to your comments found at attachment 14?‑‑‑Yes.
PN513
That the crews were upset they didn't get to vote?‑‑‑Yes.
PN514
THE DEPUTY PRESIDENT: Mr Paul, how many employees did you speak to in January after the vote? Was it in January that you spoke to them?‑‑‑Sorry?
PN515
Was it in January that you spoke to the employees after the vote?‑‑‑Yes.
PN516
Do you recall how many employees you spoke to?‑‑‑I can't recall how many but it would have been the majority of those employees that voted on the second vote.
PN517
MR EDMONDS: It would also include employees that didn't vote on the second vote as well?‑‑‑Yes.
PN518
So how many extra employees had you spoken to that didn't get to vote on the second vote?‑‑‑I'm not sure how many extra. I can't recall.
PN519
Would it be about the same numbers as didn't get to vote as did vote?‑‑‑Yes.
PN520
So one plausible explanation for that is that was the off-swing?‑‑‑I'm not sure.
PN521
I am not sure if you had any - sorry, sir, I kind of jumped in.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN522
THE DEPUTY PRESIDENT: No, no. That is it. Thanks.
PN523
MR EDMONDS: So Ben Matthews came to you in early April of 2015 and said, "I want to put the agreement out again," except this was a different agreement this time, wasn't it?‑‑‑In substance it was the same agreement.
PN524
But the pay rates were different, weren't they?‑‑‑Yes.
PN525
The pay increases were different as well?‑‑‑Yes.
PN526
Which is a pretty important part of it, you would agree, wouldn't you?‑‑‑Yes.
PN527
It is not minor tinkering with the disputes procedure. Your pay increases are front and centre in any enterprise agreement, wouldn't you agree with that?‑‑‑Yes.
PN528
At that point you were corresponding with the MUA about this agreement?‑‑‑Yes.
PN529
As was Mark Wakelin?‑‑‑Yes.
PN530
At no point in that correspondence with them did you say to them, "It's our intention to put this agreement out for a vote again," did you?‑‑‑No.
PN531
Indeed, when the MUA made an application to the Commission providing orders, they were caught by surprise when you said that the agreement has already gone out.
PN532
MR CASPERSZ: That is evidence for the MUA or somebody from the MUA.
PN533
THE DEPUTY PRESIDENT: He can't give evidence about whether you were caught by surprise.
PN534
MR EDMONDS: No, no. Is it fair to say that at that conference from your point of view it became clear the MUA were not aware the agreement had been distributed in order to have a vote on it?‑‑‑Can you repeat that, please?
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN535
At the conference which you attended at the application (indistinct) orders, would it be fair to say the MUA weren't aware that the agreement had been distributed for a vote?
PN536
MR CASPERSZ: My friend is asking a question that makes it impossible for this witness to answer. If my friend wants to put that something was said or something was not said, that is a different proposition. But I object to the question.
PN537
MR EDMONDS: You have seen the application. You have attached it to your witness statement. Have you got that there?‑‑‑Which attachment?
PN538
It is attachment 8 to your witness statement?‑‑‑Yes.
PN539
If I ask you to turn to the orders sought on page 3 of 2 of that application and that is page 30 of your statement?‑‑‑Yes.
PN540
The orders sought are that the respondent, which is Broadsword, not commence the access period or request employees approve the proposed enterprise agreement. The respondent has met with the applicant about its proposals regarding scope and give genuine considerations to those proposals including reasons for its response. You had already commenced the access period at that point, hadn't you?‑‑‑Yes.
PN541
Indeed, the vote was to take place on 1 May, wasn't it, two days later?‑‑‑Yes.
PN542
Can you tell me why to the best of your recollection it was the view of Mr Matthews that the agreement had to go out in early April 2015? Sorry, in April 2015 for a vote on 1 May 2015?‑‑‑Why it was Mr Matthews' view?
PN543
Yes, yes. Sorry, I will reframe the question. Did he explain to you why he wanted a vote at that particular time as opposed to any other time?‑‑‑It was important for Broadsword's future to have an inshore agreement.
PN544
But why wasn't it important in April of 2015 to have a vote on 1 May 2015?
PN545
MR CASPERSZ: Is my friend asking this witness why he thinks it is important or is he asking this witness what was said to him by someone else? It should be clarified in the context of the previous question.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN546
MR EDMONDS: Did Mr Matthews explain to you why he thought it was important that an agreement was approved at that time?‑‑‑Yes.
PN547
What did he say to you?‑‑‑He said it was very important and critical for Broadsword to have an inshore agreement in Western Australia.
PN548
Did he say why it was important, though?‑‑‑For - no, he didn't.
PN549
Did he mention the LANPAN 29?‑‑‑I can't recall, sorry.
PN550
You are aware of the LANPAN 29 project, though, aren't you?‑‑‑Yes.
PN551
You currently have employees on the LANPAN 29?‑‑‑Yes.
PN552
You are applying this agreement to those employees, aren't you?‑‑‑Yes.
PN553
That started work on 8 May, is that correct?‑‑‑I can't recall.
PN554
Did you assist in identifying the appropriate employees for that project?‑‑‑No.
PN555
So after the decision was made to commence the access period, Mr Matthews sent you a list of employees, didn't he?‑‑‑Yes, he did.
PN556
Which was for the purposes of the employees who could actually vote on the proposed agreement?‑‑‑Yes.
PN557
That is found at attachment 9 in your witness statement? Can you just peruse that list for me, please? Is that the list he sent you on that day?‑‑‑Yes.
PN558
Had you been involved in the preparation of that list?‑‑‑Yes.
PN559
You are satisfied that the employees identified on that list were the employees entitled to vote for this proposed agreement?‑‑‑Yes.
PN560
There were no more employees entitled to vote?‑‑‑Correct.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN561
And no less. That was the full list?‑‑‑Yes.
PN562
And everyone on that list was entitled to vote for the proposed agreement?‑‑‑Yes.
PN563
Only six employees had received an NERR at the start of this process?‑‑‑At the start of 1 August 2014?
PN564
Yes, yes?‑‑‑Yes.
PN565
How many of those employees, to the best of your knowledge, are contained on this list?‑‑‑I can't recall.
PN566
So you received this list and you commenced a series of road shows, didn't you?‑‑‑Yes.
PN567
There was a road show on 21 April of 2015 at Point Samson?‑‑‑Yes.
PN568
Where the agreement was explained and there was three employees in attendance at that meeting?‑‑‑Yes.
PN569
Employees G, H and I?‑‑‑I have to just refresh my memory.
PN570
Sure. That is found at attachment 12, if that helps?‑‑‑Yes.
PN571
Then there was a further meeting in Exmouth the next day, 22 April 2015. There were two employees in attendance there?‑‑‑Yes.
PN572
There were a further two employees that you left messages for, employees A and P. That is correct, isn't it?‑‑‑Yes.
PN573
So that is seven employees we have got to so far?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN574
Then you say at attachment - sorry, if you bear with me for a moment. I only inherited this matter in its last dying stages so I am still trying to catch up with what is going on. So you say the next steps in attachment 14: "We have emailed and left messages for the two employees who were unable to attend today." That is employees A and P. "We have four more employees to contact. Two are in Perth, one is in Busselton and one was one available today but lives in Exmouth." Then you provide a summary at attachment 15 of your efforts to contact those employees and the efforts you have gone to to explain the agreement to them, to give them a copy of the agreement, to give them a copy of the explanatory memo and to make sure everyone is aware of what the agreement contains?‑‑‑Yes.
PN575
So those who couldn't attend the face to face meetings received a telephone call?‑‑‑Yes.
PN576
But you didn't speak to all those employees, did you?‑‑‑I didn't speak to all, no, that's correct.
PN577
In particular, if you note on your list at attachment 15, there was no-one that spoke to employee J, no-one spoke to employee K, no-one spoke to employee M, and no-one spoke to employee N. Is that the case? You left messages for them but never spoke to them?‑‑‑Yes, that's the case.
PN578
So of the 12 employees on your list, only eight either received the road show in person or a conversation on the telephone?‑‑‑Yes.
PN579
If I ask you to turn back to attachment 9, that is the list that you help compile with Ben Matthews. Are you content that that is the total list? If I can ask you to turn to the third page of the attachment, that provides a summary of the numbers. And that provides a summary of the employees entitled to vote of 14, doesn't it?‑‑‑Yes.
PN580
You have only got a list of 12 at attachment 15?‑‑‑Yes.
PN581
So in addition to employees J, K, M and N, two more employees didn't receive anything?‑‑‑We identified that those two employees wouldn't be covered by this agreement.
PN582
Which two employees are they?‑‑‑I can't recall.
PN583
Why wouldn't they be covered by the agreement?‑‑‑Because they were no longer employed for us.
PN584
But which ones are they on the list?‑‑‑On the - which list are you referring to?
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN585
You have got the list from Mr Matthews on 23 April. You have done your road show on the 21st and the 22nd. You have rolled your road show out. You had three in your meeting at Point Samson, two in your meeting at Exmouth, two not present at Exmouth. That is seven. And another four you had to contact. And then the next day, 23 April, you get a list - sorry, I beg your pardon. So there were three in Point Samson. That is G, H and I. You spoke to two in Exmouth, D and L. Employees A and P couldn't be present. That is seven. You then note you have got four more employees to contact by telephone. That takes you to 11. Then you get a list the next day, 23 April, that says you have got 14. Your attachment 15 says you have got 12. So when did you identify that these two people weren't entitled to vote?‑‑‑It was around the time that we were doing the road show.
PN586
Except our list of 14 came after that?‑‑‑Yes.
PN587
How could that be true? How could you identify 12 on the 21st and 22nd and then on the 23rd identify 14 employees entitled to vote which you just said was an accurate list produced after your road show and you say: "But at the time of the road show we identified they weren't entitled to vote"? So it wasn't an accurate list at all, was it?‑‑‑I do believe it was an accurate list.
PN588
So it was an accurate list. So the 14 who were entitled to vote you came to after the road show, those were the 14 entitled to vote?‑‑‑No, I said those employees are the 12 employees that we cancelled out, weren't entitled to vote.
PN589
Sorry?‑‑‑Those 12 employees in the list.
PN590
In the list you prepared at attachment 15?‑‑‑Did you say 15?
PN591
Yes. So they are the 12 that were entitled to vote?‑‑‑Yes.
PN592
So which employees did you leave out and why?
PN593
MR CASPERSZ: Your Honour, just for the sake of clarification, in my submission, there is confusion here. My friend could direct the employee's attention to which list by comparison to which he is putting that employees were left out that might assist, in my submission.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN594
MR EDMONDS: I am happy to help. If you go to attachment 9, dated 23 April, which you have already identified in your evidence is an accurate list of employees that you helped prepare containing 14 employees. That is the list you prepared on that day. That is the evidence. You lead evidence about that when you say: "I received an email from Mr Matthews attaching an Excel spreadsheet identifying those employees. Those were the employees entitled to vote." That is on 23 May. Earlier on the 21st and 22nd, you had met with employees as part of your road show and spoken to them on the telephone. Then you produce a list on 23 April 2015 at attachment 15 which only includes 12 employees. So on the same day you have produced two lists which you say both are accurate; one with 14 on them, one with 12 on them?‑‑‑Yes. What is your question?
PN595
That both the lists are accurate. You are confident about that?‑‑‑Well, we went through a process on 23 April and - - -
PN596
And produced two lists. One which had 14 on them and one which had 12?‑‑‑Well, at clause - attachment 15 was the list that we came to the conclusion would be covered by this agreement.
PN597
Who was left off the list at attachment 9? How could you be confused on the same day about as about who was employed by you and who wasn't?‑‑‑I beg your pardon?
PN598
How could you be confused on the day about who was employed by you and who wasn't?‑‑‑What do you mean? We weren't confused.
PN599
You have prepared at list at attachment 9. You said that was an accurate list?
PN600
THE DEPUTY PRESIDENT: I don't think his evidence was that he prepared that list.
PN601
MR EDMONDS: He was involved in the preparation of that. He was sent that list. You have confirmed that was the list you were sent on the day. You confirmed you were satisfied it was accurate. Now, which list was the accurate one?‑‑‑The final list was. Attachment 15 was the accurate one.
PN602
So which employees? If you look at the list at attachment 9, which employees were left out?‑‑‑It would be the engineer on page 33.
PN603
The one at the top?‑‑‑Yes.
PN604
The one employee on the LIZ F?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN605
And the other one?‑‑‑And the deckhand on page 33.
PN606
Which one is that one?‑‑‑On the LIZ F.
PN607
THE DEPUTY PRESIDENT: Is that the third one down?
PN608
MR EDMONDS: Sorry?
PN609
THE DEPUTY PRESIDENT: Is that the third one down on the list?‑‑‑Yes.
PN610
MR EDMONDS: The third one down.
PN611
THE DEPUTY PRESIDENT: I can barely make it out on the copy, but I think it is (indistinct).
PN612
MR EDMONDS: If I could ask you then to look at the summary of your list there on page 35 of your statement. That identifies only one engineer, doesn't it?‑‑‑Yes.
PN613
It turns out that he was no longer employed by you?‑‑‑I don't know.
PN614
But isn't that why you took him of the list because he was no longer employed by you?‑‑‑Perhaps, yes.
PN615
So that would mean you would have a total of zero engineers?‑‑‑I'm not sure, sorry.
PN616
If you look through that list, that is the only engineer on the list, isn't it?‑‑‑Yes.
PN617
So then when you have got your new list at attachment 15, I shouldn't find any engineers on that list, should I, because attachment 15 is a subset of attachment 9?‑‑‑Yes.
PN618
With the engineer removed and one of the deckhands?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN619
So if you can look at attachment 15 then, if you go down to number 11, and the position they are in, you will see that's an engineer?‑‑‑Yes.
PN620
So it wasn't the engineer that was no longer employed by at all. You've got no idea out of that list of 14, which two are taken off the list, have you?‑‑‑Yes, that's correct.
PN621
Because you had no discussions about that at that time, did you?‑‑‑In what - - -
PN622
Well, you had no discussions on 23 April comparing the two lists, did you?‑‑‑I can't recall.
PN623
You can't recall any discussions about paring the list back from 14 to 12?‑‑‑I can't recall the specific - - -
PN624
In the context of you can't recall those employees coming off the list, is it fair to say that in no way can you be confident that the list you provided of employees to be balloted to Cirrena is accurate?‑‑‑I believe I am confident.
PN625
How can you say that? How can you say you're confident when you've got a list of 14 employees, some taken off, and you don't recall any conversations about who was taken off to produce a list of 12? How can you then say you're confident that the 12 that are on that list were the correct employees?
PN626
MR CASPERSZ: If my friend is putting to the witness that he can't be confident in light of certain things, that's one thing. I don't object to that, but the witness has given his evidence that he was confident and now my friend is asking how can he be confident, which is a question I submit is objectionable.
PN627
MR EDMONDS: If I ask you to look at attachment 9 again, which two employees did you take off?
PN628
THE DEPUTY PRESIDENT: Mr Paul, do you have a copy that's legible in all respects?‑‑‑I beg your pardon?
PN629
Do you have a copy of those two annexures that are both legible in all respects, because the one I have - because of the different colouring and it has been printed out in black and white, it makes some of the columns difficult to read. Do you have the same problem?‑‑‑No, I don't.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN630
You don't. Okay, that's fine. You can see yours clearly.
PN631
MR EDMONDS: well, there's probably not much point in taking that further?‑‑‑Sure.
PN632
Is it possible that two of those employees on that list of 14 just didn't work on 1 May 2015?‑‑‑It is possible, yes.
PN633
They might have worked the day before or the day after, but they just didn't work on that day?‑‑‑Yes.
PN634
As such, they didn't get a vote?‑‑‑Correct.
PN635
How many other employees that you know of worked between 1 August 2014 and 1 May 2015 who also didn't get a vote?‑‑‑I can't recall, sorry.
PN636
It could be any number?‑‑‑Yes.
PN637
Did the employees engaged on the Adrenalin Spirit(sic) all get a vote?‑‑‑If they were engaged on the Adrenalin Sprint, yes.
PN638
Did the employees engaged on the LANPAN 29 actually get a vote?‑‑‑I can't recall.
PN639
Did the employees on the vessel Iona get a vote? Is it Iona or Fiona?‑‑‑There is an Iona and a Fiona.
PN640
On either of those, did they get a vote?‑‑‑I can't recall.
PN641
Are all those vessels performing work that is caught by the scope of this proposed agreement, to the best of your knowledge?‑‑‑You mean are all those vessels?
PN642
Yes?‑‑‑A couple of them, but not all of them.
PN643
Which ones are?‑‑‑Adrenalin Sprint and the Alkira.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN644
What about the LANPAN 29?‑‑‑Well, LANPAN is performing inshore maritime work.
PN645
If I can take you back to those road show meetings, can you tell me what you explained to the employees at those meetings about the effect of the project rates clause of the agreement?‑‑‑Can you - sorry?
PN646
Can you tell me what you explained to the employees at the road show meetings in person and indeed over the telephone, as well, about the effect of the project rates clause of the agreement?‑‑‑It means that they - we advised the employees that when Broadsword bid for work, they would get project uplift wages. It could be anything. We look at it on an holistic basis.
PN647
Did you put it to the employees that there was a prospect that some parts of the agreement could be varied and go backwards, other than the rates?‑‑‑No.
PN648
Did you put it to them that the rosters may be worse off?‑‑‑No.
PN649
So you didn't explain to them that all the terms of the agreement could be varied. You just said, "You could be paid extra"?‑‑‑No, we advised them that the terms of the agreement can be varied.
PN650
Did you explain to them that that was at the discretion of the company or did you say there would have to be an agreement between the employees and the company to do that?‑‑‑It was company discretion.
PN651
Did you explain to them, in relation to the rosters, that variation to the rosters was to meet operational and project requirements, and that that could be worse rather than better?‑‑‑No.
PN652
Did you explain to them that you could move away from an even time roster if it met project requirements?‑‑‑No.
PN653
What did you explain to the employees about the wage increases in relation to company and market performance?‑‑‑We explained that, you know, the wage increases will depend on how the economy is functioning and how Broadsword is functioning compared to our competitors.
*** CLARENCE DESIRE PASCAL PAUL XXN MR EDMONDS
PN654
Did you explain how that clause would be calculated?‑‑‑We said it was according to what that clause was, so we didn't go any further.
PN655
So you just said, "If the company market performance improves, we can pay you extra. Otherwise, you'll get CPI"?‑‑‑Yes.
PN656
Did you explain how there would be a measure of company market performance?‑‑‑No.
PN657
Was there any formula put to the employees?‑‑‑No.
There are no further questions for this witness. Thank you, sir.
CROSS-EXAMINATION BY MR NIVEN [11.32 AM]
PN659
MR NIVEN: I just have a few more questions for you, Mr Paul. If you could just go to your statement and in particular to attachments 12 and 14. At 4(c) - and this is an email from yourself to various people in the organisation. The email substantially has been reproduced twice following your meetings. At 4(c) it says, "The rates do not make sense. It's low." What was said to you for you to come to that conclusion?‑‑‑The crew just wanted to know why the rates were different to offshore rates.
PN660
So you were asked the question by the crew members as to why they were not being paid offshore oil and gas rates?‑‑‑Yes.
PN661
While we're on the agreement - you don't have a copy of the agreement in front of you, do you?‑‑‑No.
PN662
Maybe I can just read this bit out to you. Clause 11.3 - this is under the Hours of Work clause - says:
PN663
It is the intention of the employer that an employee shall, so far as possible, work within the hours prescribed above. However, an employee may be required to work additional hours in the case of a rig shift, major machinery breakdown or in the case of an emergency.
PN664
Is a rig shift not offshore oil and gas work?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL XXN MR NIVEN
PN665
So why would an inshore agreement have within it work which is, as you've just admitted, offshore oil and gas work?‑‑‑I'm not sure, sorry.
PN666
Within the agreement can I just ask you, in relation to the definitions, how did the inshore limit of 24 nautical miles be chosen?‑‑‑I'm not sure, sorry. I drafted it, but I'm not sure how that conclusion was reached.
PN667
So you're not sure as to why any other limit was not chosen or any other zone was not chosen instead?‑‑‑I drafted it, so - - -
PN668
Do you agree that 24 nautical miles off the coast of Western Australia is in the Indian Ocean?‑‑‑Well, it is in the Indian Ocean, yes.
PN669
Just in relation to the employees fairly chosen, did you take any steps to find out whether or not there were any Broadsword employees on workers comp or Seacare at the time you were issuing the notice of employee representational rights?‑‑‑Specifically on workers comp or Seacare? Is that your question?
PN670
Yes?‑‑‑No.
I have no further questions, your Honour.
CROSS-EXAMINATION BY MS THOMPSON [11.36 AM]
PN672
MS THOMPSON: Mr Paul, you said in a response to Mr Edmonds that there was no previous inshore agreement and they were paid the award. I put it to you that that's not correct. They were paid the offshore oil and gas rates of pay for work that is now described as inshore?‑‑‑I'm not sure.
PN673
In view of your discussion with Mr Niven when you said the employees could not understand why their rates had just been dropped from offshore oil and gas, doesn't that mean there is confirmation that they were paid offshore oil and gas for this work prior to this agreement?‑‑‑Well, I'm not sure whether those employees had worked in offshore oil and gas or inshore work.
PN674
Going to your statement in attachments 9 and 15, can you confirm that employee B is the same name as - the person on attachment 9 is the same as attachment 15 and all the other corresponding alphabet is the same?‑‑‑Sorry, what was your question?
*** CLARENCE DESIRE PASCAL PAUL XXN MS THOMPSON
PN675
Are employees A to P, or A to M, the same on attachment 9 as they are in attachment 15? Is Bob Brown a different alphabet number depending on which attachment he's in?‑‑‑Yes.
PN676
If that's correct, can you confirm who has been issued with an employee representational rights in those lists? In August 2014, which employees were issued with a representational rights notice?
PN677
THE DEPUTY PRESIDENT: It might be easier, Ms Thompson, if I can assist the parties because I have the advantage of having the list and the boat, and I can identify by employee letter which employees received a notice of employee representational rights.
PN678
MS THOMPSON: That would be greatly appreciated, your Honour.
PN679
THE DEPUTY PRESIDENT: They were employees A to F. Of those employees who were given a vote or voted, employees A and D participated in the ballot.
MS THOMPSON: Thank you. That's all I have.
RE-EXAMINATION BY MR CASPERSZ [11.40 AM]
PN681
MR CASPERSZ: Just a couple of quick points of clarification, Mr Paul. In relation to attachment 9 and attachment 15, can I just please clarify, if I can - there were a number of questions asked of you in relation to those two attachments in relation to the difference in the number of persons that appear just on the list; in attachment 9 which specifies 14 persons - - -?‑‑‑Yes.
PN682
- - - and then in relation to the list in attachment 15 which specifies 12 persons?‑‑‑Yes.
PN683
Those 12 persons have got the various aliases. For example, in attachment 15, it starts with employee D and works down to - number 12 is employee P?‑‑‑Yes.
PN684
In attachment 9, that, too, has various aliases. Is that correct?‑‑‑Yes.
PN685
In respect of attachment 9, for example - page 1 of attachment 9 which is on page 33 of your statement - in the "Position" column there is the word "engineer"?‑‑‑Yes.
*** CLARENCE DESIRE PASCAL PAUL RXN MR CASPERSZ
PN686
And then column below there is the word "master"?‑‑‑Yes.
PN687
But in the column next to it which is headed "Main", for "engineer" there is no alias, but in relation to "master" there is an alias, employee J?‑‑‑Yes.
PN688
Can you clarify two questions arising out of that. Is employee J there in attachment 9 the same as employee J in attachment 15?‑‑‑Yes, that's correct.
PN689
There is no alias, as you've noted, in relation to "engineer". Why is that, in attachment 9?‑‑‑Because that particular engineer - - -
PN690
MR EDMONDS: Sir, on my document - and I'm not sure whether it's just because it's printed out in black and white - anything other than the white columns, they don't have any aliases in them. I can't make out anything for the black ones, as well. I'm not sure if you're in the same - - -
PN691
THE DEPUTY PRESIDENT: I don't have that document, as I indicated earlier.
PN692
MR CASPERSZ: Yes, I take my learned friend's point. The documents have not been produced with terrible clarity.
PN693
Leave that to one side, Mr Paul. I don't think I can take that much further given the documents. Can you perhaps clarify this: you gave your evidence in response to questions by my friend, Mr Edmonds, about these two lists. The number 14 in the list that is attachment 14 as compared with the number 12 in the list essentially that is attachment 15, which list was the last final list in order? The list containing attachment 9 or the list in attachment 15 that you relied on?‑‑‑Are you saying which list was the final list that we relied upon for this vote?
PN694
Yes?‑‑‑For this - - -
PN695
Yes?‑‑‑It was the attachment 14 list. Sorry, 15 list.
PN696
Why did you not, finally, rely on the list which is in attachment 9 which had two more? Why did you not take into account those other two, whoever they were, in attachment 9?‑‑‑I understand that when I perused these two documents, I identified that those employees that weren't included were no longer employed by Broadsword.
*** CLARENCE DESIRE PASCAL PAUL RXN MR CASPERSZ
PN697
Finally, you were asked a number of questions concerning project work. Do you remember that?‑‑‑Yes.
PN698
Around the time of issuing the NERR in August 2014?‑‑‑Yes.
PN699
As far as you were aware at that time, was Broadsword doing any project work?‑‑‑As far as I'm aware, no.
PN700
I have no further questions. Thank you.
THE DEPUTY PRESIDENT: Mr Paul, thank you for your evidence. You're excused.
<THE WITNESS WITHDREW [11.46 AM]
PN702
MR CASPERSZ: Your Honour, subject to a couple of details, that will be the case for the applicant. The details are this: first, I just wanted to make it clear for the Commission and for the other parties - although I think it's probably quite apparent - that the employer will rely of course on the contents of the application, including the statutory declaration and the attachments there. That is information that the employer will ask the Commission to take into account.
PN703
Finally, I believe there is still the confidential one‑page document that is in the witness box, because we had two copies. I'd ask that that be retrieved now and given to my instructing solicitors. Otherwise, your Honour, that is the case for the applicant.
PN704
THE DEPUTY PRESIDENT: Yes. Thank you, Mr Caspersz.
PN705
MR EDMONDS: If I could just say, sir, I have inherited this file at the very last minute. At least one of my witnesses - - -
PN706
THE DEPUTY PRESIDENT: I was going to ask you where Ms Palmer was.
PN707
MR EDMONDS: She has been otherwise - - -
PN708
THE DEPUTY PRESIDENT: Did she give you the file this morning?
*** CLARENCE DESIRE PASCAL PAUL RXN MR CASPERSZ
PN709
MR EDMONDS: Well, shortly before this morning, but not much more than before this morning, sir. I wonder if I might have a short adjournment of perhaps half an hour to get my witnesses organised and to ensure they've got - - -
PN710
THE DEPUTY PRESIDENT: All right. Do you have an order of witnesses or you haven't worked that out?
PN711
MR EDMONDS: To be honest, sir, I haven't figured that out either.
PN712
THE DEPUTY PRESIDENT: All right. Is there any objection to that?
PN713
MR CASPERSZ: No objection whatsoever, your Honour. If it's convenient to adjourn for the luncheon break, we are content with that.
PN714
THE DEPUTY PRESIDENT: You're happy for that, Mr Caspersz - even though we're on the other side of the planet. We will reconvene at quarter past 12 and try and get Mr Gakis out of the way, and then adjourn for lunch.
PN715
MR EDMONDS: Thank you, sir.
SHORT ADJOURNMENT [11.48 AM]
RESUMED [12.20 PM]
PN716
THE DEPUTY PRESIDENT: Yes, Mr Edmonds.
PN717
MR EDMONDS: Thank you, sir. Thank for that time. We filed extensive submissions, certainly grounds of objection and facts asserted in this matter, as well as the objections contained in the F18 we filed in this matter. Unless there were particular questions at the start, sir, I didn't intend to go through those submissions at the moment.
PN718
THE DEPUTY PRESIDENT: No.
PN719
MR EDMONDS: I know my friends are keen to do oral submissions in closing today, sir. I might say I'm not enthusiastic about that proposition, but perhaps I'll address that bit later given - after the evidence comes out from the other witnesses.
PN720
THE DEPUTY PRESIDENT: Yes.
PN721
MR EDMONDS: To that end, sir, we'd seek to call Mr George Gakis to give evidence first.
PN722
THE ASSOCIATE: Please state your full name and address.
MR GAKIS: George Gakis, (address supplied).
<GEORGE GAKIS, SWORN [12.22 PM]
EXAMINATION-IN-CHIEF BY MR EDMONDS [12.22 PM]
PN724
MR EDMONDS: Thank you, Mr Gakis. Can we just have your full name and address for the record, please?‑‑‑George Gakis, (address supplied).
PN725
Your occupation?‑‑‑Organiser of the Maritime Union.
PN726
You've got a witness statement there that's dated 21 August 2015. Is that right?‑‑‑Yes, that's correct.
PN727
If I can just take you to a couple of paragraphs in that statement. If I can take you first to paragraph 14 of that statement. If you'd just read that?‑‑‑Yes.
PN728
Is that the position at this point in time between the MUA and (indistinct)?‑‑‑Yes, that's where we're at still.
PN729
Are you still bargaining?‑‑‑Essentially, yes.
PN730
Have you reach agreement with (indistinct)?‑‑‑Yes.
PN731
Is that agreement going out shortly?‑‑‑It's expected to go out over the next week or so.
PN732
If I can draw your attention to paragraph 18?‑‑‑Yes.
PN733
There is a reference in that to a vote in November of 2014. Is that correct?‑‑‑It was actually October 2014.
*** GEORGE GAKIS XN MR EDMONDS
PN734
Do you want to make that change now?‑‑‑Yes, please.
PN735
Finally, if I can draw your attention to paragraphs 20, 23, 24 and 25 where you call yourself "Mr Gakis". Can you perhaps explain why that has occurred in your statement instead of referring to "I"?‑‑‑Yes, this was drafted initially by an industrial relations officer, Ms Palmer. Initially this statement was not going to be for myself. However, I've taken it on as a witness, yes.
PN736
So you want to change those references, do you?‑‑‑Yes, change it from "George Gakis" to "I".
PN737
Subject to those changes, are you happy with this statement? It's true and accurate?‑‑‑Yes.
PN738
It's a fulsome statement in this matter?‑‑‑Yes.
PN739
Sir, I'd seek to have that tendered as an exhibit.
PN740
THE DEPUTY PRESIDENT: Any objection?
PN741
MR CASPERSZ: No objection, subject to submissions on weight.
THE DEPUTY PRESIDENT: I will mark the witness statement of George Gakis, dated 21 August 2015, comprising 46 paragraphs, together with the annexures marked GG1 through GG9, as exhibit 6.
EXHIBIT #6 WITNESS STATEMENT OF GEORGE GAKIS DATED 21/08/2015 PLUS ANNEXURES GG1 TO GG9
PN743
MR EDMONDS: Thank you, sir. There is nothing further for this witness.
PN744
THE DEPUTY PRESIDENT: Mr Niven, any questions?
PN745
MR NIVEN: No, your Honour. I have no questions.
PN746
THE DEPUTY PRESIDENT: Ms Thompson, any questions?
*** GEORGE GAKIS XN MR EDMONDS
MS THOMPSON: No, your Honour.
CROSS-EXAMINATION BY MR CASPERSZ [12.26 PM]
PN748
MR CASPERSZ: Mr Gakis, have you got your statement in front of you there?‑‑‑Yes.
PN749
I just wanted to direct your attention to paragraph 46 of your statement?‑‑‑Yes.
PN750
My instructions are that as concerns your statement there for the applicant's employees in relation to the leave period that you refer to in your second sentence, it's an off‑swing period. It's not a paid leave period. Do you know that? My instructions are that it's an off‑swing period which is not a paid leave period. Do you know that to be the case?‑‑‑No. I'd say it's a paid leave period.
PN751
But you don't know definitely one way or the other?‑‑‑Well, if they were timed, then they would be paid leave for that time off.
PN752
Can I take you to paragraph 35 of your statement. Were you present at that conference you give evidence about there?‑‑‑Yes.
PN753
In the second sentence you write, "It became clear." Is that to be understood that it became clear you?‑‑‑Yes.
PN754
It's correct that after that conference, the MUA did not pursue the matter of the application for a bargaining order before the Commission?‑‑‑Yes, that would be correct.
PN755
Thank you. No further questions.
PN756
THE DEPUTY PRESIDENT: Any re‑examination, Mr Edmonds?
PN757
MR EDMONDS: No, thank you, sir.
THE DEPUTY PRESIDENT: Mr Gakis, thank you for your evidence. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.28 PM]
*** GEORGE GAKIS XXN MR CASPERSZ
PN759
MR EDMONDS: I know you did say we'd get through the first witness and take a lunch break, but I think we could call Mr Rob Simm, as well.
PN760
THE DEPUTY PRESIDENT: Yes.
PN761
THE ASSOCIATE: Please state your name and address.
MR SIMM: Robert Graham Simm, (address supplied).
<ROBERT GRAHAM SIMM, AFFIRMED [12.29 PM]
EXAMINATION-IN-CHIEF BY MR EDMONDS [12.29 PM]
PN763
MR EDMONDS: Mr Simm, if we could just have your full name and address, please, for the record?‑‑‑Robert Graham Simm, (address supplied).
PN764
You've got a statement there in front of you that runs to some 23 paragraphs?‑‑‑I have.
PN765
With a number of attachments to it. I believe two attachments. Is that correct?‑‑‑Attachment RGS2.
PN766
Attachment RGS1 at the back there?‑‑‑And RGS1. Yes, I do.
PN767
That's your evidence in this matter?‑‑‑It is.
PN768
It's true and accurate?‑‑‑It is.
PN769
I seek to tender that statement, please, sir.
PN770
THE DEPUTY PRESIDENT: Any objection?
PN771
MR CASPERSZ: No objection, subject to submissions once again.
*** ROBERT GRAHAM SIMM XN MR EDMONDS
THE DEPUTY PRESIDENT: I will mark the witness statement of Robert Graham Simm, comprising 23 paragraphs, undated, with two annexures marked RGS1 and RGS2, as exhibit 7.
EXHIBIT #7 UNDATED WITNESS STATEMENT OF ROBERT SIMM PLUS ANNEXURES RGS1 AND RGS2
PN773
MR EDMONDS: No further questions from us. Thank you, sir.
PN774
THE DEPUTY PRESIDENT: Mr Niven?
PN775
MR NIVEN: I have no questions.
PN776
THE DEPUTY PRESIDENT: Ms Thompson?
MS THOMPSON: No, your Honour.
CROSS-EXAMINATION BY MR CASPERSZ [12.31 PM]
PN778
MR CASPERSZ: Mr Simm, have you got your statement in front of you?‑‑‑I have.
PN779
As an example, can I just direct your attention to paragraph 9 of the statement?‑‑‑Yes.
PN780
As I understand it, this is your opinion that's written about in paragraph 9?‑‑‑It is.
PN781
So this is your opinion that the traditional understandings are reflected in the modern award coverage in the maritime industry?‑‑‑It is.
PN782
You list those awards. That is your opinion?‑‑‑Yes.
PN783
The traditional understandings, do I understand that to be the matters set out in point 4 to 8 above?‑‑‑Point 4?
PN784
Yes?‑‑‑It is.
*** ROBERT GRAHAM SIMM XXN MR CASPERSZ
PN785
All those points, except for point 4, are expressed in terms of "generally understood". Is that right?‑‑‑Yes, that's right.
PN786
Generally understood by whom? By yourself?‑‑‑By myself, yes.
PN787
Thank you. I have no further questions.
PN788
THE DEPUTY PRESIDENT: Any re‑examination, Mr Edmonds?
PN789
MR EDMONDS: No, sir. There's nothing further.
THE DEPUTY PRESIDENT: Mr Simm, thank you for your evidence. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [12.33 PM]
PN791
MR EDMONDS: The final statement, sir, was of some controversy because it was filed late in the proceedings. I understand my friends are objecting to it.
PN792
MR CASPERSZ: Perhaps I can be of assistance here, your Honour. Having considered and reviewed the matters traversed this morning, the applicant no longer objects actively, but it will leave it up to the Commission as to whether the Commission will exercise its discretion. Well, it doesn't object nor consent to extension of the directions and admission of the statements, subject of course to submissions.
PN793
THE DEPUTY PRESIDENT: Yes. I'll just need to find that statement.
PN794
MR EDMONDS: Yes, sir. I do have a copy I can hand up to you.
PN795
THE DEPUTY PRESIDENT: Yes.
PN796
MR EDMONDS: It's Kyle McGinn, sir. It's two pages and runs to nine paragraphs, and I believe three attachments.
PN797
THE DEPUTY PRESIDENT: Is Mr McGinn here to give evidence?
*** ROBERT GRAHAM SIMM XXN MR CASPERSZ
PN798
MR EDMONDS: He is, sir.
PN799
THE DEPUTY PRESIDENT: I'll allow you to call him to - - -
PN800
MR EDMONDS: Thank you. I apologise for the lateness of the statements. As you appreciate, some of the issues in this matter have been a moving feast to a certain extent.
PN801
THE ASSOCIATE: Please state your full name and address.
MR McGINN: Kyle Owen McGinn, (address supplied).
<KYLE OWEN MCGINN, AFFIRMED [12.36 PM]
EXAMINATION-IN-CHIEF BY MR EDMONDS [12.36 PM]
PN803
MR EDMONDS: Can we just have your full name and address for the record, Mr McGinn?‑‑‑Kyle Owen McGinn, (address supplied).
PN804
Your occupation?‑‑‑I'm an organiser for the MUA.
PN805
You're based where, sorry?‑‑‑In Karratha.
PN806
There is a statement there with you. That runs to some nine paragraphs and has three attachments to it?‑‑‑Yes.
PN807
Have you been through that statement?‑‑‑Yes.
PN808
That's your evidence in this matter?‑‑‑Yes.
PN809
Thank you, sir. If we can tender that statement, please.
PN810
THE DEPUTY PRESIDENT: Any objection, Mr Caspersz?
PN811
MR CASPERSZ: None, subject to submission once again.
*** KYLE OWEN MCGINN XN MR EDMONDS
THE DEPUTY PRESIDENT: Thank you. I will mark the witness statement of Mr Kyle McGinn, comprising nine paragraphs and is undated, together with the annexures marked KM1 through 3, as exhibit 8.
EXHIBIT #8 UNDATED WITNESS STATEMENT OF KYLE McGINN PLUS ANNEXURES KM1 to KM3
PN813
MR EDMONDS: I don't have anything further, sir. Thank you.
PN814
THE DEPUTY PRESIDENT: Mr Niven?
PN815
MR NIVEN: No, your Honour. I have no questions.
PN816
THE DEPUTY PRESIDENT: Ms Thompson?
PN817
MS THOMPSON: No questions.
PN818
MR CASPERSZ: No cross‑examination. Thank you, your Honour.
THE DEPUTY PRESIDENT: Thank you, Mr McGinn, for your evidence. You're excused.
<THE WITNESS WITHDREW [12.37 PM]
PN820
MR EDMONDS: That's the evidence from the MUA in this matter, sir.
PN821
THE DEPUTY PRESIDENT: Who is going to go next?
PN822
MR NIVEN: Your Honour, perhaps I could in relation to the two statements that I will tender.
PN823
THE DEPUTY PRESIDENT: Just let me find those.
PN824
MR CASPERSZ: By the way of assistance to the Commission and my friend on his supplementary statements, the position of the applicant is the same now in respect of that. Indeed, in respect of the other statement, as well. We'll simply leave it to the Commission - - -
*** KYLE OWEN MCGINN XN MR EDMONDS
PN825
THE DEPUTY PRESIDENT: This is including the absent witness?
PN826
MR CASPERSZ: Yes.
PN827
THE DEPUTY PRESIDENT: All right.
PN828
MR CASPERSZ: Thank you.
PN829
THE DEPUTY PRESIDENT: Yes, Mr Niven?
PN830
MR NIVEN: If your Honour pleases, I'll tender the statement of Steve Valeriani in his absence. It's two pages, 11 paragraphs and has two attachments which I've marked SV1 and SV2.
PN831
THE DEPUTY PRESIDENT: Mr Valeriani is not able to give evidence today?
PN832
MR NIVEN: No. He has had a back issue which has rendered him incapacitated.
PN833
THE DEPUTY PRESIDENT: Mr Caspersz, were you proposing to cross‑examine?
PN834
MR CASPERSZ: No, your Honour.
THE DEPUTY PRESIDENT: All right. I will allow you to tender that witness statement. I will mark the witness statement of Mr Steve Valeriani, comprising 11 paragraphs, dated 7 September 2015, with two annexures marked SV1 and SV2, as exhibit 9.
EXHIBIT #9 WITNESS STATEMENT OF STEVE VALERIANI DATED 07/09/2015 PLUS ANNEXURES SV1 AND SV2
PN836
MR NIVEN: Thank you, your Honour. Also I have a further statement of Paul Arenson that was referred to in our outline, which the applicant has already indicated that they would not seek to cross‑examine him on. I'll hand up that statement.
PN837
THE DEPUTY PRESIDENT: What am I to do with Mr Arenson's statement?
PN838
MR NIVEN: We have referred to this in our outlines.
PN839
THE DEPUTY PRESIDENT: There is some critical information that he doesn't disclose, one of which is whether he was employed at the time. All it tells me is that he didn't receive a notice of employee representational rights. It doesn't tell me that he was employed at the time.
PN840
MR NIVEN: Mr Arenson was on workers compensation.
PN841
THE DEPUTY PRESIDENT: He doesn't say that either.
PN842
MR CASPERSZ: I object.
PN843
THE DEPUTY PRESIDENT: He doesn't say that either.
PN844
MR NIVEN: No. It's his statement.
PN845
THE DEPUTY PRESIDENT: I'll admit it, but I've got to tell you it's of little assistance.
PN846
MR NIVEN: I understand.
THE DEPUTY PRESIDENT: All right. I'll mark the statement of Paul Arenson, dated 20 May 2015, comprising one paragraph, as exhibit 10.
EXHIBIT #10 STATEMENT OF PAUL ARENSON DATED 20/05/2015
PN848
MR NIVEN: Thank you, your Honour.
PN849
THE DEPUTY PRESIDENT: Is that your evidentiary case, Mr Niven?
PN850
MR NIVEN: Yes, it is, your Honour. Nothing further.
PN851
THE DEPUTY PRESIDENT: Ms Thompson, are you proposing to lead any evidence?
PN852
MS THOMPSON: No, your Honour. We'll rely on the submissions later today.
PN853
THE DEPUTY PRESIDENT: All right. Mr Edmonds indicated earlier that he preferred a different course to oral submissions now. Perhaps we might sort that out. I'm assuming you would want to proceed to make oral submissions now?
PN854
MR CASPERSZ: Absolutely, your Honour. I think we discussed right at the start of proceedings this morning the order it should take. I had proposed and understood that my friends had no objection with that order; that the objectors would close first. In my submission, that would be the appropriate thing because it then gives me the opportunity to address anything else that arises. I would move that we continue.
PN855
I understand there might be a certain amount of inconvenience perhaps for Mr Edmonds as he had come into the matter late. I'm certainly not critical of him personally for that, but the fact of the matter is that the matter has been listed for a long time. Directions have been made. The parties have been aware of it for a long time. In my submission, nothing new has arisen today and the statements of the applicants have been there for a long time, and we should proceed, particularly given the length of time that this matter has taken.
PN856
The applicant, in my submission, is entitled to the benefit of a decision from the Commission as soon as possible. Written submissions will take longer. Further, there is a real cost, your Honour, for written submissions, as I'm sure your Honour would be aware of, particularly in a jurisdiction such as this where the costs thrown away can't be recovered of any adjournment now and any further costs of writing submissions will not be able to be recovered. For all those reasons, I will move that we proceed as normal.
PN857
THE DEPUTY PRESIDENT: Mr Edmonds?
PN858
MR EDMONDS: Sir, if I could just simply say I have come to this matter late. I really only came into it very late last week due to a problem that arose in our office with a different matter. I can do my best to muddle through, but I'm certainly not in a position to give fulsome submissions today. We don't have any objections to going first, but with the benefit of some time and the benefit of transcript, we can provide some better submissions and be of better assistance to the Commission.
PN859
I would observe I didn't object to by friends appearing here and certainly one of the reasons why they sought leave to appear was on the basis that it was a complex and novel matter, and on that basis we think that it's simply not fair to make us proceed on oral submissions today in circumstances where it is novel and it is complex.
PN860
THE DEPUTY PRESIDENT: Although, Mr Edmonds, the reason I set the matter down today and the reason we started at 9 o'clock was to finalise the matter today. I indicated at the time I was listing this matter that my availability was somewhat precarious and I indicated at the time that we would sit until we finished. The MUA was on notice about that. Look, I appreciate your particular circumstances, but no notice of the difficulty was given either until this morning.
PN861
MR EDMONDS: No. I appreciate that, sir. I guess I'm in your hands if you wish to - - -
PN862
THE DEPUTY PRESIDENT: Would my adjourning this matter to 3.00 or 3.30 assist you?
PN863
MR EDMONDS: I would think, sir, simply if we come back at 2.00, that would be sufficient time. I won't take too long.
PN864
THE DEPUTY PRESIDENT: I'm offering additional time, but - - -
PN865
MR EDMONDS: No, it's fine, sir. 2 o'clock is fine.
PN866
THE DEPUTY PRESIDENT: All right. We will adjourn until 2 pm. Thank you.
LUNCHEON ADJOURNMENT [12.48 PM]
RESUMED [2.04 PM]
PN867
THE DEPUTY PRESIDENT: Yes, Mr Edmonds.
PN868
MR EDMONDS: Yes, sir; thank you, sir. I presume that after the applicant has their chance there will be no further chance for the respondents in these matters?
PN869
THE DEPUTY PRESIDENT: I'm sorry?
PN870
MR EDMONDS: I presume that - sorry. I presume that after our submissions the applicant goes and then that's it; there's no further opportunity for us?
PN871
THE DEPUTY PRESIDENT: Well, unless there's something that arises.
PN872
MR EDMONDS: In that case, sir, I do have some pressing matters to deal with after - - -
PN873
THE DEPUTY PRESIDENT: You want to be excused?
PN874
MR EDMONDS: Yes, if it's possible I can be excused?
PN875
THE DEPUTY PRESIDENT: You want to watch the Sky News breaking news?
PN876
MR EDMONDS: There is some matters I need to deal with that are personal in that regard, yes.
PN877
THE DEPUTY PRESIDENT: Fine.
PN878
MR EDMONDS: Sir, the - - -
PN879
THE DEPUTY PRESIDENT: Mr Niven will look after your interests.
PN880
MR EDMONDS: Yes, I'm sure he will. The MUA filed submissions in this matter on 7 September, which was amended submissions.
PN881
THE DEPUTY PRESIDENT: Yes, I have those.
PN882
MR EDMONDS: We rely upon them. But there is some further matters that I'd seek to raise.
PN883
THE DEPUTY PRESIDENT: Yes.
PN884
MR EDMONDS: In relation to our first submission about the things not supplied to the employees voting, in particular the job descriptions, the policies and procedures of the companies found at clauses 25.1, clause 26.4 and clause 28. There is also the smoke-free workplace policy found at clause 27 of the agreement. It's clear from the evidence that that material was certainly not supplied, so the only question is whether that material is incorporated into the agreement simply by operation of the agreement itself and we say that it is and that material should have been supplied and that it wasn't and that offends the provisions of section 182 of the Act.
PN885
For that reason, the agreement is not validly approved. Further, we say section 180(2) and (3) have not been complied with as well.
PN886
THE DEPUTY PRESIDENT: The 180(2) in relation to other material incorporated - - -
PN887
MR EDMONDS: Yes.
PN888
THE DEPUTY PRESIDENT: - - the requirement is not an absolute one. The requirement is that the employer take all reasonable steps to insure.
PN889
MR EDMONDS: Yes, but there were no steps taken and there is no evidence of any steps taken to incorporate that material.
PN890
THE DEPUTY PRESIDENT: In relation to the smoke-free workplaces presumably it was a smoke-free workplace before the agreement (indistinct) the agreement. So nonetheless, it's not reasonable for the employer to simply rely on the fact that they already had the policy, it's been in operation and not offered by the employer with a copy of it, obviously.
PN891
MR EDMONDS: Well, that may well be the case. I don't know because there was no evidence led on that point. Presumably if that was the explanation evidence would have been led on that point. The applicant has experienced lawyers acting for them. There was simply no evidence led whatsoever. That point was front-and-centre, has been in our submissions and our objections right from the start. Presumably, if the explanation was that simple, it would have been provided. But it hasn't been and there is no evidence of those policies being accessible. There is evidence at all. So on that basis we would say that the agreement fails on that point at the first hurdle.
PN892
THE DEPUTY PRESIDENT: Assuming that the relevant documents are incorporated?
PN893
MR EDMONDS: Yes. In relation to compliance with sections 180(2) and (3), we say that what has transpired today is - you simply can't be satisfied that employees who would be covered by the agreement were given a copy of the agreement and notified of the vote to take place as well. There is no proper explanation of how a list of employees was compiled. There is no proper identification of those employees. There is no proper analysis of why there were 14 employees on the list of 23 April 2015. The material referred to at the meetings of the 21st and 22 April talk about 11 or 12 employees. A list is produced on 23 April which incorporates 14 employees' names.
PN894
There is a further list produced on 23 April incorporating 12 employees' names. There is no explanation for why there is two lists produced on that day, other than to say that two of the employees were no longer employed by Broadsword although it was conceded on cross-examination that they could have worked the day before the vote or they could have worked the day after the vote. We say that even if that is the explanation for them not being on the list, they should have been given an opportunity to vote for the agreement as well. What that demonstrates is that there is a broader problem about the compilation of the list of these employees.
PN895
There is a great many employees, we're told, or the possibility of a great many employees who could have been employed between 1 August 2014 and 1 May 2015 but there is no proper analysis of who was not included on that list. We sought that information by discovery and it was fiercely resisted by the applicant in this matter. They didn't want to produce that evidence and that material to us.
PN896
MR NIVEN: Well, I object to that characterisation.
PN897
THE DEPUTY PRESIDENT: I'm aware of the history. It is a slight exaggeration. My recollection of it was that the employer was going to provide some further material and the MUA was going to reformulate its list and it never did - to make a further application. So I'm not sure that's fair to say that they hotly contested it and they certainly were opposed to providing documents which fell within the original request but indicated they would provide their own materials and then you could, if you wish, reframe the request, which never happened.
PN898
MR EDMONDS: Indeed. I apologise for that, sir. I withdraw that comment. But it's certainly clear to us and indeed, it's incumbent upon the applicant to demonstrate that all of the employees who are to be covered by the agreement had a chance to vote when notified of the vote and were given a copy of the agreement itself before they voted. We say they simply haven't proved that point at all; they haven't demonstrated that point at all.
PN899
THE DEPUTY PRESIDENT: The evidence of Mr Paul is that if he was given a list which had 14 names on it - - -
PN900
MR EDMONDS: Yes.
PN901
THE DEPUTY PRESIDENT: - - he reviewed that list and the list was - a further list was prepared with 12 names on it. Two people were removed from the list because they were not employees. That was his evidence.
PN902
MR EDMONDS: The two employees were taken off because they weren't employed at the time but on cross-examination he conceded they could have worked the day before or the day after the vote took place on 1 May.
PN903
THE DEPUTY PRESIDENT: Well, if I properly understood his concession was that he didn't know.
PN904
MR EDMONDS: Yes.
PN905
THE DEPUTY PRESIDENT: He could have - it was in the speculative sense.
PN906
MR EDMONDS: Yes. Well, the fact is it's incumbent upon the applicant to demonstrate those points. It's not incumbent upon us to demonstrate that there was someone that worked the day before or the day after. The fact is the evidence led in this matter was simply - he was given a list of employees, he assumed it was correct. He went through that list that he had and took off two on the basis he didn't think they were employees but he couldn't identify which two were taken off. He couldn't identify why they weren't considered to be employees any more. He didn't indicate when they ceased to be employees because clearly they were still on the payroll when that list was produced.
PN907
MR NIVEN: There's no evidence of that at all, in my submission.
PN908
MR EDMONDS: Well, the sworn evidence from Mr Matthews and Mr Paul was that the list provided to them at attachment 9 of Mr Paul's statement as prepared and provided was accurate. That was their evidence, that that list of employees was accurate; that it was correct. That was the only email sent by Mr Matthews to Mr Paul on that day. That was Mr Paul's evidence. That was the only list of employees sent on that day and that that list was accurate; it was correct.
PN909
THE DEPUTY PRESIDENT: What do you say, Mr Edmonds, flows from all of that? Let's assume 14 employees should have been given a vote.
PN910
MR EDMONDS: Yes.
PN911
THE DEPUTY PRESIDENT: 12 were - what flows from that?
PN912
MR EDMONDS: If 14 employees should have been given a vote and only seven did - sorry, and only 12 were given a vote, only seven employees voted to approve the agreement so (1) you don't have a majority of employees, (2) the applicant can't demonstrate they took all reasonable steps to give employees a copy of the agreement and notice of the vote to take place. The reason why they can't demonstrate that is because at least two employees didn't get any information at all. In addition to those two employees, there is no evidence of employees J, K, M and N ever being given an explanation of the vote - sorry, of the agreement itself.
PN913
There were messages left for them but there was no contact with them. They were never taken through the agreement itself. That's found at attachment 15. Did they take all reasonable steps in relation to those employees: J, K, M and N? We'd say no. Further, there is another two employees, so potentially six out of 14 that received no real assistance or explanation about the agreement itself. The burden is on the employer to establish that they took all reasonable steps and simply put, they haven't done that. They can't do that and they haven't done that and they've been on notice about our objections and they still can't produce the evidence.
PN914
Indeed, the evidence of Mr Paul established very little at all. He didn't know much about what was going on at all. Simply put, the evidence of Mr Paul was that he was supplied a list of 14 names which he whittled down to 12 but he couldn't identify which two had been taken off. He didn't make any inquiries as to whether there were any other employees that should have been given a chance to vote that weren't given a chance. He conceded there were casual employees that possibly didn't get a vote because they didn't work on that day and they may have been on off-swing and indeed, the criteria they put around it was they had to be working on that day to get a vote. We say that's not what the law says. That was what was explained to employees - - -
PN915
MR NIVEN: I'm sorry to rise again but my recollection of Mr Paul's evidence on that point was that was in relation to the second vote, not in relation to the vote for this agreement before the Commission today and in fact, my submission will be when I come to that that the bulk of his evidence is not challenged.
PN916
MR EDMONDS: That is simply not the case at all. If you look at attachment 12 to the statement of Mr Paul, page 43 of his statement at point 16:
PN917
Everyone will have a chance to vote on the agreement. However, some of their votes may not count if they are not working on the day of the vote.
PN918
Now, it's not up to us to challenge it. That's his evidence; that was what was explained to the employees at these particular meetings. We accept that's what they did. We accept that not everybody got their chance to vote. We accept that there were casual employees that didn't get a chance to vote. It's not up to me to challenge it. That's their evidence. I asked Mr Paul about that and he said yes, there were employees that potentially didn't get a chance to vote and that's in relation to that vote. It's in relation to this vote.
PN919
THE DEPUTY PRESIDENT: In what circumstances do you say that the casual employees were entitled to a vote if they were not working on that day or during the access period?
PN920
MR EDMONDS: Well, if they worked the day before or the day after they would be entitled to a vote. If they ordinarily expected to work and would be covered by the agreement they're entitled to a vote. If they're on an off swing and were being paid leave at the time, they're entitled to a vote. Now, it isn't incumbent upon us to demonstrate that there were casual employees in that group. It's incumbent upon the applicant to demonstrate that there weren't casual employees in that group. They've been on notice about our objections. Their own evidence says that they've explained to employees that if you're not working on that day, you won't get a vote.
PN921
Sorry: all employees will get a chance to vote but if you're not working on that day your vote won't count. That's their evidence. It's incumbent upon them to demonstrate that all employees got a chance to vote. Simply put on their own evidence they can't demonstrate that.
PN922
THE DEPUTY PRESIDENT: Your submission about casuals, is that consistent with the court's decision in NTEU v Swinburne?
PN923
MR EDMONDS: I beg your pardon, sir?
PN924
THE DEPUTY PRESIDENT: Your submission about casual employees usually being employed, is that consistent with the decision of the full Federal Court in NTEU v Swinburne?
PN925
MR EDMONDS: Well, we would say about that, sir, that the situation in the maritime industry is slightly different to that in other industries, insofar as the majority of these employees concerned were casuals and there is evidence that they work - - -
PN926
THE DEPUTY PRESIDENT: As were the majority of employees in the Swinburne case.
PN927
MR EDMONDS: Yes. Yes, but the employees in the maritime industry work these swings of four weeks on and four weeks off, or five weeks on and five weeks off, and are paid in their off-swing as well; that was the evidence. So to that extent they continue to be employees, even though they're in their off-swing, in our submission. So even if they are not working at the time the vote is taking place they are still employees, there's still an expectation that they will return. Because they're working alternate swings on these vessels there's an expectation that they will be coming back, they will be covered by the agreement.
PN928
The approval of the agreement shouldn't depend upon the whim of half of the workforce voting at the time - sorry, who are working on the day the vote takes place, as opposed to the other half who are on the off-swing at that time.
PN929
THE DEPUTY PRESIDENT: When you say they are on paid leave what paid leave are casuals - - -
PN930
MR EDMONDS: Sorry, it isn't correct to say paid leave, they're on their off-swing and they get paid - - -
PN931
THE DEPUTY PRESIDENT: But isn't the proper legal analysis that casual employees employment comes to an end at the end of each period of engagement?
PN932
MR EDMONDS: Well, what we would say is that that analysis is not a correct analysis for the maritime industry. There's an expectation of ongoing employment, and indeed there is evidence of ongoing employment, their engagement doesn't come to an end at the end of each on-swing. The strict common law position in relation to casual employees doesn't translate over into the maritime industry, in our submission.
PN933
THE DEPUTY PRESIDENT: On what basis do you say that that's the case?
PN934
MR EDMONDS: On the basis of the evidence - sorry, on the cross-examination of Mr Paul in relation to how the swings operate in the maritime industry, how the employees work on alternate swings.
PN935
THE DEPUTY PRESIDENT: But each time they work they work as a casual.
PN936
MR EDMONDS: Yes, but the industry is predominantly casual.
PN937
THE DEPUTY PRESIDENT: In order for your argument to be made (indistinct) you have to show that those employees were employed at the time, not having an expectation of employment in the future.
PN938
MR EDMONDS: Yes, but the concept of employees is not just someone who is working on that day, employee at the time is someone who is an employee - - -
PN939
THE DEPUTY PRESIDENT: He had an employment relationship at - - -
PN940
MR EDMONDS: Yes, and someone who is on an off-swing and is being paid on their off-swing is an employee at the time, notwithstanding they're not performing duties on that particular day.
PN941
In any event we say a significant portion of the employees, in particular J, K, M and N had no explanation of the agreement itself, the terms weren't explained to them and there is no evidence that they were. Further we say that the agreement itself in relation to clauses 12 and 15.4 of the agreement were explained wrongly. It was misleading and incorrect information.
PN942
We have cited the CFMEU v CSR case in that regard, but there is some more up to date authorities if I am correct and perhaps if I could draw your attention to The Central Queensland Services [2015] FWC 1554 at paragraphs 62 to 74, and Centre for Nonviolence Inc Enterprise Bargaining Agreement 2015 to 2018 [2015] FWCA 4196 at paragraphs 61 to 65, and they set a lower bar, in our opinion, than the cases in our submissions set in relation to the misleading nature of the terms of the agreements themselves.
PN943
In relation to the NERR forms the NERRs were distributed on 1 August of 2014 to six employees. An agreement was made on 20 October of 2014. The application to approve that agreement was withdrawn, but we say at that point the new forms had to go out because the process finishes when that agreement is made. It doesn't matter if it's registered or not registered the NERRs had to be reissued after that point for a new agreement, because an agreement had been made. That's when bargaining comes to an end. So it's not relevant that the agreement itself wasn't registered if effectively after that point a new bargaining commenced. In any event there were only two employees employed on 1 May of 2015 who received one of those notices on 1 August of 2014, and we simply put it is not satisfactory in circumstances that only two employees out of the 12 or the 14 to be covered by the new agreement got a chance to actually get a NERR. It should have been reissued after the agreement in October of 2014.
PN944
THE DEPUTY PRESIDENT: I understand your submission on this.
PN945
MR EDMONDS: Yes.
PN946
THE DEPUTY PRESIDENT: The statute doesn't contemplate periods of bargaining beginning and bargaining ending as the old statute used to and you had bargaining periods (indistinct).
PN947
MR EDMONDS: Except the concept of the bargaining concludes at the point the agreement is made or the point the agreement is approved, which is the concept the Act envisages.
PN948
THE DEPUTY PRESIDENT: It also contemplates effectively that a bargaining notice be given to employees that are employed at the particular time when the employer wishes to, or initiates bargaining or agrees to bargain, and (indistinct) of that period and the bargaining might proceed for two years and the entirety of the workforce might have changed. There's no requirement to give an additional bargaining - a notice of employer representation (indistinct).
PN949
MR EDMONDS: Yes, but - - -
PN950
THE DEPUTY PRESIDENT: If the employer wants to (indistinct) a party is pursuing a particular agreement.
PN951
MR EDMONDS: Sure, and that would be true if an agreement wasn't reached inside that two year period. If an agreement was reached and approved inside that two year period the application was made to the Fair Work Commission, the agreement then wasn't approved or accepted by the Fair Work Commission, in our submission the bargaining then needs to restart at that point, and that's the intervening event that means that you need to restart that process again, which is different from being in a continuous state of bargaining for two years.
PN952
THE DEPUTY PRESIDENT: Where do I find that in the statute?
PN953
MR EDMONDS: I am not sure if there is an exact authority on that point, or there's no authority on that point at all, and perhaps if I might - if I could draw your attention to the submissions of the applicant made on 25 June 2015 at paragraph 37 of their submissions, which is that the bargaining for the BMC concluded upon it being made. They are not talking about that first agreement of course, they're talking about the second, but we would agree with the point that bargaining concludes upon the agreement being made, and the conclusion of bargaining is not contention upon that agreement subsequently by the Fair Work Commission.
PN954
THE DEPUTY PRESIDENT: (Indistinct) might being a bit much a sentence. All that is being suggested is that bargaining for the BMC Agreement concluded on that day. That's a different point all together about - - -
PN955
MR EDMONDS: Yes.
PN956
THE DEPUTY PRESIDENT: Let's assume for a moment that I were to not approve this agreement, but Broadsword still wants an agreement and still wants it in the terms of its original notice of employer representation (indistinct), do you say that they would need to issue a new employee (indistinct)?
PN957
MR EDMONDS: I believe so, sir, that would be my submission. It's not contingent upon what the Fair Work Commission does with the agreement, it's contingent upon the agreement being concluded by way of the approval.
PN958
THE DEPUTY PRESIDENT: I understand the submission.
PN959
MR EDMONDS: I don't wish to dwell on the submissions we make from paragraphs 11 to 23 other than to say - sorry, to 22 rather - other than to say that the burden in this regard in relation to the compliance with the Act is a burden that falls on the applicant, not on the respondent. We don't have to demonstrate there is non-compliance, they have to demonstrate that there is compliance with the provisions of the Act, and our submission is that they simply haven't done that. Their evidence does not go high enough to do that.
PN960
In relation to the essential terms of the agreement, pay and rosters and salary increases, the explanation that they have given to employees is inconsistent with the ordinary and plain meaning of the words found in the agreement itself. There is no common understanding of a number of the clauses they refer to or the phrases they use like "major projects". The capacity, that they effectively retain the capacity to contract out of the agreement at their discretion means the agreement can't be genuinely approved, or agreed rather.
PN961
THE DEPUTY PRESIDENT: Is that really the effect of clause 12?
PN962
MR EDMONDS: That's the effect of clause 12 and the effect, in our submission, of clause 15 which deals with the rosters themselves. The explanation given to employees in relation to the operation of clause 12 project rates is that it provided for an uplift on projects.
PN963
Now you don't need a clause in an agreement to enable you to pay employees more, you can just simply pay them more. All you're doing is proposing an uplift in rates. It doesn't set a maximum rate as a matter of law, it sets a minimum rate as a matter of law, so there's no need to have a clause which provides for the employer to uplift the rates. The only reason why this clause needs to be in there is to allow the employer to contract out of some or all of the terms of the enterprise agreement, provided that - and this is found at clause 12.3.3 - overall and not on a cherry picking basis, on a holistic measure of entitlements the employees are not paid less than the entitlements prescribed under this agreement. That's the only guarantee that is given in relation to that.
PN964
However the company may provide for varied terms and conditions of employment for employees working on major projects. That's at clause 12.2. That means some of these provisions may go down, some of them may go up, but overall i.e. not on a cherry picking basis you will be paid more - sorry, you are paid not less than the entitlements prescribed under this agreement. Paid not less, that doesn't mean you won't work more, it doesn't mean that you won't get rest meal and rest breaks, it doesn't mean that you won't work a longer roster. Indeed the roster arrangements provided for in the agreement say that they will vary from project to project. Flexibility and roster arrangements is required in order to meet the operation on project requirements.
PN965
So overall as long as you are not paid more we can vary each and every other condition of this agreement, everything. How can you genuinely approve an agreement - - -
PN966
THE DEPUTY PRESIDENT: Clause 13 operates independently to clause 12. If clause 12 weren't there clause 13 would have the same effect.
PN967
MR EDMONDS: Sorry?
PN968
THE DEPUTY PRESIDENT: If clause 12 were not there clause 13 would have the same effect.
PN969
MR EDMONDS: Yes.
PN970
THE DEPUTY PRESIDENT: So it operates independently from clause 12.
PN971
MR EDMONDS: Yes, but - - -
PN972
THE DEPUTY PRESIDENT: So how does that make good your argument about clause 12 having the effect you say it has?
PN973
MR EDMONDS: Well, the effect - - -
PN974
THE DEPUTY PRESIDENT: Rosters can change in accordance with the roster terms. If clause 12 weren't there the roster could change in the manner prescribed.
PN975
MR EDMONDS: Yes, which means you could get paid less overall - sorry, you could work more overall for the same pay. So effectively your hourly rate or your piece rate would go down, but your overall pay would stay the same. Now it doesn't say anything about having to maintain an even time roster.
PN976
Clause 13 is as offensive as clause 12, but if you read them together it provides a mechanism for the employer to simply contract out of almost each and every part of the enterprise agreement; your classifications, your rates of pay, your meal and rest breaks, your training arrangements, occupational health and safety, travel and accommodation, everything else that's provided for could be contracted out of simply by operation of clauses 12 and 13 read together, or indeed even read separately you could almost achieve that same effect.
PN977
In relation to the LANPAN 29 there's submissions from us in relation to that, the amended submissions at paragraphs 24 and 25. The evidence was clear on that, the agreement was pushed through at that particular time in order (indistinct) an agreement was in place before the LANPAN employees were brought on board, and in our submission that's contrary to the policy and purpose of the Act itself and consistent with section 188(c) of the Act it's a consideration in relation to whether this agreement should be approved or whether employees have agreed to this agreement in a genuine way.
PN978
In relation to 186(2)(c) the terms of the agreement contravene section 55, our submissions are there from paragraphs 26 to 31. I note the response in the submissions of the applicant in relation to the operation of 107(2)(a) of the Act where they made the point in their submissions that they were talking about personal leave, they weren't talking about carer's leave. Of course the provisions of the Act found at sub-division (d), in particular 107(2)(a), apply to the entire of division 7, they don't just apply to the parental leave provision itself - sorry, the carer's leave provision - they also apply to personal leave, carer's leave and compassionate leave. So to that extent the terms of the agreement do offend the provisions of 107(2)(a) in relation to personal leave.
PN979
To move on to the operation of section 186(2)(d) Mr Paul conceded in his evidence that the performance of rig shifts was work that fell within the provisions of the offshore oil and gas industry, and you will find that rig shifts forms part of the work that the employer purports to cover under the terms of this enterprise agreement. I was grateful to my friend Mr Niven for that question and for that concession from Mr Paul.
PN980
To that extent even though it's only a small part of the work to be undertaken - sorry, sir, the reference to rig shifts was found at clause 11.3 of the agreement - the cross-examination of Mr Paul he agreed that rig shift work was covered by the offshore oil and gas industry, so the Offshore Oil and Gas Award would relevantly apply.
PN981
There is no overall comparison of this agreement to the Offshore Oil and Gas Award, so for that reason the Commission can't be satisfied that this agreement passes the BOOT because there has been no valid comparison to the Maritime Offshore Oil and Gas Award. In our submission it wouldn't pass the BOOT compared to the Maritime Offshore Oil and Gas Award. It doesn't matter that the majority of work would not be covered by the award, if some of the work would be covered by that award you would need to pass the BOOT in relation to that award as well.
PN982
THE DEPUTY PRESIDENT: (Indistinct) an employee or prospective employee covered by that award rather than work.
PN983
MR EDMONDS: Yes. If an employee was performing rig shifts then we say that in those circumstances they would be covered - - -
PN984
THE DEPUTY PRESIDENT: I understand.
PN985
MR EDMONDS: So in the absence of that comparison - - -
PN986
THE DEPUTY PRESIDENT: In what respect do you say this agreement would not pass the Better Off Overall test, vis- -vis the Offshore Award?
PN987
MR EDMONDS: From what I understand, and I haven't done the comparison myself, from what I understand the rates at the very least for the Masters are less than what's contained in the Maritime Offshore Oil and Gas Award. However I haven't had an opportunity to do a comprehensive analysis as against the Maritime Offshore Oil and Gas Award. Of course it's not incumbent upon me to demonstrate that, it's incumbent upon the applicant to demonstrate that it would pass the BOOT in comparison to the Maritime Offshore Oil and Gas Award and they have simply produced no evidence in this regard.
PN988
They were on notice from our submissions that they ought to produce evidence in this regard and they have chosen not to do so. On that basis they do so at their own risk, then it should have brought that evidence.
PN989
Finally, in relation to the question of fairly chosen there has simply been no evidence led by the applicant to demonstrate the group of employees covered by this agreement was fairly chosen. They have chosen instead, it appears to me at the very least, to refer to the Form F17 employees statutory declaration on this point, because there is no separate evidence in this regard, and simply what they say at point 2.2 of the agreement it's almost this circular argument that says it's fairly chosen because the employees covered by this agreement will be covered by this agreement. That appears to be the thrust of the statutory declaration in what they say at 2.2 is that the group of employees chosen are fairly chosen because they will be working inside 24 nautical miles of the coast except for work in or in connection with the dredging industry.
PN990
The employer has been on notice for some time, have had our witness statements for some time about the traditional nature of coverage in the maritime industry, the traditional coverage between the offshore oil and gas industry, the marine towage industry, the ports harbours and enclosed vessels industry and how they all work together, and they have chosen to lead no evidence on this point whatsoever. It is incumbent upon the applicant to demonstrate those group of employees were fairly chosen. It's not incumbent upon us to demonstrate that they were not. However we have led evidence on this point anyway, and in our submission there is not sufficient evidence in front of you for you to determine that the group of employees was fairly chosen. Unless you had any further questions, sir, the submissions that we filed on 7 September they are the things that essentially form part of our submissions, and that's the submissions of the MUA.
PN991
THE DEPUTY PRESIDENT: Mr Edmonds, do you maintain the submission that's made (indistinct)?
PN992
MR EDMONDS: I believe we do, sir, although that can be cured by way of - - -
PN993
THE DEPUTY PRESIDENT: Well, the submission (indistinct) only allows for (indistinct) employees covered by the agreement (indistinct) procedure, and step 2 of the procedure says it will be referred to discussion between the employee and their nominated representative. Step 3 says it will be referred to discussion between employees and their nominated representative. I am not completely sure what point you are making.
PN994
MR EDMONDS: Well, if that's sufficient for your purposes - - -
PN995
THE DEPUTY PRESIDENT: I am asking you, you say that it's confined to - representation is confined to step 4. As I read it - - -
PN996
MR EDMONDS: It would appear that it's possibly allowed for in step 2 and 3 as well, sir.
PN997
THE DEPUTY PRESIDENT: I suppose the second part of that proposition which is that 186(6) requires (indistinct) a right of representation through all parts of the procedure. That's the submission that's made. (Indistinct) procedure does not comply with (indistinct) because it only allows for representation (indistinct) step 4 and not for all purpose of the procedure. That's the submission then?
PN998
MR EDMONDS: Yes.
PN999
THE DEPUTY PRESIDENT: My only point is that subsection (6) requires that I have got to be satisfied that it includes a term that provides a procedure which requires or allows the Commission or another person to deal with disputes, and subsection (b) says and allows for representation of employees covered by the agreement for the purposes of that procedure; that is a procedure that requires the Commission to deal with it. So on one view representation (indistinct) is only required for the purposes of that much of the procedure as comes before the Commission and not otherwise.
PN1000
MR EDMONDS: That's not (indistinct), but - - -
PN1001
THE DEPUTY PRESIDENT: No, I am just putting that to you, but in any event your principal position, or you accept that other parts of the procedure is to encompass employee representation.
PN1002
MR EDMONDS: Yes. Thank you.
PN1003
THE DEPUTY PRESIDENT: Thank you, Mr Edmonds.
PN1004
MR EDMONDS: Thank you, sir.
PN1005
THE DEPUTY PRESIDENT: Mr Niven?
PN1006
MR NIVEN: Thank you, your Honour. AMPI will rely on the written submissions that were made on 8 September 2015. The major part that we see as detrimental to the application for the approval of this agreement is in relation to the award or the industry that the agreement is attempting to cover.
PN1007
We have heard evidence today in relation to the offshore oil and gas industry. We have heard Mr Paul refer to the fact that a rig shift is offshore oil and gas industry work. Our submission also at 3.8 of our submission we refer to the agreement that was put out for a vote in the matter AG20149610, and when this agreement was put out for the vote on that occasion they say that the application was discontinued because of a technical matter which we heard this morning applied to the voting mechanism, but when they filed that application the Offshore Oil and Gas Award was distributed to the employees who were going to vote on the agreement, and they acknowledged in their response to the statement of facts in relation to - when these matters were being dealt with they conceded that it was possible that at some time the work would be covered by the Maritime Offshore Oil and Gas Award, and in particular they noted that the Ports Award would cover the employees and the applicant in relation to those employees to the extent that they were performing work in the ports harbours and enclosed water vessels industry, and that the Maritime Award which stated as being the Maritime Offshore Oil and Gas Award will cover employees to the extent that they perform work outside the ports harbours and enclosed water vessels industry that falls within the classifications at clause 13, clause 4 of the Maritime Offshore Gas Award.
PN1008
We say that this agreement, there is a connection to the offshore oil and gas industry. It has been made clear in the agreement in relation to the ability to do rig shifts. It's clear from the submissions in relation to the work of the LANPAN 29. The work that the LANPAN 29 is doing clearly falls, we would say, within the realm of in or in connection with the offshore oil and gas industry. The Offshore Oil and Gas Award if it did apply overrides the application or the operation of the Ports and Harbours Award.
PN1009
The Ports and Harbours Award is an award that is designed to apply to work wholly or substantially within a port harbour or other body of water. It was not envisaged that it would be extended out to 24 nautical miles beyond the coast. That work is clearly work that is performed at sea. The Offshore Oil and Gas Award defines that sea as being any work - it means being outside the limits of a harbour of a port, and that it's clear that the LANPAN 29 is doing that kind of work, it is towing barges between two points. It is not a port to port award.
PN1010
The Ports and Harbours Award is work within or substantially within a port, not between ports. I think it's quite obvious that for vessels and boats and ships at some point they will always be going from port to port. It's the work and it's the voyage that they do in between that is the relevant consideration.
PN1011
We support the submissions made by the MUA. We continue to rely on our written submission of 8 September, and unless there's any questions I will rely on that as our submission.
PN1012
THE DEPUTY PRESIDENT: Yes, thank you, Mr Niven.
PN1013
MR NIVEN: Thank you.
PN1014
THE DEPUTY PRESIDENT: Ms Thompson?
PN1015
MS THOMPSON: Thank you, your Honour. With all due respects to Commissioner Cloghan I have serious doubts whether he had the authority to discontinue the matter back in January. Section 185 of the Act doesn't seem to provide the option to pull an agreement. A valid majority made the agreement. It was then put to the Commission, and then because we had some issues with it and we had a hearing of it, and then the applicant did the notice of discontinuance, but I don't see how that could actually be legal because section 185 just doesn't contemplate, section 185 says if a majority has voted for it, made the agreement is the term the Act refers to in section 182 and 181, if the agreement has been made the applicant has 14 days to put it towards the Commission.
PN1016
So then the question is if that agreement is made then that one stands. If that is not made then does the discontinuance notice also apply to the representational rights and then do we start from scratch again, and that seems to be the question that needs to be answered, because there doesn't seem to be - I have searched everywhere, there doesn't seem to be anywhere that there's legal precedence on this issue about making agreements. So to me the issue is whether if the discontinuance was correct in January does that also apply to the representational rights, and we start again, or if the discontinuance was an error by Cogan C in accepting that, then does the agreement that applied that was voted in October which provided 3 per cent annual wage increases, is that the agreement that applies today?
PN1017
That's what I make about that issue. My second part is that I am totally confused about these numbers and who they how many we've got. At the start of today's proceeding we had eight eight (indistinct) is 16 people. That was confirmed, there were 16 people. We then got lists of 14 people. We then got a list of 12 people. It seems to me that there was only, from the evidence that's been provided today, there's only been two people who voted on this agreement who actually were on the representation rights issued in August 1, last year. If that's the case, I don't think that's the spirit of the Act and there should be given great weight to their lack of compliance to the bargaining requirements of the Act.
PN1018
And my next question is, I don't even think I think it's got to be at least 16 people, because the vessels that they're covering, today they've identified the Ms F, the Adrenalin Spirit, the Iona M, the Fiona, the Alkira and the LANPAN 29, seven vessels. At the very least, they would have two people on each vessel at any one time, and I'm sure the LANPAN's got four on it, in actual fact, but at the very least, there would be a master and deckhand on these vessels. Then there would be so that's 14 people on board.
PN1019
And as we have tried to explain the leave system today, for every person basically it runs on a two crew system so for every time there's one person on board a vessel, there's one person on paid leave at home. So I just think there's got to be at least 28 people that should have had the potential to be voted on. And the applicant hasn't been able to demonstrate how those people were fairly chosen. That's all I have to say. Thank you.
PN1020
THE DEPUTY PRESIDENT: Yes, all right. Thank you, Ms Thompson. Mr Caspersz?
PN1021
MR CASPERSZ: Thank you, your Honour. Your Honour, the applicant relies on the contentions, outline of submissions and outline of submissions in reply, that it has already filed. In closing, I don't intend to therefore repeat those submissions, except to the extent that I wish to focus on and, by way of assistance to the Commission, hopefully try and amplify and illustrate those submissions by going to one or two cases, including Swinburne, which in my submission is an important case in this jurisdiction in relation to a few of the issues that arise for you to consider.
PN1022
In case of background, what I wish to do, subject to direction by you, is to briefly go to the provisions that you must take into account, discuss or make some submissions in relation to what they mean and how they should be approached. Look at particular matters such as the vote and the contentions that have been made by the objectors in relation to that. To then to address the other issues that arise, such as the giving of the NERR, the access period, the vote, make some submissions on genuine agreement and then address the particular matters raised about alleged misrepresentations, particularly the provisions of the BMC Agreement and also, in the course of that review, the evidence on behalf of the applicant, as well as the objectors.
PN1023
To begin then, your Honour, plainly, as you would be well familiar with, the task before you is one fundamentally of assessing whether the statutory criteria set out by the Parliament in the Fair Work Act section 186 and 187, have been satisfied as required by the Act and by the applicant in this matter. In relation to those provisions, to the extent that they require construction of those provisions, I have referred in my submissions to a couple of decisions, Project Blue Sky, which is notorious in relation to the approach of the High Court generally to statutory construction. I don't wish to go into any of the details there.
PN1024
But also to draw your attention in particular, to what was said by the High Court in Minister for Immigration and Border Protection v Han, which is a 2015 FCA FC79. And I should inquire at this stage, your Honour, I don't know whether you've had the opportunity to gather copies of these decisions. I'm instructed that copies were not filed with the submissions, and if it would assist you, we could make available copies of all of the decisions referred to in the applicant's submission.
PN1025
THE DEPUTY PRESIDENT: That's fine, Mr Caspersz, I can access them myself. Thank you though.
PN1026
MR CASPERSZ: Thank you. I didn't want to overburden the Commission with more paper than it already has.
PN1027
THE DEPUTY PRESIDENT: That's fine, Mr Caspersz, thank you.
PN1028
MR CASPERSZ: Can I just direct you, your Honour, in Han, the case I was just referring to, that is actually a decision of the Full Court to the Federal Court, Flick, Murphy and Griffiths JJ. The relevant passages I wanted to draw your attention to begin at paragraph 26 and following. I simply draw your attention to them because they are a hopeful summary by the Full Court of the Federal Court as to the modern approach to statutory construction which requires that appropriate attention be given to text, context and the legislative purpose.
PN1029
There Honours there, amongst other things, discuss the general rule in interpretation, as observed by Gleeson CJ in Carr v Western Australia. This is at paragraph 29 of their reasons for decision, that extract that was said by Gleeson CJ about how:
PN1030
The general rule of interpretation, however, may be of little assistance whereas statutory provision strikes the balance between competing interests. This is in the context of in the interpretation of a provision of the Commonwealth Act, a construction that would promote the purpose or object underling the relevant act as to be preferred to a construction that would not promote that purpose or object. Section 15AA of the Acts Interpretation Act.
PN1031
What Gleeson CJ says is of interest, particularly in relation to many provisions of the Fair Work Act where the statutory provisions seeks to strike a balance between competing interests and as I'll now go to, immediately, it's in that context that sometimes one has to look at the issue of satisfaction, in particular as included in the Fair Work Act. And just to show how this arises, when you go back to section 186, you will see that it's framed in mandatory terms in section 186(1) by use of the word "must" but in turn, conditioned by the "if", which directs the attention of the reader to the remainder of section 186 and also section 187.
PN1032
And when one goes to the "if" part of section 186(1), starting at section 186(2), once again it's a little bit of a mix of mandatory and then discretionary, because the word "must" appears "The FWC must be satisfied that", and then various things are set out. And as I develop my submission, the word "satisfied" imports a discretion of sorts in relation to a valued judgment. And you will see that repeated throughout all of these provisions, your Honour, for example, subsection (3), "The FWC must be satisfied", ditto in subsection (4) and, in fact, throughout you will see that formula.
PN1033
And then going to section 187, for example, section 187(2), "The FWC must be satisfied", subsection (4), etc. Bearing in mind that section 188 comes into the loop by virtue of, referring back to section 186(2)(a), "In particular, the agreement has been genuinely agreed by the employees". The note to that throws the direction through to section 188. So it's a combination, it's a curious combination in some ways, of a mandatory direction to the Commission if it is satisfied.
PN1034
And then going to this concert of satisfaction, one of the decisions I referred to is the High Court's decision in Minister for Immigration and Citizenship v SZMDS and Ors, reported at [2010] HCA 16; 266 ALR 367. The media neutral citation is 2010 HCA 16. And it's instructive for what was said by Acting Gummow CJ and Kiefel J. They actually were in the minority on the decision, but on this point in the submission, what they say, starting at paragraph 20 in particular, that concept of satisfaction can be accepted and it is instructive.
PN1035
Firstly they refer to Professor Craig's work, Administrative Law in the context of jurisdictional facts and they talk about satisfaction in this context, and they say this, starting at point 35, paragraph 20, page 372 of the ALR report. Talking about the Immigration Act or the Migration Act, they say:
PN1036
The criterion for attraction of the jurisdiction of the decision-maker is not expressed in terms of fact as simply understood, rather as explained earlier in these reasons, the Act fits as a prime criteria of satisfaction, as to the existence of a certain state of affairs, respecting the status of the applicant.
PN1037
They go on at paragraph 21, an extract of what was said by Wilberforce L in a decision, Secretary of State for Education and Science v Tameside Metropolitan Borough Council, where Wilberforce L said, and this now goes on to page 373 of the report:
PN1038
The section is framed in its subjective form. If the Secretary of State is satisfied, the formal section is quite well-known and at first sight, might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review and what is or has become a matter of pure judgment. But I do not think that they go further than that.
PN1039
And this is then the important part, in my submission, Wilberforce L said:
PN1040
If a judgment requires, before it can be made the existence of some facts, then although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether these facts exist and have been taken into account, whether the judgment has been made a proper self-directions of those facts and whether the judgment has not been made upon other facts which ought not to have been taken into account.
PN1041
And that is important to appreciate because returning to the Fair Work Act, as I'll come to in a minute, when I go to Coal and Allied, it's abundantly clear that the concept of satisfaction, similarly for the Commission in terms of being satisfied as to a state of affairs, is an evaluative process that takes into account relevant factors, proper self-direction and does not take into account irrelevant factors.
PN1042
As I've just submitted, that is made very plain in Coal and Allied, a decision of the High Court once again, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The report is [2000] HCA 47; 174 ALR 585. I believe there is a CLR report, but the one I've got is the ALR, Deputy President. The media neutral citation is 2000 HCA 47. In the ALR report, I particularly refer you to the following paragraphs. This is all about the old section 170 EMW under the Workplace Relations Act, termination of a bargaining period. And that too used the concept of satisfaction, the Commission had to be satisfied as to certain things before it could make the operative order.
PN1043
Now, paragraph 20 of the reasons for decision of the plurality, Gleeson CJ, Gordon and Haine JJ, is instructive. It was Boulton J who made the order at first instance and at paragraph 20, their Honours in the High Court said this against the background of a provision as I said, which relevantly read:
PN1044
The Commission may, by an order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.
PN1045
So by contrast to say section 186 of the Fair Work Act here where it says "must if" section 170 EMW said "may if". And in relation to that at paragraph 20, their Honours said:
PN1046
In the present case the decision by Boulton J to terminate the bargaining period, involved in effect two discretionary decisions. The first was as to satisfaction or otherwise that the industrial action being pursued posed a threat for the purpose of section 170 EMW 3 of the Act. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taking supported claims with respect to certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense therefore, that decision can be described as a discretionary decision.
PN1047
And their Honours then go on to address the second discretionary decision there arising out of the word "may". But the important part of that is in relation to the satisfaction, their Honours characterised that as a subjective decision involving, in a broad sense, a discretionary decision.
PN1048
And then at paragraph 19, going back to the preceding paragraph, their Honours said:
PN1049
Discretion is a notion that signifies a number of different legal concepts. In general terms it refers to a decision-making process in which no one consideration and no combination of considerations is necessarily determinative of the result. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable, as for example, whether relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow, where for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
PN1050
And that is relevant, when one goes back again to the (indistinct) of the provisions you need to consider as to what must be taken into account, starting with section 186(1), there are definite things that must be taken into account, namely the things that come after the word "if" in section 186(1). And those considerations then appear in subsection (2) and following. Section 187 works in a similar way.
PN1051
Finally, in this context then, Deputy President, or against this concept, this context, can I just make a short submission in relation to who must satisfy you about these various matters or how must you be satisfied about these various matters? My learned friend Mr Edmonds, in particular, as I understood his submissions, put to you that it is upon the applicant to satisfy you as to various matters. And I think Mr Niven might have echoed that, in terms of adopting those submissions.
PN1052
And as I understood it, for example, Mr Edmonds put that if the objector says that the offshore gas Offshore Oil and Gas Award applies or the Offshore Oil and Gas agreement applies, then the burden is thereby on the applicant to satisfy you that it does not. My submission is that that is fundamentally a wrong approach to the issue. The burden, as such, if one wants to talk about notions such as proof of evidence, is not quite of that nature, in my submission.
PN1053
What the Commission must be satisfied about is set out in the Act, in the relevant provisions. The Commission must be satisfied about those matters on the relevant factors, the information for the Commission, not taking into account irrelevant factors. Directing itself properly, as I've submitted by reference to these decisions. It is certainly the case that if the Commission is not satisfied, as required, then the Commission must refuse the application.
PN1054
Whether the Commission is not satisfied depends on the material before the Commission. There is no onus of proof on any person appearing in these proceedings, albeit they are adversarial because objections have been filed. The proceedings are yet, fundamentally in my submission, quasi administrative proceedings in the sense that the Commission has got a list of requirements that it must have regard for. And therefore, simply for the objectors to say, "Well, we think that an instrument applies, therefore you must displace the burden of proof." In my submission, is erroneous. For the objectors to say an instrument applies is no more than assertion. In the absence of evidence that the instrument does apply then there is no basis upon which to make a finding that it does apply, in which case there is no basis on which any burden to arise on the applicant to demonstrate that it does not apply.
PN1055
Your Honour, those are my submissions in relation to the construction type of issues, if you like, in the broad sense. I now move on to the BOOT. The starting point for this is, of course, the provisions of the Act of again now in a particular sense and, particularly, section 193. Your Honour's well aware no doubt of these provisions but if I might be permitted just to make some submissions in relation to them.
PN1056
Section 193(1), (4) and (5) are, in my submission, the fundamental ones at least for these purposes today. Section 193(1) speaks of when an enterprise agreement passes the BOOT. Once again, if the Commission is satisfied as at the test time that each award covered employee and each prospective award covered employee for the agreement will be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
PN1057
Now, one can immediately note there that the test is by reference to an award. So it's beyond question that the test is not by relevance to or by reference to any instrument other than an award, for example, another enterprise agreement. So take into account the provisions of another enterprise agreement to put it another way would, in my submission, be to take into account any relevant factor.
PN1058
The expression the "test time", is defined in section 193(6). The test time is the time the application for approval of the agreement by the Commission was made under section 185. In this matter the application for approval, as I understand it, was made on 13 May of this year. That is the date of the application for approval. So for relevant purposes the test time is 13 May 2015.
PN1059
Returning to the provision one then reads it for these purposes as follows. This agreement, the BMC Agreement asks the BOOT if the Commission is satisfied as at 13 May 2015 that each award covered employee and each prospective award covered employee for the BMC Agreement would be better off overall if the BMC Agreement applied to the employee than if the relevant modern award applied to the employee.
PN1060
One then needs to ask the question, "Well what is an award covered employee or a prospective award covered employee?" And the answers to those questions are set out in section 193(4) and (5). To take subsection (4) an award covered employee substituting the BMC Agreement is an employee who is covered by the BMC Agreement and at the test time, namely at 13 May 2015 is covered by a modern award - the relevant modern award. That is an operation and covers the employee in relation to the work that he or she has performed under the agreement and covers his or her employer.
PN1061
That language then leads to the question - "Well, just who are the employees who are covered by the BMC Agreement?" I can take your Honour in this regard back to section 55 first. Because, as your Honour is well aware, the word "covered" in the Fair Work Act is a term of art defined, effectively - I withdraw that - not to section 55, in section 53 of the Act - section 53(1) - an enterprise agreement covers an employee or employer if the agreement is expressed to cover however described the employee or the employer.
PN1062
The BMC Agreement is expressed in this way. If your Honour has a copy of it?
PN1063
THE DEPUTY PRESIDENT: Yes.
PN1064
MR CASPERSZ: Putting to one side the title page, in my submission, if one picks it up at clause 3 - definitions and interpretations. First there is a definition of an employee. It's an exclusive definition means. Second, there is a definition of employer - once again exclusive. It means the applicant in these proceedings.
PN1065
In my submission, if one then takes those definitions and actually reads them into the operative provisions of the agreement - the orthodox approach to construction of a document - namely, it's not the definitions of such that are construed but one reads to the definitions into the operative provisions and then construes those provisions.
PN1066
So when one asks the questions, "Well, what employer is expressed in the agreement to be covered by the agreement one goes immediately, in my submission, to the contract of employment." Because the basis of any agreement is a contract of employment. The bilateral contract and one goes to clause 8. Ask the question, "Who's the employer there?"
PN1067
The employer, inferentially, is the company. If one goes back to the definition of the word "company" - means the applicant - effectively, the employer. And who are the employees who are covered by this agreement? The contract of employment says the employees. If one reads the definition into that those are the employees covered by the agreement.
PN1068
So when one reads the definitions in the basic provision which outlines the contract of employment which underlies this enterprise agreement one sees that the applicant is covered by the agreement, the employees who are covered by the agreement are those employed by the applicant in any of the classifications contained in clause 15 of this agreement to undertake work in in-shore maritime work within Western Australia. Inshore maritime work itself is a defined term that appears below - at the bottom of page 3 on my copy.
PN1069
If one reads that definition in turn in to the definition of employee, inshore maritime work in turn refers to a defined term inshore limits. So one has to, as it were, interpolate that definition as well. So it's probably a number of other ways to draft it but this is the way the draftspersons of this agreement have drafted it. The outcome of all of that is that, in my submission, the BMC Agreement covers these types of employees. An employee who is employed by the - - -
PN1070
THE DEPUTY PRESIDENT: The last submission, Mr Caspersz is you disavowing any responsibility for its - - -
PN1071
MR CASPERSZ: Your Honour, I'm not disavowing anything. I'm just making a submission. The BMC Agreement covers employees who are employed by the applicant in any of the classifications contained in clause 15 to undertake work commencing and terminating in Western Australia. Western Australian waters being the belt of water continuous to the territorial seas the outer limit of which does not extend 24 nautical miles from the Australian territorial sea baseline.
PN1072
The zone defined in the Australian maritime boundaries is the contiguous zone and shall include but is not limited to a number of other things. And it describes a number of things. It also covers travelling between ports but does not include work - you know - in connection with the dredging industry. And then clause 15, your Honour, for the sake of completeness that starts on page 8 - unsurprising that that is the classifications and rates of pay provision. And then the classifications are set out on page 9 together with rates of pay for permanent employees and for casual employees.
PN1073
The point being this in order to then work out whether an employee is covered by BMC Agreement one needs to look at the object of the employment as set out in the definition of the word "employee" the object of employment is to be employed in one of those classifications contained in clause 15 to undertake work as described. To put it another way, in my submission, the fact that an employee finds themselves on a piece of water doing work that is somewhere within 24 nautical miles of the coast does not ipso facto mean that they are covered by the BMC Agreement or by anything else, unless one has information about what the object of their employment was.
PN1074
If the object of their employment was as described in the definition of "employee" when read with the other definitions that I have directed the Commission to then the employee would be covered by the BMC Agreement. And the definition of prospective award employee set out in section 193(5) works in a similar fashion for the purpose of section 193(5)(a).
PN1075
Essentially the same process needs to be undertaken in then analysing for the purpose of section 193(4) and similarly 193(5)(b) - 193(4)(b) and 193(5)(b) - what the relevant modern award was apply in the same concepts of Carbridge. Because the word "covered" beginning with section 193(4)(b) is used there. And when one reads the definitions together 193(4)(b) comes down to this. An award covered employee is an employee who is covered by the BMC Agreement in the fashion I have submitted and at 13 May 2015 is covered by a modern award that is in operation and covers the employee in relation to the work that he or she is to perform under the agreement and covers his or her employer.
PN1076
Now, in the application the employer has effectively submitted to the Commission that there are two possible relevant awards here for these purposes. The first one is the Ports and Harbours Award. The second one is the Marine Towage Award. Have you got copies of those awards, your Honour?
PN1077
THE DEPUTY PRESIDENT: I don't have them here, no.
PN1078
MR CASPERSZ: I understand Mr Humes has got the spare copies which I can hopefully hand up to you. If I might I'll hand up a copy of the offshore award as well because I'll go to that next. I'm not sure whether my friend has copies of those awards.
PN1079
If I might start with the Ports, Harbours and Enclosed Water Vessels Award, 2010. No doubt this is an award. There's no doubt that it is in operation. The question, relevantly, is does it cover employees in relation to the work it performed under the BMC Agreement.
PN1080
Following the process I submitted in relation to the BMC Agreement the first point of interest is the word "employee" in the definitions provision 3.1. Then there is the word "employer". Once again exclusive definitions which one then uses for the purposes of reading the document.
PN1081
If one then goes to clause 4.1 - which is headed "coverage" - it says this award covers employees throughout Australian in the Ports, Harbours and Enclosed Water Vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards.
PN1082
There's a list of awards, including the Offshore Award, the Dredging Award, and the Towage Award. So the upshot of that is that this award covers if the employers and the employees are not wholly or substantially covered by any of the following awards.
PN1083
For the purpose of clause 4.1 reading further - "The expression Ports, Harbours and Enclosed Water Vessels Industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards."
PN1084
So the industry actually, contrary to what I understood my friend, Mr Niven, to submit can include vessels being at sea, albeit on activities not covered by the above award - such as the Towage Award or the Offshore Award. Clause 4.7 the Award covers any employer which supplies labour on an on-hire basis which would, in my submission, include persons such as the applicant.
PN1085
The classifications in clause 13.1 at the start of page 13 of the document that I have handed to you continue on to point 14. And one can immediately see that there's some overlap with the classifications in the BMC Agreement.
PN1086
When one puts that altogether and goes back to the BMC Agreement and the type of work that employees can be engaged to perform, if the object of the employment is to undertake work in the inshore maritime work, if one looks at the type of work that can be undertaken then there is, in my submission, an overlap or a potential overlap such that an employee who is employed in the Ports, Harbours and Enclosed Water Vessels industry could be covered in relation to that type of work. And therefore one possible relevant modern award is the Port and Harbours Award.
PN1087
A similar analysis applies to the Marine Towage Award 2010. I can go through this more quickly. Once again, if one starts at the definitions "employee" and "employer" in clause 3.1. A couple of other definitions that are of interest here - there's a definition of free-running voyage and delivery voyage on page 5 when a tug proceeds from one port to another into either interstate or interstate and is not engaged in towing between ports or on a (indistinct) voyage. There is a definition of outside work that I draw your attention to, your Honour. On-hire is defined as well and then one goes to the coverage provision. Clause 4.1, similar as you would expect to clause 4.1 of the Ports Award - this industry award covers employees throughout Australia in the marine towage industry and their employees in the classifications listed in clause 13.1 to the exclusion of any other modern award.
PN1088
There's a definition on Marine Towage Industry in clause 4.3. It's defined to include a defined term, "Harbour towage operations" as well as a defined term "tug and barge operations". Clause 4.7 is similar to the Ports and Harbours Award. It covers any employer which supplies labour on an on-hire basis. It would be appropriate or apropos to the applicant. And then one goes to clause 13.1 then you will see the classifications set out there on page 14 in particular.
PN1089
One will also see in clause 13.4 some rates of pay for special voyages and harbour towage operations. If you recollect, your Honour, that's a defined term. Clause 13.4 being prescribed and clause 13.4(a)(i):
PN1090
to apply to employees operating in and employees working in harbour towage operations as defined.
PN1091
(ii) over the page:
PN1092
Clause 13.4 does not apply to an employee who is regularly or continuously engaged on outside work.
PN1093
That being a defined term as well that I've drawn your attention to. But subject to those qualifications and noting the other conditions in (iii) and (iv) one then has another set of rates in relation to these special voyages in paragraph (b). Paragraph (b)(ii) states:
PN1094
The rates will only be payable from the time that the tug leaves the wharf to proceed to sea on any special voyage until it ties up at the wharf at the termination of such special voyage.
PN1095
So it seems that the intention there is in accordance with the notion of a special voyage and that those rates are payable for something out of the ordinary. That's supported by clause 13.4(a)(ii) which states that:
PN1096
Those rates do not apply to an employee who is regularly or continuously engaged on outside work.
PN1097
Once again when one looks at the type of work that an employee who is engaged to undertake as described in the BMC Agreement that's the object of the employment, one can see that there is some overlap between that and the work that's covered by the Marine Towage Award such that the Marine Towage Award could also be said to be a relevant modern award. Then finally the Maritime Offshore Award; the Maritime Offshore Oil and Gas Award 2010 has been put up by the objectors as being a relevant modern award. Adopting the same process, clause 3.1, I draw your attention, your Honour, to the definitions of "at sea". But then there is also a definition of "employee" and "employer". There is a definition of "floating production facility". There are definitions over the page of "import", "location". There's a definition of:
PN1098
Maritime offshore oil and gas industry means the operation, utilisation, control, maintenance, repair and service of vessels as defined in or in connection with offshore oil and gas operations.
PN1099
The word "vessels" is defined over the page. On page 6 there's a definition of "vessel". It's quite a long definition. It ends up with:
PN1100
...or any other vessel used in offshore oil and gas operations.
PN1101
There's a definition of:
PN1102
Vessels engaged in operations of the North West Shelf coastal areas.
PN1103
And going back up the page you will also see particular vessels defined such as seismic survey vessel, specialist vessel et cetera. When one goes to the coverage provision one will see that there it is stated that:
PN1104
This industry award covers employers throughout Australia who are engaged in the maritime offshore oil and gas industry and their employees in the classifications listed in clause 13.
PN1105
So it only applies to an employer who's engaged in the maritime offshore oil and gas industry. That's a defined term. Dropping the defined term into the operative term:
PN1106
It applies to employers engaged in the operation, utilisation, control, maintenance, repair and service of vessels as defined in or in connection with offshore oil and gas operations.
PN1107
And the vessels as I've already noted, your Honour, is a defined term in itself. Further, even if the employer is engaged in the maritime offshore oil and gas industry it only covers those employers and their employees in the classifications listed in clause 13. So to give an obvious example it doesn't cover the chief executive officer because that classification doesn't appear in clause 13. If one goes to clause 13 commencing on page 13 and then going over to 14 you will see that the classifications are set out by reference to particular things. The first paragraph (a), facilities. There's a bunch of classifications there and rates. Then:
PN1108
(b) support vessels (c) supply vessels (d) standby utility vessels (e) self‑propelled drilling vessels and thruster assisted vessels -
PN1109
and so it goes, "seismic survey vessels" and as I've already noted, your Honour, some of these things are defined as well in clause 3. Now clause 4.3 of this award, similar to the other awards, also prescribes that the award covers an employer which supplies labour on an on-hire basis in the industry. But the first question is, "Well is the employer engaged in the industry?" In my submission there are two points to be made.
PN1110
First, on the evidence that is before you this employer is engaged in doing the sort of work described in the definition of employees which in turn describes a definition of inshore maritime work, and the evidence is there particularly in the witness statement of Clarence Paul which I'll come to. The other point though is the converse of that. In my submission there is no evidence from which one can make a finding that this employer is engaged in the maritime offshore oil and gas industry as defined in this Offshore Award, and it's not for me to prove a negative, as it were, as my friend Mr Edmonds would have it when he submits that the burden is on me to prove that the Offshore Gas Award does not apply.
PN1111
My submission is that on a plain reading of the award one then needs to ask what is the evidence which can support a conclusion that the award is attracted to this employer, and then particularly what is the evidence to support the conclusion that these employees of this employer are engaged in the classifications listed in clause 13 of this award. In my submission there's no such evidence and therefore one cannot make a determination that the Maritime Offshore Award covers these employees in the relevant sense for the purposes of the definition as at the test time, 13 May 2015.
PN1112
Nor, moving on to the definition of a prospective award employee, can one make a finding that it would cover prospective award covered employees for the same reasons that there is no evidence of the employer being engaged in the industry as defined in this award and/or employees being engaged in these classifications. Now I've gone to some lengths in that analysis, your Honour, because it's of course plain from the objections that have been filed that one of the fundamental complaints by the objectors is their complaint about what is perceived to be an overlap between the work that can be done under the BMC Agreement and the work described in the Offshore Award in particular, and offshore agreements.
PN1113
In that regard as I've already submitted, it's not where work is performed. One has to look at the object of the contract of employment in order to determine first whether a person is an employee as defined in the BMC Agreement. Moreover if the employer is covered by the Offshore Award, if employees are employed in those classifications - and I've made my submissions in relation to that, but one decision which supports the submissions made by the applicant in this regard is - if your Honour will bear with me.
PN1114
THE DEPUTY PRESIDENT: That's all right.
PN1115
MR CASPERSZ: Yes, it's the decision of the Full Bench of the Fair Work Commission constituted by yourself, your Honour, amongst others; Boulton J, SDP, yourself and Blair C in Australian Municipal, Administrative, Clerical and Services union v TAB Agents Association (SA Branch) Inc. [2015] FWCFB 3545. I have a spare copy if it would assist your Honour. Thank you. Only two paragraphs really I wanted to refer your Honour to, paragraph 46 and 47. The essence of the submission was put up that there was an issue whether one award or the other covered employees, Clerks Award or the Retail Award and at paragraph 47 the Full Bench said this:
PN1116
That the work performed by an employee is covered by the Clerks Award does not determine that the award applies to that employee and his or her employer. The work performed by that employee might also be covered by another modern award. In order for a modern award to apply to an employee it must, inter alia, cover both the employee in relation to the particular employment with the employer and cover the employer.
PN1117
In my submission that supports the submissions I've made in this regard. There is also a decision of the Full Bench which I'll deal with now as it's convenient, in the context of the BOOT test because I now want to move on to the actual application of the BOOT test, in AKN Pty Ltd T/A Aitkin Crane Services [2015] FWCFB 1833, a Full Bench his Honour Hatcher VP, his Honour Watson SDP and Lee C. I just make the submission now, your Honour, in anticipation or rather in reference to other submissions that have been made by my friends concerning various provisions of the Act. It's in their written submissions and particularly in relation to unlawful terms. I direct your attention particularly to paragraph 47 of this decision where the Full Bench said:
PN1118
Section 186(4) provides that, in order for an agreement to be approved, the Commission must be satisfied that it does not contain any "unlawful terms". What constitutes an unlawful term is defined by section 194. It is sufficient to say for present purposes that a provision which would not have effect because of section 326(1) is not included in the definition of an unlawful term
PN1119
Finally, there's also a decision of Mitolo Group Pty Ltd v National Union of Workers, a decision of the Fair Work Commission Full Bench, their Honours Hatcher VP and Lawrence and Cargill C in relation to relevant modern awards. At paragraph 35 I draw your attention to what is said there, the second-last sentence:
PN1120
PN1121
It is apparent that section 193(4) proceeds on the assumption that no more than one modern award will cover any employee at the test time
PN1122
PN1123
That's really by way of background then to going to the application of the BOOT test in this matter, your Honour, and then addressing the objections further. The comparative table that's attached to the application sets out, in my submission, in some fair detail the comparison between BMC Agreement and the two possible relevant modern awards, the Ports Award and the Marine Towage Award. Mr Matthews gave some evidence about how it works. Your Honour would probably be familiar with these sorts of comparative analyses in any event, with all due respect, and would understand it well.
PN1124
The essence of the submission that I make in relation to the BOOT test is this, your Honour. the rates of pay that are contained in the BMC Agreement are far in excess of the rates of pay that are prescribed in the relevant modern awards and that's illustrated at point 7 of this comparative table at page 10. If you can also turn at the same time to clause 15 of the BMC Agreement. You will see by immediate comparison for example in relation to if one takes a Master, under the Ports Award the minimum weekly rate is $874. Under the BMC Agreement for a Master less than 12, which I take to be a vessel less than 12 metres, the working day rate is $684.39. The working day rate itself is a defined term in clause 3 and it's defined where it's said there:
PN1125
...to be inclusive of the 20 per cent casual loading for casual employees. In relation to full‑time employees all overtime calculates -
PN1126
But that is a rate that is far in excess, in my submission, than this rate and when one takes into account everything else in the award as against the agreement, in my submission it compels the conclusion that employees covered by the agreement are better off overall than this award, and a similar analysis can be undertaken in relation to the Marine Towage Award. A couple of calculations in this regard I'm instructed, your Honour, are as follows. So for example I'm instructed that under the Ports Award if vessels proceed beyond the limits of the harbour there's actually an allowance that is paid of 25 per cent on top of $895 for a Master or $807 for a deckhand, which works out at $1118.75 per week for a Master and $1008.75 for a deckhand. Compare to that under the BMC Agreement the day rate for a Master is $1123.74 and for a deckhand the day rate is $773.17.
PN1127
To give an example, you recollect there was a special voyage provision in the towage award, your Honour, if that work was not being regularly done. I'm instructed under the Towage Award a casual deckhand IR under the special voyage provision earns $549.17 per day as opposed to $763 per day under the BMC Agreement. A Master under the special voyage provision - one would be inclined to the interpretation that because it's a special voyage it doesn't happen all of the time, but a Master under the special voyage provision of the Marine Towage Award earns $770.11 per day as opposed to the $965 or $1109 a Master less than 24 metres, or a Master greater than 24 metres earns under the BMC Agreement. One can pass differences with a fine-toothed comb and no doubt there are differences and the cases however, in my submission, strongly support the proposition that it's of course overall.
PN1128
THE DEPUTY PRESIDENT: But Mr Caspersz, for what it's worth, and I'm happy for you to continue with the submissions on that point but can I say that so far as consideration of the issues are concerned vis‑ ‑vis the two awards that your client has identified we, as we normally do, undertake a separate BOOT analysis. Unsurprising to you, Mr Caspersz, we don't necessarily take the word of the parties even where they provide an analysis, and we in relation to those two awards have not identified any issues concerning the BOOT.
PN1129
MR CASPERSZ: Thank you, your Honour. That comparative table of course is put up not by way of seeking to (indistinct) serve the task - - -
PN1130
THE DEPUTY PRESIDENT: No, no, no it's - - -
PN1131
MR CASPERSZ: But by way of assistance.
PN1132
THE DEPUTY PRESIDENT: It's very helpful.
PN1133
MR CASPERSZ: Thank you.
PN1134
THE DEPUTY PRESIDENT: But as I say, we separately undertake a task as well.
PN1135
MR CASPERSZ: Thank you, your Honour. Your Honour, for those submissions in relation to the BOOT, plainly the applicant submits that it passes the BOOT as required, applying the definitions in the Act, and to the extent that submissions are made by the objectors to the contrary, there is no merit in them. I'll move on now to what the applicant submits is the main plank of objection regarding the BMC Agreement, the fairly chosen test and other agreements. To begin, certainly it emerges from the MUA outline of submissions which is supported by the other objectors, it's the fact or the perception that the scope of the BMC Agreement will undercut competitors that is of concern to the objectors. Now your Honour has heard evidence from Mr Matthews in particular today and there is other evidence about the business rationale for the BMC Agreement. In my submission a perfectly legitimate, rational business rationale. If the consequence of that rationale is that it will undercut competitors or somehow or another be different to other terms and conditions that the objectors might perceive as being preferable, without in any way commenting on the merits of that perception my submission is that it's simply irrelevant.
PN1136
What is relevant for the Commission's consideration and satisfaction in these proceedings is the coverage of the agreement for the purpose of the relevant modern award test, for example, the BOOT. What is relevant are the other statutory criteria set out in sections 186 and 187. The concerns of the MUA in relation to the scope, if I can put it that way in loose terms, of the BMC Agreement finds its way also into the submissions of the objectors in relation to the fairly chosen test. It seems to be the theme that because there is going to be the consequence potentially in their perception that employees employed under this agreement will receive terms and conditions that are different to employees employed under other agreements now, namely offshore agreements, then somehow or another that feeds into the fairly chosen test.
PN1137
Can I take the evidence here of Mr Simm in particular on behalf of the objectors which I understand is the main body of evidence relied upon in this regard. Mr Simm's statement, with all due respect to him, in my submission is not of any assistance to the Commission in relation to the fairly chosen test. First, in cross‑examination in response to the question as to what he meant by "generally understood" and for example points 4 through to point 8 of his statement, his evidence was that he generally understood as opposed to trying to give evidence about anything else.
PN1138
To be fair to Mr Simm that was an appropriate answer because plainly he could not give evidence on behalf of anybody else. But all of his evidence is opinion evidence. A lot of the evidence, in my submission, goes to try to give in almost an oblique way or a de facto way, sometimes in a more direct way, legal opinion on coverage and application. But the fundamental complaint is that, "Look, you have this BMC Agreement. It's going to cover employees doing work which we say is covered by other agreements", off shore agreements so-called, "and this is a pattern of coverage which somehow or another reflects the fairly chosen test". In my submission that's a wrong approach, once again.
PN1139
The opinion expressed by Mr Simm for example at pint 9 that these traditional understandings are reflected in the modern award coverage is totally unsupported by any authority for that proposition. There are no reasons for decision put up in relation to the making of the Ports Award or the Marine Award or the Maritime Offshore Award for example that indicates that or that supports that in any way. There's no evidence obviously led in relation to that statement. It's simply a broad sweeping assertion. In my submission the proper approach for the analysis of the fairly chosen test is not to have regard to the coverage of other instruments but to look at the words of the Act itself and then to focus on what the Act prescribes in this regard.
PN1140
A couple of the decisions referred to by the objectors in their submissions in this context, in my submission actually assist and cast light on the proper approach. The first decision is that of John Holland. The decision of John Holland which is referred to by the MUA in its outline of submissions which is the decision of Siopis J, John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union and the Fair Work Commission [2014] FCA 286 in the Federal Court. Now this case went on appeal of course but in my submission it doesn't disturb the point made by Siopis J here. It's particularly at point 30, paragraph 30 of his Honour's reasons of decision where he says:
PN1141
First, it is appropriate to observe that section 186(3) calls upon Fair Work Australia to be satisfied that the group of employees covered by the agreement "was" fairly chosen. It is of significance that the past tense "was" is used. This directs Fair Work Australia to have regard to the conduct of those persons who made the agreement and the content of that agreement.
PN1142
I interpose here. The evidence of that is the conduct of Mr Matthews and Mr Paul in their witness statements:
PN1143
In other words, the question is whether the parties that made the agreement acted fairly in choosing those employees to be covered by the agreement. The question of fairness of choice arises because those employees who are "chosen" to be covered by the agreement will, ex hypothesi, be the better off overall than those employees who were not "chosen" to be covered by the agreement.
PN1144
Which is of course a reference by Siopis J to the BOOT:
PN1145
Thus, for example, if only some of a group of employees doing the same work and in the same location were chosen to be covered by an agreement on the basis of their place of birth or their support of a particular political party, the group of employees chosen to be covered by the agreement would not have been fairly chosen.
PN1146
So one looks at the exclusionary effect of the choice if not all of the employees are covered by the agreement and asks the question "Well, was there anything unfair about the exclusion?" But you're actually comparing the groups of employees of the employer chosen to be covered by the agreement with those who are not chosen to be covered by the agreement. One is not comparing groups of employees employed by somebody else under some other instrument with these employees, and thus in my submission fundamentally the approach which is urged on the Commission by the objectors is wrong.
PN1147
In respect of the instruments of other agreements this is particularly so in relation to other agreements because they are separate consensual instruments. That is presumably why, for the purposes of the BOOT, Parliament prescribed a test by reference to an award which is an award made by the Commission of a quasi-legislative nature. An agreement of course subject to conditions about permitted matters and other specific criteria in the Act can be in relation to any matters, and therefore the mere fact that an employer, even this employer, in the past might have agreed to make an agreement in respect of a group of employees in respect of a particular industry has no bearing on whether the fairly chosen test properly applied, or whether the fairly chosen test is properly applied to this group of employees under this agreement.
PN1148
As to the legitimate business rationale, in a recent decision of the Full Bench, once again I think you were part of that Full Bench, your Honour, in the Sustaining Works [2015] FWCFB 4422. It was a decision concerning the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Australian Manufacturing Workers' Union v Sustaining Works Pty Limited, a Full Bench made up of yourself, his Honour Hatcher VP and Roberts C. The Full Bench had this to say about first John Holland on appeal and then related to that the issue of the business rationale for an agreement. I direct your Honour's attention to particularly what was said in relation to John Holland on appeal commencing at point 20. Of course the Full Bench are taking note of the submission that was made by the appellants here that John Holland was decided wrongly, but upholding the precedent of John Holland, and then going on at paragraph 24 - - -
PN1149
THE DEPUTY PRESIDENT: It's one of those ambitious submissions that parties make from time to time.
PN1150
MR CASPERSZ: I'm sorry, your Honour.
PN1151
THE DEPUTY PRESIDENT: It's one of those ambitious submissions that parties make from time to time.
PN1152
MR CASPERSZ: Yes, one does one's best. I certainly do not criticise anybody for doing that, your Honour. At paragraph 24 in particular, your Honour, the Full Bench took up the acknowledgement in John Holland that:
PN1153
...that deliberate manipulation of the agreement-making procedures under the FW Act might found a conclusion that the group of employees covered by the agreement was not fairly chosen.
PN1154
And of course that fits in with what Siopis J said in John Holland at first instance, because one's talking about a comparison between those who are chosen and those who are not chosen, and what the Full Bench is saying here as I understand it is that there's evidence of deliberate manipulation to exclude somebody from the democratic process of being involved in the vote then that is something that can go to the fairly chosen test, and the applicant accepts that. The Full Bench then noted at paragraph 25:
PN1155
The unions relied upon the above passage in support of their third submission that the business rationale for the selection of the group to be covered by the Agreement was illegitimate because it was concerned with undercutting "market rates" for gas project work. We cannot accept that submission.
PN1156
And the Full Bench then goes on to state its reasons for that. At paragraph 26 for instance the Full Bench says:
PN1157
... we do not consider that the fact that the Agreement did not match the rates and conditions in the APLNG Agreement is relevant to the question of whether the group of employees covered by the Agreement was fairly chosen.
PN1158
That supports the submission I've just made in relation to how one applies the fairly chosen test. What is contained in other agreements is irrelevant, and in this case the Full Bench notes at paragraph 27 that:
PN1159
There was no evidence in this case of deliberate manipulation of the agreement-making process.
PN1160
Now my submissions in relation to this are as follows. I understand particularly from the allegations now raised by the objectors in relation to the LANPAN 29 and from the amended submissions that the objectors are alleging that there has been deliberate manipulation of the process. In relation to that, the first point is this. It is a serious allegation of real gravity because in effect the allegation is one of depriving employees of a workplace right to be involved through deliberate manipulation in the voting process, and it has got to be treated as such.
PN1161
Your Honour is more than familiar with the well-versed passage from his Honour Dixon J in Briginshaw v Briginshaw as reflected in section 140 of the Evidence Act, that the level of satisfaction for the purposes of making a finding of fact must take into account the gravity of the allegations. Now against that background, in my submission when one looks at the evidence that's put up by the objectors about deliberate manipulation it falls at every hurdle. The evidence of Mr McGinn for a start, in his statement in relation to the LAMPAN on this point really is limited to the attachments KM1, KM2 and KM3 which speak for themselves.
PN1162
KM1 is an email exchange or a chain of emails which amongst other things is in relation to a query from the union as to whether the applicant was intending to apply the BMC Agreement to the LAMPAN. KM2 essentially is an email exchange which amongst other things states that an offshore crew would sail the LAMPAN from Singapore to Australia in or about the middle of April. KM3 is an email which in substance is one that seems to be part of the recruitment process for the LAMPAN 29, and you will recollect in relation to that process, Mr Matthews gave his evidence in cross‑examination about how it was only at that time that the employer feverishly started to employ, although there had been of course a contract which had been committed to some time in the past.
PN1163
But in accordance with normal practice, arrangements weren't in place and efforts were not made to finally engage people until the start dates and such were known with certainty. There's no reason not to believe that evidence. In terms of drawing an inference that that evidence was concocted or falsely given by Mr Matthews, there is no basis on which to make such a finding. In the absence of such a finding one is left with the evidence as it is, that the LAMPAN was brought down with the knowledge of the union. The LAMPAN was presumably made ready, the details and arrangements were made for when it would start and then efforts were made to start enrolling people to work on her.
PN1164
Hardly evidence which would satisfy the standard of Briginshaw or the standard in section 140 of the Evidence Act from which to make a finding that the employer had deliberately manipulated the voting process in order to deprive employees of workplace rights. The evidence of the other witness, Mr Valeriani, led on behalf of the AIMPE in this regard takes that no further either, in my submission. When one looks at that evidence, in substance effectively it's SV2 which relates to some concerns which somehow or another is supposed to support the inference that there has been deliberate manipulation of the voting process. In my submission it simply doesn't stack up.
PN1165
Your Honour, I don't want to go into any more detail other than necessary, subject to your direction. But to finally complete this part of the submissions can I make the submission that when one analyses the BMC Offshore Agreement, which has been the subject of some submission by my friends, one will see that it's modelled fairly similarly to the Offshore Award that I took your Honour through, and for similar reasons that I've submitted in relation to the Offshore Award I submit that the BMC Offshore Agreement does not cover employees in relation to work that is to be performed under the BMC Agreement, and I've got a copy of that agreement if it assists your Honour, but subject to that submission I don't intend to go into further details about it, unless of course you require me to do so.
PN1166
I haven't got a copy of the BMC Gorgon Agreement. That has also been referred to by my friends in their submissions. Can I simply say this, that the Gorgon Agreement effectively incorporates the terms and conditions of the Offshore Agreement for the specific purposes of the Gorgon project. For the same reasons I've already submitted it does not cover employees in relation to work that is performed under the BMC Agreement. As far as the Offshore Agreement is concerned, your Honour, that I've just handed up, I particularly draw your attention to clause 3, the definitions, clause 4 and the schedules, as I say closely modelled on the Offshore Award.
PN1167
Your Honour, I've completed that block of submissions. I now wish to make some submissions on the NERR, the access period and the vote, and in this context it will be necessary to take your Honour to the Full Court's decision in Swinburne in particular. The essence of the submission as concerns the NERR seems to be that there was somehow or another an event that broke the relationship between the NERR and the BMC Agreement, and that event was the filing of if I can call it the first cut of the agreement for approval by the Commission, which application was ultimately withdrawn by the employer. It is said that somehow or another the making of that agreement, the filing of that application for approval, as it would emerge the NER that had been issued on 1 August 2014 with that agreement, such that there was no life left in the NER subsequently, akin in contract terms perhaps or con law terms to a decision, a cause of action merging in a judgement, if one likes, such that there is no cause of action left subsequently.
PN1168
In my submission plainly that is wrong and there is Full Bench authority for that proposition in CJ Manfield, which is one of the decisions I've referred to in my submissions. It's CJ Manfield which is - the full title is CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia reported at [2012] FWA FB3534, Full Bench comprising their Honours Vice President Watson, Deputy President McCarthy and Commissioner Jones. It was a decision of the predecessor of the Commission as it is now but still in my submission relevant.
PN1169
In particular at paragraph 15 of this decision the Full Bench said this - sorry, starting at paragraph 14:
PN1170
When CJ Manfield realised its mistake in agreeing to this clause it applied to withdraw the application for approval - - -
PN1171
- - this is approval of its agreement:
PN1172
- - and on 24 February 2011 filed a notice of discontinuance. The CEPU objected to any discontinuance and consequently filed its own application for approval of the agreement on 7 March 2011.
PN1173
Paragraph 15:
PN1174
CJ Manfield's application to withdraw its application and the CEPU's application of the agreement was heard by Deputy President Sams. CJ Manfield opposed the CEPU's application for approval and made the objection that the application was made outside the 14-day time limit. Deputy President Sams found that CJ Mansfield was able to discontinue its own application, refused to extend the time limit for lodging the CEPU's application for approval of the agreement and ultimately dismissed the application.
PN1175
Paragraph 16:
PN1176
The CEPU appealed this decision. A Full Bench upheld the conclusion of Deputy President Sams that an application for approval of an enterprise agreement can be discontinued, however found that the Deputy President had erred in failing to extend the time of the application and granted the extension of time sought by the CEPU. The Full Bench then - - -
PN1177
- - insert footnote 6, which is to the Full Bench decision upholding the decision of Deputy President Sams in relation to discontinuance and that in turn, which I don't wish to read, but that is reported at [2011] FWA FB6845. That's CEPU v CJ Manfield. So there is effectively two Full Bench decisions supporting the fact that an applicant can file a notice of discontinuance for an enterprise agreement. The application to file a notice of discontinuance is made pursuant to section 588 of the Fair Work Act:
PN1178
A person who has applied to the FWC may discontinue the application in accordance with the procedural rules if any and whether or not the matter is settled it is beyond doubt.
PN1179
The statement that my learned friend Mr Edmonds referred to in my submissions, that bargaining had concluded upon the making of the BMC Agreement, plainly was not written by me with the intention of supporting his submissions in this regard. All that was intended to mean was that for the purposes of this particular application in the context of what I was addressing there, namely the fact that there was no basis on which to say that there had been any good faith bargaining, that in this regard the NERR, simply because bargaining has concluded in the sense that an agreement has been made and an application has been made for approval but then subsequently discontinued doesn't merge with that agreement as long as there is a relationship between the NERR and the subsequent agreement and that flows from section 181(2) of the Act.
PN1180
Subsection (2) of 181:
PN1181
The request must not be made until at least 21 days after the day on which the last NERR is under subsection 173(1) in relation to the agreement is given.
PN1182
So the whole structure of the provision there is that one asks employees to vote but you can't make the request until at least 21 days after the day on which the last NERR in relation to the agreement. So one looks at the NERR, one looks at the evidence, one looks at the agreement, forms a view as to whether or not there is a relationship between the two and if there is whether nor not there have been any false starts, if I can put it that way, does not mean that the NERR no longer has any life. The NERR is attachment 2 to the application, your Honour. It speaks for itself. I'm sorry, attachment 2 to the statement of Clarence Paul. It speaks for itself. Plainly there is a relationship between the language there and the BMC Agreement I've gone through in some detail, the coverage of that.
PN1183
In my submission, for all those reasons, the objection on this point cannot be upheld. I then move to the full court's decision in Swinburne. I have a copy of it for you, if that assists. Thank you, your Honour. Swinburne is relevant on a number of fronts, in my submission. The decision has of course only been one of recent origin but - I should say with all due respect, it's not probably the easiest decision to come to terms with but at the end of the day it is in my submission - - -
PN1184
THE DEPUTY PRESIDENT: Assist me with my first draft of the decision below but we went with my second draft. Yes. It was a question of whether one applies the black letter law or something that's workable.
PN1185
MR CASPERSZ: It's tantalising, with all due respect. As to how one does approach the subject - and of course your Honour would have read it and know that Justice White agreed with Justice Jessup. Justice Bagoni adopted a different approach, more consistent with the Full Bench's approach, but came to a different - well, came to essentially the same view. Can I let these submissions in relation to the decision - I just, if you'll bear with me, want to go to the decision in a little bit of detail here making these submissions. I'd like to start with paragraph 11 of Justice Jessup's reasons for decision, where he refers to the Full Bench's decision about the central question. So it was all to do with casual, sessional employees.
PN1186
What it really came down to was as stated in paragraph 29 of the extract from the Full Bench's reasons for decision - this is over the page on page 5 of the media's neutral report - the issue was really about how the voter roll for the 2014 agreement was compiled, the facts essentially being that the academic year for the university was starting in March. The access period was started in February, the nature of the employees was sessional or casual employees who worked casual engagements pursuant to heads of agreement, if you like. The question was, well, given that they hadn't started the academic year, given that they hadn't signed up any people, how were they going to compile this voter roll?
PN1187
In the end, what the university did was to come up with 2,005 names on the role of which 1,031 reportedly voted in favour of the agreement. But the problem was - as noted in paragraph 29 of the Full Bench's decision - that the list would probably have included some sessional employees who did not seek to work as sessional employees in the academic 2014 year. Some employees who Swinburne did not ultimately engage to perform sessional work during the course of 2014; in other words, it was uncertain whether all of the people - the 2,005 people - would seek work in 2014 or in fact whether Swinburne would want some of those people that year.
PN1188
At paragraph 12 of Justice Jessup's decision he sets out the approach of the Full Bench, extracting paragraphs 31 to 33 of the Full Bench's reasons for decision. With all due respect the Full Bench took a very practical approach to the problem. It really arose out of the language of section 181(1) of the Act. Going back to that provision which states that:
PN1189
An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
PN1190
The emphasis on this case was on the words, "employees employed at the time." The approach of the Full Bench crystallises in paragraph 33 of their reasons for decision where the Full Bench said:
PN1191
In the present context for an approval vote that is undertaken prior to the commencement of the academic year, it is appropriate to include sessional, academic employees who were engaged during the previous academic year unless there is a basis for the employer to believe that a particular sessional employee is not likely to be engaged in the ensuing year.
PN1192
In my submission it's the word, "unless," that Justice Jessup took issue with, as I'll seek to develop, because effectively what his Honour found was that that was the wrong approach to an interpretation of the expression, "employees employed at the time." It wasn't a question of saying those employees will be a group of employees based on historical experience unless it's clear that particular employees will not be employed.
PN1193
His Honour took a different approach to the interpretation of that expression, as I'll now develop. If I can take you to paragraph 13 of his Honour's reasons for decision and following: the approach his Honour took first was to go to the definition of the word, "employee," in section 13. It's a national, system employee and the employer is a national system employer. By section 13:
PN1194
A national system employee is an individual so far as he or she is employed or usually employed as described in the definition of national system employer.
PN1195
His Honour then notes at paragraph 14 essentially his finding, that:
PN1196
The Commission did not require the university to establish how many of the 2,005 voting employees were employed, "at the time," apropos - - -
PN1197
In other words, with reference or regard to:
PN1198
- - either section 182(a) or section 181 of the Fair Work Act. Neither was it known how many of the 1031 voting in favour were so employed but these two statistics were necessary, in my view, before the Commission could have satisfied itself that of those who were employed at the time and voted a valid majority voted in favour.
PN1199
His Honour then goes on in paragraph 16:
PN1200
As the Commissioner made clear in paragraph 32 of his reasons, the case before it was decided by reference to the view that section 181 both permitted and required the university to address its request that all individuals who were then usually employed by it as the Commission said this was the relevant test. Whether the Commission was correct in so identifying the task which lay before it requires me to return to the applicable provisions of the Fair Work Act.
PN1201
Then commencing at paragraph 17 and following his Honour engages in an analysis which I submit is as follows: first, in paragraph 17, his Honour goes to section 172(2) of the Fair Work Act and proposes that when one takes the definition of employee and as it were drops it in to the word "employees" that appears in section 172(2)(a), what it means is that the employer makes an agreement with a person who is actually employed at the time or usually employed at the time but only to the extent that the person is actually employed, which with all due respect to his Honour is not easy to come to terms with but in my respectful submission makes eminently good sense in that there is the word, "employees," there is a definition and one must use it unless there's a good reason not to and there isn't a good reason not to.
PN1202
The way it works is like this - and this is one where comes up with the problem commonly seen where people refer to parties to enterprise agreements because there are no such thing as parties to enterprise agreements anymore, and this is now clear from Justice Jessup's reasoning here:
PN1203
An agreement is made between an employer and employees. It's made between two groups of employees, if you like: first group A, which is the employees actually employed and group B, the persons who are usually employed but it's actually only made on the day when it is made at the time with group A, being those who are actually employed at the time.
PN1204
It's made when, going now to section 182 of the Act - section 182(1), this is paragraph 18 - it's made when a majority of those employees who cast a valid vote approve the agreement; in other words, when a majority of those employees, being group A plus group B employees, cast a valid vote to approve Thea agreement. Who are those employees? Once again, one goes to section 181 as I just submitted; it's group A plus group B because an employer that will be covered by a proposed agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement.
PN1205
Plugging the definition in that reads:
PN1206
An employer that will be covered by a proposed enterprise agreement may request persons actually employed at the time and persons usually employed at the time - - -
PN1207
- - in other words, group A plus group B employees. It's those persons who are requested to vote for the agreement according to the reasoning of his Honour Justice Jessup. Group A plus group B - if a valid majority of those persons approve the agreement, then the agreement is made with those persons employed at the time. To give an example, your Honour, in numerical terms, for example, my submission is this: applying Justice Jessup's reasoning, if one has 10 persons, if five of them are actually employed at the time and five are usually employed at the time then one asks all 10. One is entitled to ask all 10 to vote for the agreement.
PN1208
Of out of those 10 employees there are seven who vote for the agreement, then that is a valid majority of the employees and the agreement is made. The agreement is, however, made between the employer and only those employees who were actually employed at the time when the agreement was made. So if the agreement was made on day 10 and there were, say, five employees actually employed on day 10 the agreement is made between the employer and those five employees, albeit because of section 53 still covers employees, how so ever described. But the valid majority of seven employees would mean that the agreement was made on day 10. In my submission that is how Justice Jessup's analysis works.
PN1209
So in order to provide the two vital statistics for the Commission spoken of by Justice Jessup, one needs evidence of who those persons were who were in group A, who were in group B and then the number of those persons who voted in favour of the agreement. If that number is a majority of the combined total of group A plus group B then the agreement is made, the agreement being made however with only those persons who are actually employed on the day of the vote.
PN1210
As concerns the expression at the time in section 181, Justice Jessup mentioned a tentative opinion on this, noting that that of itself is not up for express determination in this matter, but he did venture the opinion at paragraph 25 that the time referred to is the whole of the access period, so when one looks at section 181(1) and asks the question: who should be asked to vote for the agreement, it's those employees at the start of the access period; it's persons employed actually employed at the start of the access period; persons usually employed at the access period. That is the way, in my submission, Justice Jessup's decision is reason, and it of course feeds into a number of other provisions. (indistinct).
PN1211
THE DEPUTY PRESIDENT: Yes, Mr Caspersz?
PN1212
MR CASPERSZ: I don't intend to analyse it in detail, your Honour, but his Honour Justice Pagone's decision differed from Justice Jessup, with whom Justice White agreed, in that Justice Pagone accepted the Commission's approach, the approach of usually employed being that of one looks at the group of employees and then determines who they are, unless there is evidence to deduce that any particular employees should not be included, but Justice Pagone found that there had not been a sufficient factual enquiry by the university because the way he'd put that list together and therefore not enough information for the Commission to work on.
PN1213
Returning back to Justice Jessup's decision, his approach and of course conclusions feed into a number of other provisions in the Act as is evidence from the first paragraph 19 of his reasons for decision, because what it really means is that when one now looks at this expression, for example in section 173(1) which requires that the employer must take all reasonable steps to give notice of the right to be represented by a bargaining representative for each employee who will be covered by the agreement and is employed at the notification time, one adopts the same approach; one determines, well who are the persons who are actually employed at the time and who are the persons who are usually employed at that time. That feeds through to other provisions, such as section 180 (indistinct). Thank you, your Honour, that feeds into provisions - - -
PN1214
THE DEPUTY PRESIDENT: Ms Thompson, how's the vote going?
PN1215
MR THOMPSON: I'm not quite sure what happened then.
PN1216
THE DEPUTY PRESIDENT: That's all right.
PN1217
MR CASPERSZ: Thank you, your Honour. That feeds into section 180(2)(a), the employees employed at the time - the relevant employees - same analysis, the same approach must be taken in terms of analysing who those employees are. That in my submission is the meaning of Swinbourne and the significance of Swinbourne.
PN1218
THE DEPUTY PRESIDENT: The only difficulty I have with Justice Jessup's analysis is the - what is overtime, but the suggestion that at the time in relation to 21 days means sorry, at the time at which the request is made includes the whole of the access period.
PN1219
MR CASPERSZ: He made, as I said, a tentative view about that.
PN1220
THE DEPUTY PRESIDENT: Yes.
PN1221
MR CASPERSZ: It wasn't up for determination.
PN1222
THE DEPUTY PRESIDENT: No, it wasn't.
PN1223
MR CASPERSZ: It's not something which finds any collusion with the reasons for decision of Justice Pagone, in my submission. I submit that it is the time, because of the reasons given by Justice Jessup. Further, in my submission, it would be an extremely artificial exercise if one were to, say, have to start the access period, in compliance with section 180(2) one deals with the employees employed at that time, and then separately at the end of the access period all of a sudden ask employees who are employed at that time. Now, with this qualification one you'll recollect that in some of the evidence of Mr Paul - in one of the attachments - it's written that in discussions with employees it was said that Fair Work may not count votes if employees are employed at the time. That statement can be read, in my submission, in a couple of ways, and I don't think the cross‑examination would deny this, and that is in this attachment, which is attachment I think it was attachment 14 or thereabouts to Mr Paul's statement I beg your pardon, it was point 16 of attachment 12, page 43.
PN1224
THE DEPUTY PRESIDENT: My point perhaps is a different one, but the suggestion in paragraph 25 of Justice Jessup's judgment suggests that time, as it is referred to in 180(2)(a), means the whole of the access period, so when it comes to considering the time of the request in 181, the better view is that such employees should be included, i.e. anyone employed or usually employed during the whole of the access period. What one is concerned with is when the request may be made, and subsection (2) then deals with the request being made no earlier than 21 days after the last date. But the traditional approach of the Commission has been that 21 days is calculated by reference to the day the vote began, whereas on Justice Jessup's preliminary view, that might need to be revisited, because if 181(1) is to be construed as including those employees at the whole of - - -
PN1225
MR CASPERSZ: Yes, I think I see.
PN1226
THE DEPUTY PRESIDENT: Yes, you follow?
PN1227
MR CASPERSZ: Yes, it depends on the meaning of the word request.
PN1228
THE DEPUTY PRESIDENT: Yes.
PN1229
MR CASPERSZ: Whether the request is the anterior request or the actual voting process on the day.
PN1230
THE DEPUTY PRESIDENT: Yes, and - - -
PN1231
MR CASPERSZ: And subsection (3) doesn't really cast that much light on it.
PN1232
THE DEPUTY PRESIDENT: No.
PN1233
MR CASPERSZ: Your Honour, I don't know whether it's well, my submission is it's not necessary to determine that in these proceedings, because on either analysis - - -
PN1234
THE DEPUTY PRESIDENT: I understand, because if the issue doesn't arise here - - -
PN1235
MR CASPERSZ: Doesn't arise.
PN1236
THE DEPUTY PRESIDENT: As you'd be well aware, in a number of cases, the minimum time period passes between those things.
PN1237
MR CASPERSZ: Because it's not uncommon for applicants to try and proceed very quickly.
PN1238
THE DEPUTY PRESIDENT: Anyway it's not something that needs to trouble us in this proceeding but it's something that obviously arises in another occupation.
PN1239
MR CASPERSZ: Thank you, your Honour. Your Honour, as I've said, that feeds into a number of other provisions and now if I can go to the company's evidence and in particular in relation to this - - -
PN1240
THE DEPUTY PRESIDENT: Mr Caspersz, I don't want to rush you or anything but how long might you be?
PN1241
MR CASPERSZ: Hopefully about - - -
PN1242
THE DEPUTY PRESIDENT: Well the real purpose of my question is whether the parties would benefit from a comfort break at the moment.
PN1243
MR CASPERSZ: I can honestly answer that by saying I would.
PN1244
THE DEPUTY PRESIDENT: All right, well we'll adjourn for 10 minutes.
PN1245
MR CASPERSZ: Thank you, your Honour.
SHORT ADJOURNMENT [4.55 PM]
RESUMED [5.06 PM]
PN1246
THE DEPUTY PRESIDENT: If it spills on tonight, Ms Thompson, have you got any further updates?
PN1247
MS THOMPSON: No, your Honour.
PN1248
THE DEPUTY PRESIDENT: Yes, Mr Caspersz?
PN1249
MR CASPERSZ: Thank you, your Honour. Your Honour, I have largely finished the submissions in relation to the law.
PN1250
THE DEPUTY PRESIDENT: Yes.
PN1251
MR CASPERSZ: Suffice it for me to say that I now need to deal relatively quickly I think with the evidence and, if I can call it, a few of the ancillary issues concerning the particular provision of the agreement and the like.
PN1252
Before I go into the evidence though, leading on from my submissions on Swinburne, can I make the submissions in relation to the Cirrena documents. The documents produced by Cirrena in response to the notice to produce directed at identifying employees who actually (indistinct) and then to determine how many of those employees were in favour of the agreement to not and confidential exhibit which was tendered through Mr Paul was to assist the Commission in that exercise, if it was necessary for the Commission to undertake that exercise.
PN1253
The confidential exhibit of course has been seen by the applicant because it was the applicant who aired it. The Cirrena documents have not been seen by the applicant. And the applicant obviously, you'll recollect moved that both of those documents be kept confidential. In my submission, because of the way the Full Court and Jessup J in particular ‑ ‑ ‑
PN1254
THE DEPUTY PRESIDENT: Can I just clarify this point. As I read the Cirrena documents, what it shows me is, amongst the other things, the number of employees and their identity, who were given an opportunity by Cirrena to vote.
PN1255
MR CASPERSZ: Correct. And those who voted ‑ ‑ ‑
PN1256
THE DEPUTY PRESIDENT: And then subsequently those who voted and then how they voted.
PN1257
MR CASPERSZ: That's right. Your Honour, given the approach taken by Jessup J, my submission is one doesn't actually need to go to the Cirrena documents in order to get that vital information as to statistics necessary to satisfy you about the requirements of section 180 sub-section (2), et cetera. And certainly not a document Pagone J's approach either is it necessary to go to those documents, because the evidence is here and it's here in the statement of Mr Paul. If I'm wrong on my submissions in relation to Swinburne and the approach of Jessup J, as agreed to by White J, then if necessary that material is there before the Commission and the Commission can take that into account, but my primary submissions is that it's not necessary to go into it.
PN1258
If I can take you now to the statement of Mr Paul and just make some submissions in relation to that. Mr Paul primarily had carriage of the matters of the NERR and the other documents to the relevant employees in this part of the access period. That seems to come out of his statement, relevantly his industrial relations advisor, that's at point 4 of his statement. My submission is that when one analyses the steps taken by the applicant then in relation to these particulars matters, one looks at it and says, well, was it reasonable for the industrial relations advisor to carry out these tasks. The answer to that is, in my submission, yes. So that's the starting point.
PN1259
Point 7 is one I would like to draw your attention to, your Honour. That references attachment 1, which gives evidence of the type of employment relationship between the applicant and employees. If I take you to attachment 1, which is at paragraph I'll withdraw that at page 9 of the statement, you will see that, amongst other things, for example, in paragraph 1, the employment is described as a casual basis. There is no guarantee of ongoing or regular work, that's point 1.3. 1.4:
PN1260
The engagement of the employees within the category of casual employee is on an ad hoc basis to satisfy operational requirements as necessary.
PN1261
Returning back to the statement then, point 8, Mr Paul gives some evidence of what employees were doing at the time, in or around July 2014, which was immediate before when the NERR was given on 1 August 2014. And he describes the type of vessels. There's no evidence there that they were the sort of vessels that were referred to in the classifications in the Offshore Award, for example. And he describes the manning of those vessels including the work that was being carried by the employees on an ad hoc basis, within a belt of water, and he gives descriptions there of that type of work, belt of water that extended 24 nautical miles, corresponding, of course, plainly with the language of the NERR in the end, including, arising from point 9, the evidence concerning as to why he took into account major projects based on conversations with Mr Wakelin.
PN1262
Now, I'm not quite sure I understand my learned friend, Mr Edmonds correct me in this regard, but he did say that he would make some submissions in relation to hearsay evidence in company statements. I don't think he actually did in the end. I don't know why, but to the extent that perhaps he was suggesting that the evidence in paragraph 9 of Mr Paul's statement was hearsay evidence, my submission is that it's not hearsay evidence.
PN1263
THE DEPUTY PRESIDENT: My recollection is he cross-examined Mr Paul at length about that paragraph, and about what Mr ‑ ‑ ‑
PN1264
MR CASPERSZ: Yes. My submission is that that is actually direct evidence from Mr Paul of what he took into account. He's not depending on the truth of what Mr Wakelin has said to have said to him, he's simply giving evidence of what he took into account, because this is all leading up to, down through paragraph 10, where he describes the role of the operations manager, through to paragraph 11:
PN1265
Given the circumstances described above
PN1266
So those circumstances included the type of work being done by the employees, the conversations he had with Mr Wakelin, the operations managers, what he knew about their role, their skills, et cetera. In those circumstances he then took the following steps to give the notice to the employees, to give the NERR. And the NERR is, as I've already submitted, at attachment 2.
PN1267
Paragraph 13 he gives his direct evidence of why he used various terms in the NERR. It speaks for itself. In particular at paragraph 13(b) he gives the explanation as to why he used that expression referring back to what he was told by Mr Wakelin. Points 14 and following, your Honour, he gives detailed evidence of the steps that he took, and I'll leave it to you to read that evidence. My submission, however, is that it is, with all due respect, quite unremarkable evidence. It's evidence of steps being taken by a person in a position you would expect to have a carriage of a matter such as this; relying on unremarkable matters; using the assistance of other persons within the organisation, such as operations managers and others whom one could reasonably expect to be able to provide that information. That leads one then through to paragraph 25, and finally Mr Paul says he was satisfied then that he did not have to do anything more to identify any other employees to be covered by the proposed agreement.
PN1268
Now, it was submitted, I think, by my friend, Mr Niven, that something more could have been done, for example, it could have been inquired as to whether there were any people on Seacare There is no evidence of Mr Paul making any such inquiries for the purposes of the NERR or otherwise. In my submission, in the context of a statutory provision in relation to what he was required to do for the applicant, under section 173, it was reasonable steps. It wasn't an absolute requirement. Your Honour is well aware of all the cases in relation to that.
PN1269
Taking into the account this evidence, taking into account the paucity well, not the paucity, but the absence of any other evidence to the contrary, in particular, in the absence of any evidence from an employee who says, "Look, I should have been given this NERR", an employee who could legitimately say that, my submission is that the Commission can be well satisfied that reasonable steps were taken to give the NERR, based on this evidence.
PN1270
Returning to his statement, Mr Paul then gives his evidence concerning the matters that followed in the actual act of bargaining and then down to the access period permitted at point 32. He there gives his evidence about the steps that he took to compile the list of employees. Point 34, he refers to attachment 9. There was a great deal of discussion about attachment 9, the number of employees there as compared to attachment 15, which is the final list that he relied upon.
PN1271
It was clear though, in his evidence, in my submission, that ultimately it was the list of employees in attachment 15, after he came to the view that that was the final list, based on his inquiries, was the list that he followed in relation to giving the relevant document, and when one looks at the evidence between point 34 through to point 44, which mentions attachment 15, it is completely explicable and consistent with the evidence that he gave.
PN1272
In relation to point 46 in particular he also refers to attachment 17. If I can draw your attention, in particular, to that attachment, your Honour. That attachment is an email that he sent to each of the voting employees. That is his evidence in point 17. I don't believe that was challenged in cross-examination at all. The voting employees is a defined term in Mr Paul's statement. A definition appears in point 34 of his statement. So the voting employees derives from those employees in attachment 9.
PN1273
He then gives further evidence at point 47, and then to point 48, where he says:
PN1274
Copies of the policies referred to in the proposed agreement were available at the workshops in Point Samson and Exmouth and on each of the vessels. Copies were also provided to each employee during their induction.
PN1275
He wasn't challenged on that in cross-examination. The relevance of that, of course, your Honour, is, as I'll come to shortly, to the extent that there's an objection based on the alleged failure to provide copies of documents incorporated by referencing the BMC Agreement, if, in fact, they were incorporated, which is denied, then those documents were in any event available. And in the context of everything and in this workplace one couldn't say that there had been a failure to take reasonable steps, once again that qualified obligation to provide employee with all the relevant information.
PN1276
And then finally, point 48 through to 53 he gives his evidence of the ballot. Those documents, which are attached at attachment 18 and 19 speak for themselves. Paragraph 52 gives further evidence of the review of records by the employer. That speaks for itself. That is Mr Paul's statement. Can I just make a couple of other additional comments in relation to the notes that he took of meetings. Before I get to that point though if I can draw your attention to attachment 10, your Honour. That's a table of comparisons. That appears at page 39 of Mr Paul's statement. The context of that is point 36(b) of his statement. This is part of the materials that he, in substance, explained at the meeting on 21 April 2015 in the workshop and Point Samson.
PN1277
So that material was part of the explanation. Then if I can go to attachment 12. This is explained in point 39 of his statement. It's a summary of what was said at the meeting. I might have made this submission before, but in relation to point 16, to the extent that that might be part of the explanation, it's capable of being read in the sense of the votes may not be counted if they are not working on the day of the vote. In accordance with my submissions in Swinburne, of course I'd submit that Mr Paul's subjective view of that is not relevant and Swinburne stands for the propositions that I have put.
PN1278
There was something made in the context of Mr Paul's evidence about rig shifts you will recollect, your Honour. I think it was put to him that rig shifts is something that's described in clause 11.3 of the BMC Agreement. Rig shift, whatever that is, he conceded is work that could be done in the offshore industry or something to that effect. Of course Mr Paul's subjective intention for the all the reasons that I advanced in relation to coverage of the agreement, in relation to coverage of awards is not determinative. In fact, it's irrelevant quite frankly with respect of Mr Paul as to issues such as that.
PN1279
Another particular point that I think was put to Mr Paul was in relation to leave. I think there was cross-examination of him in relation to whether or not employees of the applicant, who are casual employees, and accepted that the casual employees had paid leave. In my cross-examination of Mr Gakis I asked him a couple of questions about that. I think it's a little bit unclear from his evidence as to whether he was talking about the applicant's employees or employees engaged under the offshore agreement. I didn't put to him directly, but I do note for your Honour's information in the offshore agreement that I handed up to you there is reference in clause 17.6 concerning how casual officers accrue duty leave calculated at the rate of one day for each day of duty, and this leave will be paid at the daily rate plus the 20 per cent loading. There is that provision in the offshore agreement as evidenced from the statement of Mr Paul though employees of this applicant engaged on an ad hoc basis and that's evidenced by the contract of employment as well, so, in my submission, there's no basis upon which to find that employees of this applicant relevantly, for the purposes of this agreement, these proceedings, were entitled to paid leave.
PN1280
THE DEPUTY PRESIDENT: Mr Caspersz, can I just take you back to the submission you made about the significance of the term voting employees of a defined term in Mr Paul's statement at paragraph 34. There he's referring to the email and the attached spreadsheet that he received from Mr Matthews which was attachment 9 which has 14 employees listed or at least classifications, and when he comes to sending out the emails to the so he sends an email out to the voting employees. I count 12 emails being exhibited, but the other two, or at least employee G was not sent one by email.
PN1281
MR CASPERSZ: Yes, attachment 15 records which of the employees was contacted in this fashion.
PN1282
THE DEPUTY PRESIDENT: Yes.
PN1283
MR CASPERSZ: That's the 12 employees.
PN1284
THE DEPUTY PRESIDENT: 12.
PN1285
MR CASPERSZ: The same term "voting employees" is used and refers back to that definition which starts with 14 employees, but in accordance with this evidence it has to be read in the context of this evidence as a whole, your Honour.
PN1286
THE DEPUTY PRESIDENT: So it's - - -
PN1287
MR CASPERSZ: It's the reduced number.
PN1288
THE DEPUTY PRESIDENT: Ultimately there were 12 emails set out.
PN1289
MR CASPERSZ: Yes.
PN1290
THE DEPUTY PRESIDENT: Yes.
PN1291
MR CASPERSZ: That's right, yes. Your Honour, in relation to those employees - final submission - back in relation to Swinburne, it can inferred from all the evidence - in fact it can be found, there is direct evidence from all this evidence, that in accordance with the contract of employment, attachment 1, the persons who were first given the NERR were persons in those two groups that I described in accordance with Jessop J's reasons. Group A, persons actually employed at the time; group B, persons usually employed at the time. Ditto, at the start of the access period; ditto, those who voted for the agreement. That is Mr Paul's statement.
PN1292
Mr Matthews' statement is very brief, your Honour. He gave his evidence in a very direct manner. There is no reason to doubt his evidence, as I've already submitted, in relation to the business rationale. His evidence also is completely consistent with the evidence of Mr Paul. Finally, we've got the statement of Mr Witcombe which corroborates other evidence of the company, which is unremarkable and not challenged in any way. That is the company's evidence.
PN1293
THE DEPUTY PRESIDENT: In relation to the two employees who were dropped off the first list, your submission and you say the evidence is that neither of those two employees were employed - - -
PN1294
MR CASPERSZ: Correct.
PN1295
THE DEPUTY PRESIDENT: Or usually employed.
PN1296
MR CASPERSZ: Correct. Your Honour, there was a concession by Mr Paul in cross‑examination by Mr Edmonds that they could possibly have been employed the day before or possibly the day after.
PN1297
THE DEPUTY PRESIDENT: Yes.
PN1298
MR CASPERSZ: My recollection of that concession though was that it was a concession in response to a hypothetical.
PN1299
THE DEPUTY PRESIDENT: I put that, anyway, yes.
PN1300
MR CASPERSZ: Yes.
PN1301
THE DEPUTY PRESIDENT: I understood it as such. Can I just ask you this and I ask the same question of the MUA: let's assume for a moment the two people who were dropped off were in fact employed during the relevant period and didn't get a vote. Let's assume that for a moment. Does it make a difference?
PN1302
MR CASPERSZ: If the two employees who were dropped off were employed during the access period, there would have been an obligation, in my submission, to give them the documents for a start.
PN1303
THE DEPUTY PRESIDENT: Yes.
PN1304
MR CASPERSZ: Those employees then, I think - going back to section 181(1) - - -
PN1305
THE DEPUTY PRESIDENT: Because there would still be a valid approval. There would still be a valid majority of employees approving. Seven constitutes a valid majority which have voted.
PN1306
MR CASPERSZ: Yes.
PN1307
THE DEPUTY PRESIDENT: So the agreement has been approved, nonetheless. The two wouldn't have made a difference.
PN1308
MR CASPERSZ: Yes.
PN1309
THE DEPUTY PRESIDENT: It's a question of whether or not it impacts at some earlier point. That is, there can't be satisfaction of all the matters in relation to those employees - - -
PN1310
MR CASPERSZ: Leading up to the vote.
PN1311
THE DEPUTY PRESIDENT: Yes.
PN1312
MR CASPERSZ: My submission there, your Honour, is one looks at the body of the evidence. I've already taken your Honour through concepts of satisfaction. Of course all these provisions are qualified by reasonable steps. You've got the direct evidence. That's before you. You've got no evidence of employees coming forward and saying that they weren't given the NERR or they weren't given relevant documents, unlike some other cases where there has been evidence that bodies of employees, you know, at particular workplaces were missed out on altogether. There is no such evidence there.
PN1313
In my submission, taking into account all the evidence, you can be satisfied that reasonable steps were taken. I think that's what it comes down to. If I've answered your Honour's question - - -
PN1314
THE DEPUTY PRESIDENT: Yes. Thank you, Mr Caspersz.
PN1315
MR CASPERSZ: Finally then, if I might very quickly make some submissions in relation to what I submitted were the peripheral matters. Not to diminish the fact that the objections have been taken, but I think I have addressed the primary matters so far. Can I first pick up on some final submissions in relation to the genuine agreement argument that has been raised by my friends, the objectors.
PN1316
Of course just to return to the fact that I do rely on the contentions that I've written already and the outline of submissions and outline of submissions in reply, these submissions are in addition to those. When one talks about genuine agreement, your Honour, consistent with other provisions of the Act, my submission is that one focuses on the words. "Genuine" has been examined a lot in a number of different contexts, but at the end of the day it's a word of ordinary usage. It's authentic, it's real efforts or whatever. "Agreement" of course is that old concept of consensus ad idem.
PN1317
Your Honour, in this context in my submission, the objectors' perception of what these provisions mean is irrelevant. The true meaning of the provisions that have been challenged by the objectors is one that, in my submission, needs to be determined in accordance with the ordinary rules of interpretation of agreements. Your Honour would be well familiar with those most recently articulated in the decision of the Full Bench in Golden Cockerel and adopted since by Full Benches in this Commission and by single members.
PN1318
It's a question of when one looks at what these provisions mean, to ask the question, well, what would a reasonable person taking into account the surrounding circumstances have understood these provisions to mean? If the language of the agreement is unambiguous, then it's unambiguous. That's what it means. If it's ambiguous, then one can look at the surrounding circumstances to take account of that and determine what the true meaning is. In my submission, that is the starting point for the submissions concerning allegations of misrepresentation, clauses 12, 13, et cetera, of the BMC Agreement.
PN1319
Can I first pick up on the point of allegations of misrepresentation. Once again, a very serious allegation, in my submission. It arises out of the MUA's outline at paragraphs 9 and 10. Being a serious allegation, one would apply the same test whether as a question of fact, combined with a proper interpretation of the agreement, there was misleading conduct engaged in by the employer. Paragraphs 9 and 10 in particular in the outline of submissions, it's said that:
PN1320
Employees were given misleading and incorrect information that was provided throughout the bargaining and during the access period, particularly in regard to clauses 12 and 15.4. 10: The misleading incorrect information given by BMC to the employees constituted knowing and reckless false or misleading representation about a workplace right within the meaning of section 345 of the Act.
PN1321
My submissions in relation to that are fairly short and brief. First, clause 12 does not mean what the MUA asserts. Clause 12 of the BMC Agreement in accordance with the evidence that was given by the applicant's witnesses is, on the face of it, plainly one that relates to an uplift, as was put by the witnesses who gave evidence for the applicant.
PN1322
One of the surrounding circumstances that would be notorious to the parties - part of the framework, if you like, of the making of this agreement - was the Fair Work Act itself. The cases are clear that the statutory framework can be taken into account when one looks at the interpretation of the agreement. In the absence of express language, one would not conclude that a reasonable person reading this agreement would think that the intent of the parties in clause 12 was to allow there to be a diminution in terms and conditions consistent with the language of uplift. That was the evidence of the witnesses. It is directed and intended to be directed at an uplift; an increase in terms and conditions in relation to a major project.
PN1323
As to a major project, my submission is that in the context of an industry such as this and agreements such as this, it is not a matter which is so vague or ambiguous that it is incapable of interpretation and therefore is misleading in itself. The evidence of course of Mr Paul and Mr Matthews in relation to what was said about this term and other provisions of the agreement, is relevant in assessing what the parties who were making the agreement would have understood it to mean. There was no misleading in that regard either.
PN1324
Importantly, there is no evidence of anyone being misled by anything. There is no evidence from any employee or others who were involved in the agreement, who are covered by the agreement, of being misled about it. It's simply assertions by the objectors in relation to this. To the extent that the Commission has any concerns about this or any of the other provisions of the agreement, of course, the applicant would be open to be informed of those concerns and then to consider what undertakings as appropriate could be given to cure those concerns.
PN1325
That applies, next, to clause 13, the roster arrangements. It was put to Mr Matthews in cross‑examination by my friend Mr Edmonds that this really allowed the company to do whatever it wanted; to chop and change in terms of rosters. Mr Matthews was stout in his evidence that it was all about even time rosters; you would be highly unlikely to have rosters - I think the evidence was along the lines of 10 on and two off or something like that.
PN1326
In fact Mr Matthews' subjective appreciation of this provision is, in my submission, supported by the plain language of the provision. It commences at 13.1 which states that the normal working arrangements will consist of an even time roster. The rest of the provision takes flavour from that provision. 13.3, as well, where it talks about the employees agree that roster arrangements will vary from project to project. For example, a 35 days on duty and 35 days off duty roster may apply on specific projects. Once again, we're talking about the even time rosters, so in my submission no ambiguity, no misleading as a result of those provisions.
PN1327
Clause 15.4: there was something put to the witnesses about the meaning of market performance. According to company market performances, it appears in that provision. The important parts of this provision, in my submission, are this: first, there is certainly as to the rates of pay. The rates of pay are those that appear in the schedule. Second, there is certainty as to the increase. It's going to be at least the minimum of CPI.
PN1328
Third, to the extent that there is going to be more than that, it's described in terms that, in my submission, are notoriously unambiguous; market performance, company performance. Individuals in the community have got a good idea, in my submission, of what those things mean. You don't need to have dedicated formulas at this stage spelt out in detail in the agreement for people to have an appreciation of that. To the extent that it's necessary, the evidence given by the witnesses for the applicant as to what was said about this can be taken into account, as well. Simply, there was no misleading in relation to these provisions.
PN1329
There were then other contentions raised by the MUA of misleading conduct by the company in relation to the scope of the agreement; that somehow or other the scope was really venturing into the scope of the Offshore Agreement and somehow or other this was misleading by the company in not explaining that properly. For all the submissions I've made regarding the scope of the BMC Agreement, there is no merit in those submissions either, in my submission.
PN1330
Next, in relation to the complaints about incorporation of materials or the failure to incorporate materials, I've written submissions concerning that, your Honour. I don't intend to repeat them. I draw your attention in particular to the decision of the Full Bench in McDonald's in this regard. In actual fact, McDonald's goes to a lot of aspects of course of the approval process. It's a decision of Fair Work Australia, [2010] FWAFB 4602, a decision of their Honours Watson VP, Kaufman SDP and Raffaelli C.
PN1331
I don't intend to go to all aspects of it, your Honour, except perhaps to ask that you have regard to this issue and other issues that have arisen by reference to what the Full Bench said first at paragraph 19 - that's in relation to the forms and declarations that are filed by an applicant for approval of the agreement. Then in relation to paragraph 25, where the Commission talks about the reasonable steps to inform employees of matters.
PN1332
At paragraph 29, once again talking about the fact that there are no absolute requirements for the purpose of section 180(5)(a), but qualified requirements for reasonable steps. Paragraph 30:
PN1333
There is no requirement in the Act that there be a full explanation of the terms of the agreement prior to the employer requesting employees vote on an agreement. The requirement in section 180(5)(a) is that the employer take reasonable steps to ensure that explanations are provided.
PN1334
In our view these provisions do not preclude explanations being given during the access period. It is open to an employer to make arrangements for subsequent explanations prior to requesting employees to vote.
PN1335
Then also I draw your attention to paragraph 40 where the Full Bench now talks about incorporation of materials. Here the issue was the National Employment Standards and a copy of the South Australian Long Service Leave Act, the Full Bench here holding that the failure not to provide those documents was not a relevant failure. In paragraph 42, the Full Bench says:
PN1336
Section 180(2) requires employers to take reasonable steps to ensure that employees have access to the agreement and other incorporated documents. This will particularly relate to documents that are not otherwise in the public domain.
PN1337
Finally, there is also commentary in relation to the BOOT, which I will draw your attention to, at paragraphs 52 through to 55, where the Full Bench in this case noted that the agreement did contain some disadvantages, although overall the BOOT was passed. In relation to the steps taken to inform employees in this context of incorporation of agreements, I'll just briefly refer back to the statement of Mr Paul and draw your attention, your Honour, to paragraph 46 of that statement which references attachment 17.
PN1338
Attachment 17, you can see, was the covering letter enclosing a copy of the proposed BMC Agreement together with explanatory notes. Also the bottom line being, "If you have any other queries, please contact Clarence. Paul." That was part of the reasonable steps that were taken to inform the employees. I've already drawn your attention to paragraph 48, which is Mr Paul's statement or witness evidence about copies of the policies referred to in the proposed agreement being available at the workshops.
PN1339
As to whether or not these documents were incorporated as terms, as a preliminary matter, your Honour, the applicant would say that they were not so incorporated. Take, for example, clause 27, which is on page 13 of the BMC Agreement. When one interprets these provisions once again, which is fundamentally what one needs to do in determining whether or not a document is incorporated by reference as a term of the agreement, in my submission one takes into account, amongst other things, naturally what a reasonable person would think if they knew what the consequences were of incorporation of documents as a term.
PN1340
Now, there isn't evidence before you of what that no smoking policy is, or what the equal opportunity policy is, but one would be surprised, in my submission, to conclude that every word of a smoke‑free workplace policy or an equal opportunity policy has been incorporated simply by references such as this into the agreement as terms of the agreement, given the civil penalty consequences that flow from words being a term of the agreement, and there's the provisions in section 50, 51, 52, 53 of the Act, and, in my submission, one would simply not come to the conclusion that policies such as that are included, or intended by the parties, applying the principles of interpretation of agreement, taking into account what else has been put in front of the Commission by way of evidence as terms of the agreement. Clause 26.4 on page 12 referring to the fitness for work policy falls into a similar category, and indeed the other documents that have been described by the objectors that they say should have been provided but were not because they were terms of the agreement, so, in my submission, none of the documents that the applicants seek to rely on in this context can be said to be terms of the agreement.
PN1341
Further and alternatively, if the Commission finds against me on that, therefore for the reasons already submitted they are or the failure to provide copies of the (indistinct) agreement is not fatal, and reasonable steps were taken on that.
PN1342
Your Honour, I finally then want to go to the union's evidence and make a final few submissions about I've written out my submissions that I filed you'll be happy to hear that I conclude them and my written submissions, the one I want to refer to, is the one - - -
PN1343
THE DEPUTY PRESIDENT: That was August?
PN1344
MR CASPERSZ: Yes, that's correct. Thank you, your Honour. 6 August.
PN1345
THE DEPUTY PRESIDENT: 6 August, okay.
PN1346
MR CASPERSZ: The reply submissions were the 20 August, and I don't intend to go to those in any futile I just wanted to make a few brief submissions about some of the submissions on the 6 August.
PN1347
THE DEPUTY PRESIDENT: Yes, I have those.
PN1348
MR CASPERSZ: Thank you, your Honour. Can I just take you through to point 30? I'll just finish making some other submissions in relation to these objections they've taken to clause 12, 13 and 15.4 of the agreement. I don't need to add anything further to that. If I can take you to point 35 in relation to the allegations of good faith bargaining? In my submission, your Honour, for those reasons, and given the evidence that came out today, there is nothing in those objections in that respect. In relation to point 41, there was a complaint about clause 8.15 of the BMC Agreement. Clause 8.15 of the BMC Agreement is at page 5 of the agreement:
PN1349
In the event that an employee is absent for more than the frequency of their working days without notifying the company and is unavailable to contact the company then the company will assume that the employee has abandoned their employment and will consider the contract (indistinct) terminated effective from the last day of work attended.
PN1350
Your Honour, in my submission, there is nothing in the evidence that suggests anything untoward about that provision, as if it would somehow cut across any of the (indistinct) or otherwise, and in fact when one reads it, in the statutory framework in the context at the time of the making of the agreement, one's got to conclude, in my submission, that it was intended for other parties to be harmonious with the MES. Taking that into account and also the plain words of the provision, it is plain that it is directed at unauthorised absences, plainly an absence on curious leave is not an unauthorised absence, so it's not directed at - that criticism has been dealt with that in relation to the or bar the objectives.
PN1351
Point 41b, that's a submission in relation to a complaint about clause 20.2 of the BMC Agreement. Clause 20.2, I don't think there was any particular submission made today about that, but there is a complaint about that as if to say it is not compliant somehow with the NES. My submission is written there. In particular I'd direct your attention to paragraphs 91, 92 and 139 of the decision of the Full Bench and the 4 yearly review of modern awards, which explains that the view taken by the Full Bench there that effectively directing employees to if you like reduce excessive leave is and that's incidental to the NES. It's not in contravention of the NES, and that's all that clause 20.2 amounts to.
PN1352
Your Honour, in relation to point 51 of the outline of submissions, can I refer you back to paragraph 22 of the contentions that I originally wrote. They are the contentions dated 9 July 2015.
PN1353
THE DEPUTY PRESIDENT: Yes.
PN1354
MR CASPERSZ: I don't need to repeat that except to draw your attention to it. That is my submission in relation to the dispute settlement procedure. In my submission there's nothing untoward about that - I'm sorry, in relation to the nominal expiry date. Having said that, one does take into account once again in accordance with the principles' interpretation that these documents aren't drafted necessarily by skilled legal draftspeople, but when one takes into account the statutory framework at the time of the making of the agreement, then in my submission the conclusion must be that the parties intended that there to be a harmonious operation of the provision with the NES and there, in my submission, this is the way you can construe clause 2.1, and there can't be any doubt about the intentions of the parties; it satisfies the provisions of the Act in relation to - - -
PN1355
THE DEPUTY PRESIDENT: The commencement date should be read as the date of approval?
PN1356
MR CASPERSZ: That's right.
PN1357
THE DEPUTY PRESIDENT: In any event, if there's any doubt it's a matter, I think, that can be cured by an undertaking.
PN1358
MR CASPERSZ: Indeed, your Honour, as indeed as I've already submitted, any other concerns that the Commission might have in relation to particular provisions. And finally, returning to my outline of submissions, point 52, I rely on my submissions in relation to the dispute resolution, and once again in my submission nothing untoward in all of that.
PN1359
The final submission in relation to the evidence of the unions, I've already addressed statements of Mr McGinn, Mr Valeriani and Mr Simm, a final submission in relation to Mr Gakis's statement. I don't, in my submission I submit that doesn't add or assist relevantly in relation to any of the issues and here I rely, your Honour, on the summary of the contents of the objectors' witness statements that are filed together with the reply submission, which I trust you've got a copy of it's a simple one-pager.
PN1360
THE DEPUTY PRESIDENT: Here it is I do.
PN1361
MR CASPERSZ: Your Honour, there has been quite a bit to traverse. I'm sorry I took so long but those are the submissions for the applicant, unless I can be of further assistance to you.
PN1362
THE DEPUTY PRESIDENT: No, thank you. I intend to reserve my decision. I'll attend to publishing a decision as soon as reasonably practicable. I'm mindful of the fact that this matter has been outstanding for some time. I thank the parties for their contribution today and we're adjourned. Thank you.
ADJOURNED INDEFINITELY [5.53 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MATTHEW JOHN PETRICH, SWORN............................................................. PN31
EXAMINATION-IN-CHIEF BY MR HULMES................................................ PN31
EXHIBIT #1 DOCUMENTS PRODUCED BY MR PETRICH PURSUANT TO ORDER PN45
THE WITNESS WITHDREW.............................................................................. PN54
EXHIBIT #2 WITNESS STATEMENT OF MR ROBERT WITCOMBE COMPRISING SEVEN PARAGRAPHS DATED 06/08/2015 WITH TWO ATTACHMENTS PN67
BENJAMIN JOHN MATTHEWS, AFFIRMED................................................ PN70
EXAMINATION-IN-CHIEF BY MR CASPERSZ............................................. PN70
EXHIBIT #3 STATEMENT OF BENJAMIN MATTHEWS DATED 06/08/2015 COMPRISING 12 PARAGRAPHS WITH NO ATTACHMENTS.............................................. PN86
CROSS-EXAMINATION BY MR EDMONDS................................................ PN113
CROSS-EXAMINATION BY MR NIVEN........................................................ PN278
CROSS-EXAMINATION BY MS THOMPSON.............................................. PN288
THE WITNESS WITHDREW............................................................................ PN300
CLARENCE DESIRE PASCAL PAUL, AFFIRMED.................................... PN301
EXAMINATION-IN-CHIEF BY MR CASPERSZ........................................... PN301
EXHIBIT #4 WITNESS STATEMENT OF CLARENCE DESIRE PASCAL PAUL COMPRISING 53 PARAGRAPHS DATED 16/08/2015 WITH ATTACHMENTS MARKED 1 TO 19....................................................................................................................... PN333
EXHIBIT #5 DOCUMENT ENTITLED "LIST OF EMPLOYEE NAMES AND ALIASES" CONTAINING LIST OF ALIASES AND EMPLOYEES A THROUGH P, TOGETHER WITH CORRESPONDING NAMES............................................................................. PN355
CROSS-EXAMINATION BY MR EDMONDS................................................ PN357
THE WITNESS WITHDREW............................................................................ PN470
CLARENCE DESIRE PASCAL PAUL, RECALLED................................... PN490
CROSS-EXAMINATION BY MR EDMONDS................................................ PN490
CROSS-EXAMINATION BY MR NIVEN........................................................ PN658
CROSS-EXAMINATION BY MS THOMPSON.............................................. PN671
RE-EXAMINATION BY MR CASPERSZ....................................................... PN680
THE WITNESS WITHDREW............................................................................ PN701
GEORGE GAKIS, SWORN................................................................................ PN723
EXAMINATION-IN-CHIEF BY MR EDMONDS........................................... PN723
EXHIBIT #6 WITNESS STATEMENT OF GEORGE GAKIS DATED 21/08/2015 PLUS ANNEXURES GG1 TO GG9.............................................................................. PN742
CROSS-EXAMINATION BY MR CASPERSZ................................................ PN747
THE WITNESS WITHDREW............................................................................ PN758
ROBERT GRAHAM SIMM, AFFIRMED........................................................ PN762
EXAMINATION-IN-CHIEF BY MR EDMONDS........................................... PN762
EXHIBIT #7 UNDATED WITNESS STATEMENT OF ROBERT SIMM PLUS ANNEXURES RGS1 AND RGS2................................................................................................. PN772
CROSS-EXAMINATION BY MR CASPERSZ................................................ PN777
THE WITNESS WITHDREW............................................................................ PN790
KYLE OWEN MCGINN, AFFIRMED............................................................. PN802
EXAMINATION-IN-CHIEF BY MR EDMONDS........................................... PN802
EXHIBIT #8 UNDATED WITNESS STATEMENT OF KYLE MCGINN PLUS ANNEXURES KM1 TO KM3........................................................................................................ PN812
THE WITNESS WITHDREW............................................................................ PN819
EXHIBIT #9 WITNESS STATEMENT OF STEVE VALERIANI DATED 07/09/2015 PLUS ANNEXURES SV1 AND SV2............................................................................. PN835
EXHIBIT #10 STATEMENT OF PAUL ARENSON DATED 20/05/2015.... PN847
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URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/534.html