|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 41757-1
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER GOOLEY
B2010/3668
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Tyco Australia Pty Limited T/A Wormald
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2010/3668)
Brisbane
9.35AM, FRIDAY, 4 MARCH 2011
Continued from 03/03/2011
JUSTICE BOULTON: Mr Murdoch.
PN902
MR MURDOCH: The ballot result was counted yesterday in accordance with the recommendation. The agreement was voted down.
PN903
JUSTICE BOULTON: Do we have the results of the ballot?
PN904
MR MURDOCH: The actual numbers?
PN905
JUSTICE BOULTON: Yes.
PN906
MR WHITE: My instructions are 31:18.
PN907
JUSTICE BOULTON: So 49 people participated?
PN908
MR WHITE: Yes.
PN909
JUSTICE BOULTON: 31 against and 18 for?
PN910
MR WHITE: Yes, and I think that 49 is about of approximately 52 who would have been eligible to participate.
PN911
JUSTICE BOULTON: Yes, thank you. Mr White.
PN912
MR WHITE: So we call Craig McKenzie.
<CRAIG DOUGLAS McKENZIE, SWORN [9.36AM]
<EXAMINATION-IN-CHIEF BY MR WHITE [9.37AM]
MR WHITE: Mr McKenzie, could you state for the record your name and address, please?---Craig Douglas McKenzie (address supplied).
PN914
Now, could you have a look at this document? Is that an affidavit you swore on 11 January this year?---Yes.
PN915
Can you have a look at paragraph 12, please? You refer to making entries in your PDA?---Yes.
PN916
Now, is it the case that technicians have PDAs?---Some technicians do, but mainly testers have PDAs.
PN917
Do you have a PDA?---I don't have one, no.
PN918
JUSTICE BOULTON: Now, Mr White, do you want me to mark this?
PN919
MR WHITE: I'm just making some corrections before. So that's the correction in relation to that paragraph. Then can you - - -
PN920
COMMISSIONER GOOLEY: Sorry, Mr White, does that mean to delete 12(c) of the - - -
PN921
MR WHITE: He doesn't have a PDA so delete, yes.
PN922
Can you look at paragraph 27, Mr McKenzie? In Mr Sillett's most - second most recent affidavit there's a medical report. Do you ever recall having undertaken a urine drug screen assessment?---No, I don't recollect it at all, actually. I remember doing the medical exam, not a urine test.
**** CRAIG DOUGLAS MCKENZIE XN MR WHITE
PN923
COMMISSIONER GOOLEY: So is there any change to that paragraph?
PN924
MR WHITE: Only that he can't recall, I think, rather than never done. He can recall a medical but he can't recall having done a urine one.
PN925
COMMISSIONER GOOLEY: So I'm just not clear what the paragraph is intended to read.
PN926
MR WHITE: That he can't recall having taken a drug screen.
PN927
SENIOR DEPUTY PRESIDENT IVES: So delete "have never undertaken" and insert "cannot recall".
PN928
MR WHITE: Having undertaken a urine drug screen assessment.
PN929
COMMISSIONER GOOLEY: What did that - I presume it doesn't apply to the blue card training?---No, it doesn't.
PN930
SENIOR DEPUTY PRESIDENT IVES: Probably not a huge amount turns on it, Mr White, but just so that I've got that right, that paragraph should now read, "Paragraphs 4(c), (d) and (e) of Mr Sillett's affidavit are not correct because I cannot recall having undertaken a urine drug screen assessment, nor having undertaken blue card training." Is that correct?
PN931
MR WHITE: Perhaps I will clarify this, Senior Deputy President. Can I ask one question first and then we can come back to the form of this paragraph?
PN932
Have you ever undertaken a blue card training or obtained a blue card issued by the authority responsible for the care of children?---No.
**** CRAIG DOUGLAS MCKENZIE XN MR WHITE
PN933
In which case there should be, on that formulation, a full stop after "drug screen assessment" and to make it clear, "I have never undertaken blue card training".
PN934
JUSTICE BOULTON: So can you read out the paragraph as amended?
PN935
MR WHITE: "Paragraphs 4(c), (d) and (e) of Mr Sillett's affidavit are not correct because I cannot recall having undertaken a urine drug screen assessment. I have not undertaken blue card training." Just in case there's any confusion, the blue card there referred to is the blue card for working with children and not the blue or white card that is held for access to construction sites.
PN936
JUSTICE BOULTON: Are you going to add that clarification?
PN937
MR WHITE: Well, it's the blue card training for working with children. Yes. Subject to those corrections, Mr McKenzie, this - the contents of this affidavit are true and correct?---Yes.
PN938
I tender that if the tribunal please.
PN939
JUSTICE BOULTON: Exhibit W5. It's the affidavit of 11 January 2011.
EXHIBIT #W5 AFFIDAVIT OF MR McKENZIE OF 11/01/2011
MR WHITE: I have some additional questions arising out of Mr Sillett's second most recent affidavit, if I can quickly ask Mr McKenzie those questions.
PN941
The first question, Mr McKenzie, is how many site specific inductions for customers have you undertaken?---Over the time I've been with Wormald?
PN942
Yes?---Individual I'd say probably around about 40, I'd say, roughly.
**** CRAIG DOUGLAS MCKENZIE XN MR WHITE
PN943
How long have you been at Wormald?---On and off for about 16 years.
PN944
In paragraph 24 of Mr Sillett's supplementary affidavit sworn on 2 March he says that service technicians are also required to complete
a defect rectification advise for DRA in respect of each defect they discover. What do you say about that?
---Personally I don't know. I don't do DRAs. Mainly I find that that's something that testers look after, the DRA.
PN945
But from your knowledge are you aware of any other service technicians in your position?---No, that do DRAs, no.
PN946
In paragraph 27 of that affidavit of Mr Sillett he said that, "Service technicians only remit paperwork to Wormald's office on an intermittent basis." Sorry, I'll read it in full, "At paragraph 15 of Mr McKenzie's affidavit he states that service technicians only remit paperwork to Wormald's office, presumably, on an intermittent basis. This statement is untrue. Service technicians are required to remit paperwork as soon as practicable, which is usual within one to two days of a call-out being completed. I'm not aware of any occasions when a service technician has submitted paperwork two to three weeks after a call-out was completed." Can you tell the tribunal what is the current direction you operate under in relation to the submission of paperwork?---Well, the way I operated usually is that we get to a certain point, and it usually seems to me around about two to three weeks, where we come in and do our work in progress report and hand our paper in then to Pam Bennett.
PN947
All right?---She looks after the work in progress.
PN948
Have you received any instruction recently about the submission of paperwork?
---No.
**** CRAIG DOUGLAS MCKENZIE XN MR WHITE
PN949
In the event that on a call-out you find a fault which is a critical fault which is unable to be repaired, what is the process you follow about notification, to anything in respect of that?---A call-out after hours or - - -
PN950
After-hour call-outs?---After hours a call would come in via Gateway who is our - they hand out all the calls as such. If it's a critical fault we'll get back to Gateway and let them know and we'll also try and let the customer know that we have a contact for them, to let them know what's wrong with their system.
PN951
Do you know Ms Bennett?---Yes.
PN952
Was any notification made to her about unrepaired critical defects?---During normal hours, yes. It's always verbal. We also ring Pam back and Pam usually has all the contacts so she gets back onto the client and lets them know.
PN953
But after hours it's always - - -?---Always go to work - yes, or the client.
PN954
If you receive an after hours call-out and you locate a fault which is non-critical, but which you're unable to repair, what is the process you follow?---The process we follow, if it's non-critical, we can isolate just, say, to the one point and we'll do that point and make sure that the system is working as such and if it's not critical, well, we'll come back the next day or whenever we get the part and fix it so - - -
PN955
Do you make any notification in relation to the - - -?---We do log book entering in the book. That's probably about all we would do.
PN956
Where is that log book?---That's held in the fire panel.
PN957
DEPUTY PRESIDENT IVES: Sorry, that's held in the fire panel at the premises where the - - -?---Where the panel is as such, yes.
**** CRAIG DOUGLAS MCKENZIE XN MR WHITE
PN958
Yes.
PN959
MR WHITE: Mr Sillett attaches to that affidavit as exhibit RS2?---Yes.
PN960
Perhaps if you - an acknowledgment of induction you signed on 8 May 2007 with the inductor name as Mr Dimmock?---Yes.
PN961
Do you recall doing an induction in Wormald's in May 2007?---I do, yes.
PN962
Can you describe to the tribunal what that induction was?---Because I had only left previously for a matter of five months I sat down with Mr Dimmock and we just filled it out because I had been there for nearly - well, 15 years before that, 14 years before that.
PN963
So when you sat down with Mr Dimmock what induction did you do?---None. We got a - he threw me a folder and said, "Fill this out." That was it so - because I had been working there before.
PN964
I think you said earlier that over the course of your employment of about 16 years, you had done about 40 site-specific inductions. What's the most recent one you have done?---Lend Lease.
PN965
How long did that take?---Roughly, I think, probably five to 10 minutes if that.
PN966
Can I ask you this: in that affidavit Mr Sillett asserts that what you have previously said about never having to call the backup technician when you were on an out of hours call-out, was untrue and he says that because he was told by another employee. That's Alan Gardiner. Do you know Alan Gardiner?---I do.
PN967
**** CRAIG DOUGLAS MCKENZIE XN MR WHITE
Have you ever called out Alan Gardiner as a back-up technician when you have been on an after hours call-out?---Not as a back-up, no.
PN968
Thank you. If the tribunal please.
<CROSS-EXAMINATION BY MR MURDOCH [9.52AM]
MR MURDOCH: We might as well clear up this Alan Gardiner business for the start. You were careful in your answer when you said,
"No, not as a back-up." Have you been out on call and called up Alan Gardiner to come out on call?
---No. Actually what it was about was that Alan lives at Bray Park, the other side of the city so there was a call to Pinewoods,
I think it was, and he lives just around the corner from them. I said, "Do you want the three hours at double?" And he
said, "Yeah, I'll take it." So he has done calls as such.
PN970
All right. Let's just get some specifics around this. You were on call. He was the back-up?---No.
PN971
No?---He wasn't even on call.
PN972
Wasn't even on call?---I don't have him as a back-up on my roster.
PN973
But in any event you called him - - -?---Yes.
PN974
- - - rather than do the job yourself when you were the call-out technician?
---Exactly, yes.
PN975
Were you out on call when you called him?---No, I was at home.
PN976
What's the distance that you would have had to drive?---Sunnybank to Bray Park, so probably - what's that - 40 K's, I would say, 40, 50 K's.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN977
You had a company vehicle to do the driving?---Yes.
PN978
This has happened on more than one occasion?---Yes.
PN979
How many occasions?---Not a great deal. I mean, when you do a call you pretty much want to do it yourself because the whole point of doing on-call is to make money but with Pinewoods, Alan lives just around the corner of it so - and he's quite happy to take three hours at double, that's fine, for that.
PN980
You still haven't given me a number?---For what?
PN981
4?---A number for what, sorry?
PN982
I asked you how many times you called Gardiner to have him do a call-out when you were the rostered call-out technician?---I would probably say three.
PN983
Probably say three?---Probably, yes.
PN984
You were asked twice for the number of on-site inductions that you had done whilst an employee of Wormald and you said, "It was about 40." You knew that question was going to be asked of you, didn't you?---Yes.
PN985
Did you check any records to enable you to give an accurate answer to the tribunal?---No.
PN986
Isn't it the case that you in fact carry a folder or a case that's chock-a-block with induction cards?---We do, yes.
PN987
Did you get the cards out and count them or bring them along to look - - -?
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
---No.
PN988
In your affidavit you have adopted the earlier affidavit and you say that the contents of that remain true and correct and you refer to your affidavit affirmed on 18 October 2010. That's right?---I'm not sure. I haven't got it in front of me.
PN989
Could I ask that you be given a copy of that one that you do refer to in W5.
PN990
JUSTICE BOULTON: Do you have a copy of the affidavits that you - - -?
---No, but the one I got is mine.
PN991
MR WHITE: We can provide a copy from the appeal book with Mr McKenzie's earlier affidavit.
PN992
JUSTICE BOULTON: Yes.
PN993
MR MURDOCH: Could I take you to paragraph 7 of that earlier affidavit. Do you see there that you, in referring to fire detection systems, state in the second sentence, "Often these systems are connected to the telephone system and in the event of an alarm being triggered the Queensland Fire and Rescue Service, QFRS, is automatically notified"?---That's correct.
PN994
The notification of the QFRS or Queensland Fire and Rescue Service is done through a piece of equipment called the ASE or alarm signalling equipment, isn't it?---That's correct.
PN995
The ASE is a small unit which is located in the panel box, isn't it?---That's correct.
PN996
The ASEs are controlled by an organisation known as ADT, aren't they?
---Correct.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN997
ADT have a monitoring centre in Melbourne, don't they?---That's - I believe so, yes.
PN998
So that the comms, if we can call it that, with the fire brigade are controlled by this ASE device in the panel. You're nodding your head?---I'm listening, yes.
PN999
Well, you agree with that?---Yes.
PN1000
So if the ASE is down there is no communication with the fire brigade, is there?
---That's correct, yes.
PN1001
Now, the organisation, ADT, contract with the Queensland Fire and Rescue Service to provide these alarm signalling equipment units, don't they?---I believe yes, they did, yes.
PN1002
All right?---Yes.
PN1003
ADT in turn contract with Wormald for the maintenance and repair of the ASE devices, don't they?---I believe so.
PN1004
The technicians, the breakdown technicians, employed by Wormald are required to respond to breakdowns of the ASEs in the panels, aren't they?---Yes.
PN1005
The situation is that the ASEs in all the fire panels are all covered by the organisation, ADT, aren't they?---I believe so.
PN1006
The ASEs in all fire panels come within the contract which Wormald has for the maintenance and repair of those ASEs, don't they?---I'm not sure about that.
PN1007
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
You're not sure?---No.
PN1008
Do you know that the technicians such as yourself have keys to the ASEs?---Yes.
PN1009
You have one?---Yes.
PN1010
Do you have it on you?---No.
PN1011
Is it in your van?---Yes.
PN1012
Your key is individually numbered, isn't it?---Yes.
PN1013
So that the ADT organisation know immediately which technician is accessing that alarm signalling equipment, don't they?---That's correct.
PN1014
You'd agree with me that there is a sophisticated system operated by ADT to ensure that those ASEs are operational at all times?---I'd agree.
PN1015
To put it in layperson's terms, several times through each 24-hour period there are pulses sent through the phone wires to the ASEs
to ensure that they're working?
---Correct
PN1016
If they don't respond there is an immediate call to Wormald to have Wormald turn out a technician for an urgent check on that alarm signalling equipment?---I believe so. That's ADTs part on that. I - that’s - yes, I believe that's what should happen.
PN1017
But you know the way the system works, don't you, because if the ASE is out that vital link with the fire and rescue service is out too, isn't it?---That's correct.
PN1018
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
So it's imperative that if the ASE doesn't respond when it’s sent that automatic signal that a technician turn out, with the technician's individual key, access it, find the fault and if possible, repair it urgently?---Why would you need the key?
PN1019
Why would you need the key? Well, what do you have the key for?---The key is to take the device offline from the brigade, that's what we use it for.
PN1020
That's right?---Or from ADTs.
PN1021
But you're trying to repair these units, aren’t you?---The - - -
PN1022
ASEs. You've had training?---No, but we've - - -
PN1023
You've had no training?---No.
PN1024
No training at all?---Not at all.
PN1025
Do you know how to repair them?---We've learnt how to repair them, yes.
PN1026
You've learnt how to repair them. Okay. What, taught yourself?---Yes.
PN1027
Been given manuals?---No. You just learn what goes wrong with them.
PN1028
You learn what goes wrong?---You pick up what other people do and we all work together.
PN1029
So far as these alarm-signalling devices go, they're of course scattered throughout the state, but there is a concentration of them in south-east Queensland, isn't there?---Correct, yes.
PN1030
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
The ASE transmits the status of the fire panel by monitoring alarm faults and isolates?---Correct.
PN1031
All panels connected to the Queensland Fire and Rescue Service system have a combination of these status configurations, but they'll always monitor the alarms in the building?---Yes, I believe ADT will monitor the alarms' faults, but they will - they're not monitoring isolations at the moment, I believe they will be though.
PN1032
The status monitoring is sent through the phone wires to the ADT monitoring centre in Melbourne, isn't it?---With regards to the ASE it's a 3G network and Tony has a phone line as a backup.
PN1033
Well, what is the primary means by which ASE alerts the Queensland Fire and Rescue - - -?---By the 3G network.
PN1034
Pardon?---By the 3G network.
PN1035
By the 3G network?---Yes.
PN1036
But in any event, whether it's through the 3G or through the Telstra lines, if the ASE is out the communication with the Queensland Fire and Rescue Service is down?---That's correct.
PN1037
You'd agree with me that there is an expectation on the part of ADT of a one-hour turnout if there is a comms down call from the centre?---I'm not sure what their response times are.
PN1038
Well, you'd agree with me that it's a matter of urgency because the communication with the fire brigade from the building's alarm system is cut?---I don't - I'm not sure, but I don't think ADT do put a lot of urgency on it, as in, like, an hour, because mainly power losses and things like that. So I do believe they give them a little bit of time, that's all.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1039
Well, what is a little bit of time?---Two to three hours, or something like that.
PN1040
I see?---Yes, there would definitely be an urgency as to why it's not responding.
PN1041
Sorry. There would be an urgency for a response?---You - you'd assume there would be something wrong with the fire panel, or it’s lost power.
PN1042
In the call-out kits that you carry in your Wormald vehicle which you take home with you, you carry spare parts for the ASEs?---Yes, in the after-hours kit. Yes, there is an - they're actually in - I think there's a spare aerial as well.
PN1043
There is, for example - you carry spare antennas for the ASEs?---I believe so, yes.
PN1044
You also have various lines and other components for the ASEs that you carry with you?---I believe there is only one complete one in there so - which is all you'd require anyway so - - -
PN1045
No. But let’s take it step by step. You have a complete replacement ASE that you carry in the van?---In the after-hours kit? I don't have one, no.
PN1046
Well, in the after-hours kit there is a replacement ASE?---Correct.
PN1047
There are also replacement antennas?---Antenna, yes.
PN1048
What other components do you carry to enable repairs on the ASEs?---That would cover it.
PN1049
That would cover it. All right. This is a service that Wormald provide for all Queensland Fire and Rescue Service customers who have the connection to the Queensland Fire and Rescue Service through 3G or the phone lines?---I believe we work for ADT as far as I'm aware.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1050
Yes, that's right, but ADT are the contractor for the Queensland Fire and Rescue Service?---Yes, but we're not, are we?
PN1051
Pardon?---We're not ones.
PN1052
Look, I'll get to the point, Wormald got the lot. There is nobody else doing this repair of ASEs in Queensland. Is that correct?---I'd assume so, yes.
PN1053
Wormald are also involved, are they not, in the installation of ASEs?---Yes, we are.
PN1054
That also is under a contractual arrangement with ADT?---I believe so.
PN1055
Just to put some numbers around this, you wouldn't disagree with me that there are over 6200 ASE sites in the state of Queensland?---I would assume so. That sounds - - -
PN1056
75 per cent of those are in south-east Queensland?---I suppose so, I'm not sure. I don't know.
PN1057
The signal from an ASE back to the ADT control indicating that there is either a fault or no comms at all with the fire brigade, that can be, can it not, accentuated during periods of peak thunderstorm activity?---From personal experience I'd say no, not on the ASE side (indistinct) they're quite a reliable little device actually.
PN1058
But they do go offline, they do malfunction?---No. I've never - in my experience I've never come across that.
PN1059
For example, after the floods?---Yes, a lot went under water, that did them no good.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1060
There has been a lot of work putting them back online, hasn’t there?---There has been a lot, yes.
PN1061
So you say floods, yes, but you're doubtful about storms having any influence on the ASEs?---Yes, they're quite well-protected I think.
PN1062
In any event, if the ASE is down the building is offline to the fire brigade?---Yes.
PN1063
Now, in that same affidavit you talk about fire detection systems, and you point out that you're not involved in the repair of fire sprinklers. Is that the basic point you're making in those paragraphs?---Is that paragraph 8?
PN1064
7, 8, 9 and 10. In 10 you sum it up, you say, "We are not trained or qualified to work on those fire-suppression systems"?---On sprinkler systems, no.
PN1065
Now, so far as the fire detection systems are concerned, you'd agree with me that the fire detection system, or the smoke alarms if you want to call them that, are the first line of defence when it comes to protecting the occupants of a building or premises?---It's the early warning, yes.
PN1066
You'd agree with me, wouldn't you, that the people in a building need early warning because of the acute hazards posed by smoke and toxic fumes?---Yes.
PN1067
You'd agree with me, wouldn't you, that many folk who fall victim to fires are untouched by flames but are killed by smoke and or toxic fumes?---Yes, there is a lot of toxic fumes in smoke.
PN1068
You'd agree with me, wouldn't you, that even though ultimately the sprinklers might come on in a building, the sprinklers don't react to smoke or toxic fumes, they react to high level exposure to heat, don't they?---Reasonably high, yes.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1069
Well, what's reasonably high?---68 degrees.
PN1070
68 degrees? So by the time we get 68 degrees and the sprinklers come on, the sprinklers are going to protect the physical structure
of the building, aren't they?
---Yes.
PN1071
The sprinklers aren't there to protect humans, are they?---Well, both, I believe.
PN1072
Both you believe?---Both property and people.
PN1073
The time lag between the smoke detectors and the sprinklers can be quite a number of minutes, can't it?---That would depend on the fire.
PN1074
But we know, don't way, that smoke and toxic fumes travel faster than flames, don't they?---Yes.
PN1075
So the imperative, particularly in high rise buildings, is to give people urgent early warning so that they can get in those protected stairways and try to exit the building?---Yes.
PN1076
So when it comes to the work that you and your colleagues do in out of hours call-outs, the first thing you do when you get to a site is diagnose what the problem is, isn't it?---Yes.
PN1077
Because until somebody's diagnosed what the problem is, you don't know whether it's a trivial fault or whether it's a total failure of part or all of the smoke alarm system, do you?---After hours we do have a bit of an idea because the client has told Gateway what is happening. So we pretty much know when we get the call from Gateway what the problem is. So it's pretty - they usually give us a good idea of what's happening.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1078
Pretty much know? Good idea?---Well, yes, it's only being told verbally. So it's come from the client to Gateway, so to us and - it's third-hand.
PN1079
What expertise does the client have in diagnosing the nature of - - -?---He could have a lot.
PN1080
Wouldn't have any?---He could have a lot.
PN1081
Could have a lot?---We've got lots of clients that know a lot about the fire system.
PN1082
I see. Well, that's encouraging. You're seriously suggesting that prior to the attendance on site that there's an accurate diagnosis
of the nature of the problem?
---We have to take it on face value. That's what Gateway tell us.
PN1083
But the personnel at Gateway are not technicians, are they?---No, they've only been relayed information that's come from the client or (indistinct)
PN1084
That's right. In any event, you accept, don't you, that the purpose for having you and your colleagues on call is so that in the event of a notification of a fault, a trained technician can attend the site and diagnose the problem?---Yes, we're there to fix the problem. That’s our job.
PN1085
Well, it's diagnose the problem, then fix it?---Yes.
PN1086
Now, you don't know, do you, whether the problem can be fixed or it can't be fixed until there's been a diagnosis?---Yes, that's correct.
PN1087
Nor do you know the extent of the problem. For example, if the first detection, smoke alarms are defective, say, in this building, until you've done a diagnosis, you don't know whether it's every floor, one floor, two floors, part of a floor, do you?---That would depend on the system.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1088
It would depend on the system? But again, it requires, to get accuracy, attendance by a trained technician and a diagnosis of the problem, doesn't it?---Yes. All the fire panels do it themselves.
PN1089
Do it themselves?---Yes. They tell you where the problems are and they have history logs and they tell you exactly what's going on.
PN1090
Tell who?---The technician.
PN1091
That's right. So the diagnosis is by the technician going and reading the information on the panel?---That's probably where you'd find a lot of the clients are getting a lot better, they can go to their fire panel now and just read what's wrong.
PN1092
They're getting a lot better?---Yes. A lot of fire panels were - they didn't give a lot of information. Today they too. So that's why it's simple for them to get the information out of the machine.
PN1093
So in terms of people having contingency plans, you can't attempt a contingency plan until you've first diagnosed accurately the problem, can you?---That's correct.
PN1094
So far as contingency plans go, if you're going to attempt one, that will depend very much on the nature of the property you're dealing with, won't it?---Yes.
PN1095
For example, some of the company's clients in south-east Queensland have 80 level apartment buildings, don't they? Q1. Out of your area, is it?---Yes, not my area, sorry.
PN1096
Not your area? Okay, we won't worry about that. A couple in the CBD that are in excess of 50, aren't there?---30.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1097
30? Okay, we'll try 30. Until somebody has answered the call, gone there and diagnosed, you don't know whether it's going to be adequate by way of a contingency plan to have one security guard or two or three or half a dozen, do you?---No.
PN1098
So far as using CCTV as a contingency plan, can you see toxic fumes on CCTV?
---No. I'm not sure.
PN1099
CCTV is black and white isn't it? Normally?---No. Colour probably.
PN1100
I see. Look, the work that you and your colleagues do, you've, I think, said that the average is 1 to 2 per night when you're on after hours call?---That's what it averages, yes.
PN1101
But we know with averages, don't we, that that means sometimes you might have six, sometimes you might have none?---We could do, yes. Exactly.
PN1102
We know, don't we, that the clients under their contracts stipulate response times, don't they?---Some clients do, yes. National clients.
PN1103
The national clients are often clients with multiple sites. For example Coles, Telstra - - -?---That's correct.
PN1104
When it comes to multiple calls on a particular night, say during storm activity, and you've got a contractual obligation ,or the company has to respond, you'd agree with me, wouldn't you, that you need properly trained, experienced, qualified call-out technicians to go out to the locations where there's been a problem notified?---That would be an advantage, of course.
PN1105
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
Would be an advantage?---Definitely.
PN1106
Well, you're not suggesting that you send out persons who aren't properly trained or experienced, are you?---A lot of the calls could be handled by, for example, a tester, you know what I mean? A lot of them are just resetting an alarm. It's not rocket science as such. You just push a button. So you know, there's those calls. We have multiple - we have a multitude of calls where they can be very technical or they can be very easy.
PN1107
Often you don't know until you get there?---No, you don’t.
PN1108
No. So if - - -?---Only what you've been told by - - -
PN1109
That's right. Which may be accurate or may not be accurate?---That's correct.
PN1110
You agree - the testers are not on call, are they?---I'm not sure. I think there is one. I'm not sure. But not normally, no.
PN1111
The testers don't have the same qualifications as the technicians, do they?---No, they don't. No.
PN1112
Nor do they have the licence which you and your colleagues have?---Some of them do, yes. That's the fire protection licence.
PN1113
That's right. Paragraph 29 of your first affidavit you've said that in your 16 years in the industry you're unaware of any injury occurring as a consequence of a fire detection system being disabled?---That's correct.
PN1114
You are, aren't you, aware of the terrible, terrible tragedy at the back packer's hostel?---Mm'hm.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1115
You're aware, aren't you, that some days earlier the fire detection system there had been disabled - - -?---Yes.
PN1116
- - - and left disabled?---What I was stating was that I was personally aware in my situation. I have heard of - everybody's hear of the - - -
PN1117
Paragraph 26 of your affidavit, and that's on that same page, you’ve said that aside from a commercial agreement with Transfield, that their call-outs will be dealt with within two hours, but you're not aware of any guidelines or requirements that impose time limits. Now, I think we've already covered that and you've agreed that there are numerous other national clients that have time limits?---Only one other. Coles, I think.
PN1118
Only Coles?---Coles and Telstra. They're the only KPOs I know about.
PN1119
I wanted to cover another matter with you to tidy up the record. When you gave evidence before Spencer C you in providing an example said that this building did not have a fire detection system. Do you recall saying that?---Smoke detection system. No. What we were talking about was in the room there was no smoke detectors.
PN1120
In any event you've read Mr Sillett's affidavits, haven't you?---I have, yes.
PN1121
He has pointed out to you that he is personally familiar with the systems in this building?---That's correct.
PN1122
That this building does in fact have a smoke detector system?---It does outside.
PN1123
Well, it's in the airconditioning - - -?---That's right.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1124
- - - ducting, is it not?---It's not in this room.
PN1125
It's in the airconditioning ducting which provides smoke alarm protection for the whole of the building?---They're in the return air ducts.
PN1126
In the return air ducts. That's right?---That's correct.
PN1127
So that what it suggests is that on the occasion you volunteered that example that you were mistaken as to the equipment in this building?---No.
PN1128
No?---No, because when we were using that example we were looking at the inside of this room, or the other courtroom, and there were no smoke detectors in the room on the ceiling.
PN1129
Look, Mr McKenzie, you're being cute, aren't you, because you know that in high-rise buildings it's frequent that the smoke detector systems are in the airconditioning return airways?---That's correct.
PN1130
Don't you?---Yes, and they're also in the switchboard rooms too.
PN1131
That's right. You see in paragraph 33 of your first affidavit you're I think then making the point that residents would be aware of a fire in premises due to the activation of the sprinklers which is accompanied by a loud water driven gong. Last sentence of 33?---Yes (indistinct)
PN1132
But the conventional way of alerting persons to the danger of fire, smoke and toxic fumes is through the alarms which are activated by the smoke detectors, isn't it?---That's correct, yes.
PN1133
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
If the smoke detectors are down, waiting for the gong may well be fatal, mightn't it?---I'm not sure.
PN1134
You're not sure. You said before that you thought that one of the testers had the requisite license to enable the tester to perform service technician call-out work. There's only one with the licence, isn't there?---There's possibly two.
PN1135
Possibly two?---Neil Farlow would have it and I believe Davy Hall has done his restricted as well. I'm not sure.
PN1136
In any event they declined to assist during the period of the bans in October, didn't they?---I'm not sure.
PN1137
You'd expect that they would decline to assist, wouldn't you.
PN1138
MR WHITE: Well, object to that?---I don't even know if they were asked.
PN1139
MR MURDOCH: They're not persons who perform the work in any event, are they -the call-out work in relation to - - -?---Neil Farlow does, yes. He does. He looks after the gaseous systems.
PN1140
Yes, but they don't do the work in relation to what - - -?---(indistinct) he prefers to do testing.
PN1141
I beg your pardon?---He prefers to do testing as his normal activity.
PN1142
Yes. Well, he's not on the roster and he doesn't do the call-outs for the - - -?---For the Brisbane area, no.
PN1143
Now, in paragraph 50 of your first affidavit you said that Mr Sillett's affidavit repeatedly states that a failure to attend an out of hours call-out creates a real risk to health and safety. You then state, "This is not the case"?---It does say that.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1144
Do you hold to that?---What do you mean? That statement?
PN1145
Well, as I read what you've said, you're saying that if there's a failure to attend an out of hours call-out that there is no risk to health and safety.
PN1146
MR WHITE: Well, (a) he didn't - that's paraphrasing it and that's somewhat inaccurately, and (b) the statement there is explained later in the paragraph and it's in fairness - - -
PN1147
JUSTICE BOULTON: The statement what?
PN1148
MR WHITE: The statement in the first sentence is explained in the paragraph and in fairness if he is going to be asked about it he should be taken to the whole of the paragraph.
PN1149
MR MURDOCH: Well, I paused because it was plain that Mr McKenzie was reading the rest of the paragraph so that there is no substance at all in that objection. Mr McKenzie is plainly an intelligent person. If he needs any assistance in relation to what his own affidavit says, I'm sure he will say so.
PN1150
JUSTICE BOULTON: You've got your affidavit in front of you?---Yes.
PN1151
Yes. So you can see what you have said in paragraph 50, can't you?---Yes.
PN1152
Yes, you can continue, Mr Murdoch.
PN1153
MR MURDOCH: Thank you.
PN1154
Mr McKenzie, do you really dispute that failure to attend an out of hours call-out creates a real risk to health and safety?---It's more to do with the call-outs that we do. In after hours call-outs one - I think Mr Sillett was talking about that it could affect human life. After hours call-outs we - there's never anybody in these buildings anyway so there is no real risk to health and safety. There's more a risk to property damage.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1155
Mr McKenzie, do buildings get cleaned after hours?---Yes.
PN1156
Troops of cleaners come through sometimes til late into the night?---Yes. I'm not saying that they're not always occupied. I'm saying - - -
PN1157
Do you not bother about protecting cleaning staff?---Yes, you do. The fire system will protect them, won't it?
PN1158
Don't you know that for example some major law firms who have night shifts who perform word processing and other activities right through the night?---They may.
PN1159
Look, sir, it's with respect a silly statement to make, isn't it, that there's nobody in the buildings after hours?---I'm not saying no. I'm saying majority.
PN1160
The majority?---Yes.
PN1161
I see?---Of our call-outs we don't - the majority of our call-outs are to telephone exchanges where there aren't anybody. The other ones we go to, the majority is like in fact nursing homes for instance. Right?
PN1162
Nursing homes?---They're fully manned. They have everybody in there is looking after the place. Everybody.
PN1163
Sir, you'd agree with me that during the night at nursing homes the wings are normally subject to minimal lighting because the occupants are encouraged to sleep. There's normally a qualified member of the nursing profession and perhaps one unqualified assistant perhaps to every couple of wings?---Usually to every wing.
PN1164
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
Usually to every wing?---Usually have a night nurse and assistant.
PN1165
The wings can sometimes have a hundred persons in them?---Depends on the size of the wing.
PN1166
Yes. You're seriously suggesting that it's not a problem if there is a fault during the night in a fire detection system at a nursing home? Are you seriously suggesting that?---Well, what they do is they put contingency plans in place as soon as they know the fire system is not working.
PN1167
I see. What would those contingency plans be, Mr McKenzie?---Well, they're all aware that the fire system is not working and I do believe that they actually - as for - regards to TriCare, they have to do rounds all the time.
PN1168
Have to do rounds all the time?---They have to be on fire watch they call it.
PN1169
Have to be on fire watch. I see. Are you suggesting that that's as good as having these sophisticated fire - - -?---No.
PN1170
- - - detection devices that these people have bought and paid for?---No, definitely not.
PN1171
No. It's an inferior stopgap, isn't it?---If the systems malfunction then they have to use it.
PN1172
So anyway you're sticking to the fact that there's no risk to health and safety if a call-out is not attended to after hours?---Just in what I'm saying with the majority of what we do. I see where you're coming from with regards to like people that work night in buildings. There would be if they had no fire system. There would be a risk to them. But for the work that I've done after hours there's - the work we do is we do telephone exchanges, yes.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1173
Aren't there hospitals that are also on the list of customers who have after hours calls?---Yes. QE2 Hospital.
PN1174
Again you would agree with me to get to the point that while they might attempt to stopgap, it's inferior, isn't it, to having a functional
smoke detection system?
---If the smoke detection system has failed for any reason, there is no - I don't know what else you could do but have a stopgap anyway
because it's not working and if it's failed that badly we're not going to be able to fix it anyway. So you're going to have to put
a contingency plan in place anyway.
PN1175
Mr McKenzie, why do you think they have persons such as yourself on after hours call-out?---To repair.
PN1176
To repair?---To attempt to repair the system.
PN1177
All right. Now, why do you think they want you to attempt to repair the system after hours? Why do you think that is?---So they have full operation of the system.
PN1178
Why do you think they want full operation of the system?---So they can rely on it.
PN1179
So they can rely on it, and why should they be able to rely on it?---Why? Well, they really shouldn't.
PN1180
Sorry?---They really shouldn't.
PN1181
They shouldn't?---No.
PN1182
I see?---You should actually be more aware of what's around you. Like if you see a fire coming, I wouldn't just leave it to the fire detector to pick it up.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1183
Look, if toxic fumes start coming under that door in the next 10 minutes - - -?
---I wouldn't be here. Exactly. That's what I'm saying.
PN1184
But how are we going to know?---How? Aren't we entitled to be warned of it by the alarms going off because it's been picked up by the smoke detectors in the building?---Yes, you are entitled to that.
PN1185
Look, so far as these contingency plans go you have referred to them. Are the contingency plans have security guards, use CCTV or give people extra fire extinguishers?---What's that?
PN1186
Well, you refer to contingency plans in paragraph 50. Are they the categories of contingency plans that you've got in mind?---Where does it say that? You're just surmising that they're the contingency plans.
PN1187
Well, they're the ones that have been mentioned in the case, so I want you to tell us if there are other kinds of contingency plans that - - -?---Whatever plan they have to put in place to actually make it safe. Whatever it takes.
PN1188
Whatever it takes. I see. In your affidavit, W5, you've said in paragraph 6 that you have previously attended call-outs to premises that you've not previously been to?---Is it (a)?
PN1189
Yes, it is, 6(a)?---Correct.
PN1190
It's the case, though, isn't it, that in most instances, the call-outs will be to premises that you've previously been to?---That's correct.
PN1191
You'd agree with me that when it's to a premises that you've previously been to, that you're able to get in and get at the diagnosis of the problem quicker?---No, I wouldn't agree.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1192
Well, it's the case, is it not, that in some of the buildings, particularly older buildings, the fire detection systems are in quite obscure locations, sometimes deep in basements, positions that are not readily accessible off the street?---Are we talking after hours?
PN1193
Yes?---See, if you're after hours and you don't have keys, then you will be escorted to where you have got to get to anyway.
PN1194
Yes, but there are many buildings for which you do have keys, aren't there?
---There is, yes.
PN1195
They're keys to buildings that you know well because you've been there before?
---Yes.
PN1196
You know where the panels are located?---They usually - yes, they have a bell or a strobe outside to find it anyway, so they're generally not too difficult to find. It's usually relevant to where the fire panel is, generally.
PN1197
You've said in paragraph 7 that, "Wormald engaged contractors to perform call-out work during our prior period of industrial
action in October 2010"?
---I believe I did, yes.
PN1198
You've read the material from Mr Sillett in his various affidavits and you've read his description of the serious incident that occurred at the Blue Care nursing home on the Gold Coast, when a contractor unfamiliar with the job caused severe problems in relation to the security system at the home? You've read that, haven't you?---I don't know the details of it, but it was in his affidavit.
PN1199
You would accept that that's the risk you take when you bring in ad hoc contractors to try and fill in for your own highly trained service technicians?
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
---Well, it's always - yes, it's always better to have more experience, that's for sure, yes.
PN1200
Look, in your oral evidence today you dealt with this matter of paperwork. The ban on paperwork that you had on place in October - you did have a ban on paperwork then?---We did have a ban, yes.
PN1201
What did you not do when you had that ban on paperwork in October?---What did we not do?
PN1202
Yes?---We just didn't hand it in. That was it. Paperwork was still done.
PN1203
What paperwork was not handed in?---I believe the TSER, which is the service record book of what happened on the job, and I believe PDAs weren't - were put into hospital mode, I believe, which means they don't send everything through.
PN1204
What else?---What else? I think that was about all on the paperwork side.
PN1205
So what you're saying is that there was ban on paperwork, but nevertheless some paperwork was done, but it wasn't handed in?---That's right. All paperwork was still done, but we just didn't hand it back to the office.
PN1206
In terms of verbal reporting, was there any directive given by yourself or by someone else in the union as to how verbal reporting was to be undertaken during the period of the ban?---No, not that I'm aware of.
PN1207
Well, how did your members - when I say "members", you're the delegate, aren't you?---Yes.
PN1208
Well, how did your members know how the ban on paperwork was to operate?
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
---They were just not to hand it in, that's all.
PN1209
Did somebody tell them that, did they?---That was part of the ban, yes.
PN1210
Well, what was the rest of the ban?---Call-outs, ban on call-outs.
PN1211
Well, so far as the ban on paperwork went, if paperwork wasn't handed in and they were asked, say, via phone call to say what they put in the paperwork, was that covered by the ban?---I believe so. I'm not sure, to tell you the truth.
PN1212
So the way it worked was that when the dispute is over and the ban on paperwork finishes, the paperwork will be given over then. Is that the scheme?---That's what happened, yes.
PN1213
I see. So when the - I assume there will be fresh notices of bans coming up now the agreement has been voted down?---I'm not sure.
PN1214
You're not sure?---We'll have a meeting, of course.
PN1215
Say the ban on paperwork lasts for three months. Will somebody warehouse the paperwork?
PN1216
MR WHITE: This is really just getting speculative. This is getting speculative as to what might happen in the future under some yet-to-be-advised ban. I don't know how the question can be helpful in the determination of this matter.
PN1217
MR MURDOCH: I'll just show you paragraph 16 of the more recent affidavit. You say in the last sentence, "The paperwork will be remitted to the office to be processed and filed following the resolution of our bargaining dispute"?---It was.
PN1218
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
Well, the resolution of your bargaining dispute, that will be when and if you get an agreement, won't it?---No, we were told to - this is referring back to the time when we had the paperwork ban on, isn't it?
PN1219
I don't know. It's your affidavit. I'm just trying to understand what it means?
---Yes, that was at the time of the paperwork bans themselves, and they were - the hard copies were not being forwarded to Wormald.
Then we were told that we had to because of Spencer C's ruling, and then - so then the paperwork was removed to the office to be
processed.
PN1220
But just to understand the way a paperwork ban works, had it not been for the order of Spencer C, the paperwork was to be kept and not given over until the bargaining dispute was resolved?---That was the form of the ban.
PN1221
Now, you say in paragraph 20 that, and this is in relation to the paperwork ban, "It merely represents an administrative impediment to the day-to-day operation of the business." What does that mean?---The reasoning - well, our reasoning for the paperwork ban was actually that it - the only reason that they really needed the TSER is to charge the customer. That's it.
PN1222
Not to have a record of the work that has been done on behalf of clients?
---I assume they'd have a record once it's been entered.
PN1223
Eventually?---Eventually, yes.
PN1224
I see. Then you say in 22: "I reiterate that the paperwork ban had no material effect upon how we dealt with critical defects as against the usual course in respect of critical defects." What does that mean?---Well, the critical defects, paperwork means absolutely nothing. We report them verbally straightaway. That's what that means. They'll be dealt with straightaway verbally, not with paperwork. That has nothing to do with critical defects.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1225
But so far as work actually performed goes, under the paperwork ban as you described it, management won't be able to audit or cross-check that until the bargaining dispute is completed?---Critical defect?
PN1226
Well, work done, whether it be critical defect or not?---No, they won't - yes, that's correct, because they won't have the paperwork as such and won't be able to process it.
PN1227
At paragraph 42 of your affidavit you say that, "In the event the concerns about the breakdown service technicians not being inducted could be addressed by having the breakdown service technicians escorted by" - and then you've got a list. What you're talking about there are persons brought in from outside to plug the gaps in relation to call-outs out of hours that you and your colleagues have got bans on. That's what you're talking about there?---Yes. They would be ways that Wormalds could get around the bans.
PN1228
I see, so first they've got to find a qualified experienced technician and then you say they can put in arrangements for escorts?---They could, yes.
PN1229
I see. You mentioned before, for example, that you go to Telstra facilities in out of hours - - -?---Yes.
PN1230
- - - call-outs. You're not escorted there, are you?---No.
PN1231
Telstra don't have personnel at those telephone exchanges, do they?---No, they're unmanned, yes.
PN1232
So far as security guards go, to have a security guard escort you, that would entail someone having to organise a security guard familiar with the client's property to report to that property, wouldn't it?---Are we talking about Telstra exchanges?
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1233
No, we're - in general?---There's a difference, that's all - big difference.
PN1234
Which is?---The Telstra exchanges, you need to have an access card which - I believe there is one in the after-hours kit anyway, and they're unmanned so - as regards for having to know the exact site and its idiosyncrasies, I don't believe that's true. They all have fire systems. They all have detection. They all have faults.
PN1235
You talk then in (c) about another Wormald employee not participating in the protected action, such as a non-union member of manager?---That's correct.
PN1236
Those persons aren't on after-hours call-out, are they?---They could be.
PN1237
Who do you have in mind?---There's a lot of non-union members.
PN1238
But not in the ranks of the technicians who do the after-hours call-out work?
---Well, there are quite a few actually.
PN1239
Are you suggesting that there are people not participating in the bans?---Yes, that are in other divisions.
PN1240
In other divisions?---Yes, in the service division.
PN1241
We're talking about persons who aren't - - -?---There's a contracting division and there's a minor works division.
PN1242
They're persons who don't have the qualifications that you have?---Andrew Dugal does. He has all those qualifications. Richard has them.
PN1243
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
That's the manager, Mr Sillett?---Mr Sillett.
PN1244
I see?---David Ross has them.
PN1245
But you're suggesting that there would be some scheme where these persons be put on roster so that they can accompany qualified personnel brought in from outside. Is that what you're suggesting?---Well, if they needed to be accompanied. That was in regard to the subcontractors doing it, wasn't it?
PN1246
You've used the expression "external breakdown service technician". Who are these external breakdown service technicians that - - -?---Yes, I believe that would be the subcontractors.
PN1247
You believe that would be the subcontractors?---Yes. If they had an issue with trying to get anywhere, they could do any one of those things.
PN1248
At paragraph 48 you deal with the consequences of the loss of the Qantas contract. Do you really know what the handover arrangements were between Wormald and the incoming contractor?---No.
PN1249
So you wouldn't dispute that there was a period where there was an overlap with Wormald doing a handover to the incoming contractor?---No, I wouldn't dispute that, but as far as I'm aware, when we lose a contract, we lose it.
PN1250
I thought you were talking there about a very specific major contract, weren't you?---No. I know when a client decides to stop using Wormalds.
PN1251
You've stated that a handover or transition ... but you've accepted that with Qantas ... overall transition?---Yes, I have heard that there was, yes.
PN1252
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
You have heard that there was?---(indistinct) yes. Someone - I think it was in Mr Sillett's statement. He said that they were shadowing or something. That's where I think I heard that.
PN1253
Mr McKenzie, you, in your first affidavit, listed Wormald's major competitors, and that was in paragraph 16. You see you've listed four of them?---Yes.
PN1254
It's the case, is it not, that Wormald in Queensland have some thousands of customers who subscribe to the out of hours call-out service
through the state?
---Are you saying, like, is it available to them?
PN1255
No, I'm just asking you - the number of Wormald clients is in the thousands, and indeed there are over 1000 Wormald customers in Brisbane who have the call-out arrangements with Wormald?---They have it available to them, yes.
PN1256
There are 1149 on the Gold Coast, Wormald customers - - -?---Yes.
PN1257
- - - and 268 on the Sunshine Coast, people utilising the out of hours call-out service?---Yes, they could if they wanted to.
PN1258
They're entitled to expect it, aren't they?---I assume so, yes.
PN1259
You don't suggest, do you, that in period of, say, 10 days those 1000 customers in Brisbane, 1149 on the Gold Coast and 268 on the Sunshine Coast could all find alternate providers?---They all wouldn't have to.
PN1260
They all wouldn't have to?---Well, you have to - if you looked at the call-out ratio, they all don't use it, mainly due to the cost of it.
PN1261
You're not suggesting though that at the start of industrial action they've got a crystal ball that tells them whether they will need a call-out service?---No.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1262
You say they all don't use it because of the cost, but the numbers I've given you are the numbers of the Wormald clients that utilised the after-hours service. Did you understand that?---They could utilise it, yes, if they wished to, yes.
PN1263
All right. They're the numbers of the customers who utilised the service?---No, they're not.
PN1264
They're not?---They can use them, all I'm saying is that it doesn't get utilised that much.
PN1265
Well, that's because you utilise it when there's a breakdown or a fault, isn't it, after hours?---A lot of the customers don't, they wait to the next business day because of the cost.
PN1266
Mr Sillett gave the evidence and - - -?---It's in his actual exhibits as well. You can see on those exhibits (indistinct) that a lot of the customers say next business day.
PN1267
It depends on the nature, doesn't it?---It's just the cost of the after-hours call, that's all.
PN1268
Are you suggesting that there are customers out there who for example if the smoke detectors go down don't bother to call the technicians out until the next business day?---(indistinct)
PN1269
So if it's Friday night, smoke detectors go down, nobody comes until Monday?
---It's written in there, you can look at it.
PN1270
Anyway, we have got substantial numbers of persons, are you suggesting that those thousands of Wormald customers would be able to get alternate service providers in the space of 10 days?---I couldn't - they could use another - one of these guys, Chubb, Spectrum, NFS.
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
PN1271
But how would they do that?---They could ring them up and ask them to come and do a call-out.
PN1272
Well, how do you know that they would get a favourable response?--- Why wouldn't they get a favourable response?
PN1273
Well, I don't know, you're - - -?---Well, I don't know that they would get a favourable response.
PN1274
No, because you see the contractual arrangements are with Wormald, aren't they?
---They are contractual, yes. I'm sure Wormald's would allow their customer the grace of being able to get their call-out done -
- -
PN1275
No, but you're assuming that another provider with no contractual arrangements with a customer would respond to an out of hours call-out. Is that what you're saying?---Could you repeat that?
PN1276
Look, I thought your - well, maybe I'm misunderstanding. Are you suggesting if Wormald aren't because of your bans able to respond to after hours call-outs that the customers can call on one of these other providers to respond to after hours call-outs?---I couldn't see why they couldn't.
PN1277
You couldn't see why they couldn't?---No, why couldn't they ring another provider if Wormald's is unable to provide after hours calls.
PN1278
But don't you understand that these things are done under contracts which have to be negotiated?---Yes, they are. Yes. But I'm sure if Wormald's wanted to look after their clients that I'm sure they wouldn't worry about the breach, would you?
PN1279
**** CRAIG DOUGLAS MCKENZIE XXN MR MURDOCH SC
I'm sorry, I don't understand. Are you suggesting Wormald's would arrange with the competitors for the service or that the clients would?---To look after their client.
PN1280
Wormald's would look after their clients?---Yes.
PN1281
How would Wormald's do that?---How?
PN1282
Yes?---By getting their after hours call done.
PN1283
What, Wormald's negotiate with the competitors to have the competitors do the calls?---We've been doing the work for Spectrum Fire, Department of Defence (indistinct) because they haven't got the expertise to do it. There's no difference, it's just the reverse situation.
PN1284
Look, your plucking these concepts out of the air, aren’t you, you don't know that there's any capacity at all for Wormald's
to have work done by their competitors?
---They have the experience.
PN1285
Noting further, thank you.
<RE-EXAMINATION BY MR WHITE [11.14AM]
MR WHITE: Mr McKenzie, you were asked a number of questions about ASEs?---Yes.
PN1287
Now, after the floods in Brisbane were there a lot of ASEs in Brisbane area which were damaged?---Yes.
PN1288
From your own experience or from your own knowledge do you have any understanding of how long it took to replace all the ASEs or repair them?---It's still ongoing.
**** CRAIG DOUGLAS MCKENZIE RXN MR WHITE
PN1289
All right. Are you suggesting by that there are some buildings with deficient ASEs?---Yes.
PN1290
To your own knowledge are those buildings buildings which are occupied?---Yes.
PN1291
Not only from your own knowledge about the buildings currently without functioning ASEs, from your own knowledge were the buildings which had damaged ASEs occupied before they were repaired or replaced?---Were they occupied?
PN1292
Yes?---Yes, they were.
PN1293
Thank you. No further questions.
PN1294
JUSTICE BOLTON: Yes, thank you. Mr McKenzie, you're excused.
<THE WITNESS WITHDREW [11.16AM]
JUSTICE BOLTON: We're going to take a short break. Does that conclude the evidence?
PN1296
MR WHITE: I'm sorry, it doesn't. We were going to tender some affidavits of Ms Inglis.
PN1297
JUSTICE BOLTON: Yes. But are you calling, Ms Inglis?
PN1298
MR WHITE: No, she is not required for cross-examination.
PN1299
JUSTICE BOLTON: Yes. Well, let's have the affidavits.
PN1300
MR WHITE: There is an affidavit which is made on 11 January. I would seek to tender that.
PN1301
JUSTICE BOLTON: 11 January we will mark W6.
EXHIBIT #W6 AFFIDAVIT DAVED 11/01/2011
MR WHITE: We've got - what I was also proposing to do is - they're documents of the tribunal but what isn't before the tribunal are the current collective agreements which are binding on these people. So what I'm handing to the tribunal now is the Wormald fire alarm collective agreement Brisbane and Sunshine Coast service 2006, 2009.
PN1303
JUSTICE BOLTON: Exhibit W7.
EXHIBIT #W7 COLLECTIVE AGREEMENT
MR WHITE: In submission I think we will take the tribunal to some of the legislation, extracts of which are in a volume of authorities but we can hand that up at the time. We will be relying on extracts from the Fire and Rescue Service Act and regulations. We will also be making submissions about the applications of that Act. We can provide a bundle of authorities now which has got extracts of some parts of those Acts and sections or we can do all that as part of submissions, it's not really questions of evidence I suppose, that's all.
PN1305
JUSTICE BOLTON: We'll do it in submissions. As I understand it, that's the evidence from both sides.
PN1306
MR WHITE: Yes, your Honour.
PN1307
MR MURDOCH: Yes, your Honour.
PN1308
JUSTICE BOLTON: As I indicated, we're going to have a short break - - -
PN1309
MR MURDOCH: Your Honour, might I be impertinent enough to ask how long a short break is because I don't want to be embarrassed by going down for a coffee and getting in late like yesterday.
PN1310
JUSTICE BOLTON: 15 minutes.
PN1311
MR MURDOCH: Thank you, your Honour, 15 minutes.
<SHORT ADJOURNMENT [11.19AM]
<RESUMED [11.40AM]
PN1312
JUSTICE BOULTON: Mr Murdoch.
PN1313
MR MURDOCH: Could I just get some clarification as to how the tribunal proposes to manage submissions, because we have the two matters, the application and the appeal. Is it proposed that the submissions deal with both matters in one address, or what did you intend?
PN1314
JUSTICE BOULTON: No, we're hearing the application first.
PN1315
MR MURDOCH: Very well. Thank you. The written submissions dated 4 January which were read in a formal way yesterday captured the fundamental essence of our case. I should note that the material which is summarised in the outline needs, of course, to be adjusted to take into account the two additional affidavits of Mr Sillett which were filed this week. Insofar as the legislative scheme is concerned, it's important, we'd suggest, to note that when we look at the elements that need to be established in order to trigger the mandatory obligation on Fair Work Australia under subsection (1) of 424, that the satisfaction which is required is that the protected industrial action as, "Threatened, is threatening or would threaten."
PN1316
Then we have, "To endanger to endanger the life, the personal safety or health, or the welfare, of the population or of part of it." So we have the notion of threatened or threatening or would threaten to endanger. So it's necessary to look at both of the critical elements. One is, is there a threat or has there been a threat or would there be a threat, and the other is, if there is - if there has been a threat or there is a threat or there would be a threat, is it of endangerment? What's manifestly clear is that one does not have to, to satisfy the provision, establish the existence of an actual threat of actual danger. We need to, in my submission, establish that there's been a threat or there is a threat or there would be a threat to endanger.
PN1317
So putting it more clearly, there has to be a past, present or future threat, that much is clear, but it only has to be a threat, past present or future. We don't have to establish that there is immediate danger to any particular individual. A threat, in my submission, is enough. It's not contested on the basis of the exchange yesterday that once the level of satisfaction is reached, that the obligation under subsection (1) is mandatory. The only subsidiary area of discretion is that whilst an order must be made, there's a discretion as to whether it be to suspend or to terminate. So far as the subsidiary discretion is concerned, that will be one which is largely influenced by the particular industrial circumstances which - for the bench hearing the application at the time.
PN1318
But the obligation to make an order of one kind or the other is mandatory. The significance of suspending versus terminating relates to the consequences in terms of a termination triggers a particular process which takes the matter into a process in the tribunal whereas suspending does not. What is, in my submission, significant, in relation to 424(1)(b) is that there is no requirement that the applicant employer discharge any onus in relation to the so-called mitigating or remedial effects or measures which the other party might asset could have been taken. It's clear, in my submission, that there can be no question of any additional element insofar as the mandatory obligation to make an order goes.
PN1319
Once the tribunal is satisfied that there's a threat, past, present or future of endangerment, there is no room for any additional factor in relation to whether the employer has or has not discharged any obligation to mitigate or take remedial steps. So if the actions of the employer are to be relevant at all, they can only be relevant in evaluating the evidence as to the existence of a threat, past, present or future or to the evaluation of whether there's an endangerment to life or personal safety or health. So far as that goes, it's our submission that the tribunal would, except in exceptional cases, take the employer's circumstances as the tribunal finds them. Now, what do I mean by that?
PN1320
It's simply this, that ultimately if you find that there's a business that's being competently run, efficiently managed and the management of that business make a particular assessment in relation to how their placed when they're the subject of bans and limitations, then that exercise of managerial judgment should be, except in the most extraordinary circumstances, accepted. You've had the opportunity here to see and hear Mr Sillett. On the other hand there's an abundance of material which, in combination poses all manner of suggestions as to how Mr Sillett and the company might have managed the consequences of the industrial action in a different way.
PN1321
But so far as the material stands, in relation to each of the suggestions that have been made both before Spencer C and here, there's been a logical, rational answer given by management as to why the so-called options aren't feasible, aren't appropriate, when it comes to delivering the particular form of service. We can run through them. It's suggested that you go to your trade competitors, get them to do the work for you. It's suggested that you go to subcontractors, get them to do it. It was suggested that you bring other people in the business such as testers, get them to do it.
PN1322
Ultimately during the period of bans that we can examine because they occurred and the company had the experience of it, the predominant response was Mr Sillett doing it himself with limited assistance from some subcontractors - individual subcontractors. Mr Sillett's evidence is that he didn't believe it was feasible to expect or enter into an arrangement with trade competitors. Mr Ross's material confirms that so far as those competitors go, that if they were prepared to do anything it would be after their own obligations and clients were looked after. So far as the use of subcontractors went, as a general proposition, you've got the evidence from Mr Sillett in relation to the near disaster at the Gold Coast when a subcontractor was brought in to cover the bans on call-outs.
PN1323
So far as utilising other people in the business such as testers go, there's an abundance of evidence that they don't have the qualifications. So suggestions are made that you could have done it differently, but at the end of the day, management have reached a determination that those suggestions are not feasible, they're not appropriate and indeed may be downright dangerous. So it leaves us with a situation where if you have bans on after hours and weekend call-outs, that there won't be the provision of a service enabling the provision of appropriately skilled, appropriately equipped Wormald skilled and credentialled technicians to go out to the sites of the malfunctions, to firstly do a diagnosis, and secondly, where feasible, perform a repair to the fire detection system.
PN1324
Additionally, as we explored this morning with Mr McKenzie, there's the inability, because of the bans, to provide the service to the ASEs which are the communication device enabling communication of faults in the fire detection or suppression systems in a building to be communicated to the fire brigade. So it's our submission that these suggestions of alternative approaches are suggestions that carry no weight in the determination of whether there's a threat, past, present or future to endanger because the alternatives, in our submission, are rejected by competent management as being impracticable or dangerous.
PN1325
SENIOR DEPUTY PRESIDENT IVES: Mr Murdoch, one of the concerns I have is that if there is this threat of endangerment sufficient to bring the Act into operation here, it seems that it's a threat of endangerment that the company accepts should operate in the normal course of it's business in that it acknowledges that there are faults that can't be repaired because of a lack of parts, because of other circumstances, and those faults are repaired when the parts become available and in the meantime the operation of the system, either partly or wholly - well, we are without a system either partly or wholly. What's your response to that?
PN1326
MR MURDOCH: The response is that on Mr Sillett's evidence, the high majority of the faults are indeed repaired on the call-out, so that the category you mention is very much in the minority.
PN1327
DEPUTY PRESIDENT IVES: Yes, but - sorry to interrupt you, but it's also his evidence that the faults, as I recall it at least, that can't be fixed tend to be the more significant ones, such as when there's a panel that - - -
PN1328
MR MURDOCH: That's right.
PN1329
DEPUTY PRESIDENT IVES: In other words, those faults that would leave the premises totally unprotected rather than partially unprotected, which would seem to be, if there is a threat, a more significant threat, would it not?
PN1330
MR MURDOCH: We're talking about quantification of threat of endangerment, not whether there's endangerment or not. The logic of it is that the less premises you can have unprotected, the less endangerment you have, so that on your proposition, for the purpose of debating it, there may be instances were a minority or properties can't be repaired immediately because of problems with parts et cetera.
PN1331
DEPUTY PRESIDENT IVES: Does the company accept that they're endangering life in the terms laid down by the Act through their either inability or lack of foresight in having the necessary parts on hand?
PN1332
MR MURDOCH: With respect, you're jumping too far ahead because the critical thing is, you need to get someone there to diagnose whether it is a minor problem, whether it can be repaired or whether it's something that can't. Where these bans are corrupting the system is that they're bans on the technicians going out and even doing a diagnosis, so that absent the visit from the technician after hours, you don't know with any precision the extent of the problem, so that the danger starts there where, yes, there's a problem, but we don't know whether it's a big problem, a little problem, whether it can be fixed or whether it can't, so there's endangerment and there's threat at that level.
PN1333
DEPUTY PRESIDENT IVES: I understand that, but it doesn't seem to me to alter the fact that you're saying to us this shouldn't be allowed to occur because it represents a threat to life in the terms provided for by the Act, and okay, I accept that there's a diagnosis stage and there's subsequent stages. It seems to me that once the company becomes aware that there is a major and significant problem and they neither have the appropriate resources or parts or whatever it is to fix it, they, in the normal course of their business and as a routine circumstance, accept that level of endangerment, if that is what it is, and yet we're being told that it shouldn't be allowed to happen. There seems to be a contradiction in this to me.
PN1334
MR MURDOCH: With respect, the reference to "accept a level of endangerment" is inaccurate because there's a recognition that there's a need to repair and there's a timeliness about executing the repair, and there's also evidence in relation to the communication with the owner and the consequential communication by the owner with the advisers that the owner may have, such as insurers et cetera, and no doubt the fire service, so the capacity is there to make special arrangements in those situations. Now, it doesn't take away the danger, but at least after diagnosis and estimation of what the timeliness is in relation to repair, there can be an attempt to manage that threat of endangerment. It doesn't mean there's no threat of endangerment. It doesn't mean there's an acceptance of it, but there's a recognition of the problem and a combination of agencies involved in attempting to protect individuals in that circumstance.
PN1335
DEPUTY PRESIDENT IVES: But in the main, the same circumstance pertains in respect of the industrial action, does it not?
PN1336
MR MURDOCH: That's not right, because you've got to come back to quantification.
PN1337
DEPUTY PRESIDENT IVES: No, I meant from the point of view of the company being in a position to speak to its clients about its inability to perform particular work, which is exactly the same as it talking to the company about its inability to perform particular work when it lacks spare parts, so in the context of industrial action, is not the company in a position of being able to talk to its clients in exactly the same way and say, "We are not in a position to be able to perform work," and therefore certain things should happen - - -
PN1338
MR MURDOCH: No, that's - - -
PN1339
DEPUTY PRESIDENT IVES: - - - as far as the client is concerned. I'm not quite sure why you say it is so different.
PN1340
MR MURDOCH: It's very different because where there are no bans there's been a diagnosis of what the problem is and what can be done. In most cases the evidence is that diagnosis is done and repairs are made.
PN1341
DEPUTY PRESIDENT IVES: So it all hinges upon that issue of the diagnosis being done. That's the differentiating point.
PN1342
MR MURDOCH: No, it's the diagnosis being done and then, in the majority of cases, the repairs being done on the visit.
PN1343
DEPUTY PRESIDENT IVES: Right.
PN1344
MR MURDOCH: It's a situation where the system has been put in place where there are contracts for a service out of hours, and that service is there to, wherever possible, ensure that the detection and warning devices are repaired and put back online in a timely way. Yes, there are cases where that can't happen, but if it be that the system is corrupted and persons can't get out there to do the diagnosis and the repairs in the majority of cases, there must be a threat of endangerment. Additionally - - -
PN1345
JUSTICE BOULTON: Have you finished?
PN1346
MR MURDOCH: I don't want to become repetitive but I was just going to add, of course there's also the fact that if the ASE - the communication device for communication to the Queensland fire and rescue service - is down, that also is patently a major breakdown in the system.
PN1347
DEPUTY PRESIDENT IVES: I notice that that wasn't in any of your materials - any reference to the ASE. It was something that came to light under the cross-examination of Mr McKenzie. Was there any reason for that? Any of the information about the ASE - it seems a fairly important point, does it not?
PN1348
MR MURDOCH: Look, it's a matter that I can call evidence about if you wish, but it wasn't contested.
PN1349
DEPUTY PRESIDENT IVES: No, I'm simply asking you why it wasn't put in the evidence that was filed.
PN1350
MR MURDOCH: It wasn't drawn to our attention initially.
PN1351
DEPUTY PRESIDENT IVES: I see.
PN1352
MR MURDOCH: But no inference should be drawn from that because these matters are put together at times of pressure and not everything is covered.
PN1353
DEPUTY PRESIDENT IVES: So was it an issue in the matter before the Commissioner?
PN1354
MR MURDOCH: It was, but it wasn't specifically referred to.
PN1355
DEPUTY PRESIDENT IVES: I see.
PN1356
MR MURDOCH: But in discussion with out clients during the course of the case, the problem there emerged and it was brought to our attention by the clients on the basis that the matter hadn't been thoroughly ventilated, and they were concerned that they have these call-outs to repair the ASEs. There have been a number of them in recent weeks, out of hours, and they are the sole provider for the state of services to repair the ASEs, so it was a matter that was relevant to be brought out, and it wasn't contested when it was put to the witness.
PN1357
DEPUTY PRESIDENT IVES: Okay. Thank you.
PN1358
JUSTICE BOULTON: Mr Murdoch, just asking you about the ASEs, these are alarm signalling devices. What's the abbreviation you're using?
PN1359
MR MURDOCH: All right, let me just get my helpful cheat sheet. ASE stands for alarm signalling equipment. I'll just hand up the note that I've got. It has it all there. Could I just leave a copy for - okay.
PN1360
JUSTICE BOULTON: Do you want me to mark this?
PN1361
MR WHITE: Could I just have a quick look?
PN1362
MR MURDOCH: Certainly.
PN1363
MR WHITE: This is more than just what the acronyms stand for. I'm not sure how you would want to use this. I mean, perhaps Mr Murdoch - - -
PN1364
DEPUTY PRESIDENT IVES: Why don't we just mark it for identification purposes.
PN1365
MR WHITE: Yes, I mean, I can say the problem I have is that - it may not be a problem. It may be a very good thing for us. For example, paragraph 3 suggests that the status configuration is always one of the - the alarm switches sent through to the ADT. Now, that may mean that if it's offline, it's monitored and sent through to ADT in Melbourne. I'm not sure. You could mark it. Perhaps that's the safest - - -
PN1366
MR MURDOCH: Look, if it's just being marked for identification, that's rather pointless.
PN1367
DEPUTY PRESIDENT IVES: I wasn't suggesting that (indistinct) presiding member. I put that as a possibility.
PN1368
JUSTICE BOULTON: Mr White, are you objecting to its tender or not?
PN1369
MR WHITE: Yes, your Honour, because I just really don't quite know what this means, and it's goes beyond the evidence that's been before the tribunal. I mean, to the extent that it explains what the acronyms stand for, I've got no problem.
PN1370
JUSTICE BOULTON: It clearly goes beyond that.
PN1371
MR WHITE: It does.
PN1372
JUSTICE BOULTON: I mean, as Deputy President Ives raised, the ASEs have only been raised, you know, as it were, in cross-examination in the proceedings today, and we're told now that Wormald is the sole contractor who is responsible. Presumably that means in premises with Wormald equipment and in premises with a service by other of the, as it were, maintenance companies.
PN1373
MR WHITE: Presumably. We don't know.
PN1374
JUSTICE BOULTON: All I'm saying is this note goes beyond that.
PN1375
MR WHITE: Yes.
PN1376
JUSTICE BOULTON: So if you're going to object to it tell us and - - -
PN1377
MR WHITE: Then yes, I do object.
PN1378
JUSTICE BOULTON: Yes. Mr Murdoch, what do you say about that?
PN1379
MR MURDOCH: Well, this matter has been far from orthodox in the way it has proceeded. I'd prefer just to call someone and my learned friend can cross-examine them over it. If he wants to challenge anything that's in it, let him have a go.
PN1380
JUSTICE BOULTON: Well, look, I'm not inclined given that we asked people before if they had closed their case so far as evidence was concerned - I think this really is reopening the evidence. I was simply asking a question to clarify exactly what this acronym that we’ve been referring to meant.
PN1381
MR MURDOCH: I was endeavouring to be fulsome in responding to it.
PN1382
JUSTICE BOULTON: Well, I do have some other questions for you on it, but I think this note goes beyond them, so I'm going to hand it back to you. The next question I had was, is there anything in the material that we have before us which refers to the contract with ADT, and also is there anything in the material before us, and there are a number of documents relating to call-outs, which would indicate just how many call-outs have been concerned with the servicing or diagnosis relating to these alarm signalling equipment?
PN1383
MR MURDOCH: The answer to that, your Honour, is that the contract is not in the material. So far as the call-out figures are concerned, they are included in the spreadsheets.
PN1384
JUSTICE BOULTON: It would identify what call-outs related to ASEs?
PN1385
MR MURDOCH: I'd have to check that, but it may not specifically cover that. But so far as the number of call-outs go, in the period of 1 December to 3 March there were 233 call-outs for ASEs in the Brisbane area, and 11 of those were after hours.
PN1386
MR WHITE: Where is this material coming from? I'm not sure where this material is coming from.
PN1387
MR MURDOCH: Well, I'm advising the tribunal that they are the facts.
PN1388
MR WHITE: Well, the evidence is closed and we shouldn't be accepting the evidence from the bar table, in my submission.
PN1389
JUSTICE BOULTON: The question was, in the material that's before us is there something that tells us what the number of call-outs were relating to ASEs?
PN1390
MR MURDOCH: They're lumped into the spreadsheets. I'd need to have a short break to ascertain the level of identification of them in the spreadsheets.
PN1391
DEPUTY PRESIDENT IVES: Well, I thought you said that they couldn't necessarily be identified in the spreadsheets.
PN1392
MR MURDOCH: Well, I believe that's the case, but I want to make sure that my response there is correct. But certainly on my instructions there were 233 in the Brisbane area within hours and 11 after hours.
PN1393
JUSTICE BOULTON: Well, maybe you can look at that over the lunch break, that is, look at what comes out of those tables and the material that we have.
PN1394
MR MURDOCH: If the - sorry.
PN1395
JUSTICE BOULTON: Mr Murdoch, I was going to ask you a couple of other questions. When we talk about out of hours call-outs what do we mean?
PN1396
MR MURDOCH: We mean after the normal day hours.
PN1397
JUSTICE BOULTON: What is the normal day?
PN1398
MR MURDOCH: What is the normal day? I - - -
PN1399
JUSTICE BOULTON: I assume it means out of hours for Wormald.
PN1400
MR MURDOCH: 7 am till 5 pm Monday to Friday is the normal business hours. Out of hours call-outs are the call-outs that are attended to outside of those hours on Monday to Friday, or on Saturdays or Sundays or public holidays.
PN1401
JUSTICE BOULTON: So if the notification comes in at 4.30 in the afternoon does that become an out of hours or an in hours - - -
PN1402
MR MURDOCH: It's more likely than not that it will.
PN1403
JUSTICE BOULTON: Be an out of hours call-out?
PN1404
MR MURDOCH: Yes.
PN1405
JUSTICE BOULTON: Does an out of hours call-out, and maybe I could find this, but it's easy just to ask you the question, does it involve somebody as it were being called back to work?
PN1406
MR MURDOCH: No.
PN1407
JUSTICE BOULTON: Given the example I've just given, which is a 4.30 notification and 7 am to 5 pm, it could also involve somebody simply being asked to continue perhaps even on overtime to do that work.
PN1408
MR MURDOCH: That's possible, but remembering that the ban also covers overtime, so it's probably academic. But the normal course is that these people have large vans, they're virtually mobile spare parts depots with tool boxes et cetera. The equipment goes home with them so that if there is a call-out there is no need for them to go to work. They go from home to the premises of the client.
PN1409
JUSTICE BOULTON: The other question I have for you is, is it a matter exclusively for the client to decide whether their fault should be attended by way of an out of hours call-out, or, as it were, a regular hours attendance by Wormald?
PN1410
MR MURDOCH: Well, certainly in the case of the ASEs - - -
PN1411
JUSTICE BOULTON: No. I'm not asking in relation necessarily to the ASEs, I'm asking generally is it for the client to decide? I would have thought ASEs - the client - I'm not sure if it's ADT or it's the building, but anyway - - -
PN1412
MR MURDOCH: No. The client in the case of the ASEs - the ultimate client is the Queensland Fire and Rescue Service, who have ADT
as their contractor. So ADT conduct a communications service on behalf of the Queensland Fire and Rescue Service so that the building
owner doesn't enter into that loop, so to speak. Remember the evidence from Mr McKenzie was that the ADT central facility communicates
with the ASEs several times in each 24 hours, and that's by sending a pulse to the ASE. From the response or otherwise to that pulse
they’re able to ascertain whether the ASE is operating at all or properly. If there is through the response or no response
an identification of the problem, then the obligation to send a repair technician is triggered. That’s communicated by ADT
to Wormald.
Now, then the other category is with the client facilities - - -
PN1413
JUSTICE BOULTON: But is it up to ADT, or is it an automatic thing?
PN1414
MR MURDOCH: I understand that it's automatic, that if the communication between the building and the fire brigade goes down, they want something done about it, and done about it quickly. That stands to reason because if - the system is that the smoke detectors having picked up smoke or toxic fumes in a building triggers the alarm in the building and also automatically makes contact with Queensland Fire and Rescue. The building occupants of course have the comfort of knowing that that happens automatically. But if the ASE were down and the smoke detectors went off, the occupants, whilst they might have the ability to evacuate the building, would be doing so under a false belief, namely they would believe that the ASE had communicated with the fire brigade, when in fact it hadn't. So the ASE is quite critical in the way the system works.
PN1415
JUSTICE BOULTON: The other situations?
PN1416
MR MURDOCH: Well, you heard the evidence from Mr Sillett, but the situation is that with many of the calls you will recall that they are consequential upon Queensland Fire and Rescue being involved. Queensland Fire and Rescue are involved per medium in some instances of the ASE, and there would be others where they're directly called. But where Queensland Fire and Rescue have been involved one would expect that the client wouldn't be saying, "No need for there to be a visit."
PN1417
JUSTICE BOULTON: Well, I'm not asking that. I'm just asking, does the client decided whether there will be an after hours visit or it can be attended to as a regular hours visit?
PN1418
MR MURDOCH: The explanation was that the client can talk to the Wormald call centre and, for example, if the door on the fire cabinet is unable to be closed or some minor thing such as that, it's possible that it might be said to the client, "Well, look, that doesn't seem to be a problem. Is your system otherwise working," and perhaps that would relegate to ordinary hours.
PN1419
JUSTICE BOULTON: But it's up to the client firstly to report it and then to request that there be somebody from Wormald attend to address whatever is the problem that has arisen.
PN1420
MR MURDOCH: Well, it's up to the client in some situations, but as I've pointed out, in other situations the fire and rescue are alerted by the ASE so that in those situations - - -
PN1421
JUSTICE BOULTON: But again it would be a matter for ADT to contact Wormald, wouldn't it?
PN1422
MR MURDOCH: Yes, but the expectation is that because of the urgency of the obligation that is put on Wormald that there would be a turn out. There's no suggestion that - - -
PN1423
JUSTICE BOULTON: No. I'm not asking that.
PN1424
MR MURDOCH: No.
PN1425
JUSTICE BOULTON: I'm just clarifying that it really is up to the client whether they (1) contact Wormald, and (2) request some sort of out of hours attention to the problem.
PN1426
MR MURDOCH: Your Honour, there in my submission should be an expectation that the client would contact Wormald because as my learned friends have been at pains to point out, there is a legal obligation on the clients to do so. So any suggestion that clients might be aware of a problem but to save a call-out fee sleep on it, now there may be renegades out there that would do that, but this is a system where there is a legal framework and there should be an expectation that people would fulfil their obligations and the expectation of my clients is that their building or premises-owning clients would communicate if they become aware of a fault in the fire detection system. To even think that persons would be aware that a fire detection system was faulty and do nothing about it is really very, very alarming.
PN1427
DEPUTY PRESIDENT IVES: Didn't Mr McKenzie give evidence that it even is indicated in the materials provided by the applicant in this case that that is in fact the case, that certain clients call and say that during business hours is adequate as a response and I think Mr McKenzie said that's actually recorded presumably in the spreadsheet material.
PN1428
MR MURDOCH: But again there's a recognition that there may be some reporting of quite minor things: that the door won't close or some factor such as that. But I'd suggest that the legal obligation is clear and that is that, having been required by law to have the system, the obligation is to maintain the system and that for persons who have the contract means that they contact Wormald. I mean otherwise there is no utility in having persons available for out-of-hours call. It really, I would suggest, is something that one wouldn't expect, and that is that clients being aware of a problem that has not been diagnosed or a problem that is other than minor instructing that there be no call until the next business day.
PN1429
COMMISSIONER GOOLEY: But, Mr Murdoch, when I look just briefly at the sheets that you provide, for example, and just look down the page, I see a thing which says there was a call-out on I think it's 4 January at 10.05 which says, "WIPs going off. Whole board lit up last night." But the call seems to have been done the next day. So without even a great deal of examination of the material you have put in it appears that at least there are occasions that the customer - your client's - Wormald's clients choose not to have the fault dealt with til the next day.
PN1430
MR MURDOCH: But, Commissioner, with respect, that's not what determines the consequences of the industrial bans. The industrial bans impact when clients have requested that there be attention out of hours. We can only speculate about why persons don't report.
PN1431
COMMISSIONER GOOLEY: No. I was only just dealing with the fact that you were suggesting that it didn't happen and I'm saying that just a cursory examination of your own material shows that in fact it does happen.
PN1432
MR MURDOCH: Yes, but what did happen?
PN1433
COMMISSIONER GOOLEY: That your - Wormald's clients choose not to have call-outs.
PN1434
MR MURDOCH: Yes, but it depends on the nature of the problem. But if we come back to what this is about, this is where a client does request that there be a call-outs and the union bans are intended to frustrate the company's capacity to respond. So let's focus on the cases that we know exist and that's where clients do need someone to go out and diagnose, do need someone to repair in a timely way and it follows, I would suggest, that if that response doesn't take place that there is a threat of endangerment. Whether there be other instances out there where there might be a threat of endangerment because of client neglect, unfortunately that could be the case.
PN1435
But here we're talking about the consequences of the bans and it's indisputable that there are cases where clients through the call centre request Wormald to send someone out, and they should be the ones that we're concerned about. It's with respect not destructive of the existence of a threat of endangerment to say that there might be other cases where people are perhaps prepared to accept endangerment. It's not Wormald accepting it. It may be on your example that there are persons in the community who are. Justice Boulton, did I finish the questions that - you said you had several, that's all.
PN1436
JUSTICE BOULTON: Did you finish the questions?
PN1437
MR MURDOCH: Answering.
PN1438
JUSTICE BOULTON: Yes, I think you have.
PN1439
MR MURDOCH: All right.
PN1440
JUSTICE BOULTON: Yes. Look, there is one more question and that is how long do you anticipate you need for your submissions?
PN1441
MR MURDOCH: Look, short of further questions, and that's not a dig - - -
PN1442
JUSTICE BOULTON: We won't take it that way.
PN1443
MR MURDOCH: - - - it won't be all that much longer.
PN1444
JUSTICE BOULTON: Is it time to get down for a coffee, or not?
PN1445
MR MURDOCH: I think we'd want a bit more than a coffee at this time of the day. Look, I'm happy to do that.
PN1446
JUSTICE BOULTON: How much time is "not much longer?"
PN1447
MR MURDOCH: About half an hour.
PN1448
JUSTICE BOULTON: Mr White?
PN1449
MR WHITE: I would anticipate being about an hour.
PN1450
JUSTICE BOULTON: What we would claim to do would be to have a short lunch break until 1.30. So we're going to adjourn now until 1.30 this afternoon.
<LUNCHEON ADJOURNMENT [12.40PM]
<RESUMED [1.33PM]
PN1451
JUSTICE BOULTON: Yes, Mr Murdoch?
PN1452
MR MURDOCH: Thank you. I was asked earlier whether there was reference to the matter of the ASEs in the earlier material. There is not a reference to them as ASEs but they're referred to by more generic language. For example in the affidavit of Richard Sillett in the matter - this was the first affidavit in the matter before Spencer C - you will see that at paragraph 11 - - -
PN1453
JUSTICE BOULTON: The affidavit of what date?
PN1454
MR MURDOCH: The affidavit of 13 October 2010.
PN1455
DEPUTY PRESIDENT IVES: 13 October?
PN1456
MR MURDOCH: Yes.
PN1457
DEPUTY PRESIDENT IVES: What was the paragraph number again?
PN1458
MR MURDOCH: Paragraph 11. You will see that in that list item 5 refers to a faulty emergency response notification system. That is what an ASE is. Also in relation to the questions about the role of customers in the triggering of call-outs, that's dealt with in paragraphs 15, 16 and 17 of that same affidavit. Now, there was a further question in relation to the identification of ASE calls in the material.
PN1459
JUSTICE BOULTON: But if you look at that affidavit, you've taken us to paragraph 11 - - -
PN1460
MR MURDOCH: Yes.
PN1461
JUSTICE BOULTON: - - - and that talks about call-outs and then paragraph 13 says, "Call-out services represent a significant proportion of the services offered by Wormald," and that identifies a number of clients.
PN1462
MR MURDOCH: Yes, in those three areas.
PN1463
JUSTICE BOULTON: I thought the submission was that in relation to the faulty emergency response notification system that this wasn't just a matter where Wormald covered this work for Wormald customers but for all of these systems in Queensland.
PN1464
MR MURDOCH: It's a matter of semantics in that with the ASEs there is one customer. That's the organisation ADT which is the contractor or representative of the Queensland Fire and Rescue Service so that that one customer cascades into thousands of ASEs.
PN1465
JUSTICE BOULTON: I must say it surprises me that what might be the strongest part of your argument is only dealt with in an obtuse way in the evidence.
PN1466
MR MURDOCH: Well, at the time this affidavit was prepared Mr Sillett was under enormous pressure. He was literally working day and night and all weekends.
PN1467
JUSTICE BOULTON: Yes, that might be so at the time of this affidavit, but we're now as it were four to five months down the track and there still isn't much more material before us regarding these ASEs.
PN1468
MR MURDOCH: The evidence is what it is, but I apologise for not having more in the primary material but it's a factor and the numbers are properly before you and their role is properly before you. The task of isolating the call-outs in relation to them is frankly not simple because of the coding that has been used on the spreadsheets, but to illustrate that if we look at exhibit RS1 to yesterday's affidavit on page 141, you'll see about point 6 of the way down the page there's an item Fire Panel Fault and you will see in the column in the middle of the page - - -
PN1469
COMMISSIONER GOOLEY: So what date is this one on?
PN1470
MR MURDOCH: It's 3 May 2010.
PN1471
COMMISSIONER GOOLEY: Yes.
PN1472
MR MURDOCH: You will see there that that's, "Y auto ADT," in the identification of the notifier. You will see the code in the far right is "FA" but the difficulty is that there is some possibility that ADT may have notified a fault of a different kind and with this spreadsheet data we frankly can't - in relation to that period we can't with precision isolate them. There are other examples in the other spreadsheets but if I take you to them they're subject to the same qualification. I am instructed that in more recent times the coding has become more precise and that was why I was able to tell you with confidence that in the period 1 December 2010 to 3 March 2011 that in the Brisbane area there had been 11 after hours call-outs to ASEs.
PN1473
Now, I wanted to go on and deal with what has been a late emerging part of the argument on behalf of the respondents and that's this question of client onus. As we understand it, the argument on behalf of the union is that there can be no threat of endangerment because ultimately the obligation under statute rests with the owner or occupier of the premises. In our submission that submission is factually incorrect because it has, as a fundamental part of it, as we understand their argument, that acquainted with the inability of Wormald to deliver an after-hours service, that ultimately the client has the obligation to obtain that service elsewhere. So far as that is concerned, I would refer you to Mr Sillett's affidavit of 2 March and to paragraphs 87 through to and including 90. Could I take you to them because they deal in some detail with the position which he understands to exist as a participant in the industry, and particularly at paragraph 89 he says:
PN1474
As stated in paragraph 13 of my affidavit dated 13 October 2010, Wormald has more than 2000 clients in the Brisbane, Sunshine Coast and Gold Coast regions. Wormald is a major player in the fire protection industry in Queensland and I estimate that Wormald has approximately 20 per cent of the market share in south-east Queensland. I believe that Wormald is the largest provider for the fire protection solutions in south-east Queensland. In my opinion it would not be possible for the fire protection industry in south-east Queensland to support the influx of Wormald's after-hours breakdown clients, if Wormald was required to direct its clients to make alternative servicing arrangements for a period of any industrial action, particularly on such a short period of notice.
PN1475
So that we submit that based on that set of statistics and that market share, that the proposition, and it's only a proposition advanced by the other side, that clients can simply go elsewhere, has no basis at all in the evidence, and indeed from a man who has got expertise in management in the industry, he puts before you with a very strong view that it's just not possible for that to occur, in the short time frames which are involved with the period of industrial action. If we come back to the statutory provisions, in my submission, we're left with a very clear position that there will be requests made for call-out services. The evidence demonstrates that there is a consistent pattern of those call-outs.
PN1476
The evidence is that those call-outs relate predominantly to fire detection devices and the ASEs and certain associated equipment. In my submission if it be that the call-outs can't be responded to by Wormald's regular qualified experienced skilled labour that the alternatives necessarily involve the threat of endangerment. Whether it be the use of patchwork arrangements, attempting to bring in on an ad hoc basis independent contractors without inductions, without training et cetera, whether it be putting the burden on the shoulders of Mr Sillett with all the fatigue and related issues that he complains of in his affidavit, or whether it be simply throwing one's hands in the air and saying to the clients, "Put your contingency plans into operation."
PN1477
Whichever of those scenarios occur in my submission the level of protection provided through the call-out service in its normal form for the after-hours call-outs will not be provided. On the evidence there will clearly be an inferior level of service, if there be service at all, and inevitably where there is an inferior level of service that entails the threat of endangerment to life, personal safety or health. Given that all of the evidence is that when it comes to the detection of fire, there are very short time frames involved where persons need very timely warning of fire with the opportunity to immediately evacuate so that even if one were to employ any of those so-called contingency plans, as an alternative to the service which the client had requested by way of the attendance of the regular call-out technicians, there's inevitably a deterioration in standards, deterioration in standards must equate, in my submission, with the threat of endangerment.
PN1478
My learned friend, I understand, is going to put forward a legal argument in relation to this question of the obligation that they allege is imposed on our clients to take preventative action. What I would like to do is to hear that legal argument and reserve my rights to respond to it at that time, up until now where we know they're going to advance the argument, but it would be more efficient to hear it and then respond to it. I'm reminded also that there has been considerable evidence in relation to the paperwork ban. The paperwork ban is, in my submission, calculated to disrupt the information system which is in place within our client for the recording of work which has been done or which has not been done.
PN1479
For any service provider providing services in the nature of protection of the community, it goes without saying that there should be an orderly accurate paper trail of transactions. It's not good enough for there to be a ban formulated on the basis of, "We'll do the paperwork but we'll give it to you when we get our industrial instrument." So corruption of the information system, in my submission, goes beyond the capacity of our clients to bill. It goes also to the obligations of our client as a business to maintain accurate business records, particularly in relation to the work that has been done or has not been done on particular dates.
PN1480
I know it's said that there are records kept in the fire panels but the client, as a business, has a system in place and in my submission corruption of that system in this industry is one which is likely to threaten to endanger the welfare of the public because of the fact that our client will be kept in the dark in relation to the formal recording system not being kept up to date and being at the mercy or the whim of the technicians providing oral advice on an ad hoc basis. If the tribunal pleases.
PN1481
JUSTICE BOULTON: That's really, as it were, an alternative submission, isn't it? You're saying that once - what you're seeking in the application, as I understand it, is termination or a suspension of the protected industrial action - - -
PN1482
MR MURDOCH: That's so.
PN1483
JUSTICE BOULTON: - - - which is all the protected industrial action; the overtime bans, bans on call-outs and the bans on paperwork.
PN1484
MR MURDOCH: Yes.
PN1485
JUSTICE BOULTON: I assume you're relying on what has been said in a number of other cases.
PN1486
MR MURDOCH: That's right.
PN1487
JUSTICE BOULTON: That once you establish, as it were, part of what is being proposed might contravene section 424, then the consequence of that is an order suspending or terminating the whole of the protected industrial action.
PN1488
MR MURDOCH: That's right.
PN1489
JUSTICE BOULTON: So you're saying that if we were to find for you, for example, on the paperwork - - -
PN1490
MR MURDOCH: Paperwork, yes.
PN1491
JUSTICE BOULTON: - - - that would be sufficient, and alternatively if we find for you on the call-out bans, that would be sufficient.
PN1492
MR MURDOCH: Yes, because on the authorities the making of an order brings with it the consequences that are dictated by the statute in relation to the falling away of the protection of the industrial action.
PN1493
JUSTICE BOULTON: Yes.
PN1494
MR MURDOCH: So that other full benches have taken the view that the totality should be covered by the suspension or the termination. I must say I didn't think that was an issue.
PN1495
JUSTICE BOULTON: No. I'm just clarifying it.
PN1496
MR MURDOCH: Yes, thank you.
PN1497
JUSTICE BOULTON: Thank you. Mr White.
PN1498
MR WHITE: I have written submissions in this matter and I won't go through them in detail, but can I highlight a number of matters and address other matters which have arisen. The first proposition we put is that in reaching the satisfaction the tribunal is required to reach before it makes an order, either suspending or terminating the action, it is obliged, we say, to take all relevant matters into account. We say so much is not an exceptional proposition, but to the extent that authority is required for that, we have given authority to Buck v Bavone which stands for the proposition. There probably are numerous other authorities that any administrative body exercising quasi judicial function and arriving at a satisfaction is obliged to do just that.
PN1499
The material facts we say which the tribunal is obliged to take into account are facts which go to the question of whether or not there is, to paraphrase the section, a relevant endangerment. We make - there's no limitation in the Act on what may or may not be relevant. What is relevant will depend on a case-by-case basis on the facts of any particular case, but one point we do make and say strongly is that the material facts include those which go to the probability, and we say "probability" advisedly, of the alleged consequences, and we say further, that remedial or protective or defensive measures which can be taken are relevant to the probability of the threat being made out. In that regard we - well, we have a bundle of authorities and we can perhaps hand those up now.
PN1500
We start with the proposition in that matter with reference to the Davids Distribution v National Union of Workers. We start with the proposition there because the object of the tribunal or the requirement on the tribunal is to give effect in accordance with the language of the statute, with the purposes of it, and one of the purposes of the statute, it's described in Davids Distribution when it talks about the giving of the notice of protected industrial action and why that notice has to be in particular terms and the purpose of that notice in particular terms. We have given references to paragraphs 87 to 89 in that decision, in particular, in paragraph 87. Does the tribunal require me to read that out or - suffice to say, and paraphrasing Wilcox and Cooper JJ, the purpose of the notice is to put the employer against whom the action is directed in the position to take defensive measures.
PN1501
So we start with the general proposition that the Act, when it talks about whether or not a relevant threat exists, carries with it the baggage, if I could say that, of the purpose of the notice which encompasses a defensive purpose for the employer. Reference should also be made to Telstra v CEPU and I understand that has been handed up outside of the folder. In paragraph 12 of that decision it considers the propositions that we have just put. If we go through to paragraph 12:
PN1502
As to purpose, there is little doubt that the purpose is to give the employer an opportunity to respond. They respond and it may involve making arrangements that deal with the unavailability of labour including making appropriate arrangements in relation to customers, suppliers, and other contractors.
PN1503
Thereafter the full bench set out the extract from Davids to which I have directed your attention. There is, in relation to this, a development in the tribunal. Unfortunately it's not in the cases that we have handed to you. It was a list of authorities we had been provided with. I have only got one copy. I can hand that to the tribunal and can I read the relevant extract from this decision that I wish to rely on. We can provide copies later. This is a decision of Hampton C in April of last year and commencing at paragraph 53 he refers back to Telstra v CEPU decision I have just taken you to. I don't go to them, but in the consideration of the facts before him in that case, he says - - -
PN1504
MR MURDOCH: Excuse me, is this the Minda decision you're referring to?
PN1505
MR WHITE: Yes.
PN1506
MR MURDOCH: Thank you.
PN1507
MR WHITE: But relevantly in his final consideration he says at paragraphs 90 and 91:
PN1508
The detail of these bans and limitations are outlined earlier in this decision. I have carefully considered the evidence associated with each of these matters in the context of Minda's operations. They will no doubt cause some disruption to Minda's operations and inconvenience to management and potentially to some clients and their families. This is unfortunate but it is in the nature of protected industrial action as contemplated by the Act. Importantly, given the nature of the bans, their likely impact and the availability of alternatives to ensure the safety and welfare of the community -
PN1509
including most relevantly the clients led him to the conclusion that there was no relevant threat. We say that is the exercise which is contemplated by the purposes of the Act and by the necessity of the tribunal to consider all the material facts. We don't say that the applicant, for an order, is under any particular onus at all in terms of running an application; in terms of having to justify or otherwise what steps he has or not taken. What is for consideration is the material before the tribunal on any one occasion.
PN1510
If we are wrong in our proposition that defensive measures are a material consideration as a general legal proposition can we make this proposition; as a matter of fact in this case there's evidence before the tribunal that Wormald would and would take all steps available to it to deliver its contractual service and will take all steps available to it to ensure that they would leave no safety hazard, or that no safety hazard arises. That's the evidence of Mr Sillett, in cross-examination yesterday. So whether, as a matter of a general proposition as a matter of law consistent with the objects of the Act, what we say is correct, and we do say that it's correct, as a matter of fact in this case given the evidence it is a material fact because he said they're going to do it. Now, there may be one further reason why, as a matter of law, the proposition, we say that we put is a good proposition.
PN1511
Section 424 talks of situations or talks of orders issuing when action is being engaged in which has the proscribed or prescribed effects. There may come a time in the course of any industrial action where the question of causation between what's happening and the prescribed effects becomes very blurred. Theoretically one could easily see a situation where industrial action of a particular kind is taken but it may be of such a benign of character or of such a character that can easily be accommodated within the employer's normal operating systems, but if the employer chooses to do nothing it may well be the inaction of the employer becomes the causative effect on the prescribed matters.
PN1512
To some extent we put that proposition in support of our legal proposition; that at all relevant times the material facts of the causative relationship needs to be looked at, but once again in terms of the factual elements of this case, it's not necessarily something the tribunal has to ward off. In our outline of submissions we give references to a number of cases dealing with the probability versus possibility and I don't go to those cases now in any great detail. The one in particular we rely on and refer to is Ambulance Victoria v LHMU, a decision of Kaufman SDP. I don't think it's a contentious proposition that the level of satisfaction required is - there's a finding of probabilities rather than possibilities, but we do have a reference to that in there.
PN1513
In relation to what "threat" and "endangerment" mean, the learned Senior Deputy President in that case commences his consideration with that at paragraph 28. At 29 he talks of probabilities rather than possibilities. To constitute a threat, something is likely to injure; para 29. So we've given reference there. We don't think it's contentious. But it's important nonetheless to bear in mind that the test to be applied is a high test. It's got to be an actual threat, potential harm, and there's got to be a probability about it.
PN1514
Now, the action notified is three types. There's a ban on overtime, a ban on call-outs, and an indefinite ban on the paperwork. The ban on paperwork is described in Mr McKenzie's affidavit, in the paragraphs I've referred to there, and I refer the tribunal to those paragraphs without me reading them out. But can I also remind the tribunal of Mr McKenzie's evidence this morning in relation to paperwork, and that is that the effect of the paperwork is not that critical faults go unnoticed; critical faults found out in after hours are always reported to Gateway, the Tyco company, and to the client. Critical faults during normal working hours are always reported to the supervisor. Any after-hours faults which are not critical faults but which can be repaired are attended to the following day.
PN1515
So as described by Mr McKenzie, the absence of paperwork causes, no doubt, a degree of inconvenience to the company, including an inconvenience in respect to their billing practices, but in terms of the actual fire systems, it has no effect. On call-outs, the faults that can be repaired are repaired and notations are made in the fire panel. On call-outs, those which can't be repaired that aren't critical are repaired in the normal course of work, with the details reported on the panel. In respect of critical matters, all of them are reported one way or another to the employer, as well as to the occupier.
PN1516
In relation to call-outs, and to some extent we're concentrating on call-outs rather than overtime, other than to the extent that a call-out immediately near the normal knock-off time might constitute overtime if completed, the evidence is concentrated on call-outs after hours, which, whilst may formally be overtime, have been looked at and considered separately. There are normally two technicians rostered for call-outs. So rarely is a second technician required, Mr McKenzie's evidence in relation to that, and he's been working there for 16 years, is that he's never utilised the backup technician.
PN1517
It may be put that there are on occasion multiple call-outs on any one night which might lead to the proposition that extra technicians are required. From Mr Sillett's most recent affidavit, this appears to be the arithmetic flowing from his affidavit about multiple call-outs: in the calendar year 2010, there was one in Brisbane, none in Gold Coast, three on the Sunshine Coast. In the calendar year 2009, none in Brisbane or the Gold Coast and two in the Sunshine Coast. Calendar year 2008, Brisbane 51, Gold Coast nil, Sunshine Coast six.
PN1518
COMMISSIONER GOOLEY: Sorry, was that Brisbane 51?
PN1519
MR WHITE: Bad year in 1958. Sorry, 2008. But even on those figures, that's about one a week.
PN1520
JUSTICE BOULTON: This is multiple call-outs. Is that what you said?
PN1521
MR WHITE: Multiple, yes. We take that from Mr Sillett's - once again, we need to get call-outs into some sort of perspective, and after-hours call-outs in particular. On the applicant's figures, in the Brisbane area, period 1 April 2010 to 7 October 2010, there were 280 call-outs. That is about one and a half a night. The Gold Coast area in the same period, there was less than one call-out per day, and in the Sunshine Coast region, only one call-out every 5.14 days. Now, the way in which call-outs work is this: the applicant's customers contact the applicant through the Gateway system, which thereafter contacts the relevant technicians, and they respond as they do.
PN1522
The evidence is that if they respond and are able to fix, then they should and they do. There's about 90 per cent of faults that they can fix, about 10 per cent they can't. If they can't fix a fault, then the occupiers are notified. Where a system is down completely or deactivated, then the customers are notified and they take such steps as they would normally do in a situation at that time. It appears to be the evidence that the customer allocates the priority; the vast majority of faults, the evidence shows, is that there is only a small fault or a part of a system which is affected. Generally speaking, the evidence suggests that the customers know of the faults, and the customers invariably do know that because they're the ones who allocated questions of urgency.
PN1523
I do note that there was some proposition put that ASEs were included in Mr Sillett's affidavit of 11 October 2010, but that doesn't seem to change the general proposition on the assumption that ASEs are included in paragraph 11 sub (5) of Mr Sillett's affidavit, when the same system, according to Mr Sillett, applies. That is, and I'm reading from paragraph 16:
PN1524
If a defect occurs with the customer system or product, the system or product automatically transfers a signal to the Queensland Fire Rescue Service. In turn, the fire service contacts the occupier of the premises, who then contacts the relevant Wormald branch to advise that a call-out is required.
PN1525
Now, there is a dearth of evidence about ASEs in this case. We say there is such a dearth in that the tribunal is not in a position to make the findings to the level of satisfaction required in respect of them. That being said, if ASEs are included in para 11, then we know that in any event the occupiers of buildings are occupied, and we come back to the same propositions that we'll be putting about the roles of occupiers and the like at a later time. The second thing we know about ASEs is this: there's a lot of inhabited buildings around Brisbane at the moment without them. That would suggest, we say, that they are not of such importance that they pose a threat at the requisite time.
PN1526
On a call-out, the technician sees the problem. In the event that there's a catastrophic failure in the system, such that the system can only be repaired much later, then that's what occurs. The occupier is notified and thereafter the occupier takes responsibility for the safety of the building. Now, what the occupier is obliged to do is contained in other legislation. First of all, we make this proposition: the physical system of fire detection is only one aspect of the fire detection importance process. In Queensland, occupiers of buildings are bound by a variety of different Acts. In our outline, we refer to a number of those Acts. We hand you two extracts from the Fire Service Act.
PN1527
Can I make this proposition in relation to the Building Services Authority Act and the Building Services Authority Regulations: insofar as relevant to this case, what they do is prescribe the qualifications to be held by a person to do the job. The Queensland Fire and Rescue Service Act, and the regulations under that, deal with obligations of occupiers. In respect of persons who perform the work, the Act provides that the work shall be done in accordance with the Queensland Building Code. So on the one hand, the building regulations say, "These are the qualifications, you've got fire access." Well, when you do it, you've got to follow the code.
PN1528
But in terms of the obligations of occupiers, it is always the occupier's duty to do a range of things. First, they have to maintain prescribed fire safety installations, and at the back of the authorities folder, we've given you a copy of section 104D of the Fire and Rescue Service Act. In respect of monitored systems, there are extra obligations imposed by 104DA, and a copy of that is in the folder. In addition, the occupiers must at all times, pursuant to section 104E:
PN1529
(a) Maintain at all times a plan of the action to be taken by persons within the building in the event of fire threatening the building adequate to ensure their own and other persons' safety.
PN1530
So we assume that occupiers of buildings have those plans in place. As to what the fire evacuation plan must contain, I can hand to the tribunal as well section 104FA and FB, which are the particular provisions in relation to budget accommodation and the obligations of occupiers of budget accommodation. So the system in which the technicians operate in an after-hours sense is this: in all circumstances, the evidence before the tribunal is that the occupier knows of the fault in the system. In all circumstances, the occupier is under legal obligation in respect of ensuring the safety of occupants of the building. In all situations, the occupier, in the event the fault is not fixed, will notify, and one would assume in the event that a fire is threatened or there is a relevant threat, they would put into place the plan they're obliged to have under the fire legislation.
PN1531
We say in those circumstances, whatever one might say about the desirability of having fire detection systems working 100 per cent of the time, it is impossible to extrapolate from a circumstance where they either don't work at all or completely due to the existence of a relevant threat. If there was such a substantial threat as would entitle the tribunal to reach the degree of satisfaction it is required to do before issuing any order, one would expect that at any time a fire detection system is at fault or is non-operational, then the building in which it's in should be emptied. But that's not the case.
PN1532
We know that sometimes catastrophic events happen to the fire panel. Fire panels presumably are either not immediately available or take some time to install or are very expensive or there might be other investigations. But we know they're not installed immediately upon the damage to the old one. It can't be said that in that circumstances there's a threat to the people in the building. One would say that the occupier is under an obligation to ensure the safety of the people, but every day there are buildings - and in Brisbane, as we speak, today there are buildings without fully operational fire protection systems. Of itself, a non-operational fire protection system doesn't equate to endangerment, and particularly in the circumstances of this case, where occupiers know of the fault, can it relevantly amount to endangerment?
PN1533
Now, there has been some evidence about the contingencies that the occupiers of buildings can put into place. They include CCTV, extra security - when I say "extra security", the evidence supports that the extra security is for the purposes of holding the building secure against invasion, not looking for signs of fire - and extra firefighting equipment are available. They're all used currently when the system was repaired, and as I've just submitted, there's no suggestion that in those circumstances people are living in danger.
PN1534
The evidence also includes the proposition that occupiers of buildings, in circumstances where there's a fault in the fire protection or alarm system, seek advice from the fire brigade or their insurers about what to do. That's presumably in addition to whatever fire plan they're obliged to have. But in all cases it's the customer who decides, and the customer decides against the legislative background of obligation.
PN1535
Now, can we go to the contention. The first contention we make is this: we agreed with Mr Murdoch when he made the submission this afternoon that it would be unthinkable that people who were under a legal obligation in respect of fire safety would do other than to comply with their obligations. Moreover, there's no suggestion in this case that any of the applicant's customers wouldn't so comply. The proposition we put is this: the mere fact that from time to time Tyco may not be able to provide a service does not equate to the more general proposition that occupiers of buildings would be in default of their legal obligation.
PN1536
It is said that in the view of Mr Sillett, 80 per cent of the market couldn't pick up the remaining 20 per cent of the market in a short period of time. Well, we've had no opportunity to make inquiries about that sort of evidence, but in respect of that, can we say the argument only works with any event in an (indistinct) sense; that is, in the sense that all of Tyco's 2000 customers pick up stumps and go home.
PN1537
As a matter of fact, we know during the previous period of protected industrial action that all customers got serviced; Mr Sillett says with some difficulty in Brisbane, but the other regions appeared to be managing quite satisfactorily. But in any event, it would be a large step for this tribunal to say that the mere fact that one service provider might be temporarily embarrassed in its contractual obligations, that the person to whom they owed those obligations would act contrary to their obligations under another statute.
PN1538
In any event, there are a range of other defensive measures which Tyco can take. I remind the tribunal again that Mr Sillett said that they would do their utmost to fulfil their contractual obligations. The first step they could take, we say, is they could use contractors. There are a range of problems, which I'll address later, which Mr Sillett raises in respect of the use of contractors.
PN1539
Before I come to that, can I note this: in Brisbane at the moment, the applicant engages two contractors who do just this type of work. We know that one of them, according to Mr Sillett, has done some call-outs. But in respect of whether or not he or the other subcontractor would be available for a longer-term availability, Mr Sillett hasn't even asked that. But we know from the use of a contractor on the last occasion of protected industrial action and from the fact that they now engage two contractors that the contractors can be engaged and can perform the work. I'll come back to some of the difficulties later, but I just identify other sources of labour.
PN1540
In the last period of protected industrial action, the company, in addition to the use of contractors, used internal labour, and in Brisbane that was in large part Mr Sillett. Now, whilst we have some sympathy with Mr Sillett working very hard, no doubt becoming very tired, the fact of the matter is, he did it and he coped. Despite whatever regard one might have for Mr Sillett, it shouldn't be assumed that in his role as service manager he is indispensable.
PN1541
That is, if Mr Sillett was to find himself out most nights on call-outs - and bear in mind, on the evidence of Mr McKenzie, on only one tech his experience has been needed - then there's no reason to suppose that Tyco would collapse if Mr Sillett wasn't able to undertake his normal duties the following day, or indeed the following week. He takes annual leave and sick leave like other employees, and the reallocation of labour for the period of time would put Tyco in a substantial position to respond to the problems they face.
PN1542
There is also the possibility of use of competitors. Now, it may not be savoury for a company to use a competitor. They're in the marketplace fighting with a competitor for their share of the marketplace. But nonetheless, the evidence of Ms Inglis and the evidence of Mr Ross suggests that competitors are there and would be prepared to do the work. Now, it may well be so that there are conditions imposed, necessarily or commercially, by competitors in doing the work. It appears from Mr Ross's affidavit, one of those conditions would be, "Well, if we're not inducted on the site, you've got to come with us, or someone from Wormald has got to come with us, or someone from the customer has got to come with us." So be it, that's perhaps an inconvenience, certainly they cost.
PN1543
In relation to customers accompanying technicians, there are occasions when it happens in any event, but Mr Sillett's main objection in his evidence yesterday was, "Well, customers get a bit sick of that, they pay for a service and they might get sick of it." Well, so be it. That's perhaps a commercial inconvenience suffered by Tyco, but it's not an inconvenience directed to the performance of the work. Now, there were a number of problems, so called, which were raised in respect of each of these alternatives. I said in my submission - - -
PN1544
JUSTICE BOLTON: Mr White, if you're looking at the legislation and the endangerment that might be involved, if you have a problem at a telephone exchange that might be one type of problem and there might be a degree of inconvenience caused if that's not addressed within a reasonable time and it might be able to be covered in this way or that. But say you do have a problem at a nursing home - - -
PN1545
MR WHITE: Sorry, a problem?
PN1546
JUSTICE BOLTON: At a nursing home.
PN1547
MR WHITE: Yes.
PN1548
JUSTICE BOLTON: Or in some establishment like this, and I mean the reference has been made to the Childers fire. The consequence of something as it were occurring there is so horrific to think about that it's hard to imagine a circumstance where you wouldn't say that, "Look, if the regular system weren't available and somehow failed," just the magnitude of the loss which might be involved would affect you in thinking about endangerment.
PN1549
MR WHITE: We go back to the question of whether or not in this case quite apart from all the strategies and the steps that might be taken, there is endangerment. In this case in respect of out of hours call-outs, the customer, the occupier, is aware that there is a fault in the system. It is the customer who notifies Tyco.
PN1550
JUSTICE BOLTON: Yes, well, okay, they're aware, they have notified. They want somebody to attend to it.
PN1551
MR WHITE: Once they are aware then there are a whole range of remedies and circumstances - sorry, steps they can put in place immediately before any diminution comes. One would presume they would do that - - -
PN1552
JUSTICE BOLTON: But none of those remedies, it would seem to me, taking that particular example there are as good as having what is the presumably customised system for the early detection of threats working within that establishment.
PN1553
MR WHITE: The test of whether there exists an element of endangerment is not whether one system is better than other. Whilst we might concede that a fully operational - - -
PN1554
JUSTICE BOLTON: Well, you can endanger somebody by not having a regular system which might have been better or an ad hoc system that might be put into place to replace that more regular system.
PN1555
MR WHITE: I wouldn't describe any system put in place as an ad hoc system. These people are sophisticated owners of buildings who are presumably well aware of their legal obligation and they have put in place adequate fire plans. Now, one part of that fire plan may be defective. In this case - - -
PN1556
JUSTICE BOLTON: Well, see, I mean look at it from our point of view but look at it also from your client's point of view. Would you and your client like to be associated with something that went seriously wrong of that nature in the course of an industrial dispute with bans? Maybe the risk of that is relatively small but is it a risk that, you know, has to be sort of accommodated because we're interpreting legislation in this way or that? It's legislation that is actually framed quite widely. It talks about a threat, endangerment to the welfare or life of part of the population.
PN1557
MR WHITE: One can always argue back from worst-case scenarios and that's what apparently the applicant did before Spencer C in raising the spectre of the Childers fire.
PN1558
JUSTICE BOLTON: Well the fact that perhaps we're looking at worse-case scenarios because we're also looking at - I mean all the arguments about competitors being able to fill the gap, in relation to these ASEs it would seem that Wormald is the sole contractor who is involved in that sort of activity and that involves the direct link to the fire and emergency services.
PN1559
MR WHITE: There is a dearth of evidence - if my learned friend suggests - he is right - that they're recorded or referred to in paragraph 11(f) then in all circumstances where there's a defective ASE once again the occupier knows of that defect. Secondly, the mere fact that an ASE is non operational is a matter which is known to the brigade and to the occupier. Secondly, that is Mr McKenzie's evidence, it made it quite clear if the absence of ASE's was sufficient to constitute a serious threat then there would be a large number of buildings in the Brisbane CBD currently unoccupied and not only that but they would have been unoccupied for lengthy periods of time longer than was otherwise the case after the recent floods. Once again, it is part of a system and no doubt part of the system to make the system work better. But the fact that there is a - - -
PN1560
JUSTICE BOLTON: Perhaps the legislation seeks to avoid these situations through human action that can’t be avoided through natural causes such as floods.
PN1561
MR WHITE: I'm sorry, your Honour?
PN1562
JUSTICE BOLTON: I'm saying maybe we're seeking to avoid these problems arising as a result of human action rather than arising as a result of things like floods.
PN1563
MR WHITE: Floods may have caused the current ASEs, the problems. But my simple point was that if they were so viable to a building's safety then presumably the buildings wouldn't be satisfied whether the damage was caused by the floods or not.
PN1564
COMMISSIONER GOOLEY: Is that because, Mr White, what you say is what happens when for example, say, your ASE is out, the client knows that the ASE is out. What would normally occur when a smoke detector went off, an alarm goes off, the fire brigade to tell them that there's a potential fire so they come out, the client knows that that link is down so when the alarm goes off they ring the fire brigade themselves.
PN1565
MR WHITE: Yes, they know.
PN1566
SENIOR DEPUTY PRESIDENT IVES: But I think it was Mr McKenzie's evidence in response to some questions asked of him under cross-examination, specific questions about circumstances arising in an aged care facility, that there would be put into place a system of somebody walking around - and I'm paraphrasing but that is in essence I believe what his evidence was.
PN1567
MR WHITE: A fire watch?
PN1568
SENIOR DEPUTY PRESIDENT IVES: Yes. It's a bit hard to come to a view that that circumstance is anywhere near as protective a measure as has been in place with the system or that it is even an adequate circumstance to remove the possibility that you weren't doing exactly what the Act requires or doing something really in the way the Act provides and that is endangering the life or the welfare of people.
PN1569
MR WHITE: It is the case - - -
PN1570
SENIOR DEPUTY PRESIDENT IVES: In these particular circumstances seem to be quite different from the unmanned telephone exchange.
PN1571
MR WHITE: Well, the consequences are different.
PN1572
SENIOR DEPUTY PRESIDENT IVES: Yes.
PN1573
MR WHITE: In the event of a fire. But if there was acknowledged to be a threat to the people for example, in that example in the nursing home then one would expect that on every occasion that there is a fault in the fire detection system and there would be an evacuation. But we know that that's not how the system operates, we know that there are times, in fact 10 per cent of faults can’t be fixed at night-time and we know that but buildings aren't evacuated. We know that there are catastrophic events on to a fire panel so that the normal system is not operational but those buildings are then evacuated. The proposition that appears to being put is the absence of a fire detection system of itself a situation where there's endangerment?
PN1574
SENIOR DEPUTY PRESIDENT IVES: Yes, but I guess the point here, Mr White, is that if one of these things - albeit that the chances might not be like did in fact happen in the circumstance like that maybe you would be hard pressed to persuade to anybody that there was no link between the absence due to industrial action of the qualified people to be able to correct that circumstance and the horrendous consequence that was referred to by the presiding member.
PN1575
MR WHITE: Well, you would obviously need to look at all the facts in any particular circumstance but it's suffice to say at the moment that's in fact what happens in any circumstance where there is a defect in a system there is a period of time when that building is occupied without the best possible system on place. The tribunal should be informed by actually what happens in a practical sense in the real world and in a practical sense in the real world even when there is a total system failure buildings aren’t evacuated.
PN1576
SENIOR DEPUTY PRESIDENT IVES: That's right, but if the tribunal comes to a view that there's endangerment that might be taking place as I mentioned before when I was discussing the issue with Mr Murdoch, on a routine basis because of things, it's strongly arguable that that doesn't alter the fact that that same endangerment if it occurs through industrial action shouldn't be prevented.
PN1577
MR WHITE: My point was somewhat different, Senior Deputy President, my point was somewhat to say, well, they should inform the tribunal really as to what is endangerment in the relevant sense.
PN1578
SENIOR DEPUTY PRESIDENT IVES: Yes.
PN1579
MR WHITE: If the fire authorities, the fire companies and the occupiers and the legislature all operate on an assumption that from time to time when fire systems are inoperative buildings can be occupied and are to be occupied and that should inform this tribunal about what is relevant endangerment. It may well be - yes, so my point was probably at an anterior point from yours, yours was saying, "Well, whatever the reason it's the same characteristic."
PN1580
SENIOR DEPUTY PRESIDENT IVES: Yes.
PN1581
MR WHITE: My point was somewhat different and anterior to that to the effect we say in circumstances of a very comprehensive legislative regime about buildings and fire safety requirements where the legislature anticipates and allows buildings to be occupied where there are temporary defects in the system, then one wouldn't - or one could take some comfort in saying, well, both practically and legislatively there is no relevant endangerment. Can I say one other thing in respect of that particular point and that is this, that we say the test is probabilities not possibilities and there are so many links in the causal chain to a fatal fire from a known defect in the system that we say there is no chance of a proper basis for finding there is a probability of endangerment, particularly given all the protective measures occupiers can take.
PN1582
The other general observation I make about this topic is that once again this topic is all anterior to the other considerations in the case about what could be done about a defect in the system anyway. That is, even if we accepted for argument that any defect in a fire detective system created a relevant endangerment, and we don't accept that proposition, but if that was the case then in any event that's not the end of the matter. Not the end of the matter at all because the mere fact Tyco can't go there doesn't mean occupiers won't get someone else to. There's heaps of service providers out there do 80 per cent of the business according to Mr Sillett and in any event given either the legal proposition put about defensive measures or the factual basis that Tyco will do everything it can to fulfil its contractual obligation and not to create danger, then all of these other measures become distinctly relevant.
PN1583
DEPUTY PRESIDENT IVES: Well, presumably your client could also consider more restrictive application of bans when they're considering protected action as well.
PN1584
MR WHITE: That could be so but can I make a couple of observations about that? When you look at the figures of call-outs more than half are not in Brisbane and one every five days on the Sunshine Coast and whatever the figure be for the Gold Coast, and then one could say that there are - this ban on the call-outs affects very, very small numbers of fire alarm systems. Secondly, the CEPU - - -
PN1585
JUSTICE BOULTON: That might suggest that they're not an effective form of industrial action and we wonder why we're even here hearing these sort of matters.
PN1586
MR WHITE: Sorry, your Honour?
PN1587
JUSTICE BOULTON: That might suggest it's not a very effective form of industrial action and why are we here hearing these sort of matters?
PN1588
MR WHITE: We're here because we have to be I think.
PN1589
DEPUTY PRESIDENT IVES: It might also suggest that if you were applying bans what would be the point of putting the bans on in those restricted circumstances?
PN1590
MR WHITE: Well, all of those things are food for thought but the tribunal should also be aware that putting aside the effectiveness of the action on forcing the employer to be more reasonable from my client's point of view, the CEPU has provided a letter of comfort and will provide a letter of comfort to any subcontractor who wants to do the work. There will be no repercussions or reprisals. Not a problem. All it would mean would be extra expense for Tyco and it has also said that it will make available an organiser to organise a member in the event that Tyco can't get anyone in an emergency. So putting aside the question of whether or not it's effective - - -
PN1591
DEPUTY PRESIDENT IVES: Sorry, what was that last point again? Said what?
PN1592
MR WHITE: The last point, I was - Richard Sillett 8 of the affidavit of 11 October - 13 October. On the first page of that exhibit, the last paragraph, "We also remain unconvinced that Wormald is unable to source electricians. There are technicians available that are capable of performing the necessary call-out work" - et cetera - "notwithstanding that, we provide the following assistance."
PN1593
DEPUTY PRESIDENT IVES: Sorry, where is this, please?
PN1594
MR WHITE: RS8 to the affidavit of Mr Sillett which was sworn on 13 October 2010.
PN1595
DEPUTY PRESIDENT IVES: That second dot point, can you just explain to me what actually that meant or means in practice?
PN1596
MR WHITE: Probably not fully. I can explain in part.
PN1597
DEPUTY PRESIDENT IVES: Right.
PN1598
MR WHITE: That is there is evidence before this tribunal that not all call-outs are emergencies. So much is clear. Mr Sillett conceded that - agreed with that yesterday. It is also apparently clear that in large part the type of fault is largely known at the time the customer rings through to Gateway in any event. As to what precisely is encompassed in emergency I can't enlighten the tribunal any further, but one would have thought that that would be a point of discussion that Tyco could have engaged in with the union.
PN1599
JUSTICE BOULTON: Yes. I'm just thinking aloud here but I mean we're getting more and more involved in the detail of this matter but the practical situation between the parties is that they have now had negotiations for more than a year, there has been something like six ballots that the company has conducted to try and get approval for agreement. I mean wouldn't one option for the parties simply be that they haven't been able to come to agreement and to identify a process where they might be able to finalise their negotiations because from all that has been put in these proceedings, and we take it that Wormald is doing important work and they need a skilled workforce to do it, and obviously good relations in the workplace is a factor in providing all that and there has to be some end to these sort of negotiations which don't involve interminable argument about things like suspending industrial action provisions that are meant for emergency type situations, whether this is - this sort of gets over that particular hurdle or it falls short in one way or another. Anyway, as I said, I'm just - - -
PN1600
MR WHITE: It's an observation.
PN1601
JUSTICE BOULTON: - - - thinking aloud about, you know, practically where the parties are and also thinking aloud that we still having started hearing the appeal which is also before us.
PN1602
MR WHITE: Just apropos of your out loud musings, I am told that the position Tyco have adopted in writing is that they refuse to undertake or engage in any further negotiations full stop and so there's the position that my client is left with.
PN1603
DEPUTY PRESIDENT IVES: It would be interesting, Mr White, if that second dot point in the attachment you took us to actually gave a few examples of what it means, but obviously it doesn't.
PN1604
MR WHITE: Well, it doesn't. It clearly doesn't.
PN1605
COMMISSIONER GOOLEY: Mr White, that undertaking, was that given prior to when the actual protected industrial action was taking place?
PN1606
MR WHITE: Yes.
PN1607
COMMISSIONER GOOLEY: During the time of that protected industrial action is there any evidence before us that shows that the union was contacted and refused to provide a response?
PN1608
MR WHITE: I am told there is no evidence to that effect.
PN1609
COMMISSIONER GOOLEY: So during that period of industrial action the company didn't make - there is no evidence there was any occasion where the company needed to contact - contacted the union - - -
PN1610
MR WHITE: That's as I understand it.
PN1611
COMMISSIONER GOOLEY: - - - in reliance on that undertaking.
PN1612
MR WHITE: Yes. That's as I understand it.
PN1613
JUSTICE BOULTON: Are you saying that that undertaking continues to apply?
PN1614
MR WHITE: Well, I have no doubt that it would and it may even with the benefit of discussions become more refined. But that undertaking continues. Well, no instructions but we're sure that it would. I think that what I said about Wormalds and negotiation, I think the accurate position is that there is no agreement and Wormald does not believe that further negotiation will result in agreement being reached, so effectively I paraphrased I think those words.
PN1615
JUSTICE BOULTON: Sorry. My question was does the undertaking still apply?
PN1616
MR WHITE: I can get some instructions on that and no doubt, not wanting to do it on the hop - no doubt the union would consider a more refined undertaking perhaps bearing in mind the discussion that has been had. Now - - -
PN1617
JUSTICE BOULTON: Yes. Well, whilst you're getting those instructions we're going to have a short adjournment just for 10 minutes until 3.30.
PN1618
MR WHITE: Thank you, your Honour.
<SHORT ADJOURNMENT [3.14PM]
<RESUMED [3.33PM]
PN1619
JUSTICE BOULTON: Mr White?
PN1620
MR WHITE: Now can I just make some general observations about the general topic of whether or not the mere fact a system is impaired constitutes danger and that should be looked in the context of this case which now has evidence that Wormalds would take all reasonable - all steps available to it to ensure that there weren't any unsafe circumstances. There's also the fact that 10 days' notice was given, not just the minimum required of three. If Wormald felt that they were going to put any particular group into danger, then they could have easily we say notified those customers and enabled them to make the proper arrangements. More specifically that undertaking does continue in this notice and we haven't had time to get full instructions or final instructions but certainly it continues and that the union will consider refining what is included in the last paragraph.
PN1621
DEPUTY PRESIDENT IVES: You don't know, Mr White, whether that refining would include examples of what it actually meant in practice?
PN1622
MR WHITE: Anticipate that it would and by way of example I'm - it would include hospitals and nursing homes. Hospitals and nursing homes. So the undertaking should be read as including those as circumstances that if Wormald can't get someone there, then the union will ensure one of its technician members is available.
PN1623
DEPUTY PRESIDENT IVES: Just so I'm clear about that, an unidentified fault at a hospital at a nursing home for which the employer was unable to obtain anybody to fix it, the union under those circumstances would ensure that a member was made available?
PN1624
MR WHITE: Well, those who are instructing me have just heard that question. It does need refinement and there is a willingness to include those exceptions which I have indicated to you. That refinement needs to be thought through. Bear in mind that the evidence is also that not all defects are critical, that some on the employer's evidence are completely non-urgent and it may well be that any refinement takes into account critical versus non-critical.
PN1625
DEPUTY PRESIDENT IVES: Yes. That's why I used the word "unidentified," Mr White, because there will be occasions of course when that won't be able to be ascertained by the two people on the telephone and a great deal of argument could take place over it and - - -
PN1626
MR WHITE: All I can say is there's a willingness to - - -
PN1627
DEPUTY PRESIDENT IVES: Yes, I understand.
PN1628
MR WHITE: - - - certainly continue the undertaking as given. Secondly, to include specified exceptions or inclusions into - and, thirdly, all of these refinements will be considered and just not - - -
PN1629
COMMISSIONER GOOLEY: Mr White, when do you think that you would be able to have the refined undertaking to us?
PN1630
MR WHITE: Monday. Bear in mind all this discussion started on an assumption that a fault in a fire detection system constituted per se an endangerment and that's a proposition we do not agree with.
PN1631
COMMISSIONER GOOLEY: But this is surely not - sorry. This is part of your thing that if it is, these are the things that could be done, and one of the things that you say, well, Wormald will attend because they have attended, they can use contractors, they can do this, they can do that, but in any event if it is one of these kind then there will be a technician.
PN1632
MR WHITE: If Wormald can't get anyone then yes.
PN1633
DEPUTY PRESIDENT IVES: I think finally, Mr White, the whole question of threat and risk can be considered in a number of ways. It can be considered on the basis of the risk being large but the consequences being small, or it can be considered on the basis of the risk of something, the threat of something happening being small but if it does happen the consequences being large.
PN1634
MR WHITE: Where's my Act? Yes and no. The focus is on the probability of the endangerment.
PN1635
DEPUTY PRESIDENT IVES: The focus is on threat.
PN1636
MR WHITE: But the threat of the prescribed - - -
PN1637
DEPUTY PRESIDENT IVES: Yes.
PN1638
MR WHITE: - - - action occurring.
PN1639
DEPUTY PRESIDENT IVES: All right. Well, continue then.
PN1640
JUSTICE BOULTON: Mr White, do I understand that the refinements on your instructions will include a specific exemption in relation to at least dealing with critical defects at hospitals, nursing homes and like establishments?
PN1641
MR WHITE: I anticipate that is so, your Honour. Yes, critical.
PN1642
JUSTICE BOULTON: So the answer is yes, not you anticipate the answer is yes.
PN1643
MR WHITE: The answer is yes. This is one of the difficulties of obtaining instructions on the hop a bit but, yes, critical defects at hospitals and nursing homes.
PN1644
JUSTICE BOULTON: And like establishments.
PN1645
MR WHITE: You know, that is aged care. I don't want to manufacture or formulate the exceptions now because I haven't got the authority, but the tribunal can indicate - - -
PN1646
JUSTICE BOULTON: You've got your people instructing you and we would like to know what the refinements will at least contain.
PN1647
MR WHITE: Well, I can say at the least critical defects at nursing homes and hospitals. Now, I can say that. That's what instructions - those were given. If there's some refinement then there needs to be some discussion, but all I can say at the moment is nursing homes and hospitals, critical defects.
PN1648
COMMISSIONER GOOLEY: Because for example as I understand it the correctional centres are never evacuated, so in terms of like establishments, given that they are never evacuated as I understand it from the evidence, you might need to include them as well in the sense of even prisoners deserve not to be burnt to death.
PN1649
MR WHITE: My instructors are listening to the comments from the bench and I'm told we will be in a position to formulate something final by Monday. Sorry, I can't take it further than that.
PN1650
JUSTICE BOULTON: But we want to understand clearly that at this stage the refinements at least encompass what we have raised with you.
PN1651
MR WHITE: At this stage they include critical incidents at - critical faults at hospitals and nursing homes.
PN1652
JUSTICE BOULTON: Yes. I might say I didn't mean "at this stage" in the sense of today and it can change tomorrow. At all stages - - -
PN1653
MR WHITE: Well, I didn't respond to your Honour with that in mind either.
PN1654
JUSTICE BOULTON: Yes. I'm not implying that we're too tricky, but we just wanted to clarify it. Yes, please continue with your submissions.
PN1655
MR WHITE: I had nearly got to the stage of the submissions where I was going to look at what the alleged problems were with each of the alternatives available to Tyco. In my submissions I describe them as illusionary but probably illusory is probably a better word. The first problem identified by Tyco is that it is impossible or difficult to get contractors or competitors in because of this big problem with inductions. Now, the evidence before the tribunal is that there are only 16 of its customers have site-specific inductions. The evidence is that in any event if there is an emergency there is a high likelihood that customers would send a person along in any event to accompany the technician who went there.
PN1656
Customers can in any event in a pre-emptive sense be asked to have someone available. That may cause some inconvenience and cost to Tyco and that seems to be the basis of the applicant's objection. Mr Sillett did say that, "Well, the customers might not like that because they have paid for a service and they are not getting it," but once again that's a contractual inconvenience rather than a substantive impact on the provision of care.
PN1657
You should bear in mind as well that, as a matter of fact, Tyco have operated their business very effectively in terms of the delivering of after-hour call-outs without a proper system of inductions for many years and the evidence of Mr Sillett yesterday supports that proposition. There has been no evidence in light of the circumstance where proper system of inductions hasn't been in place for years and no evidence of any complaint by any customers, and no evidence that any technician has been able to repair a fault by reason of the lack of any induction. The lack of induction we say is as a matter of fact illusory for this circumstance.
PN1658
The next thing is that competitors could provide services and Ms Inglis's affidavit and Mr Ross's affidavit support this proposition. It may stick in the craw of a service provider to utilise the services of competitors but nonetheless competitors are available to do it. Competitors are available, not only to do the after-hour call-outs on a short-term basis, but also no doubt if Wormald got to the stage where they had to advise a client they were unable to service that client any more I'm sure that the competitors would be more than happy to take on a new client. One of the problems about use of contractors Mr Sillett raised was the customers' contact with Tyco to provide the service and they don't like contractors. Well, the only evidence about the use of contractors is that they used them during the last period of protected action and they're currently using them now and there has been no complaint by any customer about the use of contractors.
PN1659
The next proposition that was raised as a difficulty was that Tyco has a specialist product. The fact of the matter is that there is a whole range of proprietary product in buildings; that is, Tyco product, Chugg product, Chinese or imported product, whatever, and all of the service providers operate in buildings that have a variety of different types of product and all of them are able to operate effectively. In respect of site familiarity can I, without going to it, refer to Mr McKenzie's evidence in respect of that. Can I also remind you about Australian Standard 1670. These fire panels aren't locked away in an attic. There is specific provision about identification with strobe lights and one other matter that have to be placed within a very short metreage of the panel and panels have to be located in or at the main entrance to the building.
PN1660
There was a problem raised maybe related to the number of contractors that might be required on any particular one night or the number of technicians who might be required on any one night and that is that there are a number of multiple call-outs which will impact on Tyco's capacity. The figures about multiple call-outs we have referred the tribunal - - -
PN1661
COMMISSIONER GOOLEY: Yes, you have already given them - - -
PN1662
MR WHITE: - - - already to the figures about multiple call-outs and we take those figures from Mr Sillett's affidavit. At paragraph 29 and following of my written outline I say in brief - well, we say about threatened endangerment, but more importantly we do not agree with the proposition. It seems to be that which the applicant is driven to; that any fault in a fire detection system constitutes per se relevant endangerment and we have had the discussion about that so I won't go into any more detail about that. I think I have also dealt with the paperwork when I made submissions about what the ban constituted and I think I made in that context observations about the paperwork didn't affect the work being done. It was put by Mr Murdoch, I understand, that the lack of the paper trail itself constitutes endangerment. All I can say is that I'm not in any danger from that event, the paperwork has swollen, but nonetheless even though there may be no paperwork trail, there is reportage of critical defects. All other defects are repaired, and what's more, all defects are recorded at the fire panel of the customer.
PN1663
So subject to - yes, my instructor reminds me, they are also recorded in the telephone log in any event. It's not as if there is no record of things which have happened; not only the telephone log but bear in mind Gateway has records of what calls it receives, what calls it sends out, and Mr McKenzie gave evidence about ringing Gateway to report the critical defects. So unless the tribunal is assisted by anything else, those are the submissions save for this: that if the tribunal was against us, then we would urge that there be a suspension rather than a termination. As we understand - - -
PN1664
COMMISSIONER GOOLEY: Why is that, Mr White?
PN1665
MR WHITE: Can you just bear with me. Yes, I think section 266 is the section that deals with the consequences of - as I understand, section 266 requires certain things to follow in the event that a termination of industrial action determination is made, and that includes that in certain events the matter goes to arbitration. We think that, particularly bearing in mind some of the requirements that are thought, there's more value yet in active negotiation.
PN1666
JUSTICE BOULTON: I'm tempted to ask you, Mr White, you put the proposition if we're against you we should do this. If we were for you, what is the consequence? Would the technicians now impose - - -
PN1667
MR WHITE: I'm sorry, I'm having trouble hearing.
PN1668
JUSTICE BOULTON: Sorry. If we were for you - - -
PN1669
MR WHITE: Yes.
PN1670
JUSTICE BOULTON: - - - rather than against you, what would be the consequence? Would the technicians now or then impose these bans or would they give notice again about the bans or would the union take the view that, "Well, maybe now that this particular impasse has been got over, and the contract has been voted down again, or the proposed agreement has been voted down again," that this might be an opportunity for renewed negotiations or what might be the consequence?
PN1671
MR MURDOCH: I don't think the union has ever said it's not going to negotiate, has it?
PN1672
JUSTICE BOULTON: I mean, if you want to just at least restrict yourself to what would be the position in regard to the proposed bans.
PN1673
MR WHITE: I'll get kicked if I say something wrong but as I understand, the union is and will be prepared to continue negotiations; and secondly, it would probably issue more notices, bearing in mind the undertaking and refinement that has been the subject of discussion.
PN1674
JUSTICE BOULTON: Yes, thank you.
PN1675
COMMISSIONER GOOLEY: That would be with 10 days' notice?
PN1676
MR WHITE: Yes.
PN1677
JUSTICE BOULTON: Mr Murdoch?
PN1678
MR MURDOCH: In the course of my learned friend's argument he referred you to various state legislative requirements. From what he said I think that he has given you a copy of the Building, Fire, Safety Regulation 2008. Could I just confirm that that's in the bundle that you got.
PN1679
JUSTICE BOULTON: But you got the same bundle, didn't you?
PN1680
MR MURDOCH: Sorry?
PN1681
JUSTICE BOULTON: Didn't you get the same bundle?
PN1682
MR MURDOCH: We had a bundle as well but - it should be in the bundle that you have. I think it should be the last one in the bundle
you got from the other side. I just ask you to note that under 
regulation 50 
the section applies to persons carrying out maintenance of a prescribed fire safety installation. You will note subregulation (2).
You will note also 53 in relation to notifying critical defects. In regulation 49 there's a definition of critical defect and they give examples of critical defect. You'll see the first example is a defect making
a fire detection and alarm system inoperable. So far as the cases go, if you have the Davids Distribution report handy, at page
495, in the discussion regarding the former section 170MO(5), true it is that their Honours said that:
PN1683
It was designed to ensure that industrial disputants who are to become affected by protected action in relation to which their usual legal rights are significantly diminished are at least able to take appropriate defensive action.
PN1684
The word "appropriate" is, I would suggest, apposite in the present context, but more importantly one needs to look at what the court had in mind when they spoke of appropriate defensive action. The first is an example:
PN1685
An employer may operate a sophisticated item of equipment that will be damaged if precipitously shut down.
PN1686
They comment:
PN1687
If warned in advance of the ban that might affect the continued operation of that plant. An employer might choose a controlled shutdown during the period of the notice. Then more commonly perhaps an employer might use the notice time to communicate with suppliers and customers and thereby reduce the consequences for them of the notified industrial action.
PN1688
Then:
PN1689
Very often the recipient of the notice will respond in a way that has a legal dimension, for example, a union might react to a notice by an employer of an intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly an employer might respond to an employee's notice of bans by giving notice of a lockout of some or all employees.
PN1690
So the range contemplated is broad but it was hedged by the word "appropriate" which I have pointed out to you already, and additionally where the example was given about communication to suppliers and customers, it was not envisaged when the judges framed the example that those customers would be able to take away the consequences. It was just to give them the opportunity to reduce the consequences. So carrying over to the present situation as I pointed out earlier, it may be that the 10 days' notice enables some things to be done but merely reducing the level of endangerment is not sufficient to defeat the existence of a threat of endangerment.
PN1691
I don't believe you have been referred to the decision of O'Callaghan SDP in Re Pelican Point Power Ltd. We have copies of that. That's 2010 FWA 8666, a decision of 10 November 2010, related to a gas-fired power station in South Australia. There were relevant passages in paragraph 21 and 22 and his Honour the senior deputy president said in 21:
PN1692
What is in dispute is the extent to which the material provided to me establishes that industrial action proposed for 11 November 2010, which may now not occur until 17 November 2010, has threatened to endanger the life, personal safety or health, or the welfare of South Australians dependent on the national electricity grid for their electricity supplies. For the application to be successful I must be satisfied about two questions. Firstly, does the proposed industrial action represent a threat to continuing electricity supplies in South Australia?. Secondly, if such a threat applies would the interruption of electricity supplies endanger life, personal safety or health or the welfare of South Australians?
PN1693
22:
PN1694
Information provided to me by the ASU goes to the proportion of electricity generated in South Australia as distinct from other states, participants in the national electricity grid. Further it goes to the proportion of South Australian generated electricity which is produced by this particular Pelican Point facility. In these respects the ASU may be correct in its position that this particular Pelican Point electricity generation function is less significant in its contribution to South Australian power generation than Mr Taylor has asserted. However, there is insufficient evidence before me particularly relative to the contribution of wind turbine power generation facilities to allow a definitive conclusion.
PN1695
Then over the page, 25 and 26, I won't read the whole of 25, but you will see midway down there's a reference to section 424. The comment from his Honour:
PN1696
This section requires that I be satisfied that the protected industrial action has, is, or would threaten, to endanger the life, the personal safety or health or the welfare of the population or a part of it. It does not require or provide a licence to consider whether the employer's closure of its business with the potential for that to affect other employees should occur so as to counteract the threat that would otherwise exist.
PN1697
26:
PN1698
On the same basis, while it may be possible for Pelican Power to operate the electricity function for a time through the use of other staff or staff of other companies, I am not satisfied that this is either practical nor obligatory in terms of the assessment that I am required to make.
PN1699
I call in aid of that in relation to the earlier submissions that I made in relation to the assertion that there was an obligation on the clients to utilise other sources of technicians despite the assessment of our management that that was and is inappropriate. If we go back to paragraph 21 and to those two questions that his Honour framed, we could attempt to ask the same two questions in the context of the present matter, and I suppose one might transpose the questions by saying, firstly, does the proposed industrial action represent a threat to the continued operation of the fire alarm equipment in the buildings of Wormald's clients in south-east Queensland? And secondly, if such a threat applies would the interruption to the operation of that equipment endanger life, personal safety or health or the welfare of persons in south-east Queensland? In the Minda decision which was referred to as part of the union's submissions - - -
PN1700
COMMISSIONER GOOLEY: Mr Murdoch, do you have another copy of that decision because I wasn't actually given a copy of that decision by the - - -
PN1701
MR MURDOCH: I'm sorry. Did only two come up?
PN1702
COMMISSIONER GOOLEY: Only two came up.
PN1703
MR MURDOCH: I'm sorry about that.
PN1704
COMMISSIONER GOOLEY: No, no. I just wondered whether you had an additional copy of it.
PN1705
MR MURDOCH: I'm sure we do - Pelican.
PN1706
COMMISSIONER GOOLEY: No, no, the Minda Hunt - - -
PN1707
MR MURDOCH: Yes, we do, thanks.
PN1708
COMMISSIONER GOOLEY: Thank you.
PN1709
MR MURDOCH: It's true that in that case, at paragraph 91, this is in the Minda decision of the commissioner, that the commissioner said:
PN1710
Importantly given the nature of the bans, their likely impact and the availability of alternatives, to ensure the safety and welfare of the community, including most relevantly the clients of Minda, I am not persuaded that in isolation or in combination this industrial action is or would threaten to endanger the life, personal safety -
PN1711
et cetera. What needs to be emphasised in relation to that paragraph is that the alternatives were found by the commissioner to ensure the safety and that's a very significant finding. If there are alternatives which satisfied him that they would ensure the safety that's a very different case to the one that you're considering here, and as I said in my earlier submissions in relation to so-called defensive measures, there may be particular special cases but the one before you is not one and it's certainly not one where the so-called alternatives would ensure the safety of persons.
PN1712
In the Telstra case referred to in the union's submissions, that's 2009 FWAFB 1698, at paragraph 12, dealing with the matter of notice of industrial action, there's a comment about halfway through the paragraph and it says:
PN1713
As to purpose there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer's operations including their size, the number of employees, the number of locations, the time at which the action is to occur, and the employees potentially taking the industrial action.
PN1714
Then there was a reference to Davids Distribution. Again the bench referred to making appropriate arrangements and so far as the present case is concerned Mr Sillett has in relation to each of the proposed defensive measures said that they are not appropriate and said why. Now, in Ambulance Victoria, the decision of Kaufman SDP, which is in the bundle from the union - at paragraph 29 his Honour said among other things:
PN1715
I intend to approach this matter on the basis of probabilities rather than possibilities. I need also to point out that I must be satisfied that the protected action would threaten to endanger, not would endanger.
PN1716
So there are two important points to be made there. His Honour has, consistent with our submissions, emphasised that it's a threat to endanger, that's the test, not would endanger. But also whilst his Honour said that he was dealing with probabilities, the way in which the union's submissions appeared to adopt that was, with respect, inaccurate. It's inaccurate because the union's submissions appeared to say that probability meant high probability. Now, Kaufman J wasn't saying that at all, with respect, and probability covers the whole gamut of probability. You can have high probability, low probability and medium probability.
PN1717
There is nothing I his formulation that says that it's only in high-probability instances that the requisite degree of satisfaction can be formed. That’s consistent with the fact that the test is threaten to endanger, not would endanger. There were questions from the bench in relation to the willingness of the parties or otherwise to have the assistance of Fair Work Australia in conciliation. The position is that I'm instructed my clients have on more than one occasion invited the union to put the matter to conciliation. I'm instructed that on each occasion that invitation was rejected by the union. I'm instructed that those requests have been both in writing and verbal. As to the - - -
PN1718
JUSTICE BOULTON: Do I take it from that that the company itself would participate in the conciliation exercise?
PN1719
MR MURDOCH: Yes.
PN1720
JUSTICE BOULTON: Then I ask the obvious question, why just put it to the union? Why not simply seek the assistance of Fair Work Australia?
PN1721
MR MURDOCH: Sorry?
PN1722
JUSTICE BOULTON: Why did the company not seek the assistance?
PN1723
MR MURDOCH: Your Honour, experience teaches that it requires a willingness of both parties to be participants, and consequently the matter was raised with the union on more than one occasion and there has been a - I think the way it was put to me was, the response on one occasion was, "Over our dead bodies." So far as the undertakings by the union go, the undertakings as described today have not been understood by my clients to mean what they're said today to mean. I don't want to bog down on this but just to put it into a little perspective, in the affidavit of Mr Sillett, this was the 14 October 2010 affidavit, at paragraph 65 on page 12 he says:
PN1724
On 30 September 2010 I received a telephone call from Beau Malone, a CEPU official, who accused me of harassing the CEPU member, Adam Partridge. I advised Beau Malone that Wormald had received emergency call-outs which needed to be responded to. Beau Malone advised me that unless a call-out involved a situation such as a switchboard hanging from a wall with live wires exposed the CEPU did not consider the call-out to be an emergency.
PN1725
Now, we've heard what has been said today in relation to hospitals and nursing homes is late breaking news. We naturally will respond to it appropriately when the detail is received on Monday. I can't otherwise comment on that.
PN1726
JUSTICE BOULTON: You know some of the detail because we've at least ascertained that it relates to critical defects in nursing homes and hospitals.
PN1727
MR MURDOCH: As I understand it, that was put in general terms and the detail is to be furnished. I don’t want to anticipate or pre-empt. That, as I've said, is the first our clients have heard of any particular arrangements for particular establishments, and naturally they will look at what is proposed.
PN1728
JUSTICE BOULTON: Well, you can take it that we will be looking at what has been put to us as the basis on which the union has clarified how that undertaking might apply in relation to those establishments we've specifically raised with them.
PN1729
MR MURDOCH: It would be appropriate though that we have an opportunity to put some comment to you in relation to what comes from the union because - - -
PN1730
JUSTICE BOULTON: Yes. Well, I agree with that. This is your opportunity because you've heard what they've put and you've heard the questions that we've put to them so that we might understand at least what that undertaking involves.
PN1731
MR MURDOCH: Well, the matter is in large part already dealt with in that same affidavit of Mr Sillett that I referred to a moment ago, 14 October 2010 - - -
PN1732
JUSTICE BOULTON: It's actually the 18th, isn't it?
PN1733
MR MURDOCH: Sorry. I was looking at the tribunal stamp. Sworn on the 13th, stamped on the 14th.
PN1734
JUSTICE BOULTON: But it was sworn on the 18th, wasn’t it? You just took us to paragraph 35 of it.
PN1735
MR MURDOCH: Yes. That's the one.
PN1736
JUSTICE BOULTON: Yes. To me that's the one that I've got that was sworn on the 18th. We could all be excused for some confusion because there are a lot of affidavits from Mr Sillett.
PN1737
MR MURDOCH: Certainly. Look, your Honour, the one I'm talking about has a tribunal stamp 14 October in the top right-hand corner - - -
PN1738
JUSTICE BOULTON: Yes. I haven’t got that one. I'm working from a different one.
PN1739
MR MURDOCH: Okay.
PN1740
JUSTICE BOULTON: But is your one - what date is the date that it's sworn? Because I was reading paragraph 35 with you and it's from the affidavit that was sworn on 18 October that I have.
PN1741
MR MURDOCH: No. This one is the 13th. Paragraph 65 was the Beau Malone paragraph, your Honour.
PN1742
JUSTICE BOULTON: I see. It's 13 October.
PN1743
COMMISSIONER GOOLEY: Mr Murdoch, that paragraph you referred us to occurred before the undertaking that the union had given the company on 5 October. Is there any further evidence about - - -
PN1744
MR MURDOCH: Yes. That's what I'm coming to, Commissioner. If we go to page - - -
PN1745
DEPUTY PRESIDENT IVES: Whatever dreaded lurgy Mr White has brought from Melbourne, it seems to be spreading.
PN1746
COMMISSIONER GOOLEY: Not this far.
PN1747
JUSTICE BOULTON: Let's hope it doesn't spread up here.
PN1748
DEPUTY PRESIDENT IVES: You're even getting accused of passing disease around the room now, Mr White.
PN1749
MR MURDOCH: It's not that many years since we lost the - I was going to say dingo fence, but the border fence protection against the southern bar.
PN1750
COMMISSIONER GOOLEY: I'm not sure that I'd be making those comments to this bench if I were you, Mr Murdoch.
PN1751
MR MURDOCH: It's made on a Friday afternoon, Commissioner. Anyway, getting back to business, at page 16 you'll see starting at 92 there is a reference there to that correspondence, RS8, where the CEPU offered assistance. You will see in 92(2) the reference to the provision of the mobile phone number of the CEPU organiser. Mr Sillett comments at paragraph 93:
PN1752
PN1753
Then 94:
PN1754
Similarly, the offer of mobile telephone number for a CEPU contact is not a practical option in cases of emergency as the time delay involved in introducing a middle man to the call-out process could prove costly.
PN1755
95:
PN1756
As highlighted in paragraph 63 to 64 above, it is not an acceptable alternative for the attendance at a call-out to hinge on the judgement of CEPU organiser who has little or no experience or training in the field of fire detection, warning and prevention.
PN1757
Then 96:
PN1758
Even if these objections did not exist to the CEPU organiser acting in that capacity, this system would still be completely ad hoc with no certainty that any service technician would be available, able and willing to attend an after hours call-out.
PN1759
Additionally the reference to hospitals and nursing homes is commendable but there are, in our submission, other situations of particular peril which aren't encompassed from that. For example only, I mentioned yesterday that building at the Gold Coast, that residential tower of 80 levels, where realistically an attempt to evacuate that building in the wee hours of the morning would necessarily be attended by enormous confusion and the potential for danger in itself. I don't pretend they're the only examples, but the critical areas are not confined to nursing homes and hospitals.
PN1760
As you pointed out correctly, the situation with correctional centres is one where there are particular issues, Commissioner. Others include boarding schools, childcare facilities - whilst I think it was said somewhere in the submissions that childcare centres don't count, what is relevant there is that those facilities often open early in the morning and close at night to accommodate parents who have to travel, commute, et cetera, so one can't just sweep the hand and say they're daytime facilities. There has been in this matter some latitude afforded to my learned friend, such as, for example, his being permitted to enlarge upon the matter of the undertakings. Could I seek like latitude to put before you the fact that as of today all of the ASEs which were out of operation as a result of the floods are now back online.
PN1761
DEPUTY PRESIDENT IVES: Well, now that you've done it I don't know if there has been too much issue about a contest between where latitude has been given in this matter.
PN1762
MR MURDOCH: Thank you, sir.
PN1763
DEPUTY PRESIDENT IVES: You've had your fair share.
PN1764
MR MURDOCH: I've not complained.
PN1765
DEPUTY PRESIDENT IVES: Good.
PN1766
MR MURDOCH: If I can just take one moment to clarify a matter that should be raised. Insofar as the ASEs are concerned, might I have leave to present the commission with a brief note on them because I understand there may be some that are in the process of new installations being fitted in flood damage situations? So I certainly don't want to mislead. What I put before you at the moment was - I understood the instruction that apparently there is some refinement on that in relation to particular flood-damaged buildings. So Monday for the undertaking, Monday for us to clarify the matter of the ASEs with your leave.
PN1767
COMMISSIONER GOOLEY: You mean whether they're all back in operation.
PN1768
MR MURDOCH: I beg your pardon.
PN1769
COMMISSIONER GOOLEY: On the question of whether they're all back in operation?
PN1770
MR MURDOCH: Yes. They're our submissions. Thank you. But generally we rely on the written submissions.
PN1771
JUSTICE BOULTON: Mr White, did you want to say any more, in particular on that last point?
PN1772
MR WHITE: With the phantom ASEs, the case you have when you don't have a case - - -
PN1773
JUSTICE BOULTON: I thought you'd start by talking about latitude.
PN1774
MR WHITE: Well, the trouble with the ASEs is, as I've discussed before, there is no proper reason why they didn't form part of the case if they were important enough to form part of the case. This application was made in November and the directions to put affidavit material on. Quite frankly it's a bit late in the day to start running a new case at the close of submissions.
PN1775
JUSTICE BOULTON: But Mr Murdoch has indicated that it's quite limited material that he's seeking to put, it's just relating to this question of how many are still out of operation because of the floods.
PN1776
MR WHITE: I don't know the materials. Are you going to put on material about how many buildings don't have one and whether they're occupied or not?
PN1777
JUSTICE BOULTON: You might be opening it up. I think he's indicated it's to be quite narrow, the material.
PN1778
MR WHITE: Your Honour, we've made our submissions about the role of ASEs in this case and evidence about it was put in. If Mr Murdoch wants to put on - - -
PN1779
JUSTICE BOULTON: Look, in the - are you finished, Mr White?
PN1780
MR WHITE: I was going to say, if he wants to put on that limited material then so be it.
PN1781
JUSTICE BOULTON: We'll require that the CEPU by close of business on Monday give us the further particulars regarding the issue of the undertaking that we've raised with you. We will require Wormald by close of business on Monday to put the material which you've indicated, Mr Murdoch, in relation to the ASEs. If there is any response submissions they should be with the tribunal and given to the other side by close of business next Wednesday. So by next Wednesday we should have all the material before us to be able to decide this matter. Now, Mr White, what do you want to do in relation to the hearing of the appeal?
PN1782
MR WHITE: I think at the beginning of yesterday I indicated to a very large extent that the questions raised in the appeal had subsumed in the application, and that is so. My submissions on the appeal would take about five minutes. The fact of the matter is - - -
PN1783
JUSTICE BOULTON: Do I take it that once the application is determined there is no utility in relation to the pursuit of the appeal?
PN1784
MR WHITE: Yes, if the application is determined, that is by the tribunal. Not determined by a unilateral act of the respondent to the appeal.
PN1785
JUSTICE BOULTON: Yes. So your position is that when the application that we've been hearing is determined by a decision of the tribunal then you won't be seeking to pursue the appeal?
PN1786
MR WHITE: Yes, your Honour.
PN1787
JUSTICE BOULTON: Yes. Well, in those circumstances we won't continue with the hearing of the appeal today. Yes. That concludes the matters that we had listed. Thank you for the submissions. We will receive the material next week and we will consider what position will be determined by the bench.
PN1788
MR WHITE: I don't mean to try to get the last word, it was only a request if possible that the tribunal give such priority as it's able to this matter.
PN1789
JUSTICE BOULTON: What does that mean?
PN1790
MR MURDOCH: The matter could have been heard last October. It was only brought here at the instance of the union who wanted it linked with the appeal.
PN1791
JUSTICE BOULTON: It could have been heard in January if it wasn't for the floods as well. But in fact we're here in March and we now have heard it and we'll finalise it next week. So we note the submissions. Yes. Thank you. We'll now adjourn.
<ADJOURNED INDEFINITELY [4.42PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
CRAIG DOUGLAS MCKENZIE, SWORN PN913
EXAMINATION-IN-CHIEF BY MR WHITE PN913
EXHIBIT #W5 AFFIDAVIT OF MR MCKENZIE OF 11/01/2011 PN940
CROSS-EXAMINATION BY MR MURDOCH PN969
RE-EXAMINATION BY MR WHITE PN1286
THE WITNESS WITHDREW PN1295
EXHIBIT #W6 AFFIDAVIT DAVED 11/01/2011 PN1302
EXHIBIT #W7 COLLECTIVE AGREEMENT PN1304
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWATrans/2011/239.html