PN1

THE COMMISSIONER: Good morning all, this is Commissioner Hampton. My apologies for the delay. I will just confirm the appearances. Ms Rogers, you are appearing for the applicant union?

PN2

MS J ROGERS: Yes, good morning, Commissioner.

PN3

THE COMMISSIONER: Yes, good morning. Mr Watson, you are appearing for the respondent?

PN4

MR WATSON: Yes, good morning, Commissioner.

PN5

THE COMMISSIONER: Yes, good morning. All right. Are there any preliminary matters that we need to deal with?

PN6

MR WATSON: Commissioner, I just have one administrative point that I wanted to check with you before we get going, and that was just whether the court book will be tendered as an entire bundle or whether each thing needs to be tendered separately?

PN7

THE COMMISSIONER: Given the court book has a lot of material, including the directions and the like, I think the best thing to do is to deal with the documents one by one, but, look, having said that, in terms of the digital court book part 2, I wouldn't propose to deal with those documents separately, and if there's no objection to that material, at least I imagine the letters of offer could be tendered as a bundle and redacted contracts could be tendered as a bundle, but, other than that, I think we should deal with the documents as they come.

PN8

MR WATSON: Certainly. Thank you, Commissioner.

PN9

THE COMMISSIONER: Ms Rogers, anything by way of any preliminary matters?

PN10

MS ROGERS: No, that's covered off on everything for me, thanks.

PN11

THE COMMISSIONER: All right. In terms of your witnesses, you have got Mr McEgan and Mr Ziegler with you?

PN12

MS ROGERS: Yes, thank you. The other witnesses for us, as I understand it, were not required for cross-examination, so we don't intend on calling those. We will just be seeking to tender the witness statements, but we have Mr McEgan and Mr Ziegler here to give evidence.

PN13

THE COMMISSIONER: All right.

PN14

MS ROGERS: We have also got Mr Pisoni here. In terms of the digital court book part 2, given that Mr Pisoni is, I guess, one of those people that those documents were provided to, it was really just the purpose of Mr Pisoni taking the stand would be purely so that we could tender those documents, so I'm not sure how you wanted to proceed in respect to those.

PN15

THE COMMISSIONER: All right, we will come to that in a moment. Mr Rogers, in terms of an opening, you have obviously supplied original submissions and reply submissions. Is there anything else you wanted to say by way of opening?

PN16

MS ROGERS: All I wanted to add, I guess, was that, as this case has progressed, we are really now needing to address the four main criteria for the majority support determination. The four components as we see them are, firstly, that a majority of employees who are employed by the employer who will be covered by the agreement want to bargain and we say that is going to hinge on what that group of employees are, and so we intend to address that today.

PN17

As far as we are aware, it is conceded that the employer has not agreed to bargain and the hotly contested issue is whether the employees are fairly chosen or not. My understanding is that in terms of the reasonableness in all circumstances to do so, the respondent's only contention on that one is relating to the fairly chosen scope, so we will definitely be seeking to address and provide clarification on each of these and we will be relying on the evidence as opposed to submissions in that respect, so we look forward to running you through that later.

PN18

THE COMMISSIONER: All right. Just in terms of the CEPU position, I understand you have put a submission - this is about the fairness or otherwise of the grouping of employees - you have put a submission in the alternative, that is, even if the group is not geographically, operationally or organisationally distinct, you would say that doesn't prevent finding that the group is nevertheless defined fairly. I understand that proposition and the legal basis for that, but it might be helpful for me to understand whether your primary position is that the group is geographically, operationally and/or organisationally distinct, whether you are relying on all three notions?

PN19

MS ROGERS: Yes, we certainly are. To a lesser extent, operationally. So, the nature of the scope is that electricians and electrical trades assistants, we would say that that's sort of occupationally a different group as opposed to, for example, administration, MTA employees who are still based at Osborne in Adelaide and may be doing the administration in relation to the OPV SEA 1180 contract. So, to a lesser extent, I guess our primary submissions will be relating to the geographically and organisationally, but we do say that there is an element there in relation to the operational aspect.

PN20

THE COMMISSIONER: All right, thank you. It might be convenient then to deal with the admission of the witness evidence and other documents that are not disputed. Perhaps, in that context, perhaps we will deal with the statements. I understand that the parties have agreed that, other than Mr McEgan and Mr Ziegler, none of the other applicant's witnesses are required for cross-examination. That's right, I take it, Mr Watson?

PN21

MR WATSON: Yes, that's correct, Commissioner.

PN22

THE COMMISSIONER: All right, perhaps we will deal with those. Any objection to that course of action, Mr Watson?

PN23

MR WATSON: No, Commissioner.

PN24

THE COMMISSIONER: All right. Just in the order they appear in the court book might be convenient.

EXHIBIT #CEPU 1 WITNESS STATEMENT OF COREY VAN DER TUUK

EXHIBIT #CEPU 2 WITNESS STATEMENT OF HEATH BELTON

EXHIBIT #CEPU 3 WITNESS STATEMENT OF DANIEL CHAPMAN

EXHIBIT #CEPU 4 WITNESS STATEMENT OF ROHAN JOHNSTONE

EXHIBIT #CEPU 5 WITNESS STATEMENT OF MARK RADIVOJEVIC

EXHIBIT #CEPU 6 WITNESS STATEMENT OF KYLE HUMPHREY

EXHIBIT #CEPU 7 WITNESS STATEMENT OF KYM HOLLINSHEAD

EXHIBIT #CEPU 8 WITNESS STATEMENT OF DAVID GLADWELL

EXHIBIT #CEPU 9 WITNESS STATEMENT OF TYSON DEVRIES

EXHIBIT #CEPU 10 WITNESS STATEMENT OF KEEGAN ARMSTRONG

PN25

Then in terms of the documents in part 2 of the digital court book, unless there is any objection, I will follow the course that I foreshadowed earlier, and that is the compilation of the letters of offer, and I think there are 80 of them, I will admit those as a bundle as CEPU 11.

EXHIBIT #CEPU 11 COMPILATION OF LETTERS OF OFFER (80)

PN26

And the two redacted MTA contracts will be admitted as a bundle as CEPU 12.

EXHIBIT #CEPU 12 REDACTED MTA FULL TIME EMPLOYMENT CONTRACT 1 (WA) and 2 (NSW)

PN27

I think, other than the evidence of Mr McEgan and Mr Ziegler, that's the evidence for the applicant?

PN28

MS ROGERS: Yes, thank you.

PN29

THE COMMISSIONER: Unless there's anything further, we should deal with their evidence. Mr Watson, are you seeking that the other witness remain outside the hearing whilst the first witness gives their evidence?

PN30

MR WATSON: Yes, Commissioner.

PN31

THE COMMISSIONER: All right. Ms Rogers, that is probably prudent, I think. Who are you going to call first?

PN32

MS ROGERS: I guess we will just go in order of as the documents appear, so we will call Mr McEgan first.

PN33

THE COMMISSIONER: Perhaps, Mr Ziegler, if you don't mind stepping outside, thank you very much.

PN34

MS ROGERS: On that basis, I would like to question, given that Mr Brown is going to be giving evidence and subject to cross-examination later, whether it's prudent that he is also not in here until he has given his evidence.

PN35

THE COMMISSIONER: Mr Watson?

PN36

MR WATSON: I agree that's appropriate.

PN37

THE COMMISSIONER: All right. Mr Brown, I appreciate you have participated virtually. We will get you to hang up on the call in a moment and no doubt Mr Watson's instructors will keep you in the loop in terms of timing.

PN38

MR BROWN: Too easy. Thank you, Commissioner.

PN39

THE COMMISSIONER: Thank you very much, Mr Brown. All right, Ms Rogers.

PN40

MS ROGERS: Thank you very much. I would like to call Mr McEgan to the stand.

PN41

THE COMMISSIONER: Yes. We will have Mr McEgan affirmed, Associate, thank you.

PN42

THE ASSOCIATE: Good morning, Mr McEgan, I am just going to administer an affirmation before you start your evidence.

PN43

MR McEGAN: No worries.

<LIAM JOE MCEGAN, AFFIRMED [11.22 AM]

EXAMINATION-IN-CHIEF BY MS ROGERS [11.22 AM]

PN44

THE ASSOCIATE: State your full name, please.

PN45

THE WITNESS: Liam Joe McEgan.

PN46

THE ASSOCIATE: Your address.

PN47

THE WITNESS: (Address supplied.)

PN48

THE ASSOCIATE: And your occupation.

*** LIAM JOE MCEGAN XN MS ROGERS

PN49

THE WITNESS: Electrician.

PN50

THE ASSOCIATE: Thank you.

PN51

THE COMMISSIONER: Thank you, Mr McEgan. Ms Rogers.

PN52

MS ROGERS: Thank you very much. I will just provide Mr McEgan with a copy of the hearing court book and direct him to his statement at page 18 of the court book.

PN53

MR WATSON: Sorry, Commissioner, if I may, I actually can't see Mr McEgan. He's not appearing on the screen. I was going to say, if he could switch with Mr Pisoni, that might help. That's perfect, I can see now, yes.

PN54

THE COMMISSIONER: Thank you, Ms Rogers, for showing your multitasking capacity.

PN55

MS ROGERS: Thank you.

PN56

Have you made a statement for the purposes of these proceedings today?‑‑‑Yes.

PN57

I'll just get you to have a look at the statement that I've previously directed you to. If you can have a quick read through that and just confirm whether or not that's the statement that you have made?‑‑‑Yes.

PN58

Are there any amendments or changes that you would like to make to that statement?‑‑‑Not at this stage, no.

PN59

I just have a couple of additional questions for you. When you commenced your employment, or prior or subsequently, were you advised that you could be required to work anywhere?‑‑‑No, I would - not travel for work purposes, no.

PN60

Were you advised that you could be directed to travel interstate for alternate work other than the ships?‑‑‑No.

PN61

Can you tell me who is your regular reporting structure?‑‑‑My supervisor is Dave Innes, so all my reporting goes to him. If I'm not reporting to him, I'm reporting to Paul Turnbull or Luke Holmes or, rarely but sometimes, Mark Brown.

*** LIAM JOE MCEGAN XN MS ROGERS

PN62

Where are each of those employees based?‑‑‑They're all based in South Australia.

PN63

Have you volunteered for any projects that involved you going interstate to Sydney?‑‑‑No.

PN64

What about New South Wales?‑‑‑No.

PN65

There's no further questions and I would like to tender the statement and attachments.

PN66

THE COMMISSIONER: Any objection, Mr Watson?

PN67

MR WATSON: No, Commissioner.

PN68

THE COMMISSIONER: Very well then, the statement of Mr McEgan and the attachments will be admitted and marked as exhibit CEPU 13.

EXHIBIT #CEPU 13 WITNESS STATEMENT OF LIAM JOE McEGAN

PN69

Mr McEgan, Mr Watson, who I think you have seen from the screen is representing the respondent, will probably ask you some questions now. Yes, Mr Watson.

PN70

MR WATSON: Thank you, Commissioner.

CROSS-EXAMINATION BY MR WATSON [11.26 AM]

PN71

Thank you, Mr McEgan. You have got your witness statement there in front of you?‑‑‑Yes.

PN72

If I could ask you just to have a look at paragraph 14 for me?‑‑‑Yes.

PN73

In that paragraph, you say that you have not worked interstate during your employment with MTA?‑‑‑Yes.

*** LIAM JOE MCEGAN XXN MR WATSON

PN74

And you have just given evidence that you haven't volunteered for work interstate? Is that right? That's the evidence you've just given?‑‑‑I have not worked interstate, no.

PN75

But it's true, isn't it, that in May 2020, you volunteered for work on a Sydney project and were inducted for that work?‑‑‑I did an expression of interest, which included an induction, yes.

PN76

So you were prepared to work in Sydney and you were inducted to perform that work; that's right, isn't it?‑‑‑If the terms and conditions that were brought forward, then it was a possibility, but not knowing the work, when we were going, or anything like that, I couldn't confirm that I was going to go.

PN77

I know you didn't end up going to Sydney in the end because of COVID restrictions, but the fact that you were inducted to go to Sydney means that you know you can be directed to work in other locations than Osborne; isn't that right?‑‑‑I was - in there, we were told that there would be possibilities that we could be involved in training, which can be involved in interstate and overseas. For all I know, it could've been part of that.

PN78

So you know that you can work in other locations?‑‑‑Can you clarify?

PN79

Given that you have just told the Commission that you have agreed that you were inducted for that work and you know that you can go across for training or other work, you know that it's possible for you to not just work at Osborne; isn't that right?‑‑‑It's possible to work on stuff that's related to the OPV project or be involved in training for the OPV project.

PN80

Thank you, Mr McEgan. I don't have any further questions.

PN81

THE COMMISSIONER: All right. Just before you finish, and I'm sure this is not controversial, Mr McEgan, you have mentioned that you report to - I think you ended up naming four people?‑‑‑Yes.

PN82

A Dave Innes?‑‑‑Yes.

PN83

A Paul Turnbull?‑‑‑Yes.

PN84

A Luke Holmes and Mark Brown?‑‑‑Yes.

*** LIAM JOE MCEGAN XXN MR WATSON

PN85

What's the context in which you might report to different people from time to time?‑‑‑So Dave Innes is my direct supervisor, so my daily activities are reported to him. Some other activities to do with my work scope are given directly by Paul Turnbull or also by Luke Holmes, who's our project engineer, and recently I've had dealings with Mark Brown to do with upcoming work.

PN86

All right, thank you. Anything arising from that, Mr Watson?

PN87

MR WATSON: No, thanks, Commissioner.

PN88

THE COMMISSIONER: All right, thank you. Any re-examination, Ms Rogers?

PN89

MS ROGERS: Yes, just a couple of points of clarification.

RE-EXAMINATION BY MS ROGERS [11.30 AM]

PN90

Mr Watson asserted that the reason that you didn't go to New South Wales was due to COVID. Is that correct, is that the reason that you didn't go to New South Wales?‑‑‑Sorry, was that to me?

PN91

Yes?‑‑‑Sorry, I thought that was directed at Mr Watson.

PN92

No, sorry, he stated that the reason you didn't go was because of COVID; is that correct?‑‑‑No.

PN93

Can you advise us the reason that you didn't go?‑‑‑I was never told a reason for not going. I didn't think COVID was a problem because we were essential workers, which was fine to travel, and also there's other people who did the induction process who travelled to Sydney. So, I never was told or thought that COVID was an issue, yes.

PN94

Some of Mr Watson's other questions I just wanted to clear up as well. There was an assertion from Mr Watson that you could be directed to work interstate, but my understanding was that the May 2020 was a volunteer position?‑‑‑Yes.

PN95

Is it your understanding that in relation to the work performed interstate, you have the availability to volunteer?‑‑‑Yes.

*** LIAM JOE MCEGAN RXN MS ROGERS

PN96

Do you understand that you are able to be directed?‑‑‑No.

PN97

Nothing further, thank you.

PN98

THE COMMISSIONER: Thank you. Mr McEgan, you have completed your evidence, thank you, you are released from your affirmation. You are free to stay if you wish to, of course?‑‑‑Thank you, Mr Commissioner.

PN99

MS ROGERS: Thank you.

<THE WITNESS WITHDREW [11.32 AM]

PN100

THE COMMISSIONER: All right, Mr Ziegler, perhaps we can have him attend, thank you.

PN101

MS ROGERS: I would like to call Mr Victor Ziegler to the stand.

PN102

THE COMMISSIONER: Welcome back, Mr Ziegler. My associate will administer an affirmation, thank you.

<VICTOR ZIEGLER, AFFIRMED [11.33 AM]

EXAMINATION-IN-CHIEF BY MS ROGERS [11.33 AM]

PN103

THE ASSOCIATE: State your full name, please.

PN104

THE WITNESS: Victor Ziegler.

PN105

THE ASSOCIATE: Your address.

PN106

THE WITNESS: (Address supplied.)

PN107

THE ASSOCIATE: And your occupation.

PN108

THE WITNESS: Electrician.

PN109

THE ASSOCIATE: Thanks.

*** VICTOR ZIEGLER XN MS ROGERS

PN110

THE COMMISSIONER: Thank you, Mr Ziegler. Ms Rogers.

PN111

MS ROGERS: I am just going to provide Mr Ziegler with a copy of the court documents commencing at page 52: his witness statement; full-time employment contract and letter of offer.

PN112

THE COMMISSIONER: Very well.

PN113

MS ROGERS: First of all, did you prepare a witness statement for the purposes of these proceedings?‑‑‑Yes.

PN114

If you want to have a look over that and confirm whether or not that's the statement that you've made for the purposes of these proceedings?‑‑‑Yes, it is.

PN115

Are there any amendments or changes that you wish to make to that?‑‑‑No.

PN116

I have just got a couple of further questions to that statement. Were you, at any point around the time of the commencement of your employment, told that you can be required to work anywhere in Australia?‑‑‑There was mention of possible travel to training, but otherwise it wasn't discussed.

PN117

Were you advised that you could be forced to work interstate?‑‑‑No.

PN118

Can you please tell us about your regular reporting structure?‑‑‑I report to my leading hand, Liam McEgan, and to my supervisor, Dave Innes, directly and, on occasion, to another supervisor, Corrado Sepe. They are all based in SA.

PN119

In 2020, did you volunteer to travel interstate for a project in New South Wales?‑‑‑As far as I understood, it was an expression of interest for which we did inductions for a shipyard in New South Wales, so, yes, I registered my interest.

PN120

Did you end up going to New South Wales to work?‑‑‑No. MTA wouldn't give me a concrete start date or travel date, so after the completion of the inductions, or about three weeks later, I went into the office to tell them I would not be going in any circumstance since it was affecting my family life.

*** VICTOR ZIEGLER XN MS ROGERS

PN121

Were there other people at that time that were inducted with you who still went?‑‑‑Yes, four people went that were on site at the time and that was Glen Boddy, Glen Underwood, Billy Hewitt and Mike Brown.

PN122

Mr Brown talks in his statement about a toolbox meeting held on Monday 2 May at Osborne where he asks whether people would be interested in travelling to other states for work. Were you present at that meeting?‑‑‑Yes, I was.

PN123

Was Mr Brown present at that meeting?‑‑‑No, he was not.

PN124

Who was present at that meeting?‑‑‑The majority of my workmates and my supervisors.

PN125

Was there anyone at that meeting who identified sort of in front of the collective that they were interested in registering their interest for that opportunity?‑‑‑So we were asked to put a tick next to our names on a roll call and, from memory, there was about three people that did so. I remember this as we all had a laugh about it.

PN126

All right, thank you very much, there's nothing further from me at this point.

PN127

THE COMMISSIONER: I presume you want Mr Ziegler's statement admitted?

PN128

MS ROGERS: Apologies, yes.

PN129

THE COMMISSIONER: Very well. And the attachments. No objection, Mr Watson?

PN130

MR WATSON: No, Commissioner.

PN131

THE COMMISSIONER: Very well then, Mr Ziegler's statement and attachments will be admitted and marked as exhibit CEPU 14.

EXHIBIT #CEPU 14 WITNESS STATEMENT OF VICTOR ZIEGLER WITH ATTACHMENTS

PN132

Mr Ziegler, who I think you will have observed is representing the respondent, will ask you some questions now. Yes, Mr Watson.

*** VICTOR ZIEGLER XN MS ROGERS

PN133

MR WATSON: Thank you, Commissioner.

CROSS-EXAMINATION BY MR WATSON [11.38 AM]

PN134

Mr Ziegler, you've got a copy of your statement there in front of you. Can I get you to have a look at paragraph 8 for me, please. In that paragraph, you say you haven't had the 'opportunity' to work on any projects other than the offshore patrol vessels, but that's not correct, is it?‑‑‑I wouldn't say that it isn't correct.

PN135

But in May 2020, as you've just given evidence, you volunteered for work on a Sydney project and you were inducted for that work; isn't that right?‑‑‑That is correct, but, as stated, they wouldn't give me a start date, they wouldn't tell me where I was going, what I was going to do, or any other details relating to any work. It was an expression of interest for the possibility of travel to Sydney.

PN136

But you did express interest, didn't you?‑‑‑To travel, yes.

PN137

Yes, you did, okay. Now, I know that you have given evidence that you didn't end up going to Sydney, but the fact that you were inducted and that you had expressed interest means that you know then, don't you, that you can work at locations other than Osborne?‑‑‑Yes.

PN138

So the comment that you made in paragraph 8 that you hadn't had the opportunity to work on any other projects is not correct, is it?‑‑‑As I said before, we were given the opportunity to express our interest but nothing else. They didn't say that we had to go anywhere; they didn't give us exact tasks in other locations; they just asked us for an expression of interest to travel and, off of the back of that, we had the inductions.

PN139

Thank you, Mr Ziegler. Those are the only questions that I have, Commissioner, for Mr Ziegler.

PN140

THE COMMISSIONER: Mr Ziegler, just for clarity, what did you understand the Sydney project or the Sydney work to be?‑‑‑When we got asked, we were told that it's an opportunity to travel to Sydney for possible work, anyone who would like to express their interest would put their name down and then would be inducted and would be given a start date, but the following information didn't follow.

PN141

All right. Were you aware of what the nature of the work would be or what project it would be associated with?‑‑‑No, that wasn't discussed.

*** VICTOR ZIEGLER XXN MR WATSON

PN142

Mr Watson, anything arising from that?

PN143

MR WATSON: No, Commissioner.

PN144

THE COMMISSIONER: All right, thank you. Any re-examination, Ms Rogers?

PN145

MS ROGERS: No, thank you.

PN146

THE COMMISSIONER: All right. Mr Ziegler, you have completed, you are relieved from your affirmation and you are free to go if you wish to. Thanks very much?‑‑‑Thank you.

PN147

MS ROGERS: Thank you.

<THE WITNESS WITHDREW [11.41 AM]

PN148

THE COMMISSIONER: Ms Rogers, I think that completes the evidentiary part of the applicant's case?

PN149

MS ROGERS: It does, thank you.

PN150

THE COMMISSIONER: All right. Mr Watson?

PN151

MR WATSON: Sorry, Commissioner, what about Mr Pisoni, who is going to be tendering part 2 of the court bundle?

PN152

THE COMMISSIONER: They are already in.

PN153

MR WATSON: Yes, okay, that's fine. I don't require him anyway for cross-examination, but I just wanted to clarify.

PN154

THE COMMISSIONER: Very well. Yes, Mr Watson, over to you.

*** VICTOR ZIEGLER XXN MR WATSON

PN155

MR WATSON: Thank you, Commissioner. I'll keep my opening brief as we rely on the written submissions that have already been filed, but the respondent's case is simply that the applicant bears the onus in this case of satisfying the Commission that the statutory criteria have been met. It is conceded that the respondent has not agreed to bargain. That's fine. I won't be dealing with that, I will be dealing with the other three criteria, which are all mandatory, which is that majority support exists within the union's chosen cohort, that that cohort is fairly chosen and it is reasonable in all the circumstances to make the determination. All of those criteria must be satisfied.

PN156

The applicant has not put any rationally probative material before the Commission to ground a factual finding that the group of employees it has selected is fairly chosen. Now, the union's failure to properly identify the scope also infects the two other statutory requirements that are in issue here. Because the scope is not fairly chosen, there is no way to determine which of the employees of the respondent fall within the group from which majority support is to be tested, and because the scope is not fairly chosen, it is not reasonable, in all the circumstances, to make the order because doing so would lead to confusion about what terms and conditions apply to the respondent's employees when they are performing work across different sites in different states.

PN157

The respondent submits, therefore, that the Commission cannot be satisfied of the statutory criteria and cannot make the determination that the applicant seeks. I will take you in more detail in closing, Commissioner, through various parts of the evidence that elucidate arguments on those points and in particular in relation to the lack of distinctiveness of the group in any of the relevant statutory senses.

PN158

I am happy to answer any questions now, if it would assist; otherwise, I will get into the evidence.

PN159

THE COMMISSIONER: Yes. Just before we do that, in relation to the first issue, what might be described as the majority issue, I understand your proposition to be because the group is defined unfairly, that infects that first consideration, but I would have thought that the real question for the first issue is whether or not there is clarity about the scope.

PN160

I'm not saying that's unrelated to fairness, but it seems to me that the only tie-up between those two is whether or not the group is clearly defined for the purpose of a section majority and, in that context, is it the respondent's position that - and you will probably recall the groupings that your client provided in respect of the information to the Commission, so groups B, C and D - is it suggested that any of B, C and D would fall within the scope of the redefined group?

PN161

MR WATSON: Yes, Commissioner, and that's part of the difficulty here because there are employees who ordinarily live in Western Australia who perform work on, or related to, the offshore patrol vessels that are within the scope, and so the real confusion arises with what happens to those employees, you know, when they come over from Western Australia to South Australia for a couple of days, for a week. Are they captured within the scope? That's part of the problem with the ill-defined scope, in our view.

PN162

THE COMMISSIONER: All right. We can obviously take this up later in submissions, but I think the issue might be, from my perspective at least, well, at the relevant time, that is the time of the petition, were they based at Osborne, South Australia?

PN163

MR WATSON: Yes.

PN164

THE COMMISSIONER: I think that's the issue that arises from my perspective.

PN165

MR WATSON: Thank you, Commissioner. I think that part of the evidence that I will take you through, and that is already contained in Mr Brown's statements, is that it's probably not strictly accurate to say that employees are based at Osborne, given the flexibility that the respondent has to move employees around.

PN166

THE COMMISSIONER: All right, thank you. I'm not sure whether Mr Brown is back with us.

PN167

MR WATSON: I can just message him.

PN168

THE COMMISSIONER: Thank you.

PN169

MR WATSON: I have just sent him a message to rejoin the Commission.

PN170

THE COMMISSIONER: Just while we are waiting for Mr Brown to join us, obviously the extent of the evidentiary contest is probably not as broad as we originally imagined. No doubt we have still got maybe some potentially significant cross-examination of Mr Brown, but I would be very confident we can complete the matter today. I just want to put that out there because, obviously, we are all busy people, so there might be other matters we need to organise for tomorrow. Is that a common understanding between the parties?

PN171

Ms Rogers, effectively, I don't imagine your cross-examination is going to go for the whole of today?

PN172

MS ROGERS: No.

PN173

THE COMMISSIONER: All right, okay. So, Mr Watson and Ms Rogers, I think we can safely depend on that then?

PN174

MR WATSON: Yes, that makes sense, Commissioner. I thought that that might be the case.

PN175

THE COMMISSIONER: Yes, all right, very well, thank you. Welcome back, Mr Brown.

PN176

MR BROWN: Thank you, Commissioner.

PN177

THE COMMISSIONER: Mr Brown, you have been called to give evidence. My associate will administer an affirmation before you do that. Thanks very much.

<MARK ANTHONY BROWN, AFFIRMED [11.48 AM]

EXAMINATION-IN-CHIEF BY MR WATSON [11.48 AM]

PN178

THE ASSOCIATE: State your full name, please.

PN179

THE WITNESS: Mark Anthony Brown.

PN180

THE ASSOCIATE: Your address?

PN181

THE WITNESS: (Address supplied.)

PN182

THE ASSOCIATE: And your occupation.

PN183

THE WITNESS: National operations manager for Marine Technicians Australia.

PN184

THE ASSOCIATE: Thank you.

PN185

THE COMMISSIONER: Thank you, Mr Brown. Yes, Mr Watson.

PN186

MR WATSON: Thank you, Commissioner.

*** MARK ANTHONY BROWN XN MR WATSON

PN187

Mr Brown, do you have a copy of the digital court book in front of you?‑‑‑Yes, I do.

PN188

Can you turn to page 210 for me, please?‑‑‑Yes.

PN189

Is that a copy of the first witness statement that you gave in this matter dated 11 February 2022?‑‑‑Yes, it is.

PN190

If you can have a look through that and just confirm that it goes for 78 pages(sic) and finishes on page 219 of the court book?‑‑‑Yes, it finishes on page 219, yes.

PN191

And it is followed by a number of annexures which go to page 285 of the court book?‑‑‑Yes.

PN192

Thank you, Mr Brown. That is the first statement that you have made in these proceedings?‑‑‑Yes, that is the first statement I have made.

PN193

Are there any clarifications or changes you would like to make to that statement?‑‑‑Yes, I just highlighted a point in here back on page 217 in paragraph 60 that we have attached a document labelled MB5, which is a letter of offer, not a document that would issue when someone changes the tasking.

PN194

Yes, thank you, Mr Brown. So, in paragraph 60 there, which letter are you talking about?‑‑‑So when we send guys to sea, what we like to do is issue them a document that outlines all their allowances that they're entitled to and outlines the working structure while they're at sea, considering they're not going home, they're living on board for a period of time, yes.

PN195

And so the nature of that document, how does that differ from the attachment that's MB5?‑‑‑It's just a reference document, so it would say, 'You're going to join this vessel on this date. While you're on this vessel, you will work this many hours. It will be broken up as normal time, overtime, you will be paid this as reimbursement and all your allowances - so while you're at sea, it will be this much in accordance with this, and whilst it's alongside it, it's this much' - so they actually understand what their remuneration will be while they are travelling.

PN196

Thank you, Mr Brown. Otherwise, aside from that clarification, are you happy that the content of that statement is true and correct?‑‑‑Yes, I'm happy.

*** MARK ANTHONY BROWN XN MR WATSON

PN197

Thank you, Mr Brown. Commissioner, I tender the witness statement of Mark Brown dated 11 February 2022, along with all of its attachments.

PN198

THE COMMISSIONER: Very well. Any objection, Ms Rogers?

PN199

MS ROGERS: No, thank you.

PN200

THE COMMISSIONER: Very well then, the witness statement of Mr Brown, that is the principal witness statement, and attachments will be admitted and marked exhibit MTA 1.

EXHIBIT #MTA 1 WITNESS STATEMENT OF MARK ANTHONY BROWN WITH ATTACHMENTS

PN201

MR WATSON: Could I get you now, Mr Brown, to turn to page 286 of the court book?‑‑‑Yes.

PN202

This is your second witness statement. Can you just quickly flick through that - it's much shorter than the other one - and does that run for 25 paragraphs up to page 288 of the court book?‑‑‑Yes, it does.

PN203

Are you happy that the content of that statement is true and correct?‑‑‑Yes, I am.

PN204

Thank you, Mr Brown. That's all I have, Commissioner.

PN205

THE COMMISSIONER: Very well. Any objection to the admission of that statement, Ms Rogers?

PN206

MS ROGERS: No, thank you.

PN207

THE COMMISSIONER: The second witness statement of Mr Brown will be admitted and marked as MTA 2.

EXHIBIT #MTA 2 SECOND WITNESS STATEMENT OF MARK ANTHONY BROWN

PN208

Mr Brown, you would have noticed from your earlier attendance that Ms Rogers is representing the applicant union in this case. No doubt she's got some questions for you now.

*** MARK ANTHONY BROWN XN MR WATSON

PN209

MS ROGERS: Thank you very much.

CROSS-EXAMINATION BY MS ROGERS [11.53 AM]

PN210

I will start with your first witness statement that we have just identified as MTA 1. You state in there that your address is 28 Stuart Drive, Henderson, but you spend a bit of time in South Australia, don't you?‑‑‑So, 28 Stuart Drive is our office address in Henderson, but when I got sworn in, my residential address is in Western Australia as well, but I spend a lot of time travelling between our four locations of South Australia, New South Wales, Northern Territory and WA.

PN211

Where do you stay when you are in South Australia?‑‑‑When I stay, I rotate between various Airbnbs and hotels.

PN212

Is that paid for by yourself or MTA?‑‑‑It is paid for by our client.

PN213

I will just take you to paragraph 13 of your statement. You state that you are the national operations manager based in WA. So, you are not employed as an electrician, are you?‑‑‑No, but I can do electrical work as required.

PN214

Do you do electrical work?‑‑‑Not in South Australia, no.

PN215

I will take you now to paragraph 18 of your statement. You talk about the organisational structure and state that labour is distributed based on skillset and schedule requirements. Can you please talk us through the skills required in South Australia and WA and why the South Australian workers aren't working in WA?‑‑‑Well, the skillsets are very similar. We employ electricians with a number of skills ranging from simple electrical, fibre optics, mil-spec and all that. So, in South Australia, we do have some that meet that requirement. At the time, we don't have anyone in South Australia working in Western Australia because we have not had the opportunity to travel due to COVID, so we have not been able to support that.

PN216

Just to clarify, you are saying that the skillset between WA and South Australia actually isn't different?‑‑‑No, they're very similar.

PN217

I put it to you that the labour in South Australia and WA isn't actually distributed based on skillset?‑‑‑It's distributed depending on project requirement and capacity.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN218

But you just said that they have a similar skillset?‑‑‑Well, they all hold electrical licences, which is part of their job that they're hired for, so they have a similar skillset.

PN219

I put it to you that the reason that people are based in South Australia isn't due to a particular skillset over being placed in WA?‑‑‑Can you just repeat that, sorry?

PN220

I put it to you that people aren't employed in South Australia as opposed to being employed in WA working on the ships based on skillset?‑‑‑Well, they are employed on skillset because they're all electricians and that's the task that they're employed to do.

PN221

But I put it to you the reason that they are employed to work on the South Australian ships is because they are based in South Australia?‑‑‑No.

PN222

Based on skillset?‑‑‑No. They are employed here as part of our workforce to work on our projects and they are in a key position to move around as required.

PN223

Can I just take you back to your statement where you say that (audio malfunction) is distributed based on skillset?‑‑‑Yes, so depending on the contract and the task, the relevant skillset will be distributed to that project or that task that's in question.

PN224

Okay, but you have just given evidence to say that the skillset required and available in WA working on the ships there and South Australia working on the ships here is very similar?‑‑‑Yes, I agree.

PN225

And so what I'm putting to you is, if that is similar, why are the employees who live in South Australia not employed to work on the WA ships?‑‑‑Well, they have the opportunity to work on the WA ships.

PN226

But they are not. The evidence - - -?‑‑‑They can't travel. We haven't had borders open for them to travel since March/April of this year.

PN227

Just on that - - -?‑‑‑And, plus, Ship 3 and Ship 4 have not commenced their electrical scope yet, if we're staying on OPV.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN228

Just picking up what you said in relation to the travel restrictions, I would point you to paragraphs 68 through to 73, where you provide evidence of numerous employees travelling across multiple borders during the time that you say people couldn't travel. I put it to you that COVID is not what restricted employees being able to actually travel to WA or from WA to South Australia to work on these projects?‑‑‑So do you have a specific paragraph you would like to reference there, Ms Rogers?

PN229

All of them, 68 through to the end of 73?‑‑‑You originally stated that they couldn't travel from SA to WA, so these are employees from SA travelling to New South Wales for a different project.

PN230

There's numerous references to WA throughout those paragraphs. Sixty-eight refers to MTA sending two employees from Victoria and two from WA to New South Wales?‑‑‑Yes, that's all right because they're WA employees going to New South Wales, but you specifically said South Australian employees going to WA, so I apologise if I got that wrong, but that just shows the WA guys travelled to New South Wales and South Australian and Victorian employees all went to New South Wales.

PN231

Then, at 73(b), you have a WA employee coming to South Australia?‑‑‑Yes, 25 March to April 2021, there was probably a window of opportunity to bring one of our guys across to learn the OPV project while borders were open.

PN232

That window must have extended through to July because, at 73(c), there's another employee who resides in WA coming to South Australia?‑‑‑For a short period of time, yes.

PN233

So, I put it to you that there was an ability to travel during that time?‑‑‑So the ability to travel is there, yes, but is there work in the state to travel to? No.

PN234

Thank you for that clarification. Turning you back now to paragraph 19 of your statement, you talk about toolbox meetings that they held each morning (audio malfunction) site:

PN235

Where all employees meet and discuss the work plan for the day. This includes all employees no matter what project they are working on.

PN236

So, you accept that the South Australian workers will all start at Osborne, no matter the project?‑‑‑Yes, they all start at Osborne.

PN237

Thank you. If we turn now to paragraph 35 of your statement, you state that:

*** MARK ANTHONY BROWN XXN MS ROGERS

PN238

MTA employees working on the vessels at Henderson perform the same work as the employees at Osborne because the vessels are the same.

PN239

I take it you accept that the ships are in different locations?‑‑‑Yes, so the first two ships will be built in Osborne and the following 10 would be built in Henderson.

PN240

At 39 of your statement, you talk about, at the start of the contract, flying in seven employees from WA to help at Osborne. What were the roles of those seven people?‑‑‑They were mobilisation roles to set up the Osborne site.

PN241

Were there electrical workers in that cohort?‑‑‑Yes, there were.

PN242

Performing electrical work?‑‑‑Not for the OPV project. We were setting up our site.

PN243

Thank you. Can I take you to paragraph 42 of your statement, where you provide a number of examples of contracts that are not the SEA 1180 contract. Are there any on that list that are not related to the SEA 1180 project?‑‑‑All this additional work is related to the SEA 1180 project.

PN244

At paragraph 44 of your statement, you state that all of the MTA employees based at Osborne perform work on the SEA 1180 contract and also work on the other contracts listed there. Can you confirm that it is, in fact, all of the 38 employees at Osborne who work on those other contracts, or have at some point worked on those other contracts?‑‑‑On a rotational basis, yes, a majority of the employees have rotated between contracts.

PN245

A majority?‑‑‑Yes.

PN246

But not all?‑‑‑I could find out, but, at times, not everyone has been on the SEA 1180 project.

PN247

You state, at paragraph 48 of your first statement, that no employees are assigned solely to the SEA 1180 contract. Their contracts and their letters of offer say otherwise and we heard evidence from - I think it was both Mr McEgan and Mr Ziegler - that they were not advised that - no, sorry, do you know what, I'm just going - the contracts and the letters of offer say otherwise. Did you discuss, when hiring the workers, that they are able to be - that they may be employed to perform other work?‑‑‑Yes, we did.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN248

Does this mean that their employment will continue after the SEA 1180 contract ends in South Australia?‑‑‑The potential is to keep them working and that all depends on the contracts as awarded to the State of South Australia at that site. So, we're looking at SEA 4000, SEA 5000 prototyping, so depending how much work we pick up is how much of the workforce we can maintain, yes.

PN249

But that's only work here in South Australia?‑‑‑Or they'll be offered positions at our other locations.

PN250

But it's not an automatic given that they will transfer or - - -?‑‑‑It's an individual decision; we just give them the opportunity.

PN251

All right. And they will be issued a new contract at that point?‑‑‑That's something we will discuss with them when the time arises.

PN252

I would like to now direct you to - I'll just grab the court book number for you - bear with me one moment. I direct you to page 18 of the court book, Mr Liam McEgan's statement?‑‑‑Yes.

PN253

At paragraph 7, where he says that his letter of offer states that if he wishes to remain on the OPV project when it relocates to WA, then a new assignment letter will be provided?‑‑‑Yes.

PN254

And his corresponding letter of offer contains that quote. Do you agree that if they were offered employment interstate, they would be given a new assignment letter?‑‑‑Yes.

PN255

Thank you. Mr Brown, at 64 of your statement, you say that in WA you currently have 22 electrical trades-qualified employees. Can you confirm that that is correct?‑‑‑How many we hold in WA, that would have increased by now.

PN256

Does that include apprentices?‑‑‑I'd have to check because my statement was made before and we've grown in number in both apprentices and trades people.

PN257

I will direct you now to the digital court book number 2, the redacted letters at page 300. I put it to you that there are only nine electrical trades people included in those redacted letters of offer who are based in WA?‑‑‑Sorry, Ms Rogers, I'm just trying to get the court book up because I've only got a digital copy.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN258

Yes, sure. Let me know when you've got that up?‑‑‑I have it up. Where would you like me to reference to?

PN259

So page 378 is the first appearance I see for a contract based at Henderson, WA, and that's for a project administrator; is that correct?‑‑‑That's what's on 378, yes.

PN260

And then page 380 has an electrical engineer?‑‑‑Yes.

PN261

Then, at page 382, we have a production manager?‑‑‑Yes.

PN262

Page 384, there's a leading hand?‑‑‑Yes.

PN263

And the next reference that I could find to a letter of offer in WA is at page 431, and that one's for a supervisor, who, I would assume, is an electrically-qualified employee?‑‑‑I'm still getting there, I apologise.

PN264

No, that's all right.?‑‑‑Yes, 431 is for an electrical supervisor, yes.

PN265

As I understand it, that would be the first of those letters of offer that actually relate to electrically-qualified people performing electrical work; is that correct?‑‑‑Yes.

PN266

So there's one there. Then if we go to 433, that's an apprentice, so they wouldn't be electrically-qualified?‑‑‑They still need to hold an electrical training licence, but, yes.

PN267

But they are not qualified, are they?‑‑‑No, ma'am.

PN268

Then 435 is an electrician, so, at my count, that's two electrically-qualified employees so far?‑‑‑Yes.

PN269

Then we go to page 437, which is another apprentice?‑‑‑Mm-hm.

PN270

And then the next reference to an employee based in WA that I have is on page 444, which is another electrical apprentice?‑‑‑Yes.

PN271

Then, at 446, there's another apprentice?‑‑‑Yes.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN272

Then, at 448, is an electrically-qualified electrician, which brings my count up to three?‑‑‑Okay.

PN273

At page 450, we have another electrical apprentice?‑‑‑Mm.

PN274

Then, at page 452, there's another fully-qualified electrician?‑‑‑Yes.

PN275

And then, at 456, we have another fully-qualified electrician, which brings my count up to five?‑‑‑Okay.

PN276

Then, at page 458, there's another fully-qualified electrician, and then again, on 460, is another fully‑qualified electrician?‑‑‑Yes.

PN277

At 462, there's another fully-qualified electrician based in WA?‑‑‑Well, 462, it's actually completion of an apprenticeship and we're revising his contract to a full electrician.

PN278

So that is still another count for a fully-qualified electrician?‑‑‑Yes.

PN279

Then again, at 464, is another fully-qualified electrician, and then 466 is another apprentice?‑‑‑Yes.

PN280

And then, at 468, we have a mechanical fitter, which leaves my count at nine fully-qualified electricians, not 22. So, I want to ask you again whether you reiterate at 64 that, in WA, at the time of making your statement, that you had 22 electrical trades-qualified employees?‑‑‑Yes, we still have that amount in WA.

PN281

So there's just been a failure to provide the letters of offers?‑‑‑That's if they existed. Some are predated, some aren't. That's something I can clarify.

PN282

Your statement was made on 11 February; is that correct?‑‑‑The first one, yes.

PN283

Thank you. If I can now take you to 63 of your statement. You state in there that both Liam and Victor, who gave evidence earlier, volunteered to work on projects in 2020 and 2021, but I put to you that their statements were that they only volunteered once in 2020. Do you want to revise that?‑‑‑Sorry, can I have a page number?

*** MARK ANTHONY BROWN XXN MS ROGERS

PN284

On your statement at 217 of court book 1 - no, sorry, 218 of the court book, paragraph 69?‑‑‑No, I'm happy with that statement over that period of time because, once they're inducted, their inductions last for over a year and we can ask if they are willing to travel.

PN285

You specifically state that they volunteered to work on the Sydney projects during 2020 and 2021. I put it to you that they only volunteered in 2020?‑‑‑Well, we always ask - like when we go to the guys and put them into an induction pool, it's done on a voluntary basis first, so, over that 12 months, they have volunteered to travel.

PN286

You then go on to say that the reason that those two employees specifically didn't end up going was due to COVID-19 travel restrictions; is that correct?‑‑‑Yes, it was. We'd just started to experience it on site in Sydney.

PN287

I put to you the evidence of both Victor and Liam was that they didn't attend as they weren't given the details of the project or start dates?‑‑‑How would you like me to answer that?

PN288

Do you deny that? I have to put it to you that that's what they have said and then you have got an opportunity to say you disagree or you agree?‑‑‑Yes, we provided the date of the project. At the time, there was 40 per cent of our South Australian employees travelling to New South Wales, which they did, and they were going to be on a rotational basis, and we had some dates in mind, which we provided the guys, and then they were sliding dates due to access requirements into the naval shipyard.

PN289

So it was actually due to access requirements, not due to COVID; is that correct?‑‑‑No, access requirements is part of COVID - to enter the base. They had done their inductions, they had their passes to work, which - and the risk of them not being able to return to South Australia.

PN290

But there were still four other employees who went over at that time, wasn't there?‑‑‑Yes, there was, and they got stuck in New South Wales due to COVID restrictions and had to stay for months.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN291

Again I want to put to you the evidence that is before the Commission from both of those employees was that, particularly in relation to Victor, because he wasn't given the detail, he withdrew wanting to travel interstate. Do you accept that or reject that?‑‑‑He advised us that he had family commitments in other states and he gave us windows of opportunity that he could travel and we were working around that, and that wasn't the sole reason for him not travelling.

PN292

Then I would like to take you to paragraph 75 of the same statement on page (indistinct)?‑‑‑Yes.

PN293

You make a statement after that first sentence:

PN294

During the COVID-19 restrictions, the 15 MTA employees based in New South Wales were unable to move between states.

PN295

Is that correct?‑‑‑Yes.

PN296

I would like to take you to just the previous page, paragraph 70: 'Last year' - which would have been 2021 - you say that:

PN297

Three employees who are usually based in New South Wales left with the vessel and went to Townsville in Queensland.

PN298

I put it to you that there was travel allowed?‑‑‑With exemptions from the Commonwealth.

PN299

Yes, so there were exemptions available during COVID?‑‑‑If the Commonwealth and the client gave us exemptions, yes, there were exemptions available.

PN300

All right, thank you. I will now direct you to page 286 of the court book, your second witness statement?‑‑‑Yes.

PN301

At paragraph 3 of that statement, you say:

PN302

The letters of offer identify a location which corresponds to the state where the employee lives.

PN303

?‑‑‑Yes.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN304

I put it to you that the letters of offer also state the project and, in some cases, the offer is for a position in the SA operations. Do you accept that?‑‑‑On the letter of offer?

PN305

That's correct?‑‑‑Yes, some letters of offer do show that.

PN306

Thank you. You then go on to state, at paragraph 4, that:

PN307

The letters of offer are prepared by administrative staff who just fill in the location based on where the employees are being recruited from.

PN308

But you sign those letters of offer, don't you?‑‑‑Yes, I do.

PN309

And you approve them before the positions can be offered?‑‑‑Approve the - - -

PN310

You approved - - -?‑‑‑The position is approved prior to it being offered, yes.

PN311

Just on that one as well, I would like to take you back to paragraph 53 of your previous statement, which is on page - - -?‑‑‑216.

PN312

Thank you. Where you provide that:

PN313

MTA's employment contract specifies your principal place of employment.

PN314

Is that correct?‑‑‑Yes.

PN315

I put it to you that the location is not just based on where the employee lives but is, in fact, based on where it is intended that their principal place of employment is. Do you agree with that?‑‑‑Their principal place of employment, yes.

PN316

Thank you. At paragraph 3 of your statement, you say that:

PN317

Since February 2022, six employees have travelled from WA and Victoria to temporarily work on the offshore patrol vessels at Osborne.

PN318

Is that because the project is behind?‑‑‑Are we going back to my first statement?

*** MARK ANTHONY BROWN XXN MS ROGERS

PN319

No, on your second one still?‑‑‑So paragraph 3 of my second statement?

PN320

No, no, 13?‑‑‑Thirteen, sorry.

PN321

No, no, that's all right?‑‑‑Is the project behind?

PN322

Yes?‑‑‑Is that what you are asking?

PN323

Yes. I'm asking were those employees sent over here temporarily to perform work on that project because the project's behind?‑‑‑The project's schedule is behind through no means by MTA and we have been asked to accelerate the project by our customer and we have brought additional resources on as well.

PN324

At paragraph 14, you state that, in particular, one employee, who lives in WA, flew into Adelaide on 20 March, worked for two weeks at Osborne and then returned to WA, and he then flew again to Adelaide on 26 April and has still been working there as of the date of this statement. Would you say that he's now based at Osborne?‑‑‑No, he's not based at Osborne. His principal location is still Henderson, Western Australia.

PN325

At 16 of your statement, you say that:

PN326

Since the start of 2022, Glen Boddy, who lives in SA, has been sent to Sydney and Darwin to assist with urgent defects and maintenance work.

PN327

My understanding is that Glen Boddy is a contract supervisor; is that correct?‑‑‑He's not a contract supervisor, no.

PN328

He's not?‑‑‑No.

PN329

So would you like to make an amendment to the organisational chart that you have put in your witness statement at page 221?‑‑‑He is a supervisor, but 221 - so contracts, as in SA contracts, he works on all the other related contracts on OPV, so like the ones you specified before, like (Indistinct), Saab, MG, all those types of work.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN330

I will now take you to paragraph 20 of that second statement where you say, at a toolbox meeting on Monday 2 May 2022 at Osborne, you asked employees if they would be interested in travelling to other states for work, but we heard evidence from Victor that you weren't actually present at that meeting. Do you accept that or reject that?‑‑‑At the toolbox meeting?

PN331

Yes?‑‑‑I was on site and he wasn't one of the people that I talked to because the documentation at the prestart we provided, his name doesn't have a mark next to it.

PN332

So were you at the toolbox meeting or not?‑‑‑Yes, I was in attendance at the toolbox meeting.

PN333

So you reject Victor's evidence that you were not at that meeting?‑‑‑I didn't speak at the toolbox meeting. The supervisor, Corrado Sepe, raised the issue of travelling and then, once everybody left, I individually went around to everybody and discussed the meaning around what we were trying to achieve.

PN334

That's all from us, thank you.

PN335

THE COMMISSIONER: Just before you complete, just a couple of issues. Mr Brown, you will probably recall the information supplied by the company to the Commission so that I could do the further report on the employee endorsement process, but, perhaps just to refresh your memory about that, if you look at the court book - it starts at 296?‑‑‑In court book 2?

PN336

No, court book 1?‑‑‑Yes.

PN337

Let me know when you have got it?‑‑‑Page?

PN338

Page 296?‑‑‑Yes, I have it.

PN339

And then particularly over the page at 297, at the bottom?‑‑‑Yes.

PN340

And the top of 298?‑‑‑Yes.

PN341

You will see there that, in this report, I describe what I understood to be the employee list provided by MTA?‑‑‑Mm.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN342

It identified four groups of employees: 38 employees who live in South Australia and usually perform work at Osborne, and I think that's taken directly from the MTA material, that is the description; five employees who live in states other than South Australia but sometimes perform work at Osborne, and then C is 21 employees who live in states other than South Australia but sometimes perform work on, or related to, offshore patrol vessels and could, at any time, be directed to work on the OPVs at Osborne?‑‑‑Yes.

PN343

Then 14 employees who are not currently performing work on OPVs but may be directed to perform work at Osborne on the OPVs?‑‑‑Yes.

PN344

So, just bearing in mind those four categories, what I want to ask you is this. Look, I appreciate there is some debate about what 'based at Osborne' might mean, and obviously I will hear submissions on that in due course. I'm just trying to understand that facts of the matter, leaving aside the implications for the moment. In terms of the groups other than group A, firstly, were any of the employees that were listed in B, C and D working at Osborne on 28 February or 2 March, or in and around that period?‑‑‑Yes, they were.

PN345

Can you tell me how many there were and which category they come from?‑‑‑They would come from either B or C, and there are potentially between four or five.

PN346

They may be employees whose contracts of employment describe their principal place of employment or work location other than Osborne but they were on site at Osborne in and around that period?‑‑‑Yes, so their principal location would either be Henderson or New South Wales, yes.

PN347

Thank you very much. Anything arising from that, Ms Rogers?

PN348

MS ROGERS: No, thank you.

PN349

THE COMMISSIONER: I have another question, so I was a bit premature in reverting back to you, Ms Rogers.

*** MARK ANTHONY BROWN XXN MS ROGERS

PN350

Mr Brown, in terms of your evidence about the capacity for MTA to direct employees, including those at Osborne, to work from other locations, what's the primary source of that right from your understanding? Is it from the written contracts? Is it from policy? Is it a combination of both?‑‑‑It's probably a combination of both, but we sort of go on the basis that it's voluntary first prior to a management assignment, and by taking that approach, we really haven't had to enforce that.

PN351

Is there anything in the documents that form the employment contracts that you would rely on?‑‑‑Yes. So, in our employment contract, and I reference it on page 216 of the court document 1, paragraph 53(b):

PN352

You may also be required to travel as reasonably necessary for the performance of your duties.

PN353

And when we interview, we explain a bit more about what that means, travelling nationally and internationally.

PN354

All right, thank you very much. Ms Rogers, again, this time for sure, anything arising from that?

PN355

MS ROGERS: No, nothing arising, thank you.

PN356

THE COMMISSIONER: Thank you. Any re-examination?

PN357

MR WATSON: Just a couple of questions, thank you, Commissioner, of Mr Brown.

RE-EXAMINATION BY MR WATSON [12.36 PM]

PN358

The first was Ms Rogers was asking you questions about the induction of, in particular, Mr McEgan and Mr Ziegler and your evidence was that those inductions occurred in May 2020, and I think you said that they last for about a year, so when would the May 2020 induction - what month would that kind of expire in?‑‑‑If it was completed in May 2020, it would expire in May 2021.

*** MARK ANTHONY BROWN RXN MR WATSON

PN359

Thank you, Mr Brown. Ms Rogers took you through some evidence about employees travelling between states despite border restrictions and the pandemic occurring and all of that sort of stuff and you spoke about exemptions. I was just wondering if you could tell us how difficult or easy it is to get exemptions from the Commonwealth?‑‑‑It's quite difficult. Depending - if we want to travel ourselves, we would put our application in straight to Navy and they would have to sponsor it, but if the Navy has requested us to travel for an urgent defect to make sure a ship is capable of sailing and to keep it maintained, they will come to us and say, 'You have this exemption, can you meet these dates, can we travel' and then we will travel under them and, in that case at Townsville, we actually travelled on a Navy vessel to the place and then we did our work and then flew home back to New South Wales, which didn't have any entry exemptions; it's only going out of New South Wales. So, during the pandemic, we could get back, but going to places was the difficult bit.

PN360

Thank you, Mr Brown. Probably just one more question. Can you perhaps tell the Commission what you tell the employees about the opportunities, or the requirements, rather, to travel interstate when they are about to start their employment?‑‑‑So, at their interview stage, we always sit down and go, 'Are you flexible to travel, are you willing to travel? It is part of the job. This is where our work locations are. These are the opportunities on the different vessels that we have. Is that something you're interested in?' Normally they say, 'Yes' and we go down that path. So, we're always up front saying, 'This is how MTA operates.' We are a small workforce and a highly capable one, and we just move those skillsets around the country as required.

PN361

Thanks, Mr Brown. Sorry, I do actually have one more question. I think in response to Ms Rogers' questions you talked about a process whereby you call for volunteers first for interstate travel, and ordinarily you get enough to fill the needs, but what would happen say if you didn't have enough people to put their hand up to volunteer, what would you have to do?‑‑‑Well, first of all we look at to see if we can't get enough volunteers. We'd discuss with our client to see if we could have alternate working arrangements like longer hours, would they support overtime and all that sort of stuff with the people that we have to manage the program, otherwise we would have to do a management assignment and would get some HR representatives involved. Yes.

PN362

And can you just clarify what you mean by management assignment?‑‑‑That would be where - a management assignment is we would say they pretty much have to go to support the job location. Yes.

PN363

In response to one of the questions that the Commissioner asked you directed the Commissioner's attention to paragraph 53(b) - - -?‑‑‑Yes.

PN364

- - - of your first statement which refers to the employment contract. So that management assignment, is that where the - where would the source then of the ability to provide that management assignment be drawn from - sorry, that was a bit clumsy. What is the source of the ability for you to provide that management assignment to employees?‑‑‑As in it'd be their contract to get them to travel. Yes.

PN365

Thank you, Mark. I don't have any further questions, Commissioner, by way of re-examination.

*** MARK ANTHONY BROWN RXN MR WATSON

PN366

THE COMMISSIONER: Very well, thank you. Mr Brown, thank you for your evidence, you're completed and you're released from your affirmation. Of course you're free to stay in the hearing if you wish to?‑‑‑Thanks for that, Commissioner. Do you need me in here, Ben, or do you want me to stay or - - -

PN367

MR WATSON: I think stay, perhaps, yes.

PN368

THE WITNESS: Yes, I will stay.

PN369

THE COMMISSIONER: That's fine.

<THE WITNESS WITHDREW [12.41 PM]

PN370

THE COMMISSIONER: All right. So, Mr Watson, I take it that completes the evidentiary part of the respondent's case?

PN371

MR WATSON: It does, yes. Sorry, did I - when I took Mr Brown to his second statement I can't recall if I asked for that to be tendered, but if that wasn't marked as an exhibit I would like it to be, please.

PN372

THE COMMISSIONER: Yes, I think it was, MTH2, but maybe - if in doubt I will take it there's no objection to that course of action?

PN373

MS ROGERS: No objection.

PN374

THE COMMISSIONER: Very well. I may not have done that, I may have actually written on top of your next in anticipation.

EXHIBIT #MTA2 SECOND WITNESS STATEMENT OF MARK BROWN

PN375

Very well. Now I think you're completed.

PN376

MR WATSON: Thank you.

PN377

THE COMMISSIONER: Yes, all right. So we're up to submissions. It might be appropriate to take a short break. I wonder whether the parties are in a position to estimate how long they're likely to be. Ms Rogers?

*** MARK ANTHONY BROWN RXN MR WATSON

PN378

MS ROGERS: If we could be afforded 15 or 20 minutes that would be great, thank you.

PN379

THE COMMISSIONER: All right. And then when you proceed how long do you think you will be?

PN380

MS ROGERS: I would like to think that I could keep it around the 40 to 50 minute mark, thank you.

PN381

THE COMMISSIONER: All right. Mr Watson?

PN382

MR WATSON: Commissioner, I think our closing will probably be about 25 to 30 minutes.

PN383

THE COMMISSIONER: All right. I think - obviously we're at slightly different time zones here, but maybe if we took a 15 minute break now and then we will proceed and take as long as we need to, to complete the submissions. Any party has a concern about that?

PN384

MR WATSON: No, Commissioner. Did you say 50 or 15?

PN385

THE COMMISSIONER: Fifteen.

PN386

MR WATSON: Fifteen. Okay.

PN387

THE COMMISSIONER: Ms Rogers, is that - were you seeking longer than that?

PN388

MS ROGERS: No, I heard 50, so I'm thankful for the clarification.

PN389

THE COMMISSIONER: All right, we will adjourn for 15 minutes and then resume the submissions. Thank you.

PN390

MS ROGERS: Thank you.

SHORT ADJOURNMENT [12.44 PM]

RESUMED [1.01 PM]

PN391

THE COMMISSIONER: So, Ms Rogers, are you going to lead off?

PN392

MS ROGERS: Thank you very much. So I wanted to start today by turning to, or starting at the legislation, and this is the legislation that the Fair Work Commission is required to - things that are required to be satisfied of in order to be able to make the determination. So I intend not to linger, but wanted to mention that section 236(1) allows a bargaining representative of an employee who will be covered by a proposed single enterprise agreement to apply for a majority support determination, and section 176 provides then what a bargaining, or who a bargaining representative is, and it's our submission that a valid application has been made under section 236 by the CEPU who is by definition a bargaining representative.

PN393

We then move through to section 237 which sets out the circumstances under which the Fair Work Commission can make the determination. As you can imagine I will be spending a bit of time on these and traversing the evidence that's been presented today in respect to these four key elements, one of which my friend has already spoken about - you know, conceding the fact that the employer has not agreed to bargain.

PN394

Additionally section 186(3) that talks - which is in relation to approvals of enterprise agreements, but can also be taken into consideration by the Fair Work Commission when determining whether or not the group is fairly chosen, and we just wanted to highlight that the legislation does not say that the Fair Work Commission must take into account whether the group is geographically operationally and organisationally distinct. It says 'or', and so it's our submission that the applicant only needs to show that the group is one of these distinctions.

PN395

Moving now through the components in section 237 it's our submission that the majority of employees who would be covered by the proposed enterprise agreement want to bargain. But this involves first establishing that the group - sorry, first establishing the group of employees who would be covered by the agreement, and to do that I wanted to just break down the proposed scope. The proposed scope that is before the Fair Work Commission is electrical trade and trade assistant employees employed by MTA based at Osborne South Australia who usually perform work on or related to the SEA 1180 offshore patrol vessels.

PN396

At its simplest we say that based on the redacted list of employees dated 10 March 2022 and the subsequent report from the Fair Work Commission that there is a list of clearly defined people - sorry, there is a clearly defined list of 38 people who fall within that scope. But if that is unclear - sorry, if that wasn't clear the respondent wouldn't have been able to provide such list. They were clearly able to determine who those 38 employees who are usually based at Osborne in South Australia working on those projects are. Otherwise we submit that the Commission would have received, you know, the complete list of 70-odd that they provided without classifications.

PN397

Based on this information and the report the petition records a support of a majority of the relevant employees, 31 out of 38, which is 81.5 per cent, which is not just a majority, but an overwhelming majority, and we are asking that that's taken into consideration and I will talk more about the views of the employees later in my submissions.

PN398

Given the evidence and questions that have been asked of Mr Brown in his evidence in respect to the employees in categories B and C who were working here at the time of the petition he gave evidence that it was between four and five employees, and we submit that if these employees were to be taken into consideration that still is a majority of 72 per cent with 31 out of a maximum of 43. Just to be clear it is our submission that those people would not be captured by the scope, because even if they were performing work here they're not based here, their principal place of employment isn't here, and so it's our submission that they would be excluded from the scope, but if it's determined that they are to be included we say that there is still a clear majority.

PN399

Delving further into the detail of the scope as I see it it's broken down into a number of criteria that have to be met, and unlike my submissions in relation to the geographically, operationally and organisationally distinct requirement this does require them to tick each of the boxes, not simply one of them, and those boxes are that they need to be an electrical trade or trade assistant employee employed by MTA, and be based at Osborne South Australia, and usually perform work on or related to offshore patrol vessels on the SEA 1180 project.

PN400

Employees must tick all of these elements in order to fall within the scope of the agreement. The respondent's submissions indicate - that have been lodged so far indicate a misheld belief that the employees must only tick one box and therefore it opens up other categories of employees. We submit that the plain reading of the wording is that an employee must meet all of this criteria in order to fall within the scope.

PN401

By the respondent's own evidence, namely the redacted list of employees dated 10 March, and the further report of the Commission, and Mr Brown's statement actually as well, there are 38 employees who live in South Australia and whose principal place of employment is at Osborne performing work on the offshore patrol vessels. This combined with the redacted letters of offer show that there are only 38 employees based here or whose principal place of employment is here. Whether those employees may be required to travel interstate doesn't impact the agreement covering them, because they are still ultimately based at Osborne South Australia.

PN402

Likewise if an employee based in another state is required to come to Osborne for a period of time they still remain based at their interstate location, or put another way have their principal place of employment at an interstate location. This becomes very obvious when we have a look at the travel and accommodation allowances that Mr Brown refers to in paragraph 58 of his statement while employees are working interstate.

PN403

Mr Brown's own evidence today was that in cases such as those as referred to as Orlito Giako who has been doing work here in SA, but it is still clear to everyone, including Mr Brown, that Orlito's place of employment remains WA.

PN404

The respondent's own outline of submissions at paragraphs 16 and 20 of its initial submissions submits that employees are based at Osborne and have a home base. This is further reiterated by the statements of Mr McEgan at paragraph 7 and Mr Mark Radivojevic at paragraph 6 and their corresponding letters of offer which state:

PN405

Should you wish to remain on the SEA 1180 project when the project moves to Western Australia a new assignment letter will be provided.

PN406

Mr Brown in his own statements, the first statement at paragraphs 39, 49, 51, 61, 65, 70 and 71 where in each of those circumstances he describes employees as based or usually based in certain locations. And then at numerous points throughout his statement he describes instances where employees are required to work interstate on a short term basis before returning to their base location. Mr Brown admits that their principal place of employment is provided for in their contract, only 38 of which state South Australia or Osborne.

PN407

The evidence before the Commission is also that employees can only be required to travel as reasonably necessary under their contracts of employment, not whenever and wherever MTA like. In respect to the work on the OPVs the scope states usually perform work on or related to; not to be confused with only performs work on. Just because an employee goes to work on a different project for a few weeks it doesn't mean that they fall outside of the scope. The respondent by Mr Brown's own evidence admits that the works listed in his statement as not being on the SEA 1180 contract is still work that relates to it.

PN408

We say that based on the evidence that's been presented today to the Commission, namely the redacted list of employees dated 10 March, statements of Mr Brown, statements of each of the applicant's witnesses, the CEPU petition dated 28 February, the Fair Work Commission further report dated 21 March 2022, redacted letters of offer and the redacted contracts of employment, that the Fair Work Commission can be satisfied that a majority of employees who would be covered by the agreement want to bargain, and this now brings us to the scope.

PN409

The purpose of requiring a fairly chosen scope is to ensure that the group are not selected on a discriminatory or arbitrary basis, and to provide protection for employees against such a scope skill selection. We submit that the proposed scope has not been selected arbitrarily, nor is it selected on a discriminatory basis. Arbitrarily meaning randomly is not what has occurred here. The proposed scope is specific to cover employees based in South Australia.

PN410

This brings us to the evidence on whether the employees are geographically distinct. I want to clarify here that we're not talking about a geographical distinctness of a few hundred metres away. We're talking about employees based in entirely different states. The CEPU is proposing that a group of workers who occupationally differ to the other employees of MTA based at Osborne, and a group of geographically distinct workers other than those in the same occupational groups based in other states. It's undisputed that the workers in question are based at Osborne and live in South Australia. This is evidenced by a combination of their employment contracts, the employees' evidence, Mr Brown's statement and the respondent's own submissions.

PN411

Under cross-examination Mr Brown admitted that the locations weren't just simply prefilled by admin, but they actually state the principal place of employment. The evidence that the respondents put before the Commission is that employees have a usual base location and may be required for short periods to work interstate on alternative projects. This is not unique to MTA, nor does it mean that they're not geographically distinct. This is why living away from home allowances were invented.

PN412

The proposed scope encompasses employees whose base location is at Osborne.

PN413

Should they be required to travel to a site for a short time or relocate for a set period of work on another project or perform the required work - - -

PN414

A quote from Mr Brown's first statement at paragraph 58. He then goes on to say, and I quote:

PN415

- - - are provided with a separate document which confirms that they have agreed to work at the alternative location and sets out the travel and accommodation allowances that they are entitled to when working at that different location.

PN416

In that circumstance the employee would no longer - so in that circumstance or where the contract of employment and letter of offer have been amended to alter the principal place of employment then the employee would no longer be based at Osborne and would no longer be covered by the agreement.

PN417

The submission of the respondent at paragraph 66(a) of their written submissions that working across multiple locations means the scope is confusing in practice to apply is completely farcical when it's read in the context of their own witness' evidence, and the letters of offer and the contracts of employment. We submit that their submission should be set aside as there is no evidentiary basis for that. The evidence that has been presented demonstrates that both the applicant and the respondent are clear on employees having a home base or being based at a particular location making them geographically distinct, and in relation to that we would also cast the Commission's mind back to Mr Brown's statement where he says that even if they are working at a location other than Osborne on those days in South Australia they are required to start and finish at Osborne, and this is backed up by the witness statements of employees. I believe it was Mr McEgan and Mr Ziegler who had previously performed work for Saab and MG.

PN418

Coming now to operational distinction. As I alluded to in my opening submissions this comes into play in a much smaller way, but we submit that the employees to be covered by the proposed scope are operationally distinct from others at Osborne doing non-electrical work and who are not qualified electricians, for example people who are in an administrative role.

PN419

Moving then through to organisational distinction. Despite submitting that there is no organisational distinction the respondents provided evidence that the electricians and the TAs based in South Australia report to three supervisors, who are also based in South Australia, who report to a manager who can be seen on their own organisational chart that was provided as an annex to Mr Brown's statement to be the South Australian manager. This combined with the redacted letters of offer show that the project manager, supervisors, leading hand and project engineer are all based in Osborne or Adelaide South Australia.

PN420

Not only does this support the geographical distinction, but it provides evidence that organisationally the employer has chosen to structure its business in such a way that South Australia has its own subset of operations here in South Australia. These all connect to MTA nationally at some point, but there is a clear distinction within the org chart that everyone below Mark Brown, the national operations manager, has their own state manager to oversee that part of the operation.

PN421

We submit that the Fair Work Commission can be confidently assured based on the evidence that the group of employees is geographically, to a lesser extent operationally, but also organisationally distinct. The case law that I will delve into shortly provides that where a group of employees is geographically, operationally or organisationally distinct then it supports a finding of the employees being fairly chosen, but doesn't guarantee it. It is still possible to find that a group of employees - and likewise it's still possible to find that a group of employees who are not distinct as previously described are still fairly chosen. We submit that the fairly chosen protection is there to safeguard workers against an unfair or discriminatory scope.

PN422

The Fair Work Commission's role in bargaining and making this determination isn't to select the preferred scope. In fact the majority support determination is merely the start of the process, and the scope is a subject for bargaining. The Fair Work Commission's role in a majority support determination is to protect against an unfair scope, a protection that we submit is not needed given the proposed scope in this matter.

PN423

With respect to the reasonable aspect it's our submission that there are not any circumstances in this particular matter that would make it unreasonable to issue the majority support determination. We know that the respondent's submission in respect to the reasonableness relates entirely to the disputed criteria of the fairly chosen, and as such we would submit that if the Fair Work Commission is satisfied that the group is fairly chosen that it's uncontested that there are no other circumstances that would make it unreasonable to issue the order.

PN424

Again in case law that I will refer to in a moment we submit that a lack of any reason why it wouldn't be reasonable there should be a finding that it is reasonable, and accordingly the determination as requested should be issued.

PN425

In addressing the relevant principles I will start with fairly chosen. So I would like to start at the outset with asking that this be taken into consideration; that the making of a majority support determination is not an exercise in determining a scope of any final agreement, but instead it involves determining the starting point for bargaining and the group for the notice of representational rights, and here we reference the National Union of Workers v Cotton On Group Services, and the reference for that one is [2014] FWC 6601 at paragraph 19. While we have proposed a scope for the purpose of commencing negotiations this is able to be discussed, refined and bargained between the parties during negotiations.

PN426

The tribunal's task is not to determine the scope clause, nor the most appropriate scope clause. Its task as I have said earlier is to guard against unfairness by being satisfied that the group can be described in all the circumstances as fairly chosen, and here we refer to Commissioner Roe at paragraph 57, again of the NUW v Cotton On case previously given the citation for.

PN427

With reference to CFMEU v ResCo Training and Labour Pty Ltd [2012] FWAFB 8461 we submit that there is likely to be more than one fairly chosen scope, and it's not the Commission's role to determine which is more fair, merely to protect it against unfair selection. With reference to Cimeco Pty Ltd v CFMEU [2012], again another Full Bench of the Fair Work Commission, at 2206, where they say that the word 'fairly' suggests that the selection of employees was not discriminatory or arbitrary and gives examples such as age and start dates. Again we submit that that is not the case here and that the scope can be described as fairly chosen. In Australian Services Union v Shine Lawyers [2017] FWC 4158 we refer to Senior Deputy President Clancy's review of the case law and accept that this ought to be followed.

PN428

In relation to evaluating and having regard to all of the relevant factors we submit that these factors include the employees' letters of offer, contracts of employment, the state in which they reside, who they report to, the location they perform work in and the work they perform in that location, the location that they are required to start at, the South Australian employees' prior experience with ASC working on the Air Warfare Destroyers, and in terms of adding an industry context the OPV contracts that are held by ASC and the AE employees are covered by an enterprise agreement, and those are also locations specific.

PN429

The Shine case also goes into a requirement to have a focus on objective, not arbitrary or subjective factors in concluding that a group is fairly chosen. The proposed scope is not haphazard proposal. It's based on employees' letters of offer, contracts of employment, the state in which they reside, who they report to, the location again that they perform work in and the work that they perform in that location. We submit that it cannot be said that this is discriminatory or unfair, and to support this we restate Mr Brown's evidence at page 216 of the court book at paragraph 58 where he states:

PN430

The employees directed to work interstate are given separate documents that covers the arrangement while they were there, an arrangement that is likely to be the same whether an enterprise agreement is in place or not.

PN431

Next, considering that a finding of geographically, operationally or organisational distinctions is a factor in favour of finding that the group is fairly chosen. However, it's not decisive as all of the other relevant considerations must be evaluated. We submit that these distinctions can be made in this present case, but that if they can't it's still open to the Fair Work Commission to find that the scope is fair in considering all of the relevant factors.

PN432

On considering the interests of the employer and productivity and the interests of employees who are excluded from coverage may be relevant. We say that the enterprise agreement negotiations that we're seeking to start are an opportunity for both the employees and the employer to discuss and negotiate in a formal way improvements to working arrangements that potentially provide mutual benefit by way of productivity and profitability that can be shared by stakeholders. By way of example consolidating different allowances is a cost saving for the administration of those multiple allowances, while not actually affecting the workers' take home pay.

PN433

We would also say at this point that the interests and views of employees who are excluded from coverage there isn't any evidence before the Fair Work Commission in respect to that point. Additionally at paragraphs 57 to 56 of the same case Senior Deputy President Clancy states:

PN434

In taking into account whether the employees in that case were geographically, operationally or organisationally distinct it should be undertaken bearing in mind that the concept of distinctness in section 237(3A) of the Fair Work Act is not absolute, but rather it may be a matter of degree.

PN435

With further reference to that case we point the Commission to paragraphs 69 through to 71 and submit that the likeness to this present matter be considered. Despite there being a national structure that ultimately links each state branch together and a sharing of certain resources there is a state structure that isn't cancelled out by a higher level integration. It's well established through the Cimeco decision that I referred to before, which was upheld in ResCo and Shine, that whether the group of employees is geographically, operationally or organisationally distinct is a consideration, but not necessarily determinative. And in quoting Shine at paragraph 60, 'Distinctiveness is not an absolute and can be a matter of degree.' It is one factor to take into consideration in determining fairly chosen.

PN436

Turning now to those considerations. Geographical distinctness is concerned with separate work sites or locations, not different buildings on the same site, and we provide the reference to the Australian Workers' Union v BP Refinery Pty Ltd, 242 IR 238, and also - sorry, then I have got the other reference for that one. Do you want that, Commissioner?

PN437

THE COMMISSIONER: No, it's in your written submissions.

PN438

MS ROGERS: The terms 'organisationally distinct' refers to the manner in which the employer has organised its enterprise in order to conduct its operations, and again it's in our submissions the case reference for that. That case is also - we refer to that in relation to the operational distinction too. And on this we would refer to the evidence that we've previously traversed in relation to those principles.

PN439

The principles in respect to reasonable in all circumstances we will delve into now. The Fair Work Commission has discretion to determine whether or not it is reasonable in all of the circumstances to make a majority support determination, and again that reference is provided in our submissions.

PN440

In the Australian Licensed Aircraft Engineers Association v Panasonic Avionics Corporation, and again I have provided the reference for that, at paragraph 3 the Fair Work Commission states:

PN441

If all other criteria are satisfied I do not consider that there is any reason why a determination should not be issued.

PN442

And we submit that in the present matter this ought to be the view taken by the Commission. There is no reason why the determination should not be issued if the Commission finds that the group is fairly chosen and that there is a majority. We note the Fair Work Commission's rejection of arguments by employers to make the majority support determinations initiating bargaining because there will be a continuing reduction in the size of the workforce, and we reference the CFMEU v CBI Contractors.

PN443

The reason that we raise this is that Mr Brown's statement, while it wasn't traversed extensively or in any detail, refers to the project coming to a conclusion at the end of the year. We have statements in from each of our witnesses that state that the project is behind. I think Mr Brown also accepted to a degree that things were behind. So we say that the work is likely to be continuing well after that time, but in any event there is case law evidence that just because if that were the case that's not a reason that the order shouldn't be issued.

PN444

At this point we would also like to add a reference to the United Fire Fighters case [2010], and that was a Fair Work Commission Full Bench case, 3009, specifically paragraph 53 where the Full Bench established that:

PN445

The view of the employees are significant and prima facie carry greater weight than the subjective view of the employer, unless there are circumstances in the case that make that a contrary conclusion appropriate.

PN446

This was referred to and upheld by the Full Bench in BP Refinery, previously cited, at paragraph 29 who added:

PN447

It is after all the employees who are in the best position to determine the collective that best suits their interests.

PN448

It is at this point that we would again like to remind the Commission that 31 out of the 38 employees whose principal place of employment is South Australia have signed a petition and given evidence - sorry, a proportion of those have given evidence in support of this majority support determination. We say that there are no circumstances in this present case that need to be applied in a way that means that the employees' views are not taken into consideration and given a greater weight than that of the employer.

PN449

In now summarising it is not for the Fair Work Commission to determine the perfect nor final scope. We are seeking a majority support determination so that employees have the ability to be able to commence these negotiations. The only evidence before the Commission is that the employees want to bargain for an agreement, and when considering the evidence the scope covers 38 employees, 31 of which as I have stated want to commence the negotiations, and this is a significant majority.

PN450

The employees in the proposed scope for all of the reasons that I have traversed can be described as geographically distinct, organisationally distinct and operationally distinct in the varying aspect that I've discussed, and we would remind the Commission that only one of these distinctions is actually required.

PN451

Whilst our primary submission is that they are distinct, even if they aren't the group has not been unfairly chosen. It's being based on their regular place of employment, their occupation and state in which they reside and the work that they perform. And it's on this basis that we say that the Fair Work Commission is still capable of finding that the scope is fairly chosen even if it were to make a finding that they are not distinct as prescribed by the Act.

PN452

There are no considerations in this matter that would make it unreasonable to issue the determination, and accordingly the majority support determination should be issued. Thank you.

PN453

THE COMMISSIONER: All right. Thank you, Ms Rogers. Mr Watson?

PN454

MR WATSON: Thank you, Commissioner. The key to this case, Commissioner, is whether the applicant has put sufficient rationally probative material before the Commission to enable the Commission to be satisfied that each of the statutory criteria have been met. It's the union that bears the onus of satisfying the Commission of the statutory criteria for the making of an MSD under section 237.

PN455

In the Veolia Water case, which is cited in our submissions, [2015] at FWC 2561, at paragraph 34 the Commission considered the Coal Allied Full Bench case, which citation is (1997) IR 311 at page 317, and said that:

PN456

The important principle to be taken from the Coal and Allied case is that it is the applicant that bears the onus of satisfying the Commission that an order should be made.

PN457

In being so satisfied the Commission must necessarily make factual findings, and on this point the Full Bench in Impex, which is referred to in our written submissions, at paragraph 29 said, 'When the Commission makes a finding of fact it must proceed by reference to rationally probative material.' And on this score the union's material falls short of providing the Commission with rationally probative material on which to base satisfaction of the statutory criteria.

PN458

The respondent's key objection in this case obviously is that the scope that the union has selected is not fairly chosen. In our submission it is vague and uncertain and belies a lack of understanding of the respondent's operations and business.

PN459

You will recall, Commissioner, that earlier in the course of these proceedings the union had a different scope, and it was a scope that was tied to a particular contract. When the respondent filed its initial evidence and submissions, and it became apparent to the union that it could not succeed, it effectively acknowledged that that initial scope was not fairly chosen and changed the scope.

PN460

Unfortunately for the union its new scope is no more capable, in our submission, of being fairly chosen. It's still vague and it proposes to cover employees that are not distinct in any of the relevant senses contemplated by the statute.

PN461

It is common ground between the parties that the proposed agreement would not cover all of the respondent's employees. So the question then becomes whether, as set out in section 237(3A) the employees are geographically, operationally or organisationally distinct. And the Full Bench in Impex made clear what the notion of distinctiveness requires, and at paragraph 33 of that decision the Bench said:

PN462

That distinctiveness within the meaning of section 237(3A) is necessarily a relative, not absolute concept, and necessarily requires a comparison between the employees who will be covered by the proposed agreement and those who will not.

PN463

Now, importantly what the applicant has not done is put material before the Commission that enables that necessary comparison to be made, and it's not explained how the employees within its chosen scope are distinct from those outside of it. Now, there was one mention in Ms Rogers' closing submissions just then about the operational distinctiveness about administrative employees at Osborne, but as I will come to shortly, Commissioner, that fails to consider the lack of operational distinction in between other trades employees who would be within the union's chosen scope and those who would be outside of it.

PN464

THE COMMISSIONER: Sorry to interrupt you, Mr Watson. So you mean by that other electrical employees employed by MTA?

PN465

MR WATSON: That's correct. Yes.

PN466

THE COMMISSIONER: You're not raising the issue that this is just an electrical workers agreement, or proposed scope I should say?

PN467

MR WATSON: So, Commissioner, the point there, which I will come to in a little bit more detail shortly, is that there are employees who are outside of the union's chosen scope who are engaged in the exact same industrial productive activity as those within it, and therefore the people within the scope are not distinct.

PN468

THE COMMISSIONER: Yes, but I just want to be clear. You're not taking issue with the fact that it's only the electrical workers as against other - - -

PN469

MR WATSON: No, Commissioner.

PN470

THE COMMISSIONER: Thank you.

PN471

MR WATSON: In comparison to the lack of material from the applicant what is before the Commission is that evidence from the respondent of how employees outside the union scope are not distinct from those within it, and I will take you through now, Commissioner, each of those categories of distinctiveness.

PN472

So as to geographical distinctiveness we submit that there's seven key points. First, the employees within the union scope are engaged in work across multiple sites, and so are those outside of it. Mr Brown's first statement dated 11 February at paragraphs 58, 59 and 60 provides evidence of this, and that evidence can be found on pages 216 and 217 of the court book.

PN473

Second, evidence of the requirement to work across sites can be found at paragraph 53 of Mr Brown's first statement on page 216 of the court book, as well as, importantly, clause 7 of the attachment that is MB3, which is at page 230 of the court book, and if I may, Commissioner, take you to that page, 230 in the court book.

PN474

THE COMMISSIONER: Yes, I have it.

PN475

MR WATSON: And clause 7 there reads:

PN476

Your principal place of employment will be the location described in item 5 of the schedule, or as otherwise reasonably requested by the employer.

PN477

The key phrase there, 'as otherwise reasonably requested by the employer.' And then it goes on to say:

PN478

You may also be required to travel as reasonably necessary for the performance of your duties.

PN479

And the key words there are, 'required to travel as reasonably necessary.' So we would say, Commissioner, that that is evidence of the employees' contractual obligation to travel across locations for work, and the respondent's right to direct them to do so. And there was evidence that Mr Brown gave both in cross-examination and in re-examination that before employees commenced work with the respondent that they are told that they will work - that it is likely that they will travel for work. And he also gave evidence in relation to accepting volunteers, and I think that the union has tried to pick up on that aspect, Commissioner. Of course the reason for that is as Mr Brown said, 'We call for volunteers first, and only if we can't obtain sufficient volunteers do we go to the extent of directing people to do work in other locations.' And thankfully for the respondent and for the employees that's been a very rare occurrence.

PN480

The third key point is that employees through the union were described as being based at Osborne, and therefore within its scope work at locations other than Osborne, and that evidence can be found at paragraph 72 of Mr Brown's first statement at page 218 of the court book. I will come a little bit later and delve into this notion of what it means to be based at shortly.

PN481

But the fourth point that I would make is that the employees through the union were not described as being based at Osborne, residing in other states, and therefore not within its scope, also perform work at Osborne from time to time, and this evidence can be found at paragraph 73 of Mr Brown's first statement on page 218 of the court book, and also at paragraphs 13 and 14 of Mr Brown's second statement, which is on page 287 of the court book.

PN482

Fifth, the union's evidence is that employees who gave evidence on its behalf have not worked anywhere except Osborne. Now, that might have been the case for those employees who have given evidence, but it does not prove that the group of employees is distinct, and it's inconsistent with the more persuasive evidence of Mr Brown that I have just taken you to, Commission. Mr McEgan and Mr Ziegler both admitted in cross-examination that they were inducted to travel to Sydney, that they expressed interest in doing so, and that they could be asked to work anywhere. Now, they took issue with the fact that they could be directed to do so, but they did acknowledge that they could be asked to work in different locations, and as I mentioned, Commissioner, fortunately the respondent has very rarely only needed to exercise the contractual right, because it usually does get volunteers to perform this work. Now, their evidence supports the fact that they're not part of a geographically distinct group tied to a particular location.

PN483

Sixth, the union's attempt to broaden the scope to work on or related to the offshore patrol vessels does not assist its case. Mr Brown's evidence is that work related to the offshore patrol vessels, which I think built at Osborne, is also performed in Sydney and Henderson. Parts of materials which are sent to Osborne to be put on the offshore patrol vessels being built at Osborne is prepared in Sydney and Henderson, and this evidence can be found at paragraphs 8, 9 and 10 of Mr Brown's second statement on page 287 of the court book.

PN484

And seven, the arguments that the employees haven't really worked at other locations fall flat when situated in their proper context, and it is true of course that there was less movement of employees between states in 2020 and 2021. As Mr Brown says in his second statement at paragraph 22 on page 288 of the court book:

PN485

Work on the offshore patrol vessels started in 2019.' Then in March 2020 border restrictions were in place, and the movement between states was restricted.

PN486

Now, there was a contest during Mr Brown's cross-examination around the evidence that he had provided of movement that did occur between states of certain employees during that period when border restrictions were in place, but Mr Brown also gave evidence of exemptions being required for those employees and the difficulty associated with obtaining those exemptions for employees to travel across state lines. And Mr Brown's evidence was also that the nature of the border restrictions and those being in place changed the availability of work in other states as well, so it changed the profile of work that couldn't be available for employees to travel to do.

PN487

For example Mr Brown gave evidence that there were four employees who were inducted along with the same batch as Mr McEgan and Mr Ziegler who did go to Sydney and were stuck in Sydney for a number of months, and so that just illustrates the difficulties that the respondent faced in having employees travel across state lines during that period. So the reason for the lack of flexibility in 2020 and 2021 is quite obvious once that context is apparent, and that's because the work on the offshore patrol vessels in Osborne started only a few short months before the world changed drastically.

PN488

Now, what those seven points illustrate, Commissioner, is that MTA has led evidence to demonstrate how employees within the union's chosen scope are not geographically distinct from those outside of it, and the union on the contrary has not put sufficient rationally probative material before the Commission on which a finding of geographical distinctiveness can be made.

PN489

As to operational distinctiveness the union both in its written submissions and in the oral closing that Ms Rogers just took us through seeks to de-emphasise this, and that's because the union's only attempt to really define the industrial or productive activity that is engaged in by the employees is in paragraph 11 of its submissions, which is at page 12 of the court book, and they say that the workers, quote, 'Performed electrical work on the offshore patrol vessels.'

PN490

Now, no footnote is provided to the union's evidence to support this assertion, and on the other hand there is evidence before the Commission of the true industrial or productive activity that all of MTA's employees are engaged in, namely, quote, 'Providing marine electrical services to the Defence industry.' And that evidence, Commissioner, can be found at paragraph 2 of Mr Brown's first statement, which is at page 210 of the court book.

PN491

Now, again the union, aside from saying that the administrative staff who work at Osborne are not part of the scope, they make no argument about workers at other locations who are engaged in the exact same industrial or productive activity as those within it. All MTA employees no matter where they work are engaged in providing marine electrical services to the Defence industry.

PN492

If I may, Commissioner, I would like to explain the significance of this by reference to two cases which are cited in our written submissions, but I thought it would be helpful to just take you through them in a little more detail, and the first is QGC Pty Ltd v AWU, the citation for that being [2017] FWCFB 1165, and in that case the AWU had sought an MSD in relation to plant lead operators and gas plant operators who worked in QGC's gas extraction and processing operations in the Surat Basin in Queensland.

PN493

At first instance Commissioner Simpson found that the group of employees was operationally distinct because, inter alia, their functions were distinct in roles discrete from other employees at the relevant sites and they did not work alongside one another.

PN494

On appeal the Full Bench criticised this approach as the relevant operation was not the functions or tasks performed by the employees, but rather the operation and maintenance of gas extraction and the processing infrastructure. That reference, Commissioner, is at paragraph 44 of the Full Bench's decision in QGC.

PN495

The second case is Association of Professional Engineers, Scientists and Managers Australia v Mt Arthur Coal Pty Ltd, citation [2018] FWC 2008, and in that case the applicant had sought an MSD in respect of a small group of employees that worked at the relevant site. These were open cut examiners subject to some exceptions. The Commission found that the relevant operation was the employees industrial or productive activity being coal mining, and reference to that can be found at paragraph 27, Commissioner.

PN496

Now, what these cases show is that the industrial or productive activity proposed by the union is too narrow. Now, I confess I'm reading between the lines here, but the only statement approaching a characterisation of the industrial or productive activity to be found anywhere in the union's evidence or submissions is that the work is, quote, 'Perform electrical work on the offshore patrol vessels.'

PN497

Both QGC and Mt Arthur Coal demonstrate that this is far too narrow of a construction of the industrial or productive activity. The industrial or productive activity of MTA's employees, all of them that are trades and trades assistant employees, is providing marine electrical services to the Defence industry, and such a construction is consistent with QGC and Mt Arthur Coal.

PN498

Again the union's materials are silent on the industrial or productive activity carried out by employees that it says are outside of the scope of its proposed agreement, and there is no material before the Commission on which to base a finding of distinctiveness on that aspect. As the Full Bench said in Impex is required there's nothing to conduct that comparison.

PN499

As to organisational distinctiveness in our submission the evidence on this issue is clear, and we think that the evidence that the union took you to on this score tells a very different story from what you've heard from Ms Rogers, and if I may, Commissioner, could I ask you to turn to page 221 of the court book, and we think this is the most discerning evidence. I know Ms Rogers tried to characterise this in a different way, but you will see there that on page 221 there's an organisation chart for South Australia, and at the bottom of that page there's a light purple box and in the light purple box are the words 'Production/commissioning trade pool (all states)', and then goes on to say, 'Note: labour distributed on skillset and schedule requirements.' And you will see, Commissioner, that the same words are in light purple boxes on pages 222, 223 and 224 for New South Wales, Western Australia and The Northern Territory respectively.

PN500

And what we say this evidence makes clear is that all of MTA's employees in the production/commissioning trade pool are part of a national team that works across states. There are no, amongst the production and commissioning trade pool, there are no South Australian employees or West Australian employees. Trade employees of MTA are part of a national pool. So how exactly the union's chosen cohort can be distinct from this national pool from an organisational basis we say is unexplained, and that's because there's no rational basis for concluding that those employees are organisationally distinct.

PN501

So the evidence adduced by the applicant provides no foundation for the satisfaction required under 237(2C). Nor does it provide a rationally probative basis for a finding that the applicant's cohort is fairly chosen. The applicant's cohort is not distinct in any of the ways contemplated by the statute. It's not geographically distinct, because employees who work at Osborne work at other locations. Employees who don't ordinarily work at Osborne do so from time to time, and may be directed to do so in the future.

PN502

Work on the offshore patrol vessels is conducted at both Osborne and Henderson, and work related to the offshore patrol vessels is not only conducted at Osborne but also at Henderson, in Sydney and in other locations in South Australia not within the Osborne shipyard. The cohort is not operationally distinct because the group that the applicant has chosen is not engaged in a distinct industrial or productive activity, because all electricians and trades assistants are engaged in providing marine electrical services to the Defence industry. And further, employees who are not working at Osborne are engaged in that very same industrial or productive activity as those performing work at Osborne. Third, the cohort is not organisationally distinct because the respondent's employees are part of an integrated team working flexibly across locations.

PN503

To address the points that Ms Rogers made in relation to the ResCo decision and the Cimeco decision; now, it is true to say that in ResCo Vice President Watson did essentially say that the exclusion of one group or another from the scope and its impact on whether that's fairly chosen depends on a consideration of all the circumstances, and Vice President Watson also said that it is unlikely that there will only be one fairly chosen scope. Now, we accept that, but it appears that the union is referring to this in an attempt really, Commissioner, to diminish the fact that its chosen scope is not distinct in any of the ways contemplated by the statute.

PN504

So while it's true that distinctiveness of the group will be one of the circumstances considered in determining whether the scope is fairly chosen and is not decisive, we submit here that the lack of distinctiveness is a matter that should be given significant weight. We say, Commissioner, that the union can't simply handwave the fact that their chosen scope is not distinct in any of the relevant ways and say that nonetheless it should be fairly chosen. We say the lack of distinctiveness is a matter that should be given significant weight.

PN505

A similar argument was made in relation to Cimeco. Now, we acknowledge of course that the Full Bench in that case did say that distinctiveness is not decisive and is a matter to be given due weight having regard to all other relevant circumstances, and we accept that, but again we say that the lack of distinctiveness on any of the three statutory bases is a matter that should be given significant weight.

PN506

THE COMMISSIONER: Mr Watson, just while you pause there, just two things. The camera on your room seems to have a mind of its own. I'm not sure what you can do about that. It seems to be swinging around from time to time.

PN507

MR WATSON: I apologise, Commissioner. I think it's one of those ones that automatically follows your voice or sound, so if there's someone making a sound in the hallway it might be looking to them or something, so I apologise, but I don't think there's much I can do about that.

PN508

THE COMMISSIONER: No, that's fine, we can work through that. But more substantively the central question remains whether or not the definition the group is unfair, and I appreciate what you say about the onus being on the applicant, and that's true, but it would help me to understand what the respondent says in a practical sense or in a consequential sense creates unfairness. What's unfair about the group?

PN509

MR WATSON: Yes. So, Commissioner, in terms of the general unfairness of the scope that's been selected we say contrary to what the union has submitted that there is an arbitrary nature to it, because it is not clear when employees are temporarily performing work at Osborne what their terms and conditions are going to be. You've got people who might be coming across from Western Australia, coming across from New South Wales, the unfairness lies in not knowing whether or not an enterprise agreement will apply to them. And so you've got some people who are being arbitrarily excluded from coverage and others who are, you know, potentially being arbitrarily included within that coverage.

PN510

So, Commissioner, just to sum up on the distinctiveness grounds and the fairly chosen point we would say that it is arbitrary, it ignores the operational realities of the respondent's business and is not fairly chosen. And in turning to majority support the failure to satisfy the fairly chosen requirement means that the union's application must fail on that ground alone, because each of the criteria in 237 are mandatory. But the fairly chosen requirement as you've already alluded to, Commissioner, at the outset, the fairly chosen requirement and the majority support requirement are indeed linked, and we would say it's not possible to carve out the group of employees that the union seeks to carve out. So no proper assessment can be made of whether the majority support exists among that particular cohort.

PN511

Now, there's been an argument around what does it mean for someone to be based at Osborne or based at a particular location, and some discussion of the list that the respondent provided. In that list of course it doesn't say base state, it says reside in, so people who reside in South Australia, people who reside in other states, and we would say that the point of preparing the list in that way is because we object to saying that people are based in a particular location aside from that being the place where they reside, and it's a natural thing if you're recruiting someone from South Australia for their letter of offer to say a location that's in South Australia.

PN512

THE COMMISSIONER: Well, I must say, Mr Watson, it's not your strongest point. The expression 'based at one location' not only was used by your witness multiple times, but I don't see any practical or legal difficulty identifying those that were based at Osborne at the time of the ballot - sorry, the petition I should say - at the time of the petition. Look, if you want to press it obviously do so, but I just don't think -I'm certainly not persuaded at this point that it has any substance.

PN513

MR WATSON: I can accept that, Commissioner, and do acknowledge that it isn't our strongest point. The fairly chosen point of course we would say we're very strong on, and we would concede that if you decide that based at means employees who were physically located at Osborne on the days that the petitions were collected - - -

PN514

THE COMMISSIONER: Or whose potential place of employment was nominated at Osborne.

PN515

MR WATSON: We accept that if you do decide that that is a fairly chosen scope, that there would be majority support among the group - if you were to say, Commissioner, that it is group A, if you were to decide contrary to our submissions on fairly chosen that that group was fairly chosen, then there would be majority support among that group.

PN516

THE COMMISSIONER: All right. I am not sure that I would characterise it in that way. I think fairly chosen - I have to firstly be satisfied what the group is and then have the majority of the group endorsed.

PN517

MR WATSON: Right. Yes.

PN518

THE COMMISSIONER: And in that case the fairly chosen is a second consideration. It's obviously a subset of what the group is, but I don't think I have to decide fairly chosen to decide whether the majority have support.

PN519

MR WATSON: Yes, Commissioner. Yes. No, I would agree with that.

PN520

THE COMMISSIONER: All right.

PN521

MR WATSON: So as to the broad, the final broad discretionary requirement being whether it's reasonable in all the circumstances to make a determination we say there's one key point here, and that is that it's impossible to carve out employees the union seeks to carve out without causing confusion about the terms and conditions that apply to those employees at different times, and a couple of hypothetical examples illustrate this confusion we say.

PN522

So if an employee who lives in New South Wales were to come to Osborne to work on the offshore patrol vessels for a week what would their terms and conditions be when performing that work? Would he be covered by the proposed agreement as soon as he walks through the gates at the Osborne shipyard? Would he not be covered by the agreement, and if not why not? And what about an employee who lives in South Australia, but travels to Western Australia for a week or two to do work on the offshore patrol vessels being built at Henderson? Does he stop being covered by the agreement the moment he crosses the WA border on the plane? Does he stop being covered by the proposed agreement as soon as he exits the gates of the Osborne shipyard the day before he departs to WA? Does he take the proposed agreement with him when he's performing work at Henderson even though that work is not within the union's propose scope, but he's still working on the offshore patrol vessels? These practical illustrations - questions rather, Commissioner, we say illustrate the confusing nature of the union's scope and practical difficulties that it presents.

PN523

THE COMMISSIONER: Mr Watson, sorry, I didn't mean to cut you off, I thought you - - -

PN524

MR WATSON: No, that's okay.

PN525

THE COMMISSIONER: It's very hard with the lag. I apologise if I did cut you off. The question I have about that is, well, look, there's force in what you say about the issue there about the lack of clarity and perhaps even the desirability or otherwise of having an agreement operate like that, but to what extent? Is that a matter for bargaining, bearing in mind that the scope is ultimately a matter the parties bargain on? So to the extent of which some clarity around that, the way in which - perhaps it's desirable for an agreement to follow worker practice, it's more desirable to apply to everyone on the site. Aren't they matters of bargaining rather than to be resolved at this point of the process?

PN526

MR WATSON: Well, we would say, Commissioner, that there still needs to be a scope that's readily intelligible for the parties to bargain about, and what people are we bargaining for the terms and conditions of, and we would say that that creates confusion about who this might apply to.

PN527

THE COMMISSIONER: I understand.

PN528

MR WATSON: Thank you, Commissioner. And so we would say that those difficulties are why it's not reasonable in the circumstances to make the determination. In conclusion we say this application must fail. We say it provides a lack of understanding of the respondent's operations and workforce, and simply because the Commission cannot be satisfied that the group of employees who will be covered by the union's proposed agreement is fairly chosen, particularly in light of the fact that the group is not distinct in any of the three ways contemplated by the statute.

PN529

Now, that alone is sufficient for the matter to be dismissed, because it is a mandatory requirement. However, we would say that the fairly chosen issue also has consequences for the other two criteria which are in issue here, and we say that the applicant has failed to discharge its onus to satisfy the Commission of the statutory requirements and therefore the application must be dismissed. That's all I have, Commissioner.

PN530

THE COMMISSIONER: Mr Watson, one further question; this is at page 209 of the court book, so this is the further submissions.

PN531

MR WATSON: Sorry, Commissioner, I will just find that.

PN532

THE COMMISSIONER: That's all right.

PN533

MR WATSON: Certainly, yes. Yes, Commissioner.

PN534

THE COMMISSIONER: At the top of that is sub-paragraph (b) of the submission, 'The evidence adduced by the applicant in relation to employees rationale for bargaining suggests these applications are a broader agenda of the applicant at Osborne.' I think reading another submission and perhaps put two and two together is that related to the suggestion that it's about the comparative rates on the site or associated with the projects?

PN535

MR WATSON: Yes, that's right. That's right, Commissioner. So the witness evidence from the union's witnesses that's referred to in the footnote there is where each of those witnesses say that the reason that they want an enterprise agreement is to achieve - I'm paraphrasing each of them here to make - but basically what they say is the reason they want an enterprise agreement is to achieve parity of conditions with those that employees, that other employees that work at the Osborne shipyard receive.

PN536

THE COMMISSIONER: Just on face value that would seem to be a legitimate bargaining objective. I am not sure of its relevance here.

PN537

MR WATSON: And that's why I haven't really pressed it, Commissioner.

PN538

THE COMMISSIONER: All right. Thank you very much, Mr Watson.

PN539

MR WATSON: Thank you, Commissioner.

PN540

THE COMMISSIONER: All right. Ms Rogers, any brief submissions in reply?

PN541

MS ROGERS: I will try and keep it extremely brief, but just to respond to a couple of those matters. The respondent contends that comparison was not made between those who were in and out of scope, and we would reject that, and again refer to the letters of offer and the contracts which were not just for those employees based in South Australia, but also from each of the other locations than MTA has employees.

PN542

In relation to being based at Osborne the evidence before the Fair Work Commission is that if you are working off site, so another location in South Australia, that you still start at Osborne, and that was in the witness statements of our witnesses who had performed work on those other contracts, but also Mr Brown's statement as well.

PN543

The respondent cites issues travelling interstate due to COVID, yet there is evidence that travel did still occur. There were exemptions in relation to essential workers that were able to be utilised and we say that the Fair Work Commission should give limited weight to that as it sees necessary.

PN544

THE COMMISSIONER: Ms Rogers, I am not sure that takes us anywhere though.

PN545

MS ROGERS: I think the respondent's submission seems to be everyone would have been travelling interstate here, there and everywhere were it not for COVID, and - - -

PN546

THE COMMISSIONER: I didn't read the evidence that highly. I understood it to be lead in the context of saying that employees could be asked to volunteer, and subject to a view about the contract they could be directed to work on the project at other places, and, look, there might be some debate about the second point from the union's aspect, but I don't think it's - I think it's uncontroversial that the workers here could work at other places in or in connection with the project, so I'm not sure that the issue about the COVID travel restrictions takes us anywhere particularly.

PN547

MS ROGERS: I think what we would add to that is that the contracts and both of the sections that Mr Watson took you to contain the words 'reasonably'. There seems to be a suggestion or an implication from Mr Brown's evidence that - and also from the referral to the organisational chart that there's this pool of tradespeople that, you know, aren't tied to a location and they just work anywhere, but their contracts actually provide that it has to be reasonable, and so we would say that that also needs to be taken into consideration.

PN548

On the production and commissioning trade pool the note around the labour being distributed on skillset under cross-examination Mr Brown admitted that despite employees doing the same - sorry, admitted that there were employees who were doing, had the same skillset doing similar work on the ships in South Australia and WA, and yet the employees who are, we say, based in South Australia who have contracts of employment that state their principal place of employment is at Osborne are here because they live here and they are employed to be based here. If that wasn't the case and their skillset is identical and there's no geographical distinction why are they not working in WA. Again there's an assertion that there's no SA or WA trade employees, yet the contracts and the letters of offer state otherwise.

PN549

In relation to the submission that fairly chosen should be issued significant weight if it's unfair we would say that there is no evidence before the Commission that the scope is unfair or would cause unfairness. Also in terms of the lack of clarity Mr Brown's own evidence when asked whether Orlito who had gone interstate would therefore be considered based here, and the answer without hesitation, without confusion was, 'No, he remains based in WA', and that's supported by the contract of employment.

PN550

The submission of the respondent where they say that it's confusing and, you know, what point would the enterprise agreement cease to apply to people, the scope as I said previously is extremely clear, it's for electrical trade employees and trades assistants who are based at Osborne who usually perform work on or related to the SEA 1180 project. If they are not based in South Australia because they've got contracts of employment in New South Wales then they don't fall within the scope. If they are being relocated or asked to work and be based in South Australia the evidence before the Commission is that people are given another document that states that, and in that case if they are then to be based at Osborne they would clearly fall within the scope.

PN551

The assertion that it's not possible to carve out groups of employees isn't consistent with the evidence. The respondent was able to provide a list of employees and corresponding letters of offer in employment that did differentiate those 38 employees based in South Australia, and we would say that the principal place of employment does show a geographical distinction.

PN552

Further to that we would like to just quickly take the Commission to page 376 of the second court book, which is the redacted letters of offer.

PN553

THE COMMISSIONER: Yes, I have that.

PN554

MS ROGERS: And you will notice - - -

PN555

THE COMMISSIONER: You have got that, Mr Watson? Yes.

PN556

MS ROGERS: You will note that this - - -

PN557

MR WATSON: Sorry, what page was that?

PN558

MS ROGERS: 376 of the second court book.

PN559

MR WATSON: Thank you.

PN560

MS ROGERS: So noting the date of this contract, 28 March 2022, and it states 'Revised offer of employment', and you will note that the work location states various locations. We would submit that this is just further evidence that the respondent is concerned about the contracts of employment having a principal place of employment, and moving forward has attempted through the issuing of these new contracts with the change made to the work location to muddy the waters here. We say that that is further evidence that shows that the contracts of employment and the letters of offer that state a principal place of employment is sufficient enough, along with the evidence around the living away from home arrangements when they are required to perform work interstate support that they are geographically and organisationally distinct. Thank you.

PN561

THE COMMISSIONER: All right. Anything further?

PN562

MS ROGERS: Not from me, thank you.

PN563

THE COMMISSIONER: Mr Watson, anything further?

PN564

MR WATSON: Just one very short point, Commissioner, on the letters of offer and their relationship to the contracts of employment. Of course you will see that on each of the letters of offer that form part of part 2 of the court book they're not countersigned by the employee, it's not an agreement, and we would say that the employment contract takes precedence and clause 7 of the employment contract, which I took you to in my closing submissions, which allows the respondent to require people to work at different locations, takes precedence over anything that's said in the letters of offer.

PN565

THE COMMISSIONER: All right. Thank you. Firstly thank you to both representatives for your helpful submissions. Secondly, I propose to reserve a decision. I will give a decision in writing at the earliest opportunity, and lastly the Commission will be adjourned, and good afternoon.

PN566

MS ROGERS: Thank you.

ADJOURNED TO A DATE TO BE FIXED [2.21 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU 1 WITNESS STATEMENT OF COREY VAN DER TUUK PN24

EXHIBIT #CEPU 2 WITNESS STATEMENT OF HEATH BELTON............ PN24

EXHIBIT #CEPU 3 WITNESS STATEMENT OF DANIEL CHAPMAN....... PN24

EXHIBIT #CEPU 4 WITNESS STATEMENT OF ROHAN JOHNSTONE.... PN24

EXHIBIT #CEPU 5 WITNESS STATEMENT OF MARK RADIVOJEVIC... PN24

EXHIBIT #CEPU 6 WITNESS STATEMENT OF KYLE HUMPHREY........ PN24

EXHIBIT #CEPU 7 WITNESS STATEMENT OF KYM HOLLINSHEAD.... PN24

EXHIBIT #CEPU 8 WITNESS STATEMENT OF DAVID GLADWELL....... PN24

EXHIBIT #CEPU 9 WITNESS STATEMENT OF TYSON DEVRIES............ PN24

EXHIBIT #CEPU 10 WITNESS STATEMENT OF KEEGAN ARMSTRONG PN24

EXHIBIT #CEPU 11 COMPILATION OF LETTERS OF OFFER (80).......... PN25

EXHIBIT #CEPU 12 REDACTED MTA FULL TIME EMPLOYMENT CONTRACT 1 (WA) AND 2 (NSW)........................................................................................................... PN26

LIAM JOE MCEGAN, AFFIRMED..................................................................... PN43

EXAMINATION-IN-CHIEF BY MS ROGERS.................................................. PN43

EXHIBIT #CEPU 13 WITNESS STATEMENT OF LIAM JOE MCEGAN.... PN68

CROSS-EXAMINATION BY MR WATSON...................................................... PN70

RE-EXAMINATION BY MS ROGERS............................................................... PN89

THE WITNESS WITHDREW............................................................................... PN99

VICTOR ZIEGLER, AFFIRMED....................................................................... PN102

EXAMINATION-IN-CHIEF BY MS ROGERS................................................ PN102

EXHIBIT #CEPU 14 WITNESS STATEMENT OF VICTOR ZIEGLER WITH ATTACHMENTS.................................................................................................. PN131

CROSS-EXAMINATION BY MR WATSON.................................................... PN133

THE WITNESS WITHDREW............................................................................. PN147

MARK ANTHONY BROWN, AFFIRMED....................................................... PN177

EXAMINATION-IN-CHIEF BY MR WATSON............................................... PN177

EXHIBIT #MTA 1 WITNESS STATEMENT OF MARK ANTHONY BROWN WITH ATTACHMENTS.................................................................................................. PN200

EXHIBIT #MTA 2 SECOND WITNESS STATEMENT OF MARK ANTHONY BROWN PN207

CROSS-EXAMINATION BY MS ROGERS..................................................... PN209

RE-EXAMINATION BY MR WATSON............................................................ PN357

THE WITNESS WITHDREW............................................................................. PN369

EXHIBIT #MTA2 SECOND WITNESS STATEMENT OF MARK BROWN PN374