PN1

THE COMMISSIONER: I will take the appearances.

PN2

MR I LATHAM: If the Commission pleases, Latham, initial I, for the applicant, and I think permission has already been granted.

PN3

THE COMMISSIONER: Yes, permission was granted to both parties on a prior occasion.

PN4

MS R GALL: Thank you, Commissioner, Gall, initials R L, for the respondent.

PN5

THE COMMISSIONER: Thank you, Ms Gall.

PN6

MR LATHAM: Commissioner, I would just like to give just a very quick opening. It will only take a couple of minutes.

PN7

THE COMMISSIONER: Just before we do any openings, Mr Latham, I might just raise a couple of matters with the parties. Firstly, I understand the respondent circulated a tribunal book.

PN8

MR LATHAM: Yes.

PN9

THE COMMISSIONER: And all the parties have received that?

PN10

MR LATHAM: We have, yes.

PN11

THE COMMISSIONER: In reviewing the submissions of the parties, one matter I don't think was properly dealt with at the case management directions hearing is the questions for determination by the Commission. What I have prepared is two questions, and I will have my associate hand out a copy of two proposed questions for consideration, but they seem to pick up the issues that are in both the outlines of submissions filed by both parties.

PN12

MR LATHAM: Commissioner, I think they are appropriate questions.

PN13

THE COMMISSIONER: Yes.

PN14

MR LATHAM: I haven't discussed that with my friend.

PN15

MS GALL: Yes, Commissioner, question 2, from the Port Authority's position, we would suggest it might need to be slightly more nuanced in that we say that the harbour master has, firstly, a discretion to determine whether it's a serious long term injury. We accept question 1, yes, agree with that. Question 2 perhaps should be - apologies, I will just refer to my notes because I had set something out along those lines.

PN16

THE COMMISSIONER: It may be that the parties can confer on question 2 and come up with some agreed wording.

PN17

MS GALL: Yes.

PN18

THE COMMISSIONER: And there may be an opportunity with what I'm about to say, and that is whether the matter is capable of resolution between the parties, and I might just ask, Ms Gall - you're on your feet, so I'll direct the question to you.

PN19

MS GALL: Yes.

PN20

THE COMMISSIONER: It goes to the statement of Mr Fernandes, and that is the recrediting of the long service leave.

PN21

MS GALL: Yes.

PN22

THE COMMISSIONER: The way I understand it, the relief sought, or the questions for determination, involve the entitlement to extended sick leave for the period of 8 January through to 3 or 4 March.

PN23

MS GALL: Yes.

PN24

THE COMMISSIONER: And that, for the period of 8 January through to about 23 February, long service leave was paid to the applicant?

PN25

MS GALL: Yes.

PN26

THE COMMISSIONER: And then, recently, that was recredited in the amount of about 250 hours?

PN27

MS GALL: Yes, that's correct.

PN28

THE COMMISSIONER: In terms of that being recredited, was there any deduction or repayment by the applicant?

PN29

MS GALL: No, not at this stage.

PN30

THE COMMISSIONER: Not at this stage?

PN31

MS GALL: No, it hasn't occurred.

PN32

THE COMMISSIONER: Will that be sought?

PN33

MS GALL: I'll have to confirm instructions, but I anticipate that it may be, but it would obviously depend on the outcome of these proceedings.

PN34

THE COMMISSIONER: I just raise this with the parties at the outset because, if the long service leave was recredited to the applicant in circumstances where it's not otherwise being recouped or sought to be recouped by the respondent, it really comes down to this issue being whether there's an entitlement to be paid between 23 or 24 February and 3 March.

PN35

MS GALL: Yes.

PN36

THE COMMISSIONER: And it would seem, if what I have just outlined is correct, that there may be a way the parties can have some further discussions this morning with a view to resolving the matter.

PN37

MS GALL: Yes, I understand what you say, Commissioner. I will need to take instructions on that. All I can indicate from a factual perspective is that the long service leave was recredited, so this leave there is available for Mr Dargaville to take at an appropriate point.

PN38

THE COMMISSIONER: Yes.

PN39

MS GALL: The employer, obviously, has, at this moment at least, an entitlement to recoup that from Mr Dargaville. That right hasn't yet been exercised, to my knowledge, but subject to my taking instructions, it could be.

PN40

THE COMMISSIONER: Sorry, I think your instructing solicitor is going to - - -

PN41

MS GALL: My instructions are that the Port Authority reserves its right to recover, subject to the outcome of the proceedings, which I think, in answer to the Commissioner's questions in terms of is there scope for a discussion, that hasn't quite been answered to me and perhaps, in considering the questions, then I can take instructions as well to that point.

PN42

THE COMMISSIONER: Yes, well, perhaps we might have a short adjournment for, perhaps, counsel for both parties to confer on the precise wording of the second question.

PN43

MS GALL: Yes.

PN44

THE COMMISSIONER: And for the parties to have any discussions in that period regarding resolution of the matter.

PN45

MS GALL: Yes, thank you, Commissioner.

PN46

THE COMMISSIONER: Thank you. If the parties can indicate to my associate when - or how long do you think the parties would need might be a better way of going?

PN47

MS GALL: Maybe 10 minutes or so, 10 or 15 minutes?

PN48

MR LATHAM: Say 15. Don't use that clock.

PN49

THE COMMISSIONER: Yes.

PN50

MR LATHAM: Yes, 15 minutes would be fine.

PN51

THE COMMISSIONER: How about we adjourn until 10.48. The Commission is adjourned, thank you.

SHORT ADJOURNMENT [10.25 AM]

RESUMED [10.53 AM]

PN52

THE COMMISSIONER: Mr Latham?

PN53

MR LATHAM: Commissioner, we weren't able to settle the matter. There have been some draft questions that have been circulated that have been drafted by the respondent. Can I say, the applicant does not have a difficulty with 1 and 2. The applicant doubts that question 3 needs to be answered, at least at this stage.

PN54

I think what would probably be the appropriate course, rather than having to get into a discussion about a matter that might never arise, would be that, were the Commission to answer question 1 'Yes' and question 2 'Yes', that the Commission would then refer the matter to the harbour master to re-exercise his approval discretion in accordance with the decision of the Commission, and that's, in fact, what the respondent proposes at paragraph 57 of their submissions, and that seems to be an appropriate course, in which case I don't think the Commission needs to deal with question 3.

PN55

THE COMMISSIONER: I understand question 3, subject to a slight modification, was question 2 that was proposed to the parties.

PN56

MR LATHAM: It's really a subset, I think, yes.

PN57

THE COMMISSIONER: The applicant agrees with questions 1 and 2 of the revised questions and its position is that if the answer to both questions is 'Yes', then the matter be referred back to the harbour master for redetermination?

PN58

MR LATHAM: Yes.

PN59

THE COMMISSIONER: Ms Gall, what's the respondent's position on that?

PN60

MS GALL: Our position is that it's necessary for the Commission to answer all three questions. If the answer to question 2 is, no, he didn't have a discretion to determine whether the injury was a serious long term injury, what we are left with is a position that the Commission has found he suffered a serious long term injury, didn't have a discretion to decide whether or not it was one, but we say - the Port Authority says - it still has a discretion whether or not to grant the additional leave.

PN61

The discretion is two-fold on the Port Authority's position, which is, firstly, the harbour master has to decide is it a serious long term injury. If the harbour master decides it is a serious long term injury, then the harbour master has to decide whether to grant the additional leave and, for that reason, the Commission needs to construe the clause in its entirety and, in effect, determine the answer to question 3, because if the Commission was to decide against the Port Authority and say the harbour master doesn't have a discretion to refuse the additional leave, then that is potentially an end of the matter if it's answered 1 and 2 against us as well.

PN62

THE COMMISSIONER: Yes.

PN63

MS GALL: But if it answers 1 and 2 against us but it answers 3 in our favour, then - - -

PN64

THE COMMISSIONER: Then it gets referred, yes.

PN65

MS GALL: - - - it does need to go back to the harbour master.

PN66

THE COMMISSIONER: I think that's probably the correct approach, Mr Latham, that if question 1 is 'Yes', question 2 is 'No' and question 3 is 'No', that's the end of the matter.

PN67

MR LATHAM: Yes.

PN68

THE COMMISSIONER: If question 3 is 'Yes', then it gets referred back to the harbour master to redetermine.

PN69

MS GALL: And I should say with 2, there's I suppose, two ways that the Commission could decide - - -

PN70

THE COMMISSIONER: It could go either way.

PN71

MS GALL: Correct. It could be that the harbour master does have a discretion and then the Commission has to decide whether or not it's appropriate to interfere with that discretion.

PN72

THE COMMISSIONER: Yes.

PN73

MS GALL: And if the Commission decided, no, it doesn't need to interfere, then it doesn't need to be referred back at all, and so it's just - 3 is necessary because it can get to that step.

PN74

THE COMMISSIONER: Thank you. Mr Latham, is there anything you wish to say?

PN75

MR LATHAM: No, I don't think so, Commissioner.

PN76

THE COMMISSIONER: You're happy with that approach?

PN77

MR LATHAM: I'm happy with that approach.

PN78

THE COMMISSIONER: Thank you. How do the parties wish to proceed? I think earlier this morning, Mr Latham, you were about to make an opening statement. Do the parties wish to make some short opening remarks?

PN79

MR LATHAM: I think so. Could I just say I should also add that there is an issue in relation to the recommendation of the Deputy President, which has been referred to by my friend. I was of the understanding that that document was public, but I think, from having had further discussions with my friend, the document is not public and the Commission shouldn't have any regard to it. It is also referred to briefly in the submissions of the applicant. I just ask the Commission not to have any reference to that either. I apologise for that; it was just a misunderstanding.

PN80

Can I just sort of summarise the case very quickly. This is obviously an application for arbitration in relation to the meaning of the clause in the Enterprise Agreement. The dispute, in very broad terms, is whether Mr Dargaville has suffered serious long term injury or illness sufficient to entitle him to the grant of additional sick leave pursuant to clause 4.2.5(a). Can I just say, just to summarise it in very quick terms, Mr Dargaville, as you will know suffered a femoral and lesser trochanteric fracture. The femur, of course, is the bone that takes you from the hip to the knee. The trochanteric part is the lump that comes out of the femur that muscles are attached to, so quite important in terms of being able to move.

PN81

The evidence will show that he suffered a fracture, that it was dealt with by the use of a gamma nail. You will find those X-rays at pages 41 to 43, but the essence of that operation is that there is a nail drilled through the centre of the femur and there are then lateral screws drilled through the femur to attach it. The operation itself causes significant damage to the leg muscles to the extent that the patient is required to learn how to walk again.

PN82

The evidence will show broadly that Mr Dargaville was totally unfit for work from mid-November to early March, then at work on a restricted basis for about a month and is now working fully. He does continue to suffer some pain and restricted movement.

PN83

The issues I think for the Commission which have been set out in the questions are: is there a long term serious injury? In terms of looking at that, Commissioner, the submission will simply be this. The law in relation to interpretation of enterprise agreements is now very clear. The case of Berri probably sets it out quite well, but we all understand the principles: start with the text; look at the context and look at the purpose; if they are ordinary English words, look at their ordinary English meanings.

PN84

There is then a separate couple of questions about the discretion of the harbour master. Can I just take the Commission just to 4.2.5. You will find that at page 33. This clause is not very elegantly worded. There is the reference at subparagraph (a) to this being subject to the approval of the harbour master.

PN85

One of the issues that the Commission is going to have to determine is what does the approval of the harbour master refer to, and there are a number of competing interpretations. I think one is: does the approval refer to the production of medical evidence, which would seem to follow, given that it follows in the textual context, or is it the granting of additional leave that you will see in the words 'will be granted additional leave'?

PN86

In my submission, one would say that the approval is in reference to the production of medical evidence, not in relation to the mandatory obligation to grant leave, which is seen in the word 'will'. Contextually, that would make more sense because if one moves on to 4.2.5(b), one will see there the reference to 'documented medical evidence and/or medical examination' being seen necessary where required by the Port Authority. So, just in a contextual way, it looks like the approval of the harbour master is referable to the production of medical evidence and there is a process set out for the production of that medical evidence in subparagraph (b).

PN87

The third thing I think that's just worth mentioning about this is that the Commission will see at 4.2.5(c) that there is a further benefit in relation to marine pilots who have no prospect of a return to work where they have been subject to 180 days off work, in which case particular salary continuance insurance begins to apply.

PN88

When one looks at that contextually, what that I think makes clear is that 4.2.5(a) is looking at people who are off work for less than 180 days. Now, they are still required to be suffering a serious long term or terminal illness, but the submission that's put by my learned friend is that the meaning of serious long term illness or injury means something more than 180 days, whereas if one looks at 4.2.5 as a whole, it must mean something less than 180 days, although, of course, it could mean something more than 180 days as well.

PN89

That's a sort of broad summary of the case. Mr Dargaville will give evidence. I understand that will be very, very short. There will be some cross-examination of Mr Fernandes for the Port Corporation, but the matters themselves I think are relatively confined. Subject to anything my friend wishes to say, I will call Mr Dargaville.

PN90

THE COMMISSIONER: Thank you. Ms Gall?

PN91

MS GALL: The Commission obviously has the benefit of my written outline of submissions.

PN92

THE COMMISSIONER: Yes.

PN93

MS GALL: I think, if the Commission has already read that, that sufficiently sets out the Port Authority's position, which is obviously critical to the determination of this case, is the meaning of two things in the clause that my learned friend took you to, which is: what is subject to the approval of the harbour master? It is clear that the harbour master has some level of discretion with respect to the clause. In my submission, it can't be related to the production of medical evidence because the production of medical evidence is something that the employee needs to do. That's entirely orthodox. When an employee seeks sick leave, they will produce the medical evidence. So, it's after that medical evidence is produced, it's then subject to the approval of the harbour master as to whether the employee is suffering a serious long term illness or injury and, subject to the approval of the harbour master, the harbour master will grant additional leave.

PN94

That's why the Port Authority says that this clause, properly construed, contains effectively two layers of discretion. There has to be a decision as to whether it's a serious long term illness or injury, based of course on medical evidence.

PN95

I don't propose to cross-examine Mr Dargaville. I don't need him to go into the box to reaffirm his statement. That can just be accepted. I do have some objections to the reply evidence, but otherwise - - -

PN96

THE COMMISSIONER: Why don't we deal with that now?

PN97

MS GALL: Yes, I'm happy to deal with that now. In terms of the reply statement, I object to that. Alternatively, if it is accepted, it should be afforded little, if any, weight. The statement itself is almost entirely conclusionary and in parts it's argumentative.

PN98

MR LATHAM: Is it to the whole of the - - -

PN99

MS GALL: Yes, to the whole.

PN100

THE COMMISSIONER: Mr Latham?

PN101

MR LATHAM: I might just deal with it this way. I agree that the first paragraph beginning with 'The notion' is argumentative, so I don't read that. I read paragraph 2, I read paragraph 3. I don't think paragraph 4 and the excerpt is argumentative, so I read that. I read the next paragraph. I accept that the second-last paragraph beginning, 'I did not have a proper opportunity', I agree that's a submission and I don't read that, but I read the rest of it.

PN102

I do call Mr Dargaville because I did want him to just explain for the Commission's benefit what he meant by paragraph 2, because it is somewhat ambiguous.

PN103

THE COMMISSIONER: That is the one that starts, 'I am in my ninth month'?

PN104

MR LATHAM: Yes, Commissioner.

PN105

THE COMMISSIONER: I will just hear from Ms Gall on paragraphs 2, 3, 4, 5 and 7.

PN106

MS GALL: Paragraphs 2 and 3, I don't object to those. They are very conclusionary, so they would be afforded limited weight.

PN107

In terms of 4, it's an extract from an article and the article itself is also, as I understand it, sought to be put into evidence and I object to it, and so therefore I object to its extract. It's not clear how it's relevant. The provenance hasn't been established and the article is not properly evidence in reply either. In terms of relevance, the article, on its face, appears to be a discrete research study that was performed in Canada over 20 years ago. The report itself acknowledges that there's been changes to the screw design since the time of the report and, thirdly, the exclusion criteria of that article would have excluded Mr Dargaville from the study in any event, so it just can't be relevant to the Commission's determination of the matter of, one, the proper construction of the clause and, two, whether Mr Dargaville himself has suffered a serious long term injury. So, paragraph 4 ought not be accepted, as with the rest of the article.

PN108

In terms of paragraph 5, I mean that's entirely conclusionary and, in effect, it seeks to attempt to - in my submission, it's somewhat argumentative in that it seeks to answer the Commission's question for it by saying that the consequences of the injury are continuing and prolonged. It doesn't assist the Commission at all in understanding the nature of the injury he suffered or what is said to be continuing or prolonged.

PN109

MR LATHAM: Commissioner, I'm happy not to read that. It's picked up in paragraphs 2 and 3 anyway, which are accepted, and could I just say I also don't read the last, I think, eight words, 'So I cannot see how that is not long term'. I think the fact that the pin and securing bolts within his body are - - -

PN110

MS GALL: That's not in dispute that's already in effect in evidence.

PN111

THE COMMISSIONER: So, the last few words in the last paragraph beginning with the word 'So' until the end of that sentence?

PN112

MR LATHAM: Correct.

PN113

THE COMMISSIONER: Ms Gall, does that - - -

PN114

MS GALL: In terms of paragraph - I think it's paragraph 6, the second-last paragraph - I was a little bit unclear as to what words my learned friend was not reading.

PN115

THE COMMISSIONER: 'So I cannot see how this is not long term' - - -

PN116

MS GALL: No, sorry, the second-last paragraph?

PN117

THE COMMISSIONER: It's my understanding he's - - -

PN118

MR LATHAM: I wasn't reading any of that.

PN119

MS GALL: Not reading that? Okay, that's fine, thank you, Commissioner.

PN120

THE COMMISSIONER: We are left with paragraphs 2 and 3, but I understand the respondent says it's a matter of weight, and paragraph 4, there's an objection on.

PN121

MR LATHAM: And I think that should be dealt with as a matter of weight, too, Commissioner. It just gives some broader context as to the effect of the operation.

PN122

THE COMMISSIONER: And then the last paragraph, there's no objection in relation to, as modified, the first sentence from the words 'the pin' through to 'deceased'?

PN123

MS GALL: Yes.

PN124

THE COMMISSIONER: Yes, thank you. Mr Latham, in terms of the fourth paragraph, which is the extract and the article, how do you wish to deal with that?

PN125

MR LATHAM: I press it. It's a matter of weight. I'm not saying it's of enormous weight.

PN126

THE COMMISSIONER: I am minded to allow it on the basis that it goes to weight. In terms of - we've probably just put the cart before the horse, so to speak, a little bit - you're intending to - in terms of Mr Dargaville, I understand there's no cross-examination?

PN127

MS GALL: There's no cross-examination. My submission is it's not appropriate for him to seek to lead further evidence now. That ought to have been dealt with.

PN128

MR LATHAM: I'm not leading further evidence, I'm just trying to clarify some existing evidence that he gives.

PN129

THE COMMISSIONER: Yes, well, I think his witness statement - in terms of the further evidence or the matters you are seeking to clarify, Mr Latham, what matters do they involve or traverse?

PN130

MR LATHAM: It's the reference in the second statement at page 160 of the tribunal book to explain what he means by 'to experience pain and restricted movement' because they're deeply ambiguous terms used there.

PN131

THE COMMISSIONER: Yes, I'm minded to have Mr Dargaville go into the witness box, in any event, because the statement that has been filed is not sworn, so we might deal with that.

PN132

MR LATHAM: Yes.

PN133

THE COMMISSIONER: Attend to that appropriately, deal with the tender of this, and then we'll see where those questions go.

PN134

MR LATHAM: Sure.

PN135

THE COMMISSIONER: Is Mr Fernandes in the hearing room?

PN136

MS GALL: He is, yes.

PN137

THE COMMISSIONER: To the extent there might be some clarification arising, just to prevent any further evidence being adduced, and I note it's only limited to some clarification, but it might be appropriate that Mr Fernandes exits the hearing room until Mr Dargaville's evidence is complete.

PN138

MS GALL: Yes.

PN139

MR LATHAM: I call Mr Dargaville.

PN140

THE WITNESS: Mr Dargaville, can you please take that in your right hand and state your full name and address.

PN141

MR DARGAVILLE: James Ryan Dargaville, (address supplied).

<JAMES RYAN DARGAVILLE, SWORN [11.14 AM]

EXAMINATION-IN-CHIEF BY MR LATHAM [11.14 AM]

PN142

THE COMMISSIONER: Take a seat, Mr Dargaville. Mr Latham?

PN143

MR LATHAM: Mr Dargaville, we are just going to give you a tribunal book. You do have it? Sorry. If you look at the bottom right-hand of the page, there should be page numbers in that book. Do you see those?‑‑‑Yes.

PN144

Can I take you to page 16?‑‑‑Yes.

PN145

Does that begin, 'C0222602, Mr James Dargaville'?‑‑‑Yes.

PN146

Is that a statement that you prepared for these proceedings?‑‑‑Yes.

*** JAMES RYAN DARGAVILLE XN MR LATHAM

PN147

Is that a true and accurate record of the evidence that you would give today?‑‑‑Yes.

PN148

I tender that statement with the attachments, Commissioner.

PN149

THE COMMISSIONER: Except for attachment F?

PN150

MR LATHAM: Sorry, apologies, except for attachment F.

PN151

THE COMMISSIONER: There's no objections, Ms Gall? It might just be along the lines of should paragraph 21 on page 18 be struck out?

PN152

MS GALL: Yes, 21 should go as well, thank you.

PN153

THE COMMISSIONER: That just sets the - - -

PN154

MS GALL: Yes, correct.

PN155

THE COMMISSIONER: So paragraph 21 is struck out. The witness statement of Mr James Dargaville dated 6 June 2022 and set out in the hearing book at page 16 through to 50, with the accompanying annexures A through to E, will be exhibit A1.

EXHIBIT #A1 WITNESS STATEMENT OF JAMES DARGAVILLE DATED 06/06/2022 WITH ACCOMPANYING ANNEXURES A TO E (COURT BOOK PAGES 16-50)

PN156

MR LATHAM: Mr Dargaville, can I get you to go to page 160. That document is not signed or sworn, but is that statement there a true and accurate record of the evidence that you would give today?‑‑‑What page?

PN157

Sorry, 160?‑‑‑That's - - -

PN158

THE COMMISSIONER: It's right at the back, Mr Dargaville?‑‑‑All right.

PN159

Probably about three pages in?‑‑‑Yes, got it. Yes.

*** JAMES RYAN DARGAVILLE XN MR LATHAM

PN160

MR LATHAM: You adopt that statement for the purpose of these proceedings?‑‑‑Yes.

PN161

I tender that statement and attachments.

PN162

THE COMMISSIONER: That statement, noting the objections that were dealt with earlier, and the accompanying attachment will be exhibit A2.

EXHIBIT #A2 WITNESS STATEMENT OF JAMES DARGAVILLE (NOTING OBJECTIONS DEALT WITH EARLIER) AND ACCOMPANYING ATTACHMENT

PN163

MR LATHAM: Mr Dargaville, I just wanted to ask you one question. You refer in paragraph 2 to experiencing pain and restricted movement due to your injury. Can you just explain what you meant there?

PN164

MS GALL: I object. This could have been set out in evidence-in-chief. My client doesn't have the opportunity to consider it or respond to it at all.

PN165

THE COMMISSIONER: Mr Latham?

PN166

MR LATHAM: I ask the question - it's really to help the Commission. It's not essential to these proceedings, but it will give the Commission a better understanding of the evidence that exists there.

PN167

THE COMMISSIONER: I am minded to allow the question.

PN168

MR LATHAM: Mr Dargaville, did you hear what I said? Could you just explain what you meant by those words?‑‑‑Well, I just - I still have pain in my glute area, occasionally sharp pain. It's intermittent, and I have movement pain and the best way to describe it is getting in and out of a car where it's an abductor movement. That's difficulty in movement. So, that's the sort of effect that it continues to have on me.

PN169

I don't have any further questions, Commissioner.

PN170

THE COMMISSIONER: Any questions arising out of that, Ms Gall?

PN171

MS GALL: No, thank you, Commissioner.

*** JAMES RYAN DARGAVILLE XN MR LATHAM

PN172

THE COMMISSIONER: Mr Dargaville, I think you're free to - - -?‑‑‑Thank you.

PN173

MR LATHAM: Just wait, just wait, the Commissioner has to let you go.

PN174

THE COMMISSIONER: Thank you for your evidence, Mr Dargaville, you're excused?‑‑‑Okay, thank you.

<THE WITNESS WITHDREW [11.20 AM]

PN175

MR LATHAM: That's the evidence for the applicant.

PN176

THE COMMISSIONER: Thank you, Mr Latham.

PN177

MS GALL: We are just bringing in Mr Fernandes. I understand Mr Latham has a couple of questions for Mr Fernandes. I call Mr Fernandes.

PN178

THE ASSOCIATE: Can you please state your full name and address.

PN179

MR FERNANDES: Myron Joseph Fernandes, (address supplied).

<MYRON JOSEPH FERNANDES, AFFIRMED [11.21 AM]

EXAMINATION-IN-CHIEF BY MS GALL [11.21 AM]

PN180

THE COMMISSIONER: Ms Gall?

PN181

MS GALL: Take a seat, Mr Fernandes. You should have a folder in the box before you?‑‑‑Yes.

PN182

Firstly, can I have you state your full name for the Commission?‑‑‑Myron Joseph Fernandes.

PN183

And your address. You can give your business address?‑‑‑Which is Gate B103, Brotherson House, Port Botany.

PN184

If you open up the lever arch folder there before you and turn to page 66?‑‑‑I'm on page 66 now.

*** MYRON JOSEPH FERNANDES XN MS GALL

PN185

You will see that that's a statement that you signed for the purposes of these proceedings; correct?‑‑‑Correct.

PN186

That statement comprises of 62 paragraphs. If you turn over to page 74, you'll see that's the end of it?‑‑‑Yes, that is 62 paragraphs.

PN187

And it comprises of annexures A to S?‑‑‑Correct.

PN188

That statement is true and correct to the best of your knowledge and belief?‑‑‑Correct.

PN189

I tender that statement and annexures, Commissioner.

PN190

THE COMMISSIONER: Thank you. Any objections?

PN191

MR LATHAM: No, no objections.

PN192

THE COMMISSIONER: No objections? The witness statement of Myron Fernandes dated 15 July 2022, set out at pages 66 to 157, inclusive of annexures A to S, will be exhibit R1.

EXHIBIT #R1 WITNESS STATEMENT OF MYRON FERNANDES DATED 15/07/2022, INCLUSIVE OF ANNEXURES A TO S (COURT BOOK PAGES 66-157)

CROSS-EXAMINATION BY MR LATHAM [11.23 AM]

PN193

Mr Fernandes, can I just ask you some questions. Can I take you to paragraph 33. This is where we start discussing the questions about extended sick leave. At the end of 33, you talk about having a conversation with Mr Dargaville on 22 February where Mr Dargaville said, 'I discovered my long service leave had been deducted and my sick leave has been fully utilised' and he goes on to say, 'I should be getting extended sick leave.' You responded in these terms, didn't you, that it was a policy of the Port Authority that additional sick leave would only be granted when all entitlements had been exhausted? That was your response, wasn't it?‑‑‑No, my response was to the words, words to the effect, 'Extended sick leave might be available when an employee suffers a serious long term or terminal injury or illness', or words to that effect.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN194

You also said, too, didn't you, that the decision needed to be made by the executive? You said that, didn't you?‑‑‑I don't recollect those words being spoken, but it was an extended conversation and those are the - that's the excerpt of my conversation.

PN195

Sure. Was it your view at the time that it was a decision that the executive had to make?‑‑‑It was my view that I would have to go and seek approval or guidance from the people and culture team about any decision to be made with regards - - -

PN196

I see. So, the process, as you understood it, was that you would go to people and culture and get their view as to whether Mr Dargaville had a serious long term or terminal injury or illness?‑‑‑I would seek guidance.

PN197

Did you think that you did not have the ability to make the decision yourself?‑‑‑It did not get to that point based on the information in front of me at that time.

PN198

You formed your independent view that Mr Dargaville did not have a serious long term injury?‑‑‑That would be correct.

PN199

In relation to that, what material did you have regard to?‑‑‑To that point, in terms of the submissions made by Mr Dargaville that suggested that he had prospects of returning back to work and performing his duties as required.

PN200

We'll get to that, Mr Fernandes, but - actually, sorry, we might just go to that. So, your view was if Mr Dargaville had good prospects of going back to work, therefore he did not have a long term serious injury?‑‑‑Correct.

PN201

I see. But you accept, don't you, that a person could have a long term serious injury and still be able to go back to work, don't you?‑‑‑I don't know because that was not the case at the time.

PN202

No, no, I'm asking you in a theoretical way. You would accept that somebody - - -

PN203

MS GALL: I object. It's not relevant to the facts of this case. Mr Fernandes, his evidence can't really - he can't give evidence as to the proper construction of the clause. That's a legal question for the Commission, so these hypothetical scenarios don't assist.

PN204

THE COMMISSIONER: Mr Latham?

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN205

MR LATHAM: Sorry, I just want to make sure of the ground of the objection. Is the ground of the objection that Mr Dargaville can't interpret this clause?

PN206

MS GALL: No, the ground of objection is that Mr Fernandes - - -

PN207

MR LATHAM: Sorry, Mr Fernandes can't?

PN208

MS GALL: Mr Fernandes' evidence as to his interpretation of the clause isn't relevant to the proper construction of the clause.

PN209

MR LATHAM: Actually, I withdraw the question.

PN210

THE COMMISSIONER: All right.

PN211

MR LATHAM: Mr Fernandes, the question I did ask you earlier was what medical evidence did you have regard to?‑‑‑The evidence submitted by Mr Dargaville.

PN212

Let's just go through that. Have you got the court book there in front of you?‑‑‑Yes.

PN213

Can I take you to page 41?‑‑‑Yes, I'm on 41, yes.

PN214

You've obviously seen that, haven't you?‑‑‑Yes.

PN215

What is that?‑‑‑It's an X-ray, or a picture of an X-ray, a copy of an X-ray.

PN216

What is the X-ray of?‑‑‑It says 'gamma nail'.

PN217

Could I take you to 42 and 43. What do they show?‑‑‑Something similar - 43.

PN218

I take it you had also seen the document at page 44?‑‑‑Yes.

PN219

That refers to a right femoral and lesser trochanteric fracture?‑‑‑Yes.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN220

And surgical fixation with a gamma nail. Do you see that there?‑‑‑Yes.

PN221

You obviously saw the document at page 45 and 46 and 47 and 48?‑‑‑Yes.

PN222

MS GALL: With respect to the document at 48, Mr Dargaville had already been back at work for a month.

PN223

MR LATHAM: Sorry, I withdraw document 48.

PN224

Until 47, you had certainly seen those?‑‑‑Yes.

PN225

MS GALL: And 47, he was already back at work, too.

PN226

THE COMMISSIONER: Yes, that's noted, but let's wait for the question and how he can put it - - -

PN227

MR LATHAM: You had seen those medical certificates, and there are also some documents at pages 128 and onwards where there are emails to you with the subject 'Medical Update' and you see those at - sorry, they've got different subject headings?‑‑‑Yes, sorry, I'm at - - -

PN228

But you had seen those documents, hadn't you, and take your time to read them?‑‑‑I've seen the emails. Did you say 128, because I've got to page 124 and then - - -

PN229

You don't have page 128?‑‑‑It's - - -

PN230

THE COMMISSIONER: It's almost - there are a lot of 124s. If you keep scrolling down or turning over to - - -?‑‑‑Yes.

PN231

Towards the end, yes.

PN232

MR LATHAM: Sorry, Mr Fernandes, I understand. Yes, go forwards?‑‑‑Yes, I'm here.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN233

It says annexure F. That obviously wouldn't have been on the original email, but you have seen the emails that are referred to there?‑‑‑Yes.

PN234

Just take your time to just quickly go through them. They take you all the way through to page 134.

PN235

THE COMMISSIONER: Mr Latham, just to clarify, did you take the witness to annexure F or annexure E? I think at one stage you mentioned page 128, which is part of E.

PN236

MR LATHAM: Sorry, beginning at 128?‑‑‑I am on 128 now.

PN237

All I'm saying is you have seen those emails that - - -?‑‑‑I have.

PN238

- - - take us all the way through to page 134?‑‑‑I have, yes.

PN239

There are then, at annexure I, what is called Recover at Work Plan Number 1. You have seen that, obviously, too, haven't you?‑‑‑Yes.

PN240

Can I then take you back to perhaps the document at page 44. There's a discussion there from Dr - I don't know how to pronounce this - (Indistinct). He talks about Mr Dargaville having a right femoral and lesser trochanteric fracture. Do you see that there?‑‑‑Yes.

PN241

You, presumably, did not know what that meant at the time, did you?‑‑‑Other than it being a fracture.

PN242

Did you then go and find out what that meant?‑‑‑No, I did not.

PN243

Since then, have you gone and found out what a right femoral and lesser trochanteric fracture means?‑‑‑No, I have not.

PN244

It refers there to a surgical fixation with a gamma nail. Do you see that there?‑‑‑Yes.

PN245

Did you know what surgical fixation with a gamma nail was at the time that you received this letter?‑‑‑I would say no.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN246

Since then, have you tried to find out what surgical fixation with a gamma nail is?‑‑‑No, I haven't.

PN247

At that stage when you received this, did you think to yourself, 'Well, I, at some stage, am going to have to make a determination as to whether Mr Dargaville has a serious long term injury'?‑‑‑I did not at that stage.

PN248

When did you first think that you had to make a decision in relation to that question?‑‑‑From my recollection, talking to Mr Dargaville, I think it was 21 or 22 February, when we had the discussion around the long service.

PN249

As at 21 or 22 February, you realised at that stage that you were going to have to make a determination as to whether Mr Dargaville had a serious and long term injury?

PN250

MS GALL: I object. That's not the language of the clause. It's not 'serious and long term', it's 'serious long term'.

PN251

MR LATHAM: Sorry, I accept that.

PN252

At that stage, you thought to yourself, 'I'm going to have to make a determination as to whether he has a serious long term injury'?‑‑‑Based on discussion with Mr Dargaville about his long service leave being deducted and requiring extended sick leave.

PN253

But the answer is 'Yes', though, isn't it?‑‑‑I would have had to have given it consideration.

PN254

In giving it consideration, you had evidence that discussed the nature of his injury, didn't you?‑‑‑Up until that time, yes.

PN255

Did you say to Mr Dargaville, 'I do not accept this medical evidence. I don't think it's sufficient to determine whether you have a long term serious injury. I want you to go away and to get some more medical evidence proving to me that you have a serious long term injury'? Did you say that to him?‑‑‑No, I don't recollect those words.

PN256

Did you ask him for any further medical evidence at all?‑‑‑I don't believe I did.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN257

Did you send Mr Dargaville to a medical practitioner to have a further medical examination?‑‑‑That was done at some stage through the process, but that was done through the return to work coordinator, not with me.

PN258

But what I'm asking you is: did you send Mr Dargaville to a medical practitioner to be medically examined to determine whether he had a serious long term injury?‑‑‑No, I didn't.

PN259

But you thought that you had a discretion to determine whether or not he did have a serious long term injury?‑‑‑I thought I did.

PN260

Can you tell the Commission why you say you thought that he did not have such an injury?‑‑‑Because he had reasonable prospects of returning to work.

PN261

That is the only test that went through your mind at the time?‑‑‑At that time.

PN262

You did not, in your own mind, think about it in terms of whether he had a serious long term injury, you thought about it in terms of whether he had reasonable prospects of going back to work?‑‑‑Correct.

PN263

Can I then just ask you about this: you refer to speaking to - I'll probably mispronounce this too - but Bianca Scobie from people and culture about Mr Dargaville's situation at paragraph 35. Do you see that there?‑‑‑I'm sorry, which page are you on?

PN264

Sorry, at page 70?‑‑‑Paragraph 35, I am there.

PN265

You see there you refer to Ms Bianca Scobie?‑‑‑Mm-hm.

PN266

She's from people and culture. That's what some people describe as human resources, is it? Is that its equivalent?‑‑‑Yes.

PN267

Why did you speak to Ms Bianca Scobie?‑‑‑Just to ensure that I had the advice I required.

PN268

Because you thought that you were entitled to rely upon her advice?‑‑‑I thought I did, yes, or people and culture's advice.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN269

When she said, 'I do not think Mr Dargaville had a serious long term injury', do you remember her saying anything more than that?‑‑‑I can't recollect.

PN270

But she didn't, presumably, give you any medical reports referring to his injury, did she?‑‑‑No.

PN271

I just want to put this to you fairly, Mr Fernandes. Your job was to determine whether he had a serious long term injury, wasn't it?‑‑‑Sorry, I haven't understood the question.

PN272

Sorry. In terms of this process, your job was to determine whether you thought that he had a serious long term injury?‑‑‑I would say yes.

PN273

But, in fact, what you really determined was whether he had good prospects of going back to work?‑‑‑Correct, because that's how the clause is construed.

PN274

Well, it might be how the clause is construed, but that's what you did, isn't it?‑‑‑I certainly relied on the good prospects of coming back to work in the decision.

PN275

In fact, you never asked him, as the clause allowed you to, to provide further medical evidence, did you?‑‑‑No, I relied on what I was given.

PN276

You never asked him to go to a medical examination by a medical practitioner, did you?‑‑‑Not me specifically.

PN277

In fact, the question that you were answering as to whether he had good prospects of going to work was an entirely different question as to whether he had a serious long term injury, wasn't it?‑‑‑The prospects of returning to work, as I said, are construed in the clause, that was my reading of the clause.

PN278

Yes, but just listen to my question. The question that you answered as to whether he had reasonable prospects of going back to work was an entirely different question as to whether he had a serious long term injury, wasn't it?‑‑‑I used his prospects to return to work as determining whether it was a serious long term injury.

*** MYRON JOSEPH FERNANDES XXN MR LATHAM

PN279

In fact, you know, having looked at these X-rays and the other medical material, that - sorry, I'll withdraw that question. You had no medical evidence at all to show that he had not had a serious long term injury?‑‑‑I had the medical evidence that was given to me.

PN280

I don't have any further questions, Commissioner.

PN281

THE COMMISSIONER: Thank you. Just before we go to any re-examination, I just have a question for the witness.

PN282

Mr Fernandes, if you can go to page 70, paragraph 34?‑‑‑Yes.

PN283

You will see in the last sentence, it says, 'Because I formed this view.' That view was formed based on the information that Mr Dargaville had provided you up until the date of the discussion referred to in paragraph 33; is that correct?‑‑‑Yes.

PN284

So you had a discussion with him in 33, which is referenced to be on 22 February?‑‑‑Correct.

PN285

And you say you formed the view, which was expressed to Mr Dargaville in that discussion in 33, and you say you formed that view on the medical information he had provided, that's the medical information at that stage that was provided up to 22 February?‑‑‑Yes, that's what I've considered.

PN286

When you speak of a request, in terms of the request for extended sick leave in 34, that's the request he made in the discussion in the paragraph immediately before that in 33?‑‑‑That is what I'm referring to, yes.

PN287

Thank you. Just before we go to re-examination, Mr Latham, is there anything arising out of the questions I've asked?

PN288

MR LATHAM: No.

PN289

THE COMMISSIONER: Thank you. Ms Gall?

RE-EXAMINATION BY MS GALL [11.43 AM]

PN290

Mr Fernandes, you recall you were asked some questions about whether or not you directed Mr Dargaville to attend any medical examinations?‑‑‑Correct.

*** MYRON JOSEPH FERNANDES RXN MS GALL

PN291

Did you, at any time, tell Mr Dargaville that he couldn't provide you with further information if he wanted to?‑‑‑No.

PN292

Thank you. No further questions.

PN293

THE COMMISSIONER: Thank you. Thank you for your evidence, Mr Fernandes, you are free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.44 AM]

PN294

THE COMMISSIONER: How do the parties wish to deal with any closing submissions?

PN295

MR LATHAM: Commissioner, I'm happy to press on today and do it orally. I don't think we need to get transcript and do anything like that. Could I propose this: could we have a 10-minute adjournment? I think I will be able to do my closing submissions in a very short period of time. We'll finish well before lunch time.

PN296

MS GALL: I'm content with that course. I think it should be dealt with today. I've put in a fairly detailed written outline and I propose to just make oral submissions.

PN297

THE COMMISSIONER: Very well. We might adjourn until midday and then we'll come back with the usual batting order and finish today. The Commission is adjourned.

SHORT ADJOURNMENT [11.44 AM]

RESUMED [12.02 PM]

PN298

THE COMMISSIONER: Mr Latham?

PN299

MR LATHAM: Yes, Commissioner. Can I do it this way: I might try and answer each of the questions in order and, hopefully, that will deal with all of the issues that need to be dealt with today.

*** MYRON JOSEPH FERNANDES RXN MS GALL

PN300

Can I begin by dealing with the question about whether Mr Dargaville had a serious long term injury. I think that really requires this Commission to determine the meaning of an ordinary English phrase. It's not to be determined by reference to analogy. It's really a sort of irreducible common-sense understanding that the Commission has to come to in relation to the meaning of that phrase.

PN301

When one looks at the injury that has occurred here, it was an injury that required the placing of a nail and screws through the femur of Mr Dargaville to the extent that he was required to be off work for a period of four months and then on restricted duties for another month. If one looks at it in that context, it could hardly be seriously denied that we are talking about a serious long term injury. The seriousness can be seen in the nature of the injury and the surgery needed to correct it, and the long term nature of it can be seen in the time off work and the time back at work on restricted duties.

PN302

There is some evidence as to some ongoing intermediate pain and difficulty, but there is nothing in this case where Mr Dargaville says that he did not make a good recovery. In these circumstances, just on a sort of irreducible common-sense view, there is, in my submission, a clear serious long term injury.

PN303

What then occurs, I think, is the Commission is required to deal with some further questions, and in particular the question as to what is the nature of the discretion available to the harbour master. Can I just go to the clause itself at page 33. There is certainly a discretion set out in 4.2.5(a) because there is a reference to approval of the harbour master and what that approval is to be subject to, or, sorry, what is to be subject to that approval.

PN304

When one reads subparagraph (a), there are two different objects in that subparagraph. The first is in relation to the production of medical evidence and the second is in relation to the grant of additional leave. The submission just contextually is this: the discretion must be in relation to the production of medical evidence because, firstly, it follows immediately after the reference to the approval, but also that there are further steps set out in 4.2.5(b) that refer to a process for getting further medical evidence or further medical examination.

PN305

The second part, which is the granting of additional leave, does not appear to be subject to a discretion at all in that it refers to the obligatory word 'will' be granted, and it would be bizarre and counterintuitive for a mandatory obligation to be subject to discretion.

PN306

The way 4.2.5(a) and (b) work, I think, is this: Mr Dargaville, or whoever the injured or ill pilot is, attends, provides the medical evidence, as has been the case here, and if the harbour master considers that the medical evidence is not sufficient to allow for an approval, the harbour master then has the power under 4.2.5(b) to seek further documented medical evidence and/or a medical examination by a medical practitioner.

PN307

I think the second thing, I think, to say is this: the discretion does not extend to determining whether or not a serious long term injury exists, and I have made that clear, hopefully, by reference to the word 'will' in the second sentence.

PN308

Now, let's just have a look and see how the discretion was exercised in this case. Mr Fernandes gave forthright evidence in relation to this point. He said that he was aware of the medical evidence, and I took him to the medical evidence and we don't need to repeat it. Mr Fernandes did say frankly that he did not really understand what the medical evidence said, he didn't actually know what the fracture meant and he didn't actually know what the surgery meant. Further, he did not seek any further advice in relation to those matters, except for his apparent reliance upon HR or people and culture for guidance. There's no evidence that Ms Scobie had any medical qualifications or any ability to provide that advice at all.

PN309

But, perhaps most importantly, was this: Mr Fernandes gave evidence that he used the test of whether Mr Dargaville had good prospects of going back to work, and that was an entirely irrelevant test. What Mr Fernandes did not do was assess whether Mr Dargaville had a serious long term injury. To the extent that there was any discretion available at all to Mr Fernandes, Mr Fernandes did not exercise the discretion properly.

PN310

Can I just then deal with question 3 because, ultimately, it probably will need to be dealt with. The question really goes to this question as to whether, having been satisfied that, in fact, there is a serious long term injury, that the harbour master could then be in a situation where they could reject the application. There's two things about that.

PN311

The first thing is it tells very much against the sort of broad discretion that my learned friend proposes, which is that there is, in fact, a discretion to reject such an application, even if there is a serious long term injury. That would be an entirely counterintuitive way of reading this clause.

PN312

The second thing is, even if there is such a discretion, the exercise of the discretion in that way could only ever be seen as capricious or unreasonable in terms of the Silverbrook test for discretions being exercised. In fact, I will put it this highly: such a decision would be unreasonable in the Wednesbury sense, which is that no reasonable decision-maker could ever make a decision of that sort because it would be entirely contrary to the meaning of the clause.

PN313

Commissioner, in broad, the answers to the questions are, one, that Mr Dargaville did have a serious long term injury at the time; two, that to the extent that there is a discretion, it only goes as to the seeking of further medical material or the reference to a medical examination, and, three, in relation to the last point, there is no discretion available to the harbour master to reject an application once a harbour master is of the view that there is a serious and long term injury.

PN314

Unless there's any further questions, Commissioner, they're the submissions.

PN315

THE COMMISSIONER: Thank you, Mr Latham. Ms Gall?

PN316

MS GALL: Thank you, Commissioner. Commissioner, you, of course, know that the clause at the heart of this dispute is 4.2.5. Can I take you back a little bit in the Enterprise Agreement to page 32. That clause is headed 'Leave', so we're in clause 4, which relates to leave. You will see that, for annual leave, there is provision for six weeks and then there's long service leave and training leave and, down the bottom, there's clause 4.2, which is headed 'General Leave'.

PN317

Over the page and within that part of 4.2, there is an entitlement to be paid personal leave of 10 days for each year. 4.2.2 requires marine pilots to notify their line manager as soon as practical when they are unable to report for work due to taking personal leave, as well as for the period, or the expected period, of that leave, and it's the marine pilot's responsibility to report their inability to attend work in order to qualify for payment.

PN318

Clause 4.2.3 sets out the evidence requirements for taking personal leave, and the last paragraph in that clause provides that if a marine pilot takes personal leave, such as there is an indication of a pattern of regular or excessive absenteeism, the Port Authority may request evidence after any absence. Clause 4.2.4 provides an entitlement to unpaid leave.

PN319

Clause 4.2.5 is, of course, the key clause that the Commission has to grapple with today, and I'll return to that clause.

PN320

Moving just on to 4.2.6, that provides an entitlement to be paid compassionate leave of up to three days. 4.2.7 provides that marine pilots are entitled to take 12 months' parental leave in accordance with the NES, and over the page, it notes that such leave may include accrued annual leave or long service leave, either at half or full pay, but any period of that leave taken reduces the 12 months of parental leave, which is otherwise unpaid, other than 14 weeks for maternity leave and up to one week for paid paternity leave.

PN321

Finally, clause 4.2.8 provides for leave without pay, other than unpaid carer's leave will only be granted at the discretion of the Port Authority.

PN322

Returning then to clause 4.2.5, the Commission will note, of course, that the clause is broken up into three subclauses and the key clause under consideration here is subclause (a). Before I go through the text of that clause, I just wanted to highlight some aspects of the EA and the broader evidence that go to the industrial context and purpose of the EA that must be borne in mind.

PN323

Going back in the EA to page 22, at clause 1.1.3, the first paragraph there provides that the Agreement provides all terms and conditions of employment that apply to work done by marine pilots employed by the Port Authority. Clause 1.1.6 make it clear that the parties bound are, of course, the Port Authority and marine pilots, as defined. Marine pilots, the definition isn't overly illuminating, but it means - and it's on page 37 - it means all Sydney trainee, limited and unlimited, pilots employed by the Port Authority.

PN324

I don't think this is strictly in evidence, but I don't think there's any dispute that Mr Dargaville is an unlimited pilot.

PN325

MR LATHAM: That's not in dispute, Commissioner.

PN326

MS GALL: Clause 1.1.7 provides that there are no extra claims and, on page 23, provides that the parties agree that during the term of the Agreement, there will be no extra wage claims, claims for improved conditions or demands, et cetera, and that paragraph, of course, does not prevent the parties from taking any proceedings with respect to the interpretation, application or enforcement of existing award and agreement provisions.

PN327

Mr Dargaville and Mr Fernandes, the harbour master, both give evidence as to the role and responsibilities of marine pilots. In short, their primary responsibility is to safely and efficiently conduct the passage of commercial vessels in and out of ports. I can give the Commission a reference for that. That's at page 68 of the court book, paragraph 12 of Mr Fernandes' evidence, and Mr Dargaville's first statement also gave some evidence of that at paragraphs 3 and 4, I believe.

PN328

THE COMMISSIONER: Which Mr Fernandes does not dispute.

PN329

MS GALL: He does not dispute. So that's all not in dispute.

PN330

The pilotage services provided are 24 hours a day, seven days a week, so it doesn't stop, and that's made clear by clause 1.2.1 of the EA. Marine pilots work according to what is called a belt roster, which is seven days on/seven days off, and they work on usually 10-hour shifts that can commence really at any time during that 24-period because, as I said, they can't stop; they've got a very important role of ensuring the safe passage of ships.

PN331

If you go to page 66 of the court book, which is Mr Fernandes' statement, at paragraphs 3 and 4, Mr Fernandes gives evidence of the responsibilities of the Port Authority and, over the page at paragraph 9, he gives evidence of his responsibilities as a harbour master. In short, the Port Authority, via the harbour master, is responsible for the safe and efficient operation of commercial marine functions in certain ports.

PN332

With that background borne in mind, if the Commission could return to clause 4.2.5 of the Agreement, there are two key aspects of the clause that require close consideration in the context of this dispute: firstly, what 'a marine pilot suffering serious long term or terminal illness or injury' means, and it's important - I'll just pause there - it's important for the Commission to construe that before just having a gut reaction or a lay sense of whether Mr Dargaville's injury is serious long term. It's necessary to give meaning to those words and to then apply the facts of this case as to whether the injury falls within that clause as properly construed, and that should not be conflated.

PN333

The second issue is what discretion does the clause give to the harbour master, noting two things: the clause provides additional leave is subject to the approval of the harbour master and that additional leave is granted. I will address each of those issues in turn.

PN334

Firstly, the phrase 'serious long term or terminal illness or injury, the EA provides no assistance as to the meaning of that phrase. The phrase is a composite expression and, as I understand it, it's not in dispute that the phrase therefore should be construed as a whole; it cannot be broken up piecemeal and just applying dictionary definitions to each word to patch something together, and I have referred to the authority in that regard in my written submissions at paragraph 18.

PN335

Importantly then, 'serious' and 'long term' should not be considered separately and due regard should be given to the use of 'terminal' within that composite phrase. In my submission, the language of that composite phrase indicates that the serious nature of the injury must be long term. The injury cannot simply be momentarily serious, even if the injury, or some aspects of recovery, continue for a longer period of time.

PN336

Take, for example, a person who has suffered, say, a blow to the head, they have been rendered unconscious and left concussed, they might even be hospitalised for a day or two, but then, within a week or two, they are out of hospital and otherwise fully recovered. That was, arguably, momentarily serious, but it is clearly not long term.

PN337

The composite phrase is also telling by what it does not include. It does not refer to simply being unfit to work as a marine pilot. On the contrary, the clause has sought to impose a broader concept qualified by the nature of the illness or the injury, not the ability to work as a marine pilot.

PN338

Your Honour heard some evidence from Mr Dargaville as to factors he considered in making his decision, but, in my submission - - -

PN339

THE COMMISSIONER: Mr Fernandes.

PN340

MS GALL: Sorry, Fernandes, you are right, thank you. In my submission, firstly, as I indicated, that's a legal question for this Commission as to how the clause is construed. The decision-maker, the harbour master, might take factors into account in determining how to exercise their discretion, but they are not there to tell this Commission how to construe the clause.

PN341

In the context of the EA and the industrial realities in which marine pilots work, the omission of being fit to work from clause 4.2.5 is important. The work performed by marine pilots has specific and considerable physical and mental demands. The extended sick leave is very different to personal leave. Personal leave, which is provided for in clause 4.2.1, is available to a marine pilot when they are unable to attend work due to, relevantly, a personal illness or injury. The illness or injury does not need to be of a certain quality; it only needs to render the marine pilot unable to work.

PN342

In terms of the significant physical demands placed on marine pilots, can I take the Commission to, briefly, page 104 of the court book. That is part of the New South Wales Marine Pilotage Code. It's part of Mr Fernandes' evidence. Clause 2.1.1 there refers to the requirement for a marine pilot's licence not to be issued unless the applicant for the licence meets the health requirements set out in the code.

PN343

Over the page, on 105, at subclause (3), the marine pilot has to satisfactorily complete training and undergo any health assessment as required by the code, and they must not, in subclause (4), act as a marine pilot if they become aware of any circumstance, condition or injury that might cast doubt on the holder's fitness to act as a marine pilot.

PN344

Moving on then to Volume Two of the code, which is the standard for health assessment, that commences on page 121 of the court book, and these are the additional pages that I understand had been inadvertently missed from the court book and have been reprovided at page 124-1 and following. I will just take the Commission to some relevant aspects of that document.

PN345

Firstly, at 124-149, the second paragraph there after the dot points - well, firstly, it says, for each of the tasks described, various health attributes are needed and it sets those out, and then it notes that:

PN346

These health attributes highlight the unusual mixture of high level physical and mental capabilities - - -

PN347

THE COMMISSIONER: Where are you referring to, Ms Gall?

PN348

MS GALL: Page 124-149.

PN349

THE COMMISSIONER: Yes.

PN350

MS GALL: Sorry, 124-49, not 149, sorry, I misspoke. It's part 13 headed 'Health attributes required for pilot's work'.

PN351

THE COMMISSIONER: Yes, I've got that, thank you.

PN352

MS GALL: The second paragraph there says:

PN353

These health attributes highlight the unusual mixture of high-level physical and mental capacities required for pilotage.

PN354

Then it describes the necessary health attributes under four main categories.

PN355

If you could turn over to page 54, which relates to embarking and disembarking a ship at sea, and it notes that that can be hazardous and demanding and it requires getting on and off a ladder, and that's quite relevant in this case because that was one of the usual duties and roles that Mr Dargaville, because of the nature of his injury, could not perform for a period.

PN356

Page 59, again Table 6, referring to health attributes and, relevantly, refers to musculoskeletal capacity, and again embarking and disembarking a ladder, there's a very high demand on musculoskeletal health attributes, and it requires certain things, as well as an appropriate body mass index.

PN357

I will just note these pages - I don't take the Commission to them - but this code provides procedures for conducting health assessments, so it provides a guidance to authorised health professionals conducting health assessments for marine pilots, bearing in mind they're needing to - they've got these specific, and quite considerable, physical and mental demands and there's quite a detailed health assessment required of pilots.

PN358

This context, in my submission, tells against a construction that considers only how long the marine pilot was unable to perform their usual role. That is, the fact that a marine pilot was not fit for the considerable demands of the role for a period of time does not mean that the illness or injury they suffered was one that was serious long term.

PN359

Mr Dargaville, however, does place emphasis on the fact that he was fully unfit to work as a marine pilot until April 2020, which was some four or five months, and partially unfit after that time. That was, in large part, the focus of my learned friend's submissions, the period of time he was off work.

PN360

That directs this Commission to the wrong enquiry. It seeks to read words into the clause that are simply not

PN361

there. The fact that a marine pilot may not be able to perform their usual role for a period, even a period of some time, does not, of itself, lead to a conclusion that the illness or injury that has been suffered was one that was serious long term. It may be a minor long term injury that, given the demands on a marine pilot, renders them not able to perform their usual role.

PN362

It's also conceivable that a marine pilot who is suffering a serious long term or terminal illness or injury is still able to work, and while it can, of course, be problematic to consider abstract hypotheticals in a vacuum, one potential example may be where a marine pilot has been diagnosed with a terminal illness, but, for a period of time, they are still fit to perform their usual duties. In those circumstances, a marine pilot is potentially not entitled to paid personal leave as they are able to attend work, but they could apply for and, subject to the harbour master's approval, could be granted additional leave.

PN363

In that sense, while the terminal illness doesn't render them unfit for work, it does have a significant adverse impact on the marine pilot's life. Death from the illness is certain and, in those circumstances, the marine pilot may seek time off in order to spend more time with their family, for instance, even though they would otherwise be fit to perform their duties and not entitled to take personal leave. As such, in construing the composite phrase as a whole, a reasonable person would understand that to be a serious long term or terminal illness or injury, it's one which would have a significant adverse impact on the quality of life or health of a marine pilot for a prolonged period.

PN364

The question then arises: what period of time is long term? My learned friend hasn't really put it directly as to what period they say would fall within that or not fall within that. The term is not defined in the EA. Of course then, a reasonable person would understand that the intention is to retain a degree of elasticity, and I don't suggest, of course, that my learned friend or I, or even this Commission, ought put a set time period on what is serious long term, but what is notable is that the words used are 'long term', not 'medium term', not 'short term'.

PN365

Now, 'long term' is an ordinary English expression and it's defined to mean, in the Macquarie Dictionary, extending over a period of time, or considerable length, maturing over several years or more. Now, a reasonable person would understand that the time period required for something to be long term is at the upper end of the range of potential time periods.

PN366

Also, that the additional leave is limited to 180 days does not assume that a serious long term injury is for a period of less than that, as suggested by my learned friend. By this logic then, a serious illness or injury that only lasted for one day could fall within the clause. The clear purpose of the express reference to 180 days is to put a cap on the maximum period of leave that can be granted in circumstances where a marine pilot is suffering a serious long term or terminal illness or injury.

PN367

The intent of the clause is not necessarily to provide paid leave for the entire period the marine pilot is suffering such an illness or injury, and it is entirely orthodox, as this Commission well knows, that a maximum period of leave would be specified. In all kinds of leave, in this EA as well as NES entitlements, there is an express limit on the number of days that an employer is required to pay an employee, and that purpose, of course, is to provide certainty for both the employee and the employer. Sick leave, personal leave, for instance, provides a level of protection for employees against a loss of earnings while they are sick, whilst still being conscious of the commercial realities for employers in having certainty as to the maximum entitlement that is payable.

PN368

What is telling is that the maximum period for the extended leave is considerable; it's approximately half a year. This can be contrasted with the 10 days' personal leave per year. The 180 days - maximum 180 days - recognises that where someone suffers a serious long term injury, it's not a matter of weeks or even a month or so - that is what personal leave is for - this is a unique form of leave that is applicable to much more extreme circumstances where, in my submission, the period of time is more in the nature of years or perhaps half a year or more.

PN369

The other relevance of the 180 days in the context of other clauses of the EA is that the time period ties into the maximum qualifying period for group salary continuance insurance.

PN370

If the Commission could turn to page 31 of the court book, which will take you to clause 3.5 of the EA.

PN371

THE COMMISSIONER: Sorry, which page was it?

PN372

MS GALL: Page 31. A couple of things to note about clause 3.5.1. It provides insurance cover for 75 per cent of the base salary, plus super and a utility allowance, for marine pilots up to 65 years; marine pilots are subject to a qualifying period of 180 days; acceptance is subject to the insurer's policy terms and conditions, and, in the last paragraph there, any other sick leave or other payments ordinarily made by the Port Authority will cease once the claim is accepted and the income protection payments commence.

PN373

I will just pause there to note, from a factual perspective, Mr Dargaville is over the age of 65, so, to the extent he might otherwise fall within the terms of the policy, and there's no evidence that he does or he doesn't, but he just is over that age to apply - to qualify.

PN374

What that clause, though, does indicate is that it doesn't follow that an employee with a serious long term injury has to qualify for salary continuance insurance in order to receive the extended sick leave. The opposite of that is also true in that if an employee does qualify for salary continuance insurance, it doesn't necessarily follow that they are entitled to extended sick leave. They are two different concepts, decided by two entirely different entities. One is a separate, third party insurer.

PN375

What it does indicate is that there is an intention in the EA that extended sick leave provides support for an employee where they might otherwise receive no income for a period of six months or more in circumstances where they are suffering a serious long term or terminal illness or injury.

PN376

If the Commission then turns back to clause 4.2.5, which is on page 33, subclause (c) also refers to salary continuance insurance and it provides for the payment of sick leave, but not on full pay, for the second six months of sick leave where a marine pilot has no prospect of a return to work and is subject to a waiting period of more than 180 days. Again, the maximum period of extended leave that can be granted ties into the period of time before this additional form of paid sick leave will be paid.

PN377

However, subclause (c) contemplates a different concept. It refers to there being no prospect of a return to work. It has no concept of serious long term or terminal illness or injury and, given the significant physical and mental demands on a marine pilot, it is theoretically possible that a marine pilot may have no prospect of returning to work, even though they are not suffering from a serious long term or terminal illness or injury and, in those circumstances, a marine pilot may receive no income for up to six months.

PN378

THE COMMISSIONER: Just on 4.2.5(c) and the reference to a second six months on sick leave, do you say that only kicks in after there has been 180 days of extended leave in (a)?

PN379

MS GALL: Well, (a) may not be engaged at all. (c) stands by itself, which is that:

PN380

Marine pilots who have no prospect of a return to work and who are subject to a waiting period in excess of 180 days for salary continuance insurance coverage due to a pre-existing - - -

PN381

THE COMMISSIONER: So, in terms of the reference to the second six months on sick leave, what happens in the first six months?

PN382

MS GALL: They may receive no payment. Unless there's some other entitlement, unless there's personal leave, unless they choose to take some other form of leave, unless, perhaps clause (a) bites and is approved, it's possible that they would not receive that.

PN383

As the Commission would know, it is quite common for insurance policies - and this is obviously referring to the insurance policy - for there to be a waiting time period where an employee may not be covered for their salary for a period of time, and that's effectively a commercial decision made, obviously, both on the part of the insurer and the insured to not - to have themselves subject to a waiting period and think themselves they can cover themselves for that period of no pay for a time and then it will start kicking in.

PN384

Turning then to the discretion given to the harbour master, the opening words are, 'Subject to the approval of the harbour master.' Those words are critical and they must be given work to do. The Port Authority's position is the approval, and therefore the harbour master's discretion, relates to two things: the harbour master determining whether the marine pilot is suffering from a serious long term or terminal illness or injury, and, two, whether to grant the additional leave. The entire clause is prefaced with the words 'Subject to the approval' and that's an important textual consideration.

PN385

Importantly, though, commas appear around the words 'upon the production of medical evidence' and that, in my submission, carves out from the approval requirement, and those words are plainly directed at what a marine pilot has to do, and in seeking any sort of sick leave, the onus is on the employee to seek it, to indicate that they have got it. It's not for the employer to conduct investigations to see if they need a certain sick leave.

PN386

Mr Fernandes was asked some questions about whether he sought further medical evidence. In my submission, that's the wrong enquiry. There is no obligation on the Port Authority, if it decides that it's not a serious long term injury, to keep digging and digging and digging until they satisfy themselves it is a serious long term injury. The onus is entirely on the marine pilot, as is the case here. If they are told, 'Well, I don't think that's a serious long term injury', it was entirely open to Mr Dargaville to provide further medical evidence to the harbour master for him to consider and to say, 'Well, this is a serious long term injury, and this is why, and here's another report from my doctor that says, you know, these things about my pain, these things about my capacity to walk', or whatever the case may be.

PN387

Ordinarily, clauses that give the employer a right to get further medical evidence, that is, from a practical perspective, are ordinarily directed at where an employee is saying, 'Here's a medical certificate that says nothing other than I'm not fit for work for a year' and, in those circumstances, the employer wants the ability to give a lawful and reasonable direction to say, 'Well, I'm going to send you to a doctor to just understand that a little bit more.'

PN388

It's not for the harbour master to say, 'Well, I don't think that's a serious long term injury, but I'm going to send you to a doctor to see if you can prove to me it is.' The onus is on Mr Dargaville, or an employee, to provide the evidence, while the Port Authority does have this ability to test it, in effect.

PN389

In my submission, the suggestion by my learned friend that what the approval relates to is the seeking of medical evidence, that's entirely contrary to the wording of the clause, both textually and from a practical perspective, as to how that ought to work. What the approval is directed at is, as I said, those two things in terms of whether it's a serious long term injury or whether to grant additional leave.

PN390

It is important to note there the use of the word 'granted' additional leave. To be granted something is different to being entitled to something, and it's a word that fits very comfortably with the concept of approval, and I have set out in my written submissions the dictionary definitions of those words on page 62 of the court book. The use of the word 'grant' indicates that it's not an automatic entitlement that arises in certain circumstances; rather, it's indicative of the harbour master retaining a discretion to approve the grant of leave, and the use of the word 'grant' distinguishes extended sick leave from every other type of leave contemplated in this EA.

PN391

I have already taken the Commission through the leave clauses, but I'll just note, for instance, 4.2, 'entitled to paid personal leave'; 4.2.4, 'entitled to two days' unpaid carer's leave'; clause 4.2.6, 'entitled to paid compassionate leave'; 4.2.7, 'entitled to take 12 months' parental leave'. It's also telling that these kinds of leave are guaranteed by the NES. The extended sick leave is not a guaranteed entitlement; it's a unique form of leave.

PN392

Also clause 4.2.5 (c), it contains no concept of approval; it contains no concept of granting leave. It provides that marine pilots who meet the conditions of that clause will be paid sick leave. There's no granting that needs to occur.

PN393

The use of the word 'will' in subclause (a) is, in my submission, not directed at mandating the grant of additional leave. It is given work to do as once the grant of leave is approved by the harbour master, who is not the employer, but the Port Authority, who is the employer, will have to pay it out. So, it is given work to do because the harbour master has the ability to grant it, but once it's granted, then it will be given by the Port Authority, the Port Authority will pay it out. In that sense, the clause emphasises that the discretion lies with the harbour master. Of course, the discretion must be not exercised capriciously, arbitrarily or unreasonably.

PN394

I also note that some clauses do provide for a discretion for the Port Authority, for instance, clause 4.2.8, which relates to requests for unpaid leave being granted at the discretion of the Port Authority.

PN395

I will return to the discretion and my learned friend's submission that if it was refused, it would be arbitrary or capricious. I will return to that in the facts of this case, but moving first to the type of injury that was suffered by Mr Dargaville in this matter, that is not in dispute, but what the Commission has before it is very limited medical evidence as to the impact the injury has had on Mr Dargaville. What the evidence does reveal is that in less than two months, Mr Dargaville was recovering well and expected to make a full return to the demanding role of marine pilot and, in three and a-half months, he was working again, albeit on modified duties, and being paid his full salary.

PN396

If I can just take the Commission to some key pages relating to the medical evidence, firstly, page 125 of the court book, which is a medical certificate - sorry, an email, rather, from Mr Dargaville to Mr Fernandes and, over the page at 126, is the report that was attached. This was obviously plainly provided to Mr Fernandes by Mr Dargaville, as contemplated by the clauses requiring the provision of medical evidence. What is notable there is, if you look at the second paragraph, it says:

PN397

Given the extent of his injury, James has made considerable progress to date and his most recent X-ray shows his fracture is healing well. He is aware of the physical requirements of his work as a marine pilot and believes he has good prospects of returning to his pre-injury duties given enough time and rehabilitation.

PN398

It is noted that when Mr Dargaville provided that report on 7 January, he did not at that time seek to apply for extended leave.

PN399

Going back then to the medical certificates, which are attached to Mr Dargaville's first statement starting at page 45, the first one is, I suppose, what could be called your typical medical certificate, which just simply says they have a medical condition and are unfit for work. Now, that's an example where, if perhaps the report hadn't already been provided as to what injury he was suffering, that's an example where, if, say, it covered a period of a year and the application for extended leave was made, the harbour master might have said, 'Well, a year off, I consider that's long term, but I don't even know what injury it is, so what else can you provide me', and if the employee doesn't provide anything else, then the harbour master might send them off to get a medical examination because the harbour master is left in a position where they, on its face, may think, 'Well, this sounds like a serious long term injury, but I want to dig a little bit deeper.'

PN400

Turning over the page, the second medical certificate dated 4 February indicating Mr Dargaville will be unfit for work to 3 March, and as the Commission has already heard, Mr Dargaville did return to work I think either on 3 or 4 March.

PN401

There is a third medical certificate over the page dated 4 March regarding him being unfit for pilot ladder transfer work, and I have already taken the Commission through the quite physical demands of transferring on ladders.

PN402

The fourth medical certificate appears in Mr Fernandes' statement at page 144. It's undated on its face but it was provided under cover of an email dated 5 April, I believe, which is on page 142. If you look at the email, it's from the return to work manager, Mr Yatt, to Mr Fernandes and another person, and he confirms that he spoke to Jim, this morning and confirming everything went well, as planned, and recovery is going well. The medical certificate again is focused on swell heights, two ships and inward ladders (indistinct) of the jumping risk.

PN403

There's various return to work plans that have also been provided and I'll just note the references, but, in short, they reveal that the goal was return to pre-injury duties and the proposed graded recovery plan provided for administrative duties only from 4 March to 7 April and then particular cutter transfers and duty pilot from 2 August - sorry, rather, from 2 August it was full duties. Those return to work plans, the first one is dated in March and that appears on page 135; the next is on page 151 and that is dated 7 April, and that's when he was performing some ordinary marine pilotage work on boats, and the last one in evidence is at page 155 and that is dated 6 June.

PN404

THE COMMISSIONER: Just immediately before that page, Ms Gall, there's a medical certificate dated 6 June.

PN405

MS GALL: Yes.

PN406

THE COMMISSIONER: Which maintains limitations of the swell height of less than 3.5.

PN407

MS GALL: Correct.

PN408

THE COMMISSIONER: Two ships per shift and with a review in two months.

PN409

MS GALL: Yes.

PN410

THE COMMISSIONER: Is the applicant back to pre-injury duties?

PN411

MS GALL: My instructions - and I'll be corrected if I say it incorrectly - I understand he's not quite back to pre-injury duties. I think there was a most recent return to work plan from the last week or so, and so there's still some restrictions.

PN412

MR LATHAM: That's correct, Commissioner.

PN413

THE COMMISSIONER: Thank you, Mr Latham.

PN414

MS GALL: But he is still - other than I think there's now a transition to retirement because of Mr Dargaville age - otherwise he's been paid his full wage and performing duties.

PN415

THE COMMISSIONER: Thank you.

PN416

MS GALL: In relation to the application for extended sick leave, that was first sought at a meeting on 22 February and it was at that time that Mr Fernandes indicated he didn't believe Mr Dargaville was suffering a serious long term or terminal illness or injury, and then there was another conversation in March in which the issues were raised again and Mr Fernandes maintained his view that Mr Dargaville wasn't suffering a long term injury. As I have indicated, Mr Dargaville could have, but did not, provide any further details about his injury at that time beyond what he had already chosen to provide.

PN417

In my submission, in light of the proper construction of clause 4.2.5(a), in particular serious long term or terminal illness or injury, it's plain that the harbour master's decision was not capricious, arbitrary or unreasonable. He reached a reasonable view based on the medical evidence that Mr Dargaville had chosen to provide him at the time he sought the approval for extended leave.

PN418

What Mr Fernandes knew at that time was that less than two months after the injury was sustained, Mr Dargaville was recovering well and expected to make a full return to the demanding role of a marine pilot. About three and a-half months after the injury, Mr Dargaville was back at work on full salary, albeit performing modified duties.

PN419

I have already taken the Commission to the evidence in that regard, but it's worth noting the very short period of time between seeking extended leave and Mr Dargaville's return to work. It was a matter of 10 days between seeking the extended leave and then returning to work.

PN420

In terms of this Commission's ability to interfere with any discretion of the harbour master, can I just briefly take the Commission to one of the authorities in the joint court book, which is behind tab 3, the decision of Lend Lease v CFMEU [2015] FWCFB 1889.

PN421

THE COMMISSIONER: When you say tab 3, do you have a page reference?

PN422

MS GALL: Page 201, I apologise. That case was an arbitration and it involved a question of whether an employee who had been off work for an extensive period should return to a former role or alternative work site.

PN423

THE COMMISSIONER: One moment, Ms Gall, I don't know that I have page 201.

PN424

MS GALL: I can provide a copy of the authority book, if that assists.

PN425

THE COMMISSIONER: Thank you.

PN426

MS GALL: It's about the middle of the book, so it should be relatively bulky.

PN427

THE COMMISSIONER: Mr Latham, have you been provided with - - -

PN428

MR LATHAM: I've got a copy of the court book, yes.

PN429

THE COMMISSIONER: Tab 3, was it?

PN430

MS GALL: Yes, tab 3. As I said, the dispute the subject of that arbitration involved a question of whether an employee who'd been off work for a period of time should return to a former role or an alternative work site. The relevant passages are paragraph 26. That's a reference to the XPT case, which the Commission Member wasn't taken to that case in the first instance, but on appeal it was raised.

PN431

Relevantly, the Full Bench says:

PN432

It may be accepted that that principle is one which should be taken into account and given significant weight. However, it should not be elevated to an immutable rule applicable to any employer decision. That would overstate the effect of the principle. In that case, the fitness to return to work was primarily a medical one and, for that reason, any management decision concerning the matter did not readily fall within the ordinary run of business management decisions. The opinion on the question of qualified medical practitioners was inevitably a matter which would have to be given significant weight.

PN433

In that case, all the medical evidence went one way, as I understand it, and was much more considerable than here.

PN434

At paragraph 28, the Full Bench notes that:

PN435

Although the Deputy President was not expressly taken by Lend Lease to the XPT Case or any subsequent decision which affirmed or applied the principle stated in that case, nonetheless he recognised that the management decision of Mr Coleman not to allow (that employee) to return to work at Barangaroo should not lightly be interfered with when he referred to there being a 'high bar for the Commission to intervene to overturn the decision of management in a case such as this'. That, in substance, afforded appropriate weight to the XPT case principle in the circumstances. Nonetheless it is clear from the Deputy President's reasoning in the decision that he regarded the weight of the medical evidence as being such as to justify intervention in the matter against the decision taken by Mr Coleman.

PN436

In my submission, in this case, the medical evidence does not justify intervention and, when properly construing the clause, Mr Fernandes' decision that it was not a serious long term injury was in line with the medical evidence that he had been provided with, which is that in two months, he was recovering well and expected to return to the demanding role of marine pilot.

PN437

The relevance of the return to work isn't so much that he would be fit for the duties, but it goes to show how well his recovery was progressing given that a marine pilot has very significant demands on his physical capabilities. So, it is a factor that is appropriate for Mr Fernandes to take into account because, in that sense, he was considering, well, how serious is this injury, how long term is this injury, and what he was being told by the medical evidence was he's recovering well and he's going to be able to go back to his demanding role very shortly.

PN438

Therefore, the fact that this Commission might reach a different view on the same facts is not a basis for it to interfere with the harbour master's decision. The harbour master's decision was appropriate based on the information that he had been provided in light of the proper construction of the clause.

PN439

Turning then to the discretion issue, as I've already said, the construction contended by the Port Authority is that there's a second discretion to approve the grant of leave even if there is a serious long term injury. As I understand it, and Mr Latham will correct me if I have misunderstood his client's position, as I understand it, it is accepted that if this Commission - in terms of the three questions asked - if this Commission were to get to question 3 and decide, yes, the harbour master does have a discretion, then it would be appropriate for, effectively, the Commission to leave it at that and it would go back to the harbour master to exercise that discretion, and that is what would occur. It is not appropriate for this Commission, if it decides there is that discretion, to make the decision itself about whether to approve the leave or not. That's not a live issue here.

PN440

What the Commission will be determining is whether the injury is serious long term, whether there was a discretion for the harbour master to determine that and, if there was a discretion, whether that discretion should now be interfered with, and then we move to the grant of leave.

PN441

My learned friend made a submission about there couldn't be a case where it wouldn't be arbitrary or capricious for the harbour master to refuse the grant of leave if he decided it was a serious long term injury. It's not possible, of course, for this Commission to consider, and it need not consider, the infinite factor that could properly be considered by the harbour master in determining whether to exercise his discretion to grant or to not grant the extended leave.

PN442

The clause that empowers the harbour master to do it contains no limits. Of course, it can't be capricious, arbitrary or unreasonable, but there's a number of factors that could be conceivably considered just by way of example: for instance, where there is misconduct or some other disentitling conduct; for instance, the marine pilot is refusing to cooperate or perform rehabilitation required for their recovery; where the marine pilot is fit to perform work for the Port Authority in some capacity; where there is some particular personal or family considerations relevant to the marine pilot, and I have given the Commission the example of the terminal illness; where there is perhaps existing personal leave that can be taken if they are unable to work. There might be even commercial considerations that the Port Authority needs to consider.

PN443

These examples just demonstrate that there is a potential range of factors that could properly be considered by the harbour master, and it's not appropriate for this Commission to determine in a vacuum that there's no way that the harbour master could appropriately exercise his discretion.

PN444

I'm sorry, just pardon me a moment. Unless there's anything further, Commissioner, those are my submissions and the Port Authority's position is that the appropriate orders are that Mr Dargaville's application should be dismissed.

PN445

THE COMMISSIONER: One question I do have just in the context of the Agreement and the Berri principles, in particular principle 12, evidence of objective background facts. This clause forms part of an enterprise agreement, the approval of which would have required the genuine agreement of the employees. Are what was said in terms of genuine agreement either to the employees to explain the terms of the Agreement or what might have been said to the Commission through declarations associated with the application for approval matters that can be taken into consideration by the Commission in determining this dispute?

PN446

MS GALL: That's not before the Commission.

PN447

THE COMMISSIONER: Yes.

PN448

MS GALL: That's just not evidence that's before the Commission, so it's difficult for me to answer that in an abstract. I mean, it would have to be objective facts known to both parties as a threshold, not some sort of subjective statement as to, 'We think it means X.' It would have to be objective; it's normally limited to objective facts. That's just not been put into evidence before the Commission.

PN449

THE COMMISSIONER: Thank you. Mr Latham, anything in reply?

PN450

MR LATHAM: Just very quickly. Can I just try and summarise the submissions of my friend. They are, I think, these. Firstly, that long term injury must mean more than 180 days or more than one year. There was some contradiction between those two alternative positions, but neither limitation exists in terms of the clause itself.

PN451

The second thing, and I think this has been said in the written submissions, the maximum period of 180 days recognises that the clause allows for the provision of extra sick leave for periods of less than 180 days. We say that's just axiomatic from the clause. That must mean that a long term injury could be less than 180 days.

PN452

The contrary interpretation which I think is being put by my friend would mean that a person could only get additional sick leave if they were injured for more than six months, but there would still be the power to award an amount of sick leave that could be for less than six months, and that would be an entirely counterintuitive interpretation of the clauses.

PN453

Just a couple of other quick things. Just to go to some of the authorities that my friend raised, the first issue is one must also look at the purpose, and you will find that specifically at page 295 of the authority referred to by my friend. There's a great reference to a decision by Judge Learned Hand from the US that one does not - this is at paragraph 36:

PN454

One does not turn up with a dictionary in one hand and the words of the provision in another. One also has to look at the purpose.

PN455

And there's no doubt that the clause as a whole has a purpose and the clause as a whole has a purpose of protecting injured workers who run out of sick leave, and one has to examine the text of the subclauses in that context.

PN456

Finally, there is a reference to the decision in Lend Lease that my friend referred to, particularly at page 211. Can I just say, for reasons I'm not quite sure, not all of that decision is actually set out in the bundle of authorities. It's not a big issue, but all paragraph 26 and onwards goes to is this point, that in its arbitral function, the Commission is bound by the XPT proposition which says that management discretion has to be had regard to unless it leads to what are unjust or unreasonable outcomes, and there's no debate about that.

PN457

Then just finally, could I just go to this point. It is put that there was not sufficient medical evidence. I have referred to the pages already, but I do not think it can be seriously put that Mr Dargaville did not have a serious injury when one looks at the X-rays and one looks at particularly the report at page 44, and in relation to the question about long term injury, and I accept that it's a composite clause, but in terms of long term injury, I don't think there is any doubt, if one looks at the documents from page 126 onwards and particularly the return to work documents from page 135 and onwards, that this is a long term injury. There is, of course, no question about this, that the injury still has effects today. That doesn't mean it's a serious injury today, but it does have ongoing effects.

PN458

What is just clear in this case is really quite simple. The harbour master was asked to make a decision, the harbour master did make a decision, but he didn't make a decision in terms that the question that he should have asked himself was, 'Is this a serious long term injury?' That was an error; that is contrary to the clause in the Enterprise Agreement. The Commission has power to arbitrate the matter and the Commission should do so.

PN459

Unless there's anything further - sorry, there was one final question. Your Honour did ask as to whether, for example, documents provided to the workplace as part of the approval process would be, for example, relevant in a case like this. They could well be. They would certainly be evidence as to the background to the negotiations and the joint view of both parties, but my friend is correct, that evidence is not before the Commission.

PN460

THE COMMISSIONER: Thank you. I thank the parties for their submissions. I will give the matter consideration, so my decision will be reserved and I will publish that decision and the reasons in due course. The Commission is adjourned. Thank you.

ADJOURNED INDEFINITELY [1.10 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JAMES RYAN DARGAVILLE, SWORN.......................................................... PN141

EXAMINATION-IN-CHIEF BY MR LATHAM............................................... PN141

EXHIBIT #A1 WITNESS STATEMENT OF JAMES DARGAVILLE DATED 06/06/2022 WITH ACCOMPANYING ANNEXURES A TO E (COURT BOOK PAGES 16-50) PN155

EXHIBIT #A2 WITNESS STATEMENT OF JAMES DARGAVILLE (NOTING OBJECTIONS DEALT WITH EARLIER) AND ACCOMPANYING ATTACHMENT........ PN162

THE WITNESS WITHDREW............................................................................. PN174

MYRON JOSEPH FERNANDES, AFFIRMED................................................ PN179

EXAMINATION-IN-CHIEF BY MS GALL...................................................... PN179

EXHIBIT #R1 WITNESS STATEMENT OF MYRON FERNANDES DATED 15/07/2022, INCLUSIVE OF ANNEXURES A TO S (COURT BOOK PAGES 66-157)... PN192

CROSS-EXAMINATION BY MR LATHAM.................................................... PN192

RE-EXAMINATION BY MS GALL................................................................... PN289

THE WITNESS WITHDREW............................................................................. PN293