JOHN WALLACE DICKIE & OTHERS v. Day 03 CATHAY PACIFIC AIRWAYS LIMITED. Page 1 Wednesday, 7 October 2009

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1 Page 1 Wednesday, 7 October 2009 (10.02 am) HIS LORDSHIP: Mr Grossman. MR GROSSMAN: I call Mr Heron. HIS LORDSHIP: Before we begin, I wonder if I could just make a request. Because it occurs to me -- the court also hears other cases in addition to this, it is fine for your files to be left here, but could I request that the files be left in neat order, so there is enough space for other litigants, other counsel, at the bench. Might I also request that one take away one's wig and gown, rather than leaving them in court, so that the chairs are unoccupied and other counsel can use them in the course of the other hearings that the court hears. MR GROSSMAN: I am sure your Lordship is looking at me rather than my learned friend. HIS LORDSHIP: I am looking at all of you. As you are standing up, you are taking the comments, as a sort of symbolic recipient, Mr Grossman. MR GROSSMAN: Thank you. I call Mr Heron. MR QUENTIN JAMES LEE HERON (sworn) Examination-in-chief by MR GROSSMAN MR GROSSMAN: Mr Heron, would you look, please, at bundle III. You made three statements, I believe. I would like you just to identify them. Would you look

2 1 first of all, please, at page Page 2 2 A. Yes. 3 Q. If you look through to page , just confirm, if you 4 would, that that's your statement. 5 A. Yes, it appears to be. 6 Q. Would you look next at page 669. It's a statement which 7 finishes at page 681. Would you confirm also that that 8 is your statement? 9 A. Again, yes. 10 Q. Lastly, would you look at page 820 to page 828, and 11 confirm, please, that's your statement also? 12 A. Again, yes. 13 Q. Do you adhere to what you've stated in those statements? 14 A. Yes, I do. 15 Q. Do you confirm that that is your evidence-in-chief? 16 A. I do. 17 MR GROSSMAN: Thank you. No further questions. 18 HIS LORDSHIP: Mr Huggins. 19 Cross-examination by MR HUGGINS 20 MR HUGGINS: Mr Heron, you have been in court, I think, 21 hearing what has been going on so you have probably seen 22 what the form is as far as I am concerned. 23 Can I ask you please to take bundle X, which I think 24 you will find to your right. 25 Your membership of the union, Mr Heron: a member

3 1 since July 1990? Page 3 2 A. I believe so. 3 Q. Never held any formal posts in the union, but to use 4 your own words, an active member? 5 A. Yes. 6 Q. Attending and voting at general meetings? 7 A. Not all of them. 8 Q. I am merely quoting your words and getting any 9 clarification you wish to make. 10 And generally supporting the union's policies? 11 A. Generally supporting its goals, yes. 12 Q. A loyal supporter of the union? 13 A. A loyal supporter of the goals, yes. 14 Q. And its proposed industrial action to pressurise the 15 airline, which you believed needed to be pressurised? 16 A. No, I don't say -- I don't think that's an accurate 17 statement. 18 Q. Can we deal, please, with the contract compliance 19 campaign. Would you please go to page 101 in this 20 bundle. 21 A. Yes. 22 Q. Will you see that on that page there are two parts of 23 it: there's "The Original Motion", a heading there, and 24 then lower down, "Beyond the Motion". There was 25 a reminder of the resolution on contract compliance.

4 Page 4 1 Just have a glance at it to remind yourself of that. 2 A. Sorry, where is that, please? 3 Q. At page 101. Are we in bundle X? 4 A. I believe so, yes. I am seeing "The Original Motion" 5 and I am seeing "Beyond the Motion". I'm not with you 6 on what you are referring to. 7 HIS LORDSHIP: He is referring to the actual terms of the 8 motion, "Be it resolved at", just under the section "The 9 Original Motion". 10 A. "Be it resolved that the membership of the association 11 directs..." 12 Okay. 13 MR HUGGINS: Just give yourself an opportunity to remind 14 yourself of that briefly, and then I will ask some 15 questions. 16 A. Yes. Go ahead. 17 Q. You see in paragraph 3 there a reference to that 18 resolution was to become effective on 11 July 2000; do 19 you see that? 20 A. Yes. 21 Q. And remain in effect until rescinded by the membership? 22 A. Yes. 23 Q. You were aware of this resolution, were you? 24 A. I can't remember. 25 Q. Did you not vote in favour of it?

5 1 A. I can't remember. Page 5 2 Q. Were you aware of it at all? 3 A. At this particular point in time I can't remember if 4 I was aware of it at the time. It's likely that I was, 5 yes. 6 Q. How much time were you spending in Hong Kong? 7 A. Right now? 8 Q. No, were you at this time? 9 A. Well, I was flying a normal roster, so I think you'd 10 have to -- I have never sat down and calculated it, to 11 be quite frank. 12 Q. But you received these documents from the union as 13 a matter of normal course, did you not? 14 A. I don't know. 15 Q. Do you recall knowing that as a general proposition, the 16 union expected its members to comply with and to 17 implement its resolutions? 18 A. Did the union expect that? 19 Q. Was that your understanding, Mr Heron? 20 A. My understanding was the union probably had any number 21 of expectations, none of which I was responsible for. 22 Q. Oh, well. Were you not aware that in relation to the 23 campaign of contract compliance, the union was anxious 24 to ensure that its members made themselves, as far as 25 possible, uncontactable when they were not on duty or on

6 1 reserve duty? Page 6 2 A. That was not true in my case. 3 Q. I am asking you whether it was your understanding that 4 that was what the union was seeking to do. 5 A. I don't know what the union was seeking to do. I don't 6 recognise what you're saying, I'm afraid. 7 Q. Would you look, please, at the words "Beyond the 8 Motion": 9 "Additionally, crew should be aware of, and are 10 greatly encouraged to comply with the following." 11 Would you just read those to yourself, because I am 12 sure you can read much quicker than I could read it out. 13 A. Sorry, you want me to read the entire of page 102? 14 Q. If you wouldn't mind. 15 A. Very well. 16 I have now reached the bottom of page 102. Would 17 you like me to read any further? 18 Q. No, thank you. I am merely going to ask you, since your 19 memory, if I might say so, not quite what others have 20 been, but we all have different recollections. May 21 I suggest to you that none of this is news to you; you 22 would have known all of this at the time, would you not? 23 A. I don't think that's true, no. I don't think I would 24 have known of all of this. 25 Q. What parts do you think you would not have known?

7 Page 7 1 A. I really can't say. I'm reading this now, to be quite 2 frank, my Lord, and much of it is completely new to me. 3 In fact, even as I read through it, I begin to forget 4 what was at the top of the page. 5 Q. You're saying, are you, that you didn't know anything 6 about the contract compliance campaign -- 7 A. Well, maybe if you -- I'm sorry. 8 Q. Is that what you're saying? 9 A. No. I think more accurately, if Mr Huggins were to go 10 through this point by point, I would be able to answer. 11 HIS LORDSHIP: I think what he's saying is that he doesn't 12 have any particular general recollection, but you may be 13 able to jog his memory by going through particular 14 points. 15 MR HUGGINS: You're not trying to distance yourself, for the 16 purposes of this hearing, from anything to do with the 17 contract compliance campaign, are you? 18 A. I don't know what you mean by distance myself. 19 Q. Let me go back a step or two, Mr Heron. Let us recall 20 what you have told this court on your affirmation or 21 oath: 22 "I was an active member attending and voting at 23 general meetings and generally supporting the policies 24 of the union. I supported the union in its dispute with 25 regard to its members' contractual entitlements and

8 1 rostering." Page 8 2 You remember saying that, do you? 3 A. Yes. That's in my statement. 4 Q. "I performed research and office work for the union." 5 Let's see if you remember what that was. 6 A. That was back in Q. What was the nature of that research? 8 A. Again, it's 15 years ago, and I believe, my Lord, it was 9 largely factual research into various data that the 10 general committee wanted discovered. I can't remember 11 what it was now because, as I said, it was 15 years, but 12 it was statistical data that they wanted and they made 13 me responsible for looking up some of it. The period 14 lasted a few weeks, to the best of my recollection. 15 Q. Do you not recall at all now the union encouraging its 16 members to take active steps to make it more difficult 17 for the airline to contact them directly when they were 18 not on duty or reserve duty? 19 A. My recollection is that the union was concerned about 20 fatigue levels, about people being, how shall I say, 21 coerced into operating flights that they shouldn't, when 22 they were unfit for duty. I do remember them having 23 serious concerns about flight safety and pilot fatigue, 24 and I believe that contract compliance had much to do 25 with that.

9 Page 9 1 HIS LORDSHIP: When you say you do remember them having 2 serious concerns about safety and pilot fatigue, you 3 mean the union? 4 A. The union, and I believe most of my colleagues as well. 5 HIS LORDSHIP: Mr Huggins. 6 MR HUGGINS: I think, with respect, my question to you, 7 which I'm not sure what the answer was, because you have 8 told us what you do recall, but not an answer to the 9 question I'm asking. I'll ask it again: did the union 10 encourage its members to take active steps to make it 11 more difficult for the airline to contact them directly 12 when they were not on duty or on reserve duty? Do you 13 have no recollection of that at all, Mr Heron? 14 A. No. My recollection is, as I said Q. If the answer is "no", I will take it from you and I'll 16 move on. 17 A. Okay. 18 HIS LORDSHIP: His answer is "no", but "my recollection 19 is" -- let's just hear what the qualification is. 20 A. My answer is not no to Mr Huggins' question. My answer 21 is my recollection of what the union was trying to do 22 was trying to encourage us to make sure that we could 23 meet our contractual undertakings to the company. 24 HIS LORDSHIP: But you have no recollection about the 25 specific matter Mr Huggins is referring to, that is the

10 Page 10 1 specific matter of not being contactable during your 2 off-duty or off-reserve hours? 3 A. I never made myself specifically uncontactable. 4 HIS LORDSHIP: You may never have done that yourself, but do 5 you remember that the union was urging its members not 6 to be contactable? 7 A. No. I believe, from reading this, and from my own 8 rather vague recollections at this point, that the 9 purpose of what the union was attempting to effect was 10 to make sure that we were properly rested. This 11 business of being uncontactable or deliberately 12 uncontactable is not one that I recall. 13 I believe that what I understood at the time, but 14 this is a vague recollection, my Lord, was that the 15 whole idea was to make sure that we could meet our 16 responsibilities and our undertakings under the law and 17 to the company. 18 HIS LORDSHIP: Because on the face of it the document that 19 you have just been invited to read, pages 101 to 102, is 20 saying, "Don't be contactable during your off-duty or 21 off-reserve hours." 22 A. Well, if that was what the union intended, it was lost 23 on me. My understanding is as I have described it. 24 HIS LORDSHIP: Mr Huggins. 25 MR HUGGINS: Would you look at page 116, Mr Heron.

11 Page 11 1 "Contract Compliance Update". Would you cast your eye 2 down that, and will you confirm that in the normal 3 course of events you would have received this document? 4 A. No, I cannot confirm that. 5 Q. Why is that? Because you really can't remember anything 6 beyond what sort of time? 7 A. No. Because it's now -- how many years ago is this? 8 Q. The date is on the bottom: 20 October A. It is now nine years ago, approximately. No, I cannot 10 remember specifically which documents I received and 11 which ones I did not. 12 HIS LORDSHIP: The question was slightly different. The 13 question was, in the normal course of events, would you 14 have received the newsletter, Beyond the Leaves 15 newsletter? 16 A. I believe in the normal course of events, it would have 17 been sent out. 18 HIS LORDSHIP: It would have been sent out. 19 A. Whether or not I received it is another matter. 20 HIS LORDSHIP: Even in the normal course of events? 21 A. Even in the normal course of events. 22 HIS LORDSHIP: Right, because it might be said, it's 23 a little bit surprising -- you say you are an active 24 member of the union, you were committed to its goals, 25 I think, but you wouldn't have received the newsletter

12 1 and you wouldn't have seen the newsletter? It's Page 12 2 a little bit hard to understand that, Mr Heron. 3 A. The goal was fairly easy to understand, and that was 4 safe rostering practices, stable rostering, and 5 a fatigue-free flying environment for the purpose of 6 flight safety. Those were the goals as I understood 7 them. Indeed, when I received a deluge of 8 communications, quite often, to be frank, I would simply 9 see them in my inbox, I would click on them and put them 10 in the delete file because I was quite content that 11 I understood what the goals were and I didn't need to 12 read this sort of thing. 13 HIS LORDSHIP: I understand. 14 MR HUGGINS: I am rather more concerned, if I may say so, 15 with the means that were being adopted to obtain the 16 goals which apparently you do recall with some 17 specificity. So can we look at the means which those 18 goals which you do remember were to be achieved by the 19 union. Can you help me with that? By reference, let us 20 start, again, with page 116 and the contract compliance 21 campaign. 22 My question to you is this: are you really saying 23 that you were totally unaware that the contract 24 compliance campaign was introduced in order to 25 pressurise the management to come and achieve the very

13 1 goals that you do recall? Page 13 2 A. I'm sorry, you had about three questions in there. 3 Could you ask them one at a time, please? 4 Q. I will break them down into small sentences, as you 5 need, Mr Heron. 6 A. If you'd be so kind. 7 Q. Were you aware that the goals which you do recall were 8 not being achieved? 9 A. I'm sorry, you're stating that there was no stable 10 rostering Q. Were you aware that the goals you have just told his 12 your Lordship that you do remember were not being 13 achieved by the union because the management was not 14 co-operating? 15 A. I was very aware of a considerable amount of roster 16 instability, brought about by the rostering that was 17 provided by the company. I remember there being 18 multiple changes. I remember that there was a lot of 19 fatigue, as a result both cumulative, i.e. chronic and 20 acute, and I do remember that it was a major concern for 21 me that I should always be properly rested for every 22 flight, or every duty for which I was rostered. That 23 much I remember. I do remember it was a major concern 24 for the membership certainly and for the union that 25 flight safety was being eroded by the mismanagement and

14 1 misbehaviour of the company. Page 14 2 HIS LORDSHIP: Let's be more direct, Mr Heron: do you 3 remember the contract compliance campaign? 4 A. Oh, I remember there being a contract compliance 5 campaign. I do not know whether my understanding of 6 that abides with -- 7 HIS LORDSHIP: Your understanding, just so we're all clear, 8 of the goal of the contract compliance campaign, was to 9 do what? 10 A. To achieve a safe and stable rostering environment, in 11 a short -- that's putting it in a nutshell. My actual 12 answer would probably be a lot longer. 13 HIS LORDSHIP: I understand, Mr Heron. Just one more -- so 14 you were aware of the contract compliance campaign at 15 the time? 16 A. I was aware that there was an attempt to make the 17 company comply with the contract, and for us to comply 18 with the contract as well, fully. 19 HIS LORDSHIP: What did you understand at the time by the 20 contract compliance campaign? What did it involve? 21 A. It involved us being fully rested and prepared for our 22 flights as rostered. 23 HIS LORDSHIP: And that would be achieved by doing what? 24 A. Using our days off to be properly prepared, properly 25 rested after and before flights.

15 1 HIS LORDSHIP: So not being contactable during your Page 15 2 guaranteed days off, for instance? 3 A. No. I didn't understand that you were simply not to 4 pick up the phone or simply not to answer any other 5 communication. Indeed I cannot ever remember being 6 contacted by crew control and not accepting a duty for 7 which I was lawfully able to accept. 8 I did, I will admit, when I came back from 9 a long-haul flight and I was exhausted, I would go to 10 bed and I would turn off the phone, because I didn't 11 want to be woken up by anybody, not crew control but my 12 friends, people trying to sell me magazines over the 13 telephone, anything, to be quite frank. 14 MR HUGGINS: This campaign that you have some recollection 15 of, you have told his Lordship, was designed to bring 16 about the purposes that you have said were of concern to 17 you and the union? 18 A. I am sorry, I don't understand. 19 Q. Do you really not, Mr Heron? 20 A. No, I don't, to be honest, Mr Huggins. 21 Q. Let us see the extent to which you were aware of the 22 effects the campaign was having. Let's look at 23 page 116. You would, in the normal course of events, 24 I suggest to you, have received communications of this 25 sort, indicating that the union was telling its members

16 Page 16 1 that the contract compliance was working. Did you not 2 receive communications of this kind? 3 A. I presume that I would have received some of them. 4 Whether I read them or not is another matter. 5 Q. Let's just have a look, shall we? 6 "How do we know", that is whether contract 7 compliance is working? "The association office and your 8 committee receive daily reports and proof, including 9 examples of: 10 Extensive delays." 11 A. Sorry, which paragraph is this? 12 HIS LORDSHIP: Page A. Whereabouts? 14 HIS LORDSHIP: "Contract Compliance Update", the second bold 15 passage, "How do we know?", just above the hole punch, 16 "The association office and your committee receive daily 17 reports and proof, including examples of", and 18 Mr Huggins is just reading the bullet points. 19 A. Is this the first paragraph underneath the bullet points 20 or you are reading the bullet points themselves? 21 HIS LORDSHIP: He's reading the bullet points themselves. 22 He started with "Extensive delays", he's now with 23 "Flight cancellations". 24 Mr Huggins. 25 MR HUGGINS: "Extensive delays.

17 Page 17 1 Flight cancellations, diversions and late type 2 changes on passenger and freighter fleets. 3 Cancelled line checks, line training", and so on. 4 Again, I am trying to spare you the sound of my 5 voice when I am sure you can read this more quickly 6 yourself. I am going to suggest to you that you were 7 perfectly well aware, as the membership would have been 8 generally, that this was the effect the campaign was 9 having. 10 A. I am sorry, your question is...? 11 Q. I am making a suggestion to you which you may agree or 12 disagree with. You would have been aware, would you 13 not, at that time, that this was the sort of effect the 14 campaign of the union was having? 15 A. No, I don't agree with that statement. 16 Q. Why is that? Why would you not have known? 17 A. I was aware from the company's circulars at the time 18 that they were claiming a certain amount of disruption, 19 as I recall. It's obvious, from this particular 20 document, that the union was obviously agreeing with the 21 company, but Mr Huggins' question asks again, if I'm not 22 getting you wrong, that -- you're saying that the 23 union's campaign was achieving this? 24 HIS LORDSHIP: Well, Mr Huggins is suggesting two things. 25 One was that the union's campaign of contract compliance

18 Page 18 1 was achieving these things -- see the bullet points -- 2 part one. Part two, you were aware that the union's 3 contract compliance campaign was achieving these things 4 and you were aware at the time. 5 A. No. I was aware at the time that it was the 6 management's inability to crew the flights and crew the 7 airline correctly was causing the disruption; that was 8 my understanding. 9 HIS LORDSHIP: You didn't connect this difficulty on 10 management's part with the contract compliance campaign? 11 A. No, because if we all complied with our contracts, 12 which, as I've said, we were obliged to do, and the 13 airline was properly crewed, then there could not have 14 been any disruption. 15 MR HUGGINS: Forgive me, Mr Heron. If you were doing, and 16 your fellow pilots were doing precisely what they were 17 doing before the contract compliance came in as they 18 were after the contract compliance came in, would you 19 not accept that announcements of this kind from your own 20 union are hard to understand? Perhaps you can help us. 21 How is it that the union is telling you, its members and this is a circular from them -- that this was the 23 effect that the campaign was having? 24 A. You'd have to ask the author of this particular 25 document, to be quite frank. I didn't write this

19 Page 19 1 document, so I can't take any responsibility, I'm 2 afraid, for what they said to us. 3 It sounds to me like rallying the troops again, to 4 tell us that they were achieving their goals and the 5 union was achieving getting the company back to the 6 negotiating table to talk about rostering. But whether 7 or not it's true, I have no way of knowing. 8 Q. You had no way of knowing whether it was true. That is 9 rather premised on the fact that you saw this but you 10 didn't know whether this was banter, bluff or something 11 else. 12 A. As I think I have said before, I don't know whether 13 I saw this at the time or not. 14 Q. Forgive me, it was your answer that gave that 15 impression, if I may say so. 16 HIS LORDSHIP: I'm not sure I got that impression from his 17 answer. I think he was speaking of the present moment, 18 reading it at the present moment, whatever may have been 19 the position, whether or not he saw it in the past -- at 20 the present moment. 21 MR HUGGINS: I am certainly more interested in your 22 knowledge at the time, and this is all geared to get 23 assistance from you, Mr Heron, as to your knowledge and 24 understanded of what was going on at the time. 25 I suggest to you that unless you had your head

20 Page 20 1 completely in the sand and were putting all of this in 2 the waste paper basket, you would have seen that your 3 own union was communicating to you and its members that 4 this was the effect that the campaign was having. 5 I would like you to consider that and tell us, on your 6 oath, what the real state of your knowledge was. 7 A. I think I have already answered that, my Lord. 8 HIS LORDSHIP: I believe he has already answered. 9 MR HUGGINS: As your Lordship pleases. 10 HIS LORDSHIP: I think what he is saying is, Mr Huggins you can make submissions on it later -- he may not have 12 actually seen the newsletters. They may have been sent, 13 but just like when one receives a lot of junk mail, he 14 may simply have put it in the bin. He thinks, "I'm 15 a loyal member of the union, I know what the union is up 16 to, I don't have to read all this junk, I have better 17 things to do, take a rest between flight assignments", 18 and so on, "make sure I am adequately rested for the 19 next flight assignment." 20 Is that the sort of thing you are trying to convey, 21 Mr Heron? 22 A. Yes, this is very much the thrust of my remarks. Thank 23 you, my Lord. 24 MR HUGGINS: Is that really the truth, Mr Heron? I am going 25 to suggest, with the greatest of respect, that you are

21 Page 21 1 attempting to distance yourself from all this because 2 you, perhaps rather better than some of your colleagues, 3 perceive where that might get you. 4 A. I'm sorry? 5 Q. I am suggesting to you, I will be more blunt, that you 6 are not being frank and open about your answers. 7 A. My Lord, I have already been frank and open. 8 Q. Can we turn over the page, Mr Heron, to page 117. Under 9 large bold letters, "Misconduct of Members", in this 10 same document: 11 "On the eve of the release of names of colleagues in 12 breach of the current contract compliance resolution, 13 let us remind ourselves of the processes involved in any 14 disciplinary action and ensure we all place the 15 appropriate level of importance on such action." 16 Then it sets out the kind of disciplinary action 17 that might take place and the consequences of it. 18 Are you saying that you were never aware of your 19 responsibilities as a union member to follow such things 20 as the contract compliance campaign, to implement it or 21 else be in breach of your union's disciplinary 22 provisions? 23 A. What I was aware of was my responsibilities under the 24 Air Navigation Order and my responsibilities under my 25 contract, my responsibilities to the passengers and my

22 Page 22 1 responsibilities to flight safety. Those were my first 2 and primary concerns. 3 Now, every union has rules. There are copious 4 rules. There are almost as many rules for a union as 5 there are in the Civil Code, my Lord. I did not 6 memorise them. I am sure the union believed they had 7 the disciplinary sanctions available to them. However, 8 at no stage were they applied to me, nor did I ever read 9 the disciplinary sanctions. I simply wasn't worried 10 about them. 11 HIS LORDSHIP: Basically what you are trying to convey, 12 Mr Heron, is that you just went on with your business, 13 you kept in accordance with your understanding of your 14 terms of contract, and that was that? 15 A. I did my best to uphold my contractual obligations at 16 all times and I conducted myself in that manner, in 17 a thoroughly professional manner. 18 HIS LORDSHIP: I understand. 19 MR HUGGINS: Did you pay any attention whatever as to what 20 your union was doing to bring out the objects which you 21 said were of such concern to yourself? 22 A. I did pay attention. I heard about it; as I said to 23 an earlier question from Mr Huggins, I did hear about 24 contract compliance and the efforts of the union to make 25 the company comply with the contract, and I supported

23 Page 23 1 that because I believe that everybody that is a party to 2 a contract should comply with it. 3 My understanding of contract compliance may be 4 different from that which is written here, and indeed it 5 may be different from that which Mr Huggins has not yet 6 described his understanding to be. 7 Q. All kind of things may be. Let's try and establish what 8 really was the position as far as you are concerned. 9 If you go to page 122, here is another newsletter, 10 which of course you say you may or may not have 11 received, which says, under "Contract Compliance" at the 12 bottom HIS LORDSHIP: To be fair to Mr Heron, he says he may well 14 have received it but he may not have looked at it. He 15 may have put it in the trash bin of the or 16 whatever, the trash bin of his home. 17 MR HUGGINS: Yes. Anything may have happened, Mr Heron. 18 Let's just test as to what did happen. Here is another 19 document: 20 "Contract compliance is still in effect, and it is 21 impacting operations daily. Nowhere is this more 22 apparent than in the freighter fleet." 23 Let's just pause there. Are you saying you had no 24 idea at all from your own union's communications that 25 this campaign was having a daily impact on the

24 1 operations of the airline? Page 24 2 A. My understanding is that the impact on the airline was 3 being caused by the refusal or the inability of 4 management to crew the airline properly, that they 5 simply weren't, shall we say, hiring sufficient crew 6 members, which they have an obligation to do under the 7 Air Operations Certificate, under the Air Navigation 8 Order to do. I was aware of the fact that, yes, they 9 were under-crewed, and we were all exhausted and we were 10 flying a lot. So I didn't really need to hear from my 11 union that I was tired and that I was flying a lot. 12 So, to be quite frank, when I heard contract 13 compliance, that we are doing something about this, from 14 the union, my attitude was yes, I am glad somebody is 15 taking positive steps to protect flight safety and to 16 reduce aircrew fatigue, to make sure that pilots do not 17 go out and fly flights when they are unfit to do so. 18 Q. Mr Heron, a long answer to what was a more simple 19 question. Are you saying that you did not understand, 20 from the mouth of your own union, in documents of this 21 kind, that the contract compliance campaign was having 22 an impact on the operations of the airline daily? 23 A. I believe I already answered that question and I would 24 refer Mr Huggins to my previous answer. 25 HIS LORDSHIP: I think his answer effectively is, no, he was

25 Page 25 1 not aware, because from his point of view the real 2 problem was with bad management in the first place. 3 MR HUGGINS: My Lord, I understand what his answer is, and 4 in due course, of course, submissions will be made, but 5 I think it is only right and proper that the witness 6 should be able to do justice to himself and really 7 understand the effect of what he is saying. 8 HIS LORDSHIP: If it helps you, Mr Huggins, I think you have 9 been quite fair with him and you have put your point 10 a number of different ways, but he insists on his answer 11 equally, and his answer is, "Whatever effect contract 12 compliance had, that was not the real problem. The real 13 problem was bad management." He was happy to go along 14 and just do what he believed his contractual obligations 15 were. 16 A. I never violated my contract at any point, and indeed 17 the company agrees. They have sworn so under oath. 18 HIS LORDSHIP: I was just going to clarify, one of the 19 things that Mr Huggins may or may not come to which we 20 talked about, the 45 minutes, 80 minutes, 120 minutes 21 problem, and your union, in the newsletters, is urging 22 its members to take 45 minutes. When you receive 23 a call, "'Can you come on duty at short notice?' Take 24 your time, take your whole 45 minutes, so even if you 25 feel you are ready, all set to go after 30 minutes, take

26 1 your time, wait 15 minutes more, take the whole Page minutes." 3 Is that the sort of thing that you would do as 4 a matter of practice on your own at the time? You are 5 ready after 30 minutes but you say, "I will take my time 6 a little bit, I will hang around for 15 more minutes 7 because my entitlement is to 45." 8 A. It was usually a rush to get out in 45 minutes. It all 9 depended on where we were going, what the destination 10 was, because you had to pack according to the 11 destination. There were also company requirements such 12 as having to carry two more days of clothing in your bag 13 than the length of your trip as it was rostered. So it 14 was not really possible, for example, to pack your 15 bag -- just because you were on standby from 8 in the 16 evening until 1 in the morning, because you could be 17 sent on a split duty to Manila, a turnaround to 18 Kaohsiung, you could be sent up to Anchorage, you could 19 be sent over to Europe; you had to wait and see when you 20 were called. It quite often take close to 45 minutes, 21 but if I was ready before then, no, I just left. 22 HIS LORDSHIP: Sometimes you remember quite a bit of detail. 23 Sometimes you don't. How does that work out? 24 A. I remember what I did and I can remember my 25 understanding of events. What I cannot attest to, and

27 Page 27 1 I simply can't take, are these documents in front of me, 2 because, as you can see, from the copious amounts of 3 disclosure, there are a huge number of documents, and 4 nine years removed or ten years removed -- I'm sorry, 5 I can't remember. 6 MR HUGGINS: Mr Heron, because I am making the serious 7 suggestions I am making to you, I really am going to 8 have to press you a wee by the further. 9 My Lord, I assure you, I will be coming to that 10 document. 11 HIS LORDSHIP: I thought you were, Mr Huggins. I didn't 12 mean to pre-empt you. 13 MR HUGGINS: May I respectively say so, it was very helpful, 14 because I suspect that anything I ask this gentleman, 15 I am not going to get any real answer from. 16 MR GROSSMAN: That remark is uncalled for. 17 MR HUGGINS: Mr Grossman, I am letting the witness know 18 where I am coming from in terms of his credibility. 19 Mr Heron, please look at page A. Certainly. 21 Q. Here is another communication, this time dated December We see that in the bottom right-hand 23 corner. Another announcement from your union as to the 24 effect that the campaign was having on the operations of 25 the airline:

28 Page 28 1 "Contract compliance continues to increase in its 2 effectiveness as reserves are exhausted and the 3 management's options wither. Multiple cancellations and 4 extensive delays continue to increase on a weekly 5 basis." 6 Are you really saying you did not pay any attention 7 to this or you didn't see it, or you thought it was 8 rubbish or you thought it was untrue or the union had 9 got it wrong? What was the position, Mr Heron? 10 A. Sorry, what was the position of what? 11 Q. The position was, as stated by the union, that the 12 campaign that they were engaged in and encouraging their 13 members, including you, to engage in, was having this 14 effect on the operations of the airline. 15 A. I think as I've said before, my Lord, my understanding 16 at the time was that by fulfilling our contractual 17 obligations at all times and flying normal rosters, 18 there were simply insufficient pilots to crew the 19 airline, and that management had basically mismanaged 20 themselves into a corner. That was my understanding. 21 Q. Mr Heron, what I am trying to really get at -- I hear 22 what you are saying to his Lordship, but I am suggesting 23 to you that you're not doing justice to yourself in 24 trying to suggest that you were not actually aware of 25 what your union was saying. Were you or were you not

29 Page 29 1 aware of announcements of this kind by your union that 2 this campaign was having this effect? Are you seriously 3 saying you were not aware or that you were aware and you 4 disregarded it? 5 A. I'm sorry, I don't -- you're asking me whether or not 6 I was aware that the union was taking -- 7 HIS LORDSHIP: The union was making pronouncements such as 8 those that you now see. 9 A. I'm sure they were, but as I said, you're asking me if 10 I read this particular newsletter, nine years removed, 11 and I'm afraid I simply can't remember if I did. 12 HIS LORDSHIP: I think it's a little more abstract than 13 that. These are examples of what is found in the 14 newsletter, of what the union's position was at the 15 time. Were you unaware of the union's position at the 16 time, however you might have become aware of it? 17 A. I was aware of the union's position that there were 18 insufficient crew to crew the airline. That was my 19 understanding of the union's position. 20 HIS LORDSHIP: Were you aware of the union's position that 21 contract compliance was working; it was bringing 22 disorder and disruption to management's activities? 23 A. My understanding -- sorry, my Lord, I interrupted you. 24 My understanding was that it was not the union's 25 activities that were bringing the company into a state

30 1 of -- Page 30 2 HIS LORDSHIP: That's your understanding. You have 3 explained that, Mr Heron. The question was: were you 4 aware of the union's position that contract compliance 5 was working, and slowly, inexorably, the management was 6 hopefully being pushed towards the negotiating table 7 because of the disruption to flights? That was the 8 union's position, as it seems to emerge from these 9 newsletters. Were you aware at that time of the union's 10 position, however you might have become aware of that? 11 A. Again, I think possibly the misunderstanding here is 12 what my perception of the union's position was, and 13 again what your Lordship's perception is. 14 My perception at the time, and one of the reasons, 15 quite honestly, why I binned so many of these circulars 16 before I even read them, my understanding was the 17 union's position was the company had not employed 18 sufficient crew to run this airline, as they are 19 required to under the Air Operations Certificate and the 20 Air Navigation Order, using stable and flying rosters. 21 And I understood the union's position to be that if you 22 fly a normal roster and comply with your contract, then 23 yes, the company, the management, will have to negotiate 24 about the crewing levels and flight safety and fatigue, 25 because they are all wrapped up together, and that was

31 Page 31 1 my understanding of what the union's position was at the 2 time. 3 MR HUGGINS: So are you saying it was not your understanding 4 that the union's position, as stated in these 5 announcements, was that it was the contract compliance 6 campaign that was leading to these consequences? 7 A. I think I'll have to refer you to my previous answer. 8 Q. Forgive me -- 9 HIS LORDSHIP: I think his answer, I take it to be a "no", 10 Mr Huggins, that he didn't understand that to be what 11 the union's position was. 12 MR HUGGINS: He did or did not? 13 HIS LORDSHIP: He did not. 14 MR HUGGINS: If you had read announcements of that kind, 15 however, do you agree you would have understood? 16 HIS LORDSHIP: Well, we will just leave it at that, 17 Mr Huggins. I think, Mr Huggins, in your favour, you 18 have tried, I think you have been most fair with the 19 witness. I think the rest may be a matter of 20 submission. 21 MR HUGGINS: Thank you, my Lord. 22 You see, I am a little concerned, Mr Heron, as to 23 whether or not you really did have your head in the 24 sand. Can we look at page MR GROSSMAN: Sorry, the witness did not say he had his head

32 1 in the sand or even give that impression. Page 32 2 HIS LORDSHIP: I will let Mr Huggins develop the point for 3 the moment. I think it's still a work in progress, 4 Mr Grossman. 5 MR HUGGINS: Mr Heron, could you look at page 149. You see 6 here, on 31 January -- you can see the date in the 7 bottom right-hand corner -- large black letters, 8 "Contract Compliance" again: 9 "For the avoidance of doubt, management has not made 10 significant progress towards our remuneration and 11 rostering concerns and therefore contract compliance 12 campaign remains in full effect." 13 A. Mmm. 14 Q. Would you have seen announcements of that kind? 15 A. I simply cannot tell if I saw this announcement or not. 16 HIS LORDSHIP: The question is a bit more subtle, Mr Heron: 17 would you have seen announcements of that kind? That is 18 to say you might not have seen this newsletter, you may 19 have binned this newsletter, as you put it, but it is 20 hard to believe, even working as you are in Cathay 21 Pacific, even under your own methods -- conversation in 22 the canteen, talk amongst pilots -- that you wouldn't be 23 aware of this. 24 A. This is very much my point, that one of the reasons why 25 I didn't read these announcements was that if I wanted

33 Page 33 1 to know what the union's position was, or what the 2 union's goals were, specifically the goals, it was easy 3 for me to pop down to Hankow Road, go up into the 4 offices and speak to one of the committee members, which 5 I did, and I felt that was one of my responsibilities as 6 a union member, to go and find out. 7 Because I think, again, you can read or, as I did, 8 bin most of the circulars, but it's not until you hear 9 it straight from the horse's mouth that you get a real 10 idea of what the union was trying to do. This is why 11 I went to meetings, and why I listened to debate, and 12 why I spoke at meetings about fatigue and all the rest. 13 HIS LORDSHIP: Just so there's no doubt, you say you heard 14 it straight from the horse's mouth, two questions 15 perhaps: what did you hear straight from the horse's 16 mouth? And when you refer to the horse's mouth, can you 17 identify who in particular you are referring to? Who 18 would be the sort of persons you would be speaking to? 19 A. They would be people in the office, sometimes HIS LORDSHIP: The people in the office. Which office? 21 A. The association office. 22 HIS LORDSHIP: That was in Hankow Road? 23 A. Yes, I think I've got the address right. 24 HIS LORDSHIP: What sort of things would be the horse's 25 mouth be saying?

34 1 A. Basically what I have already told -- Page 34 2 HIS LORDSHIP: What you've said before? 3 A. Which is there are insufficient crew, there is a rising 4 level of fatigue, the company doesn't want to address 5 this, we do wish to address this, we think this is 6 an important issue. I said, "Yes, this is my concern, 7 fatigue and roster stability are very much my concerns, 8 this is why I support these goals." 9 HIS LORDSHIP: So nothing about whether the contract 10 compliance campaign was working, or not working as the 11 case might be? 12 A. I will search my memory for a moment. I always figured 13 that if it was working, there would be negotiations. 14 HIS LORDSHIP: So you assumed it wasn't working? 15 A. I assumed that it was yet to work. 16 MR HUGGINS: Mr Heron, let's just follow up on 17 his Lordship's helpful intervention. I was going to ask 18 you the very same thing and go on to ask you this: when 19 you spoke to the people which you did speak to in the 20 union, you must have understood from them that the 21 management were still, from their perception, being 22 intransigent and unco-operative and were not coming back 23 to the table? 24 A. I believe that I have said that I felt this was 25 a management-created situation already, my Lord.

35 Page 35 1 HIS LORDSHIP: You have said that, but I think he has also 2 said, Mr Huggins, that he assumed that was the position, 3 that if the management weren't coming to the table, that 4 means the contract compliance campaign wasn't working. 5 That means to say, a corollary of that, management was 6 being intransigent? 7 Would that be a fair summary of what you have just 8 said to me? 9 A. As I sit here, yes, I can't find any fault with that 10 presently, my Lord. 11 MR HUGGINS: Would you forgive me for pressing it just a 12 little further, because whatever assumptions you may 13 have made, I suggest to you that the inherent 14 probabilities are that when you went, as you say you 15 did, to talk about this, to the horse, to get it from 16 the horse's mouth, you would have heard from them that 17 the management were not coming back to the table. Are 18 you saying you do not recall that? 19 A. No, the management weren't coming to the table, by their 20 own admission. 21 Q. And you heard that from the horse's mouth? 22 A. To be honest, my Lord, we actually heard that from the 23 management. 24 Q. Did you not hear it from anyone -- when you went to the 25 office, are you saying that no one in the union were

36 Page 36 1 saying, "These so and sos", and I'm sure the expressions 2 were rather more colourful than that, "are not coming 3 back to the table"? 4 A. I think I should interrupt Mr Huggins at that point and 5 say, no, nobody ever used that kind of language in my 6 presence. 7 Q. What, so and sos? 8 A. I believe that you are refusing -- Mr Huggins is using 9 that phrase as an euphemism for obscenities. 10 HIS LORDSHIP: I think Mr Huggins was simply expressing the 11 point that did any union member express, in strong 12 language, not necessarily obscene language, but in 13 strong language, that they had feelings of surprise, 14 possibly outrage, that the management weren't coming to 15 the table? 16 A. No, quite the contrary. They were very calm and 17 pragmatic about it. 18 MR HUGGINS: Was it not your understanding from the horse's 19 mouth that management were not coming back to the table, 20 the contract compliance campaign had to remain in full 21 effect? 22 A. There are too many premises in that. My understanding 23 was that contract compliance came and went, to be quite 24 frank. It seemed to be there on some occasions indeed, I remember going and meeting colleagues in bars

37 Page 37 1 on occasion and receiving news that contract compliance 2 was changed, suspended; I would get varying reports. 3 When I went into the union offices to speak, it 4 wasn't to speak about contract compliance per se, 5 although I was aware that there was an attempt to try 6 and make the company abide by the contract, it was to go 7 in there and talk about fatigue and rostering. I know 8 that the union has limited levers at its disposal to try 9 and discuss these matters, especially if management 10 simply refuses to talk to them. But my principal intent 11 and effort, and indeed what I actually achieved by going 12 in and talking, was not to discuss mechanics like things 13 like contract compliance. 14 My intent was to go in there and talk about fatigue 15 and rostering, and roster stability, and the fact that 16 I was feeling increasingly fatigued and I had been 17 talking to my colleagues and they were increasingly 18 fatigued and what were we going to do about it. It was 19 to give them information. I knew that the union wanted 20 to address these matters because, to be quite honest 21 with you, it's against the law to go flying whilst you 22 are fatigued, but there was an increasing amount of 23 pressure from the company basically to breach the law 24 and to get us to go and fly when we were fatigued. That 25 was my intent and that was the content of my discussions

38 1 at the union office. Page 38 2 HIS LORDSHIP: Just building on that, Mr Heron, you 3 mentioned these matters that were of concern to you: 4 fatigue, roster stability, and so on. Did you go 5 further and suggest what the union might be doing about 6 it? 7 A. No, I didn't think that was my place. 8 HIS LORDSHIP: So you just -- 9 A. Gave them information. 10 HIS LORDSHIP: -- put forward the problem as you perceived 11 it, and as you felt it yourself? 12 A. We had elected them to come up with means of doing this, 13 talking to the company. They were our representatives 14 to talk to the company, to be quite frank, and it was up 15 to them to relay our concerns to the management. 16 HIS LORDSHIP: "We really ought to do this", or, "We really 17 ought to do that"? 18 A. No, I said, "You really ought to talk to management 19 about this", and the usual response was, "Yeah, well, if 20 they talked to us, we would." 21 MR HUGGINS: Mr Heron, amongst that, if I may respectfully 22 suggest, very long answer HIS LORDSHIP: To be fair, it was to my question. 24 MR HUGGINS: Of course, my Lord. 25 It was the length that I am trying to recall

39 Page 39 1 particular bits that I am interested in. One was the 2 suggestion that you understood, you used the word 3 "suspended", at some point you understood the contract 4 compliance had been suspended. 5 A. Yes. This would be the result of informal conversations 6 with colleagues in bars. 7 Q. Forgive me. Here I am suggesting to you that you would 8 have received and understood and read at least some of 9 these announcements by the union, in which it was being 10 made perfectly plain that the campaign had to remain in 11 full effect because the management were not coming back 12 to the table. Do you seriously disagree with that 13 suggestion? 14 A. I think, my Lord, I have already explained HIS LORDSHIP: Well, the answer is as he has already given 16 it, Mr Huggins. I think you put it to him. 17 MR HUGGINS: In the light of another observation you made, 18 can we just look at page 157, please. Prompted in part, 19 but not principally, by your reaction to my use of the 20 word "so and so". An , not sent to you but to and 21 amongst the horse's mouth, the middle of the page this is John Findlay speaking to, amongst others, John 23 Warham and Nigel Demery: 24 "Hi Guys 25 Appended is a self-explanatory from GMA.

40 Page 40 1 I've just put the phone down on him so I may have 2 your concurrence (or not as the case may be) to the 3 following: 4 Before that, some of you may remember me saying last 5 Monday that Rhodes had the shits when he spoke to me. 6 Reason being that 87 officers, including 3 GC members & 7 JSW were off sick last Sunday. He half hinted that the 8 AOA had arranged it. This is twice the average and I am 9 told today by a good source that IOC", that's integrated 10 operations control, "nearly imploded in trying to keep 11 the operation going." 12 And then these words: 13 "So we now know the target to aim for." 14 Do you see that? 15 A. Well, I heard it from you, yes. 16 Q. I beg your pardon? 17 A. Yes, I heard it. I heard you read it out. 18 Q. The people that you were talking to in the union, did 19 they include, amongst others, John Warham? 20 A. I don't believe so. I used to Q. Nigel Demery? 22 A. I certainly spoke to Nigel Demery upon occasion. John 23 Warham, my Lord, I think was no longer a member of the 24 general committee, so he was rarely, if ever, in the 25 office.

41 1 Q. Very well. Let me ask you -- Page 41 2 A. Again, you are asking me to recall back 19 years. I was 3 11 years flying with Cathay Pacific, and the number of 4 times I went into the office, I can't possibly -- 5 I cannot possibly give you a list of everybody who was 6 in on every single occasion I attended. 7 I do remember seeing Nigel Demery in there. I do 8 remember seeing John Findlay in there. I remember 9 seeing the deputy, Clive Handley, I think his name was. 10 I remember seeing the secretaries; there was a girl 11 called Lucy. Kate Palmes, I believe, was in charge of 12 membership. She worked for the union. She was not, 13 obviously, a pilot. 14 Then I would meet various committee members as they 15 would come and go, and their tenures, they would stand 16 for election and they would step down. So there was 17 a changing cast, to be quite frank. 18 Q. Can I ask you a specific question: were you aware around 19 this time, I'm not suggesting you saw this , that 20 twice the average or way over the average number of 21 pilots were going sick? 22 A. Specifically, no. I was not aware of that. I was aware 23 that pilots were increasing going sick simply because of 24 the increased amount of flying, the roster disruption, 25 the inability to plan their rest, but I was not aware of