C2001/4557, Transcript of Proceedings [2001] AIRCTrans 2337 (14 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2001/4557

APPLICATION TO STOP OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) by Capricorn Coal
Management Pty Ltd for orders in respect to Central Colliery

BRISBANE

10.05 AM, FRIDAY, 24 AUGUST 2001

PN1

THE COMMISSIONER: Could I take the appearances, please?

PN2

MR C. O'BRIEN: I'm a lawyer, Commissioner. I seek leave to appear for the applicant, Capricorn Coal Management Pty Ltd.

PN3

THE COMMISSIONER: Thank you.

PN4

MR A. VICKERS: I appear for the CFMEU, and I'll formally lodge my objection to Mr O'Brien's application to appear.

PN5

THE COMMISSIONER: Very well. Thank you.

PN6

MR R.J. NEIL: I appear for the CEPU and similarly, we oppose leave to appear.

PN7

THE COMMISSIONER: Very well. Thank you, Mr Neil. Well, Mr O'Brien.

PN8

MR O'BRIEN: Commissioner, under section 42(3), I submit that in respect of the subject matter of these proceedings that there are special circumstances that make it desirable for the applicant to be represented by lawyers. The application is a 127 application under the Act, it relates to matters that are - may prove contentious, Commissioner.

PN9

THE COMMISSIONER: That's not a test, Mr O'Brien.

PN10

MR O'BRIEN: Sorry, Commissioner?

PN11

THE COMMISSIONER: Whether or not they're contentious isn't the test, it's whether they're special.

PN12

MR O'BRIEN: That's correct, Commissioner. In the circumstances, the union may raise issues in respect to the interpretation of the underlying certified agreement, and in that circumstance, Commissioner, I'd submit that there are special circumstances that a lawyer represent the applicant in the matter. Also, Commissioner, under subsection 42(3) paragraph C - if the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent then the Commission may grant leave for the party to be represented by solicitor or counsel. Mr Gillett, unfortunately, was unable to attend the proceedings today. Anglo Coal has officers, but unfortunately they are also tied up in meetings at the moment, Commissioner, and Mr Smith - - -

PN13

THE COMMISSIONER: So they have higher priorities, is that what you're saying?

PN14

MR O'BRIEN: Not at all, Commissioner. There was a matter that Mr Smith couldn't get out of this morning and he is hoping to attend at some stage during the proceedings but wasn't able to give me a firm indication of when he would be able to attend here this morning. They would be my submissions in respect to leave to appear.

PN15

THE COMMISSIONER: Thank you, Mr O'Brien. Mr Vickers?

PN16

MR VICKERS: Commissioner, I continue my objection. My submission is that there are no special circumstances, this is a common law, garden variety application for section 127. Capricorn Coal itself, they have made numerous such applications as this Commission has currently constituted would be aware over a number of years, I believe that it is an outrageous proposition to be put that Mr Gillett couldn't be here today. I - when I heard of the application, was driving through Central Queensland and was able to make arrangements to be here today to represent my organisation.

PN17

Additionally, as Mr O'Brien has already alluded to, Anglo Coal has an office in Brisbane, they have senior human resource people in that office and Mr Smith has simply deemed that he has something more important to do than represent the company in an application which the company has made. This is a ludicrous and outrageous suggestion that the capacity of the company to make an application to the Commission for 127 orders - they just make an excuse as to why a company representative shouldn't be here and that the Commission ought to then permit the employer to be represented by solicitor or counsel. In my submission, that is absolutely outrageous.

PN18

Whether or not there are issues that arise in terms of what is or what is not in the certified agreement - that's not the application which the company has made. The company hasn't made an application to the Commission notifying of a dispute under the disputes procedure about the application of the certified agreement. The company has made an application pursuant to section 127 of the Act and seeks orders as a consequence of that application. The union will not be seeking to have the Commission, in these proceedings, deal with the matter in dispute. It's improper, and I would be surprised, in fact, if the union sought to some how direct these proceedings into a process whereby we would be seeking to have the Commission interpret a certified agreement, then Mr O'Brien, if he continues his representation or is allowed to represent Capricorn Coal, will bounce on his feet and scream jurisdiction.

PN19

Now, both of us have been around long enough; both Mr O'Brien and myself, to know what the rules and what the procedures are. There is absolutely no reason why Capricorn Coal Management can't be represented by one of their own employees who has experience. There is absolutely no reason - if I can get from Central Queensland back to Brisbane to be here, why Mr Gillett couldn't be - and there is absolutely no reason, other than a preference not to be here, why a senior officer of Anglo Coal who has an office in Brisbane couldn't be here as well, and I continue my objection.

PN20

THE COMMISSIONER: Thank you. Mr Neil?

PN21

MR NEIL: I have nothing further to add to that, Commissioner.

PN22

THE COMMISSIONER: Mr O'Brien?

PN23

MR O'BRIEN: Commissioner, in respect to Mr Gillett having experience - he doesn't have experience in matters before the Commission, he has made himself available as a witness in respect of this matter to provide evidence. It would not have been appropriate for him to have represented the company in terms of being an advocate in this matter. He has made himself available - we have gone to the trouble of - and we appreciate the Commission's assistance with the teleconference link up, but Mr Gillett simply isn't in a position to represent the company today.

PN24

THE COMMISSIONER: He could have been, though.

PN25

MR O'BRIEN: I beg your pardon, Commissioner?

PN26

THE COMMISSIONER: He could have been.

PN27

MR O'BRIEN: Commissioner - - -

PN28

THE COMMISSIONER: Why do you say he's not in a position - he is in a position. He can do it by video conference, he could have jumped on a plane and come down here.

PN29

MR O'BRIEN: But by the time we received notification, Commissioner, it was too late to book a flight from Emerald for Mr Gillett when we found out at 3 o'clock from the Commission that the matter was listed today at 10 o'clock. And in respect to Mr Vickers submissions in relation to the agreement and jurisdiction, Commissioner, that still doesn't get us around the fact that a 127 application often involves matters of legal significance and matters that the Commission can be assisted with by representation from counsel.

PN30

THE COMMISSIONER: I'm still struggling, Mr O'Brien, to find out what are the special circumstances in this matter. What is special about this, apart from the - what's special about a section 127 application? There's nothing. I mean, this industry has hundreds of them. In fact, it has more section 127 applications than what it has section 99 notifications.

PN31

MR O'BRIEN: Granted it does, Commissioner, but the applicants have in the past - I'll withdraw that, Commissioner. The applicants instructed their lawyers to draft the appropriate application, Commissioner, the circumstances are special on the basis of the subject matter which reflects bonus payments to contractors, Commissioner, and the applicant believes that in the circumstances that it's more appropriate to use lawyers.

PN32

THE COMMISSIONER: Lawyers are going to assist me about production bonuses at a coal mine, are they?

PN33

MR O'BRIEN: Yes, Commissioner. That's the thrust of the applicants submission.

PN34

THE COMMISSIONER: Okay. I'm going to grant you leave, Mr O'Brien, but I'm putting you on notice, this company on notice and all the other employers in the coal mining industry that do this with your firm. My view about the special circumstances in relation to section 127 matters is wavering significantly and this whole process of them having you run down here - and I'm not being disrespectful to your firm in any way - but that they don't appear, they don't bother to come, they expect the Commission to jump up and do something immediately and they sit back at the mine and do virtually nothing other than make a phone call to you. It's all coming to an end. In future I am going to want more than the submissions you've made today to convince me that either of the sub-sections of section 42 of the Act have been met.

PN35

MR O'BRIEN: Thank you, Commissioner. That message will be conveyed to the company and its senior officers.

PN36

THE COMMISSIONER: Well, it's also - you should, when this happens again, because I'm sure that it will. You might just advise your client of my views so that they consider what they might do about that, particularly whether or not they shouldn't make more efforts to get people here.

PN37

MR O'BRIEN: Thank you, Commissioner.

PN38

THE COMMISSIONER: Mr O'Brien.

PN39

MR VICKERS: Commissioner, before Mr O'Brien continues could I seek leave to raise a further preliminary matter. It's my understanding, and I have a copy of them, that the Commission issued directions. The date - I'm sorry, the time on the top of it was yesterday afternoon at 4.38 pm it arrived apparently in my office. I only saw them for the first time this morning upon my return from Central Queensland.

PN40

Commissioner, those directions are quite clear and specific, in my view, and that is that on or before 9 pm Thursday 23 August, last night that is, the company was to advise in writing both the President and the Secretary of our lodge and the relevant representative of the CEPU about these proceedings and about the video conference linking and then to also provide - include in the notice in writing about the location of that facility.

PN41

My instructions, Commissioner, and they're only verbal instructions that I received this morning, but my instructions are that at or about 7.45 this morning Mr Gillett, on behalf of the company, verbally advised Mr Weise, the CFMEUs Lodge President, of these proceedings and of the existence of this direction. The fundamental problem I have, Commissioner, is that the company is here clearly seeking an order pursuant to section 127 of the Workplace Relations Act but at least on my instructions has simply failed to comply with the direction already issued by the Commission. And I would question as to why it is the Commission ought to proceed to give the company the opportunity to argue that a further order of the Commission ought to be forthcoming in the company's favour when they can't comply with a very simple direction of the Commission.

PN42

THE COMMISSIONER: Well, I can shed some light on that for you, Mr Vickers.

PN43

MR VICKERS: Thank you, Commissioner.

PN44

THE COMMISSIONER: Due to an error arising from my office, particularly in relation to our facsimile transmission to Blake Dawson Waldron, that a copy of the directions was successfully transmitted to each of the unions but two attempts to transmit it to BDW were unsuccessful and that error was only noticed this morning. And Blake Dawson Waldron never received a copy of the directions, so they were never properly issued by the Commission. Blake Dawson Waldron - I think specifically Mr O'Brien, but I might be wrong, were advised that the directions were coming and the content that was to be in them but those - as I say those directions never - were never successfully transmitted in a proper way and for that reason they were never properly issued by the Commission. And I accept that the employer or its representative bears no responsibility for that.

PN45

MR O'BRIEN: Yes, Commissioner, I can confirm that actually. I spoke to Mr Gillett about it yesterday evening. I was aware the orders were coming through but I - I must say at the time I wasn't aware that the directions were - that they were to be in writing. I asked Mr Gillett to make the appropriate contact.

PN46

THE COMMISSIONER: Yes. As I say it's certainly not your fault, Mr O'Brien and it's not the company's fault. Mr O'Brien.

PN47

MR O'BRIEN: Thank you, Commissioner. Commissioner, this is an application under section 127 of the Workplace Relations Act in respect to orders to stop or prevent industrial action. Commissioner, I wish to have one witness in respect to the matter, which is Mr Michael Gillett, who is the Human Resource Manager who's available by the telephone - tele link-up here today. Commissioner, by way of a preliminary matter - and I'll raise this because Mr Vickers might have something to say about it.

PN48

Mr Vickers and myself were involved in some discussions this morning about trying to resolve the matter but - and I wasn't in a position to finalise an affidavit from Mr Gillett at the time. The affidavit came through at about - I think 9.43 at Blake Dawson Waldron. Again, we were involved in some discussions trying to resolve the matter. I'd like to tender the affidavit, Commissioner, but understand that I've only provided it to the unions upon arrival here at 10 o'clock today.

PN49

THE COMMISSIONER: Very well.

PN50

MR O'BRIEN: I'd like to call Michael Gillett.

<MICHAEL JOHN GILLETT, AFFIRMED [10.25am]

<EXAMINATION-IN-CHIEF BY MR O'BRIEN

PN51

MR O'BRIEN: Mr Gillett, for the record could you please state your full name?---Michael John Gillett.

PN52

Mr Gillett, could you please state your address and what capacity you appear for Capricorn Coal today?---My current address is 9 Gowan Court, Middlemount and I'm currently in the capacity of Human Resources Manager at Capricorn Coal.

PN53

Mr Gillett, did you swear an affidavit this morning, 24 August 2001?---Yes.

PN54

And do you have a copy of that affidavit with you?---Yes, I do.

PN55

Just a preliminary technical issue, Mr Gillett. The affidavit says - states on oath. Did you affirm that affidavit or did you swear it on the Bible?---I affirmed the affidavit.

PN56

Thank you, Mr Gillett. I just wanted to clarify that for the Commission's benefit. Mr Gillett, before I tender your affidavit I just wanted to take you to a couple of issues in it and ask for your explanation to the Commission. Is there an agreement in respect to the employees who were employed at Central Colliery at the mine? At German Creek, I beg your pardon?---Yes. Yes, there is.

PN57

And when was that agreement certified?---It was certified on 27 June 2001.

PN58

And could you just please confirm for the Commission when its expiry date is?---The nominal expiry date of that agreement is 26 June 2003.

PN59

Mr Gillett, this dispute involves a dispute in respect to the payment of a bonus to contractors and contractors' employees. Is that correct?---Yes, that is correct.

PN60

Could you please explain to the Commission how the payment to contractors at the mine works?---The - I take that back. The current practice is that the contractors' employees will receive a rate of pay plus also what is termed a struck average bonus that is paid to each of the employees. The struck average bonus is based on the previous year's actual production of our employees and then it is averaged out and paid on a - from Monday to Friday or on a daily basis. So it's averaged and calculated and paid from Monday to Friday.

PN61

So how does it work in practice then, Mr Gillett, if a contractor's employee works say on a Friday, Saturday or Sunday? Works those three particular days?---Currently what happens is that there is - there's a distinction between the contractors that are working production or off -or cutting coal using a continuous miner in the development panels on the weekend. There have been some discussions in the past and we have agreed to pay those contractors a struck average bonus on Friday, Saturday and Sunday. There - the past practice has not to be paid - not to pay the production employees who were involved in non-production activity or surface work to get the struck average bonus on weekends.

PN62

And when you say the past practice how long has that been in place, Mr Gillett?---To my - to my knowledge that's been for a number of years.

PN63

Mr Gillett, to your affidavit is an annexure MG1, which is a fax from Lauren Rensill, the Human Resources Co-ordinator to all central colliery contractors engaged in production work. Could you please explain to the Commission the purpose for sending that fax?---Yes, there was some discussion on site in July whereby having some discussions with the local lodge about bonus payment for contractors on weekends, in particular those contractors who were operating continuous miners for development purposes. And there was some previous correspondence between the company and also the unions outlining what ..... prospects. Some of those discussions - the issue is whether who let the contractors - specifying those contractors involved in cutting coal or operating continuous miners on weekends as would be paid the struck average bonus.

PN64

Okay. Now, in respect to the current dispute you've sworn in respect to a number of discussions you've had with Mr Weise, who is the Lodge President at Central Colliery. Has the union notified of a grievance under the grievance procedure?---Yes, they have.

PN65

Can I take you to MG2 - annexure MG2 to your affidavit. That's the grievance procedure. What has the company done in respect to progressing that grievance?---Yes, we - this grievance procedure in front of me was lodged on Monday 20 August, this Monday. To progress that further I hadn't been involved in that meeting. I suggested that we have another meeting on Wednesday 22 August whereby we sat down and attempted to resolve the matter in a meeting between myself, Lauren Rensill and also Phil Greaves, the Mine Manager. And attending from the union was members of the CFMEU, the President, Michael Weise - Michael Weise and also the Secretary, John Reynolds.

PN66

And is the company still prepared to sit down and talk to the union in respect to the grievance about payment of bonus to contractors and contractors' employees?---Yes, we are.

PN67

That's fine. Mr Gillett, just briefly could you explain to the Commission when it came to your attention that industrial action was taking place?---Sorry, could you repeat that, please?

PN68

Just briefly could you explain to the Commission when it came to your knowledge that industrial action was taking place at the mine and how it came to your knowledge?---Yes. On Wednesday evening I received a telephone call from Mr Phil Greaves, who is the Central Colliery Mine Manager, and advised that the union had decided to take strike action affecting night shift from - on Wednesday night at that time and would be returning commencing the night shift on the Monday which starts at 11 o'clock on Sunday evening.

PN69

Rather than take you through that in your oral evidence, Mr Gillett, can I just get you to confirm to the Commission that your affidavit is true and correct in all respects?---Yes, that's so, covered in points 12 and 13 of my affidavit.

PN70

Okay. I would like to tender that affidavit, Commissioner.

PN71

THE COMMISSIONER: I will mark it as exhibit Capcoa 1.

EXHIBIT #CAPCOA1 AFFIDAVIT OF MICHAEL JOHN GILLETT

PN72

MR NEIL: That's the evidence of Mr Gillett.

PN73

THE COMMISSIONER: Right. Thank you. Mr Vickers?

PN74

MR VICKERS: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR VICKERS [10.36am]

PN75

MR VICKERS: Mr Gillett, can I take you to point 8 of your affidavit?---Yes.

PN76

In there you say a number of things, but you say that you by fax of 30 July this year you advised all contractors. That's the fax which is attachment MG1, is it?---Yes, that's right.

PN77

Okay. Can I ask you why it is that the company saw fit to issue that fax on 30 July this year?---Yes, it was - there were some discussions taking place with the local lodge delegates. They were claiming that the contractors who were carting coal on week-ends were not paying their employee struck average bonus for week-end work. And as a consequence of that, we - I was unaware of the arrangements that had been put in place previously with respect to these contractors carting coal on week-ends, and the contractors required advice to uphold that arrangement whereby we sent that fax through to instruct and pay the struck average bonus on the week-ends.

PN78

Okay. Your affidavit at point 8 says that you advised all contractors performing production work on week-ends what was to occur. The fax itself says:

PN79

Please be advised that if your employees cut coal on week-ends.

PN80

That's correct?---Yes.

PN81

Okay. Now, so this issue of bonus for contractors wasn't first raised with you on 20 August when the disputes procedure form was put in. You were aware of it for quite some time prior to that?---Probably a couple - two to three weeks we'd had some discussions on that.

PN82

Well, the disputes procedure notification form which is attached to your affidavit is dated 20 August, but you concede that on 30 July you have actually addressed one part of the dispute at least. So some discussions were taking place at least prior to 30 July, is that correct?---Discussions had been taking place, yes.

PN83

Okay. Now, could I also ask you: why is it the company issued a fax to contractors - that facsimile to contractors specifically stating that it was only when employees cut coal on week-ends that those employees were entitled to bonus? What basis is that decision made on?---That decision was based on arrangements that had been reached going back in 2000 where we agreed to pay that bonus for production work on week-ends.

PN84

And you just - sorry?---Sorry, I was just going to say. There was - and for some unknown reason the contractors had stopped paying that bonus. There was some - apparently there was a misunderstanding between us and the contractors.

PN85

So are you saying the practice previously, and this would have been under the old certified agreement would it not, was that contractor's employees only receive struck average bonus on week-ends if they actually cut coal?---No. There was some discussion back - some time back in 2000. My understanding that there was some discussions between the union and also the company where we were bringing contractors to cut coal on the week-ends. As a consequence of these discussions, the company agreed then to instruct the contractors to pay struck average bonus for that week-end work.

PN86

But only if they were cutting coal?---That's right.

PN87

Now, do you have a copy of the certified agreement with you?---No, I don't.

PN88

Okay. Well, it's not a very big - what I want to take you to is the one sentence in sub-clause 30.5 of the certified agreement which says:

PN89

Contractors will receive struck average bonus as calculated each December.

PN90

Do you recall that sentence at all?---Yes, I do.

PN91

Okay. Now, is that the only sentence in the certified agreement that deals with struck average bonus for contractors, to your knowledge?---Yes, it is.

PN92

That sentence doesn't say "Contractors who cut coal on week-ends will receive struck average bonus," does it, Mr Gillett?---No, it doesn't.

PN93

No. It just says:

PN94

Contractors will receive struck average bonus as calculated each December.

PN95

That's all?---That's what it says.

PN96

And you have already agreed that, to the best of your knowledge, nowhere else in the certified agreement is the issue of struck average bonus and contractors dealt with?---That's right.

PN97

Okay. Why is it then that Capcoal issues the fax of 30 July that restricts the payment to contractor's employees who work week-ends to only those employees who cut coal?---Because the struck average - struck average bonus only applies from Monday to Friday.

PN98

That's not what that sentence in clause 30.5 says. It doesn't say "Contractors will receive struck average bonus as calculated each December." It doesn't go on to say "except if they cut coal, and only if they work Monday to Friday," does it?---No, it's just - it's depending on what the struck average bonus means Monday to Friday, that's the way it's calculated.

PN99

But it doesn't say that; it says they will receive struck average bonus as calculated each December?---That's right.

PN100

Okay. Can I take you to clause - sorry, part 15 of your affidavit. You say in the last sentence of the second paragraph:

PN101

I said that Capcoal was prepared to work through a structured, facilitated arrangement to resolve the matter.

PN102

Do you recall that - in your affidavit?---Yes, I'm looking at that now.

PN103

Okay. What did you mean by a structured, facilitated arrangement to resolve the matter?---In that discussion with Mick, I was talking about a process where perhaps I could assist the management at Central Colliery. They could use it by acting ..... facilitator in which a - whereby we could go through a process to try and resolve this matter.

PN104

So something other than the disputes procedure you were suggesting?---No, not other than the disputes procedure. It was about trying to resolve the matter on site.

PN105

What do you say to a proposition that you go through that process and - what do you say to a proposition - more correctly - a proposition that there be an immediate resumption of work by my members at Central Colliery, that you go through that process, conclude it by close of business on Wednesday of next week, and any issues that are outstanding be referred to the Industrial Relations Commission and settled by the Commission pursuant to section 111AA of the Act?---Firstly, I will take that in two sections. Firstly, the time-frames next Wednesday: as you are probably aware, I have got some issues with some ..... colliery next week. ..... Also, I understand that the local delegates are unavailable until next Thursday and Friday. It would make that time-frame a little bit tight for us to ..... discussion. We propose that we perhaps extend it to the following Friday, which gives us ample opportunity whereby we can have some meaningful and fruitful discussions in trying to resolve this matter. At the conclusion of that process, I believe that we have a disputes procedure in place and if those discussions are not fruitful, then we go to the ..... level talks, and then also we have got the final steps pursuant to 111AA of the disputes procedure whereby .....

PN106

Can you still hear me?---Yes.

PN107

We have lost you. We lost the last part of your answer. Could you repeat it for me please?---Okay. Yes, if the discussions on site fail to prove - produce any sensible outcomes to both parties, I am suggesting ..... follow that process, whereby we have ..... discussion, if necessary, ..... or either party may refer it to the Commission pursuant to 111AA.

PN108

Are you agreeing to refer outstanding matters to the Commission pursuant to 111AA?---I'm saying that either party may refer it to the Commission, but it's open to either party at that point.

PN109

Yes. But the question I am asking you is whether or not you are prepared to refer - to have the matter referred to the Commission? Whether Capcoal is prepared to have any outstanding matters referred to the Commission, and determined, pursuant to section 111AA of the Act?---If the CFMEU lodged a dispute pursuant to 111AA, we will participate in that process.

PN110

Can I ask you whether that proposition was put to you earlier on today?---Not the way in which - in the terms that I have approached that. It was that the company would refer it to the Commission.

PN111

What's the difference between the company referring it to the Commission and the union referring it to the Commission?---I would think that at that time that the company would like to reserve its right at that point in time.

PN112

Reserve its rights in what respect?---In terms - in respect to arbitration.

PN113

So you are really not saying that the company would agree to consent arbitration pursuant to section 111AA; you want to think about it some more, and you will make a decision on the day?---In simple terms, yes.

PN114

Now, you're aware, Mr Gillett, are you not, that the issue about payment of bonus to contractors is a matter which arises out of your certified agreement?---Yes.

PN115

And you're aware that potentially, it becomes then a matter of an interpretation of the certified agreement?---Yes.

PN116

And you're aware that the Australian Industrial Relations Commission has no authority to interpret certified agreements?---Yes.

PN117

Is that why the company will not make an application pursuant to section 111AA and will think about it if the union makes an application?---The company will look at all the facts at that time and then make a decision.

PN118

But you do agree, do you, that a proposition was put to the company and ultimately put to you this morning, at least, that the company make an application - I'm sorry - that there be a resumption of work - let me withdraw all of that. You are aware that the union put a proposition to the company the effect of which was there would be an immediate resumption of work, there would be an attempt to settle the outstanding issues at the site level as quickly as possible - there appears to be a problem with your availability to do that within a very short timeframe - and that any outstanding matters would be referred to the Commission by the company under section 111AA. You were aware that that proposition was put to the company this morning?---I was aware. In my view, we have the disputes procedure there. I would like - I would like to resolve this on site, and I would like some focus from both parties in an attempt to resolve that on site rather than go into the final step of the Commission - the Commission for determination. But I wanted to have a situation whereby we could attempt to resolve it on site, potentially with either party, just the way to go to the Commission for determination.

PN119

Yes; but the issue has been being debated locally for at least in excess of three weeks?---That's right.

PN120

And it hasn't been resolved?---Not at this stage.

PN121

And is now a strike as a consequence of it?---That's right; but we have a dispute procedure in place.

PN122

Yes; there's a disputes procedure in place and a proposition has been put to the company about a process whereby there would be a resumption of work, there would be a process of attempting to resolve all of the outstanding issues locally. If they can't be resolved you come to the Commission and get them settled, and the company is not prepared to underpin that process with the last step. That's the reality, yes or no?---That's the reality and there's good reasons for doing that, as I indicated earlier.

PN123

I understand the company's position, Mr Gillett. The only other question I want to ask you is - and it deals with the next paragraph. Yes, the next paragraph of part 15. You say in your affidavit that:

PN124

The industrial action was unacceptable, and that I was about to press the button on a 127 order.

PN125

Can I ask you when you made that comment?---It was about lunch-time, if my memory serves me right, yesterday.

PN126

Earlier on in the paragraph, it says that - it gives the indication that this was part of the conversation you were having on or about 8 am on the 23rd?---Okay. There was a series of discussions yesterday. I mentioned at 8 am that we would be looking to get a 127 order and I thought I pressed the button at around midday after the discussion with Mr Weise in trying to resolve the matter.

PN127

So you or someone else contacted Blake Dawson Waldron around midday yesterday?---Yes. We were in discussion - sorry.

PN128

You finish the answer if you like?---Okay. I was just saying that we had some discussions throughout the day seeking advice and about lunchtime we pushed the button.

PN129

I've no further questions of the witness, Commissioner.

PN130

THE COMMISSIONER: Mr Neil?

PN131

MR NEIL: Commissioner, I've only got one question to Mr Gillett.

<CROSS-EXAMINATION BY MR NEIL [10.53am]

PN132

MR NEIL: Mr Gillett, were you involved directly in the negotiation of the certified agreement, particularly the clause that pertains to the payment of the bonus as calculated at December to contractors?---No, I wasn't. When I arrived on site the agreement was basically negotiated and we had to tidy up a few loose ends before we filed the application with the Commission to have it certified.

PN133

No further questions, Commissioner.

PN134

THE COMMISSIONER: Mr Gillett, you might be able to help me with a few things. Can you tell me, is there any safety issues or matters at the mine that are threatened through the physical conditions at the pit as a result of this strike?---I'm not aware of any, no, not at this point in time.

PN135

Do you know the capacity of the raw coal stockpile at Central?---The raw coal stockpile, the physical capacity of it?

PN136

Yes?---No.

PN137

Do you know whether that stockpile is half full, a hundred per cent full, no coal, no raw coal at the Central stockpile?---From my understanding, when I drive past, it's probably about 50 per cent full.

PN138

Do you know if there's any threat that the washplant might be shut down because of the lack of feed from the Central Colliery stockpile?---No.

PN139

Is there any likelihood that any trains will be missed as a result of this strike?---No.

PN140

Thank you. Mr O'Brien?

<RE-EXAMINATION BY MR O'BRIEN [10.55am]

PN141

MR O'BRIEN: Mr Gillett, Mr Vickers asked you a number of questions in respect to a proposition put to the company this morning. Can you confirm that, in respect to the proposition that if the negotiations at site broke down and that the company notified the Commission under section 111AAA, that the company's response to that was that the company would notify the Commission under section 99 under the Disputes Clause, and that was the way the company wished to proceed in respect to that particular proposition?---That was the option, although the disputes procedure of the agreement does refer to 111AA where it was available to either party to file an application pursuant to that section.

PN142

Can I take you to the - you don't have the agreement with you, do you?---No.

PN143

Can I read or suggest to you that clause 11.3(d) says that:

PN144

It will be referred by either party to the Australian Industrial Relations Commission subject to the operation of the Workplace Relations Act 1996.

PN145

Do you recall that in the disputes procedure?---Yes, I do now. I'm not looking at the agreement at the moment. I'm only going off memory, but, yes, I do, and I remember constructing that with Mr Vickers.

PN146

Would your understanding of that provision be that the matter be referred to the Commission under section 99 for conciliation by the Commission?---Yes.

PN147

THE COMMISSIONER: Or arbitration, don't you think, Mr O'Brien?

PN148

MR O'BRIEN: That's correct, Commissioner.

PN149

Mr Gillett, Mr Vickers also asked you a number of questions in respect to the fax sent on 30 July 2001. He asked you quite a few questions in respect to the wording of that fax. In your view, does that fax confirm the position of Capcoal in respect to the payment of struck average bonus to contractors; that it's based upon a struck average bonus from Monday to Friday?---That's right.

PN150

Can I take you to the bottom part of that particular letter where the letter sets out the current struck average rate at Central Colliery and how was that rate calculated?---That rate is based on the longwall ..... production in 2000, and it is based on the production on each of the days of the week, Monday, Tuesday, Wednesday, Thursday, Friday, and then it's averaged over the number of production days during the year.

PN151

Thanks, Mr Gillett. Just a further question in relation to questions arising out of what the Commissioner asked you towards the end. The Commissioner asked you whether - what effect the industrial action would have in respect to the loading of trains and whether or not the washplant didn't have enough coal to continue to be maintained and it would have to shut down. Can you explain to the Commission what is the commercial position in respect to Central Colliery?---Central Colliery at the moment is going through some very difficult circumstances. It has a geological fault in the current longwall ..... where it's significantly behind target for the end of the year for coal production. The costs are quite high at the moment. We're looking for opportunities to save costs and we need ..... it is at the moment. To the extent that we've got seven day function longwall ..... and the long term viability of Central Collier is definitely under question at the moment. We need to inject more capital to keep that business running, and the circumstances that we've got now does not assist us in putting forward longer term plans for Central Colliery.

PN152

I will ask a more direct question, Mr Gillett. How does the industrial action affect the production at Central Colliery and impact upon the commercial position at Capcoal?---No production at the moment, and the commercial viability is starting to deteriorate.

PN153

What would be the average day's production in respect to coal at Central Colliery?---At the moment, we're producing approximately 16,000 tons per week. That depends on ..... on how much we do on a daily basis. It will range from 12 to 16,000 tons.

PN154

And finally, Mr Gillett, the employees are still on strike at Central Colliery?---Yes, they are. Also the contractors as well.

PN155

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

PN156

THE COMMISSIONER: Thank you, Mr O'Brien.

PN157

Mr Gillett, can I take you to attachment MG1 to your affidavit please?---Yes.

PN158

Can you just explain to me how these contractors work? Do they only work on the week-ends or something, do they?---There's a range of contractors. Some work during the week and some work on the week-ends. There's a group of contractors that operate a continuous line on week-ends to keep the development - try to get development .....

PN159

So do your employees operate the development panels Monday to Friday and contractors come in and do the work on the week-ends?---Yes.

PN160

So how do you say this bonus arrangement works: that if a contractor comes in - and the contractors cutting coal on development on the week-ends, is that right - get the struck average bonus?---Yes, that's right. The contractors specifically brought in to operate the line on week-ends struck .....

PN161

And what about if there's other contractors working on the week-end, but they're working outbye on the surface; do they get the bonus?---No.

PN162

Even though coal is being cut by a contractor?---Yes. Also we've got currently our employees operating the longwall, depending on what the production schedule is, but our employees would also operate the longwall. So the outbye surface contractors have not been getting bonus, and the reason why I know that is we've just done a ring around to our contractors just to confirm what ..... they are paying their people.

PN163

So does that mean if - this is a hypothetical, obviously, or it may be the actual circumstance - but if two contractors came in, one to cut coal, and another separate contractor came in to do some stone dusting outbye, the employees cutting the coal would get bonus and the stone dusting contractor wouldn't; and they both only worked on the week-end. Is that how it works?---That's how it works.

PN164

And where do you say the basis for this delineation is: it's just your view of that's how it should be, is it?---What's happened is that over time the struck average bonus has been applied from Monday to Friday, then when we've got the contractors coming in to operate the development units on Saturday and Sunday, there were discussions with the unions, and ..... time for that work we agreed to pay the struck average bonus for that work. So in other words ..... didn't happen, but we agreed for that to happen.

PN165

So it is feasible that a contractor could come out and work on the weekend and not work any of the other days of the week and get no bonus for that attendance - for two days of attendance?---That's right.

PN166

Whereas if the contractor came in on Wednesday and Thursday and did the same work i.e. stone dusting he or she would get the bonus on those two days?---That's right. That's right.

PN167

Is there some - could you explain how that works? What is the sort of logic of all of that?---Yes. The way that comes out is the way which the struck average is calculated, the production days are Monday to Friday. From the previous 12 months the Monday to Friday bonus - - -

PN168

The production days for development is Monday to Friday not for the mine. Doesn't the wall work seven days?---No. It's only just started in the last two to three weeks - - -

PN169

I see?--- - - - working there. Sorry, the last couple of months we've got the seven days production just with that ..... it's going totally on dates ..... operation seven days a week.

PN170

Right. So as I understand it the logic is this: that coal production for the year in which the struck average bonus is calculated only took place Monday through Friday and therefore struck average bonus can only be paid to contractors if they work Monday to Friday. If they work on the weekends, it's not payable unless they cut coal and then what the face crew is - or the employees of the contractor involved in coal cutting get the struck average bonus?---That's right. The contractors who cut coal get the struck average. If we cut coal, the actual bonus, our employees get that bonus.

PN171

So in my example I said there were two contractors came in. One to do the development work that is the face crews and another doing some outbye work, let us just assume that it's stone dusting. Under your proposal or the way you view the operation of all of this, if one contractor came in to do both those jobs that is the face crew to cut coal and the outbye work that is stone dusting, would all of those employees get the struck average bonus for that work?---If they were working from Monday to Friday, yes.

PN172

But if they worked on the weekends even so - let us say nine people come in. Six go and work on the face and three go and do stone dusting, but they all work for the one contractor. You say that the contractor should only pay those six people on the face and not the three outbye?---That's right.

PN173

On the weekends?---That's right.

PN174

Very well, thank you. I don't know if anyone has anything arising out of all that?

PN175

MR VICKERS: There is only one thing and just to get something clear in my mind because during the course of questioning, Mr Gillett somehow assumed the mine was a five day a week operation only.

<FURTHER CROSS-EXAMINATION BY MR VICKERS [11.10am]

PN176

MR VICKERS: Do you have your own employees on seven day roster at all, Mr Gillett?---We do.

PN177

So what happens to them if they're not rostered to work the five days Monday to Friday as seven day roster employers aren't? Do they not get all of the bonus because some of their rostered shifts are Saturday and Sunday?---If they get a week's work we give a weekly bonus.

PN178

In respect of the number of shifts they work in that week?---That's right.

PN179

But if they worked - and if someone didn't work one day because of an absent without leave, a strike, they wouldn't get a full week's bonus, they'd get four days bonus?---An actual bonus, yes - sorry, they would get actual bonus for the week.

PN180

But what about if it was one person who was not entitled to payment for the day and the bonus was $200, would that person get $200 or would that person get $160 bonus for the week?---If they weren't entitled to a bonus for that day, they'd get the bonus for that day.

PN181

They wouldn't get - they would get?---If they're not entitled to the bonus for the day they would not get the bonus.

PN182

So it's a weekly bonus but which is capable of being calculated on a daily basis?---Over five days.

PN183

And people who don't work all of the five days because they're rostered to work Saturday and Sunday, they would - and if they worked all their rostered shifts, they would still get five days bonus?---That's for our employees, yes.

PN184

Yes. Yes. I just wanted to - thank you, Mr Gillett.

PN185

THE COMMISSIONER: Mr O'Brien?

PN186

MR O'BRIEN: Just one thing, Commissioner, and this may already be clear anyway.

<FURTHER RE-EXAMINATION BY MR O'BRIEN [11.12am]

PN187

MR O'BRIEN: Just, Mr Gillett, in respect to your employees and Mr Vickers has asked you a number of questions, you've confirmed that that's calculated on the actual production for that particular period and based upon that. And the position with the contractors, could you just confirm that the position with that is based upon the production ending 12 months the year before? Is that the way - that's the way it works?---I'm sorry. Say that again.

PN188

I'm just trying to clarify that the difference between employees and contractors is the employees are paid bonus on the actual production for that period whereas the contractors are paid on the basis of a struck average bonus calculated for a previous year ending December?---That is correct.

PN189

Okay. Thank you, Mr Gillett

PN190

THE COMMISSIONER: Thank you, Mr Gillett.

<THE WITNESS WITHDREW [11.14am]

PN191

THE COMMISSIONER: Mr Vickers, as I understand it at least the proposition was put this morning that would see the employees resume work immediately.

PN192

MR VICKERS: That's correct, Commissioner.

PN193

THE COMMISSIONER: I'll leave the second part of it out at this stage. Are you in a position to give me an estimate of how quickly these employees can in fact resume work if you were so minded to persuade them to do so?

PN194

MR VICKERS: Well, I assume, Commissioner, I understand that Mr Weise and Mr Reynolds and Mr Lempyre are probably in the vicinity of Mr Gillett at the present time: that's the advice they gave me. They were heading out there. I assume they would need to convene a meeting. I assume that could be convened relatively quickly and I assume that there would be resumption of work: that's the undertaking that I was given by them had the company accepted the proposition that was put to them during the course of this morning.

PN195

Now, Commissioner, whether that would take one hour or two hours, I couldn't tell you but it's not something - the employees are not saying, "We'll go back to work but we won't be able to organise a meeting until 3 o'clock Saturday afternoon." I mean there will be - we give a commitment for an immediate resumption of work and it will be as quickly as a meeting can be organised, facts explained to people and there will be a resumption of work.

PN196

THE COMMISSIONER: But at this stage, you're not prepared to - either you or the employees are not prepared to put that into effect because of the unwillingness of the employer to commit to an outcome - to commit to section 111AA proceedings in the event the matter can't be resolved - - -

PN197

MR VICKERS: That's correct, Commissioner.

PN198

THE COMMISSIONER: - - - at a lower level of the disputes procedure?

PN199

MR VICKERS: That's right. The employees' position is and I support this position, Commissioner, this dispute has been going on for some time. I have a fair degree of experience with this company and, indeed, this company's legal representatives. And I don't want - and the employees won't accept being put in a situation where they go back to work, there is no resolution locally in a short time frame, the matter comes down here pursuant to either section 99 or section 170LW. And the first thing that happens is Mr O'Brien, or one of his colleagues, or someone more senior from a different set of chambers, jumps up here and runs the argument the Commission has got no jurisdiction to interpret the certified agreement.

PN200

I've played that game before and I don't want to play that and neither do the employees. If we have to go and have this certified agreement interpreted we will. The Commission issues orders there will be a resumption of work then we'll make application to the Federal Court about the application of the certified agreement because I know, you know, Mr O'Brien knows, Mr Gillett most certainly knows, that that's the rules. The alternative to the rules are: parties simply use section 111AA settle the dispute quickly. Everyone knows what the dispute is.

PN201

They haven't been able to settle the dispute locally in about five weeks on my estimates of how long it's been about. We're prepared to have the offices of the Commission utilised. I'll ask the Commission for the utilisation of those offices to settle this dispute. Now, it's a company who is playing games with it.

PN202

THE COMMISSIONER: Well, let me put this suggestion and I won't put it any higher than a suggestion at this stage? Let me put this suggestion on the table and see what you might think about it and that is that the employees do resume work immediately. And I accept immediately in these circumstances means within a couple of hours and that the parties are left to process the matter in accordance with the disputes procedure and that I will indicate to you now that if the matter ends up back here, I will in conciliation proceedings make a recommendation in relation to these matters.

PN203

And that two things will happen arising from that: either it will be accepted by both sides or it won't. If the recommendation is not accepted by Capcoal, then the employees can deal with that in whatever way they think is appropriate at the time, but that does a number of things that I think are appropriate. One is it gets a resumption of work immediately. It allows the parties to do what it is they wanted to do but couldn't because of the final step wasn't resolved. It doesn't give the employees quite the guarantee that your proposal gives them, but it does give them a guarantee that in the event that jurisdiction is raised that as a result of conciliation and if the employer doesn't want to participate, well, it's unlikely to get a very favourable recommendation if it doesn't participate.

PN204

A recommendation one way or the other will issue and that is unless of course I don't have the jurisdiction to arbitrate and make an enforceable order. It may be that I do, but in the event that I don't, a recommendation in relation to the matter will be made and if it's not followed, well, I guess the thing takes a new step. But at least the disputes procedure has been followed and there is a resumption of work. Now, I don't know if you and Mr Neil might need some time to think about that and obviously you would as well, Mr O'Brien, given that a natural outcome of that is that it would be suggested that you not press the section 127 application on the basis that there would be an immediate resumption of work in any event and the matter then proceed in accordance with the disputes procedure.

PN205

MR O'BRIEN: And I think that would - confirms the view of the company earlier in respect to that proposition that was offered, Commissioner, and that's the way in which the company wanted to proceed with the matter. But, yes, we would like to take some fresh instructions on that and perhaps, you know, the issue of the union giving an undertaking on transcript and that sort of thing too, Commissioner, on the basis that we then don't proceed with the 127 application.

PN206

THE COMMISSIONER: Very well. I should indicate as well, Mr Vickers, I'm not suggesting in any way that the parties should not in the event they can't resolve it themselves come here pursuant to section 111AA.

PN207

MR VICKERS: I understand that, Commissioner.

PN208

THE COMMISSIONER: All I'm saying is in the event that one or other of you is not willing to participate in such a process that doesn't mean that conciliation can't result in a recommendation - - -

PN209

MR VICKERS: No, but as I understand - - -

PN210

THE COMMISSIONER: - - - and I indicate clearly that I will make a recommendation.

PN211

MR VICKERS: Yes, yes, yes. I understand that, Commissioner.

PN212

THE COMMISSIONER: Would 10 minutes to think about that be sufficient, gentlemen?

PN213

MR O'BRIEN: Yes, that would be fine, Commissioner.

PN214

MR VICKERS: Yes.

PN215

THE COMMISSIONER: We'll adjourn until half past.

SHORT ADJOURNMENT [11.20am]

RESUMED [11.30am]

PN216

THE COMMISSIONER: Mr Vickers.

PN217

MR VICKERS: Thank you, Commissioner. Commissioner, Mr Neil and I have discussed your comments. We haven't put them to our members as yet, but from our point of view, we will strongly recommend that course to our membership. I can't give an unequivocal undertaking that the membership will comply with that strong recommendation but that will be done, that is, the recommendation will be made as quickly as possible. I'll have a discussion with the delegates and put them that a meeting be convened and there be an immediate resumption of work.

PN218

I guess, sensibly, we're probably looking at the commencement of afternoon shift which is 3 o'clock, I think, or 2.30 or something like that. I am happy enough for the company to reserve its rights if my strong - mine and Mr Neil's strong recommendations are not complied with and there's not a resumption of work by the commencement of afternoon shift, that we come back here - they re-activate their application. I don't know what else I can do in respect of that. I do need 30 minutes or so to communicate with the members, with the delegates.

PN219

They will then need to convene a meeting. That will take a little bit of time but I'm certainly not going to - I think this Commission knows me better. I'm not going to play games with it and allow the delegates to convene a meeting, as I said earlier, on 3 o'clock Saturday afternoon to have a think about it. They will do it and if they say no, it's unacceptable, then I will advise Mr O'Brien immediately.

PN220

THE COMMISSIONER: Very well. Thank you, Mr Vickers. Mr Neil?

PN221

MR NEIL: Yes, Commissioner, that's correct. We confirm that.

PN222

THE COMMISSIONER: Mr O'Brien.

PN223

MR O'BRIEN: Commissioner, the company was happy with the course that - and I understand that they were suggestions made by you to Mr Vickers, but was happy with that course on the basis that you and we're not suggesting that we're asking you or telling you what to do but - that you make it that - as a recommendation into the transcript. I've just heard what Mr Vickers said in respect to not being able to give an unequivocal undertaking but he would make that strong recommendation - - -

PN224

MR VICKERS: Commissioner, I want to make it clear. I will make the strong recommendation. What I can't give is an unequivocal undertaking that the membership will comply with my strong recommendation. There aren't many times that they don't, but I don't give those undertakings before this Commission, because I can't give a guarantee what the outcome of a mass meeting will be.

PN225

MR O'BRIEN: And I can understand what Mr Vickers is saying, Commissioner. The mass meeting obviously has to decide the issue. On the basis, Commissioner, the company was happy with the outcome if you made the recommendation, but there's just a concern, Commissioner, that should the mass meeting go against the employees returning to work, we'd be back here, we'd be arguing submissions before you in respect to getting the Commission's discretion to make the particular orders. We'd be looking at the resumption of work at night-shift tonight, Commissioner, rather than afternoon shift this afternoon and that's a concern the company would have.

PN226

If Mr Vickers could - and I haven't got firm instructions on this, but perhaps Mr Vickers could get a bit of a time frame in terms of the mass meeting vote and how that's going because I understand, for the Commission's benefit, that Mr Weise and Mr Reynolds and the CEPU representative is still within the Cap Coal administration building, so they could be spoken to pretty quickly and organise the meeting pretty quickly. I suppose, Commissioner, I'm just flagging the concern that if there is not a return to work at afternoon shift, then the company would reserve its rights in respect to the 127 and, in terms of timing, will be looking at evening shift.

PN227

MR VICKERS: Commissioner, if I can further assist, there are two reasons that we didn't contact our delegates during the 10 minute adjournment: one, it was a 10 minute adjournment and secondly, both Mr Neil and I have come from our offices without our mobile phones. If it's acceptable to the Commission, Mr Neil and I are happy if we can impose upon the Commission to use a telephone, contact the delegates at the administration if they're still there, get someone to pen them and hold them. We will speak to them immediately, not in half an hour's time when we get back to our office.

PN228

If the Commission can allow us to access the Commission's facilities, we will talk to them now and then Mr O'Brien can get a first pass of whether the delegates are on song with my recommendation - mine and Mr Neil's recommendation and they'll give us a pretty clear indication of how they think the blokes will react and they can tell us how quickly they can organise a meeting. I'm happy enough if the Commission wants to adjourn for half and hour on that basis. I mean, I'm here to help, believe it or not.

PN229

THE COMMISSIONER: I think that's the safest course for you, Mr O'Brien, isn't it, that if we have an adjournment, we will provide to the two union representatives access to a telephone to see if we can't get this thing under way and at least the views of the delegates. I also am prepared to act on what Mr O'Brien has put, and that is to make what was a suggestion now a strong recommendation as to the proper course to endeavour to resolve these two matters, one being the issue over bonus, the second being the section 127 application, and formally, I make that strong recommendation now.

PN230

The safest course for you, Mr O'Brien, is if we actually hear the submissions in relation to the matter, but I'm reluctant to do that, for two reasons: one is it might ultimately prove unnecessary and the second and more important for you, is that perhaps it's going to delay these other events taking place that would see a resumption of work.

PN231

MR O'BRIEN: I understand, Commissioner, yes. In that respect, though, if we did go into submissions, you could, in effect, make a self-executing order later on in the day if there wasn't a resumption to work, but agree that it's in everyone's best interests to have the return to work at this stage if we can. The company would be happy with that and you've now made that strong recommendation, Commissioner, and my understanding of talking to Mr Gillett during the adjournment is that those representatives are waiting, in case they should be telephoned at Cap Coal so we could make - assist Mr Vickers with that telephone call.

PN232

THE COMMISSIONER: Well, we'll do that. We'll adjourn for that purpose. I am going to, as I've done on many occasions, put my faith in the persuasive abilities of Mr Vickers and Mr Neil to have the delegates and ultimately the people at Cap Coal accept the proposal - strong recommendation that's now before them. It - whilst one never can prejudge these matters, for those of you who have known me for a long time, Mr Vickers, if the strong recommendation is an alternative means other than section 127 orders is rejected by the people, then the likelihood of section 127 orders being issued probably does increase somewhat.

PN233

Now, I need say no more than that. We will adjourn. I don't anticipate reconvening formally in the event that there is nothing further to discuss, Mr O'Brien, and that will be your call. If you're happy with what's reported back to you as a result of this telephone conversation, then I'm happy to leave the matter on that basis. If you are of the view that we should re-gather, if you can let someone at the Registry know. Is that suitable to you?

PN234

MR O'BRIEN: Thank you, Commissioner. That's suitable. I can let your associate know.

PN235

THE COMMISSIONER: We'll adjourn on that basis.

ADJOURNED INDEFINITELY [11.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MICHAEL JOHN GILLETT, AFFIRMED PN51
EXAMINATION-IN-CHIEF BY MR O'BRIEN PN51
EXHIBIT #CAPCOA1 AFFIDAVIT OF MICHAEL JOHN GILLETT PN72
CROSS-EXAMINATION BY MR VICKERS PN75
CROSS-EXAMINATION BY MR NEIL PN132
RE-EXAMINATION BY MR O'BRIEN PN141
FURTHER CROSS-EXAMINATION BY MR VICKERS PN176
FURTHER RE-EXAMINATION BY MR O'BRIEN PN187
WITNESS WITHDREW PN191