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Australian Industrial Relations Commission Transcripts |
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:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER HODDER
C NO 41027 OF 2000
APPLICATION FOR TERMINATION OF
CERTIFIED AGREEMENT
APPLICATION UNDER SECTION 170MH OF THE ACT
BY HAY POINT SERVICES PTY LTD RE TERMINATION
OF CERTIFIED AGREEMENT
BRISBANE
9.35 AM, THURSDAY, 5 APRIL 2001
CONTINUED FROM 13.3.01
PN65
THE COMMISSIONER: Could I have appearances, please.
PN66
MR J.E. MURDOCH: Commissioner, Murdoch is my name and I am a barrister.
PN67
THE COMMISSIONER: I think I had granted you leave previously, Mr Murdoch, in this matter, had I not?
PN68
MR MURDOCH: Commissioner - - -
PN69
THE COMMISSIONER: In any event, I'm going to grant you leave.
PN70
MR MURDOCH: Thanks very much. I'm appearing with my learned friend, MISS ARNOLD - - -
PN71
THE COMMISSIONER: Yes, very well.
PN72
MR MURDOCH: - - - for Hay Point Services.
PN73
THE COMMISSIONER: Leave is granted in both instances, yes.
PN74
MR MURDOCH: Thank you, Commissioner.
PN75
MR S. CRAWSHAW: Commissioner, if it pleases, I seek leave to appear for the CFMEU, and I have with me, MS DOUST.
PN76
THE COMMISSIONER: Thank you. Leave is granted.
PN77
MR D. SWEET: If it pleases the Commission, my name is David Sweet. I seek - no I don't - I appear for the Communications, Electrical and Plumbing Union.
PN78
THE COMMISSIONER: It's catching, Mr Sweet, isn't it. Thank you.
PN79
MR B. BURTON: If it pleases the Commission, my name is Burton and I appear on behalf of the Australian Manufacturing Workers' Union.
PN80
THE COMMISSIONER: Thank you, Mr Burton. Mr Crawshaw, and Ms Doust, you said was appearing with you, Mr Crawshaw, didn't you?
PN81
MR CRAWSHAW: Yes.
PN82
THE COMMISSIONER: Yes. Well, leave is granted in both instances. Mr Murdoch.
PN83
MR MURDOCH: This is an application under section 170 MH of the Act. It seeks the termination of the Hay Point Services Proprietary Limited certified agreement (1998). The agreement was certified under section 170 LJ of the Workplace Relations Act and that occurred on 14 October 1998. The agreement came into force from 12 October 1998 and the certification certificate issued by Commissioner Bacon stated that it shall remain in force until 30 June 2000. Commissioner, there has been a considerable volume of material which has been filed. May I go through the material in a formal way to ensure that the documentation that we have filed has found it's way on to your file, and I can read it in a formal way.
PN84
THE COMMISSIONER: Yes, and I'll be intending to mark those documents as you go through, Mr Murdoch.
PN85
MR MURDOCH: Thank you, Commissioner.
PN86
THE COMMISSIONER: Yes, thank you.
PN87
MR MURDOCH: Commissioner, I read the application for termination filed on 3 October 2000.
PN88
THE COMMISSIONER: Well, that obviously forms part of the Bench file so I won't mark that.
PN89
MR MURDOCH: Yes. Thank you, Commissioner. I read the outline of submissions on behalf of Hay Point Services Proprietary Limited filed on 27 October 2000.
PN90
THE COMMISSIONER: Yes, that outline of submissions will become Hay Point exhibit 1.
EXHIBIT #HAY POINT 1 OUTLINE OF SUBMISSIONS ON BEHALF OF HAY POINT PROPRIETARY LIMITED DATED 27/10/2000
PN91
MR MURDOCH: I read the affidavit of Salvatore Giuseppe Bonanno filed on 27 October 2000.
PN92
THE COMMISSIONER: That will become Hay Point exhibit 2.
EXHIBIT #HAY POINT 2 AFFIDAVIT OF SALVATORE GIUSEPPE BONANNO DATED 27/10/2000
PN93
MR MURDOCH: I read the affidavit of Stuart Lachlan Hayes filed on 27 October 2000.
PN94
THE COMMISSIONER: That will become exhibit 3. I'm sorry. The outline of submissions was 1, Mr Bonanno was - - -
PN95
MR MURDOCH: Two.
PN96
THE COMMISSIONER: - - - exhibit 2. I seem to have a double up of the documents, or is there a supplementary?
PN97
MR MURDOCH: There is only one of Mr Bonanno, but with Mr Hayes there's a supplementary and a further supplementary.
PN98
THE COMMISSIONER: It just seems to be a copy, Mr Murdoch. So it's an additional copy. I'm sorry, now Mr Hayes, you went to Mr Hayes?
PN99
MR MURDOCH: Mr Hayes' initial affidavit filed on 27 October 2000 you have indicated will be - - -
PN100
THE COMMISSIONER: Exhibit 3.
PN101
MR MURDOCH: Hay Point 3.
PN102
PN103
MR MURDOCH: The supplementary affidavit filed on 4th December last year, I read.
PN104
THE COMMISSIONER: On 4th December? Yes, I have that. That will become Hay Point exhibit 4.
EXHIBIT #HAY POINT 4 SUPPLEMENTARY AFFIDAVIT OF
STUART LACHLAN HAYES DATED 4/12/2000
PN105
MR MURDOCH: Then the further supplementary affidavit of Stuart Lachlan Hayes filed on 30 March 2001.
PN106
THE COMMISSIONER: Yes, that will become Hay Point exhibit 5.
EXHIBIT #HAY POINT 5 SUPPLEMENTARY AFFIDAVIT OF STUART LACHLAN HAYES DATED 30 MARCH 2001
PN107
THE COMMISSIONER: So, there's an initial affidavit, a supplementary and a further supplementary for Mr Hayes, Mr Murdoch?
PN108
MR MURDOCH: That's the case, Commissioner.
PN109
THE COMMISSIONER: Yes.
PN110
MR MURDOCH: 3, 4 and 5. Commissioner, so far as the application of the agreement is concerned, the part of the work-force covered by the certified agreement numbers 105, and so far as union participation is concerned, there are three unions: the CFMEU, the AMWU and the CEPU.
PN111
THE COMMISSIONER: Yes, and those parties are represented - well, those organisations are represented here today.
PN112
MR MURDOCH: That's so, Commissioner.
PN113
THE COMMISSIONER: Yes.
PN114
MR MURDOCH: Commissioner, so far as numbers are concerned, these things do fluctuate and you might see in Hay Point 3 a reference in paragraph 8 to there being 106 employees. I don't think anything turns on that discrepancy.
PN115
THE COMMISSIONER: I don't think anything turns on that, Mr Murdoch, no.
PN116
MR MURDOCH: My instructions is that the current number is 105.
PN117
THE COMMISSIONER: Yes.
PN118
MR MURDOCH: Commissioner, I intend to call both of the deponents and I will call Mr Bonanno first.
PN119
THE COMMISSIONER: Very well.
PN120
MR MURDOCH: If there are no other preliminaries, I call Salvatore Giuseppe Bonanno.
PN121
THE COMMISSIONER: And do the other parties at the Bar Table have any preliminary matters they wish to raise before Mr Bonanno is called?
PN122
Yes, thank you, Mr Murdoch. Mr Bonanno is outside, is he? Oh, he's here.
PN123
Mr Bonanno, could you come to the witness stand, please.
PN124
THE COMMISSION: State your full name and address, please?
PN125
MR BONANNO: Salvatore Giuseppe, Bonanno, and my address is Hay Point Services, Hay Point Road, Mackay.
PN126
MR MURDOCH: Mr Bonanno, do you have with you in the witness-box a copy of your affidavit which has been formally read in the Commission and numbered Hay Point exhibit 2?---Yes, I do.
PN127
Are the contents of that affidavit true and correct to the best of your knowledge and belief?---Yes, they are.
PN128
Commissioner, it is my intention to ask Mr Bonanno some questions which are by way of elaboration on certain of the matters in his affidavit and also some questions in response to matters raised in the statements of some of the witnesses on behalf of the respondents?---Yes.
PN129
I will move into that now.
PN130
THE COMMISSIONER: Mr Murdoch, I have two documents. It seems as though the documents that I have is a copy of the affidavit of Mr Bonanno, which I have marked as Hay Point exhibit 2 but it seems to have a number of attachments which aren't with the original.
PN131
MR MURDOCH: Can you help me, Commissioner, by telling me what they are?
PN132
THE COMMISSIONER: Well, if we go through the document that - which is obviously an original with original signature.
PN133
MR MURDOCH: Yes.
PN134
THE COMMISSIONER: That comprises of seven pages.
PN135
MR MURDOCH: Yes.
PN136
THE COMMISSIONER: And then there is reference to SGB1, SGB2, SGB3 and SGB4 but they are not attached to that document but in the copy that I have there are a number of attachments. I don't seem to have the originals. Perhaps if my associate shows you the document.
PN137
MR MURDOCH: That was what I was going to - thank you.
PN138
THE COMMISSIONER: That is the copy. The attachments to that document are not in original form in so far as the original affidavit. I will show you the original so that you can understand why I am a little confused.
PN139
MR MURDOCH: Commissioner, the explanation seems to be clear and that is that with the original there are the cover sheets for SGB1, SGB2 and SGB3 and SGB4 - - -
PN140
THE COMMISSIONER: The attachments, yes.
PN141
MR MURDOCH: In fact the documents that they were to cover aren't with them but in the copy the attachments are included.
PN142
THE COMMISSIONER: Yes.
PN143
MR MURDOCH: So a copy has been filed. Might ask you to work off the copy - - -
PN144
THE COMMISSIONER: Very well.
PN145
MR MURDOCH: - - - which has all of the attachments.
PN146
THE COMMISSIONER: Now, so do the other parties at the Bar Table has copies of these documents?
PN147
MR CRAWSHAW: Hopefully.
PN148
THE COMMISSIONER: Well, let us get it straightened out now.
PN149
MR CRAWSHAW: Perhaps I could look at what is going to be handed to you. This is what is going to be handed back?
PN150
THE COMMISSIONER: Well, I got the original of the affidavit proper, but the attachments referred to by way of cover sheet weren't with the original. They seem to be now included in that copy that you now have Mr Crawshaw - so I just wanted to be clear on just which documents were the appropriate one. Mr Sweet and Mr Burton, are you in possession of copies of these documents?
PN151
MR SWEET: I just want to check that.
PN152
THE COMMISSIONER: I might just take a short adjournment so the parties can sort those documents out. I will adjourn for five minutes.
SHORT ADJOURNMENT [9.49am]
RESUMED [9.56am]
PN153
MR MURDOCH: Thanks for the opportunity to sort them out. It appears that the originals went over for filing without the attachments, but the copies had the attachments went with them, so I'm sorry if there was any inconvenience in that respect.
PN154
THE COMMISSIONER: Anything arising out of that from the other parties - nothing? Very well, thank you, Mr Murdoch. Well, so essentially then, Hay Point exhibit 2 should also include the photocopied affidavit as well as those attachments?
PN155
MR MURDOCH: Well, Commissioner, I suppose if we did that we would end up with two of the affidavits. If you wanted to - - -
PN156
THE COMMISSIONER: Well, I'm happy to - - -
PN157
MR MURDOCH: - - - just work off the photocopy.
PN158
THE COMMISSIONER: Well, it will become Hay Point exhibit 2, and the original is a spare.
PN159
MR MURDOCH: Thank you, Commissioner.
PN160
THE COMMISSIONER: Okay. Anything is possible, Mr Murdoch.
PN161
MR MURDOCH: Mr Bonanno, I'll take you if I may, to the 20th paragraph of your affidavit. That is on sheet 4.
PN162
THE COMMISSIONER: Are there any corrections or errors, Mr Murdoch? I assume there aren't.
PN163
MR MURDOCH: No, Commissioner.
PN164
THE COMMISSIONER: Very well, I'll take the affidavit of Salvatore Giuseppi Bonanno, which is Hay Point exhibit 2, as having been read.
PN165
MR MURDOCH: Thanks, Commissioner. Commissioner, might I hand up to Mr Bonanno a copy of the statement of Steve Everist?
PN166
THE COMMISSIONER: And who is Steve Everist?
PN167
MR MURDOCH: He's a witness for the CFMEU.
PN168
THE COMMISSIONER: Okay. Yes, thank you.
PN169
MR MURDOCH: He's the President of the Hay Point Lodge.
PN170
THE COMMISSIONER: Witness is shown statement of - which person?
PN171
MR MURDOCH: Steve Everist. I assume it is Everist.
PN172
THE COMMISSIONER: Yes. Yes, thank you.
PN173
MR MURDOCH: Mr Bonanno, could I take you to the third paragraph?
PN174
MR CRAWSHAW: Just to save my friend time, Mr Everist agrees that Mr Bonanno was not at the meeting as set out in the third paragraph, and we'll correct his affidavit when he gives evidence. So I - - -
PN175
THE COMMISSIONER: Was that the point that you were going to raise, Mr Murdoch?
PN176
MR MURDOCH: It was, Commissioner, thank you.
PN177
THE COMMISSIONER: Very well, so the record will note what Mr Crawshaw says about that and that will be attended to appropriately. That was in relation to paragraph 20, I assume, Mr Murdoch?
PN178
MR MURDOCH: That's right, Commissioner. There was conflict as to whether - - -
PN179
THE COMMISSIONER: Yes, no, that's fine.
PN180
MR MURDOCH: - - - he was at the meeting. I'll get that back then if I may; that's the Everist statement, and might I then hand up to the witness a copy of the statement of Peter Wall. Commissioner, Mr Wall is co-delegate of the CEPU, and it's one of the statements filed by that union in this matter.
PN181
THE COMMISSIONER: Yes.
PN182
MR SWEET: I don't want to - sorry, Mr Murdoch, just, I guess, in the spirit of correction apparently he's no longer co-delegate but he will give evidence to that effect.
PN183
THE COMMISSIONER: Is that the question?
PN184
MR MURDOCH: No, Commissioner, it's not but we're indebted for any current information, thank you.
PN185
MR SWEET: Yes.
PN186
MR MURDOCH: But I understand he's still a witness in the matter.
PN187
MR SWEET: Yes.
PN188
MR MURDOCH: Mr Bonanno, you've had occasion to read this previously - this statement from Mr Wall?---Yes, I have, yes.
PN189
Can I take you to paragraph 12 on the second page and in that paragraph Mr Wall is providing certain observations of the meetings in relation to the attempts to negotiate a new certified agreement at Hay Point. You accept that?---Yes, yes.
PN190
Now, he sets out a quote there. The quote is:
PN191
We want this and it is not negotiable.
PN192
Did you ever use those words?---I can't recall those words being used that things were not negotiable, no.
PN193
Now, do you see in the next sentence it says:
PN194
At times it seemed as though many of the decisions from the company's side have been made above Hay Point Services management, which has limited the negotiations.
PN195
Now, I'll break that into two parts if I may. Firstly, the opinion that:
PN196
At times it seemed as though many of the decisions from the company's side have been made above Hay Point Services management.
PN197
Do you have a view on that?---My view on that is certainly the decisions were made by us. There was - - -
PN198
And when you say us. "us" is?---Hay Point management defining "us".
PN199
And the people involved in "us" are?---The people at Hay Point, myself, but there was also consultation with others, with respect to what we were doing.
PN200
And that procedure of the decisions being made by you and others at Hay Point with consultation with people outside, has that as is stated, limited the negotiations?---Not that I'm aware of, no.
PN201
And if it had, would you expect to be aware of it?---Yes, I would.
PN202
In paragraph 13 it is stated that:
PN203
The current agreement has given Hay Point Services major productivity improvements.
PN204
And then certain statistics are set out, and in paragraph 14 there is a reference to PEW 1 which is a table showing tonnes shipped and manning levels over the last three years. You should have that attached to the document that has been handed to you?---Yes, I do.
PN205
All right. Now, over the past three years, which is the period specified in paragraph 14, have there been productivity - I'll take that been - have there been improvements in the tonnes shipped from the port?---Yes, absolutely. The tonnages that have gone through the port have gone up through that period. We've also expended - - -
PN206
Well, I'll just take it step by step. And as far as that increase in tonnes over the relevant period is concerned, are you able to explain to the Commission whether the improvement in tonnes is attributable to any identifiable factor or factors?---Yes, over that three year period we - we've spent a lot of capital at Hay Point, in the vicinity of $77,000,000 and we've replaced old and outdated equipment with modern equipment, which has got higher throughput capacity and required a lesser number of people to operate.
PN207
Can you, without listing each item of equipment that's been part of the capital investment program, mention some of the highlights to illustrate the point?---Well, we replaced a track mounted bucket wheel reclaimer which was labour intensive, and we replaced that with a new rail mounted stacker reclaimer, that was about 12,000,000. We replaced an old stacker with a new updated stacker. The old stacker was about 25 years old, with a much greater throughput. We put a new surge bin on site which means that we don't have to stop when we ship-load. We can actually keep going, fill the bin up whilst the ship-loader is moving from one position to another to maintain our productivity. We've changed our inloading system from a tipless system which turned the wagons upside down to a bottom dump system which has taken our capacity up significantly. They are the highlights of what has caused those productivity improvements. The other issue which has improved the productivity at Hay Point, because we spent all that capital, we took the capacity of the terminal from somewhere around 25 million tonnes per annum, up to 34 million tonnes per annum capacity, and we're just able to put through that many more tonnes with lesser people, because the throughput rate is higher and we've had more tonnes to put through.
PN208
And if you look at that table that's been attached to Peter Wall's statement, that's PEW 1, where the tonnage shipped is in one column and the manning is in another, do you have a view as to whether the increase in tonnage is the product of increased labour productivity?---Well, really it's a product of all the capital that has been spent and the reduction in the people and the greater volume that has gone through. I guess it's like a truck. You need one person to drive it and if it only carts five tonnes from one point to another, and you replace the truck with a new truck, you inject capital and buy a 10 tonne truck, that one man that you still need to drive it because twice as productive, 'cause it's a bigger truck and you've spent capital to buy a bigger truck.
PN209
Now, taking you further into - sorry. Just to go back to one matter that you mentioned. You mentioned that there had been an increase in capacity of the terminal because of the capital investment. Were there additional tonnes of coal available from the producing mines to ship?---Yes, there were. We - over the last three years we have gone from a throughput of around 24½ million tonnes to a throughput this year will be around - somewhere around 28½ million tonnes. So there has been additional tonnes. We have had the capacity to do it.
PN210
And if you could just look down to paragraph 13 of Peter Wall's statement. In the first sentence of paragraph 13 he states that the current agreement has given Hay Point Services major productivity improvements. Do you have a view as to the correctness or otherwise of that statement?---Oh, look - I think the agreement - the current agreement which has expired certainly gave us a bit more flexibility and a little bit of productivity, but by far, the major portion of the productivity improvements at Hay Point over the last three years, by far, have been the major capital that has been spent and the increase in the tonnes.
PN211
Okay. Now, could I take you down to paragraph 20. I'll just give you a few moments to read paragraph 20 of Mr Wall's statement through to yourself. It refers to a train unloading bonus. All right. Do you see there - - - ?---Yes.
PN212
- - - in the first sentence it is stated that the agreement was supposed to deliver a train unloading bonus but this has not occurred due to the fact that agreement has not yet been reached with Queensland Rail as per clause 15 of the agreement. What are you able to say about that?---Yes, that is a true statement. The current agreement did contain a reference to a train unloading bonus which would occur if, in fact, we came to some arrangement with Queensland Rail. That has not occurred and nothing has come to fruition on that.
PN213
All right. And are you able to indicate why the matter hasn't come to fruition with Queensland Rail?---Oh, the negotiations with Queensland Rail have been long and difficult. There has been lots of influencing factors to that and they have not reached any conclusion and they are ongoing.
PN214
Now, I'll take you back to the paragraph that precedes that, that is paragraph 19 in Mr Wall's statement and that refers to the current bonus system and makes a suggestion that it will be replaced by the old bonus system in the award and that is premised upon the agreement being terminated?---Yes.
PN215
Is it the intention if the agreement is terminated to immediately take such a step?---Our intention is to keep the bonus scheme as it is at the moment - the same, so the existing scheme as it exists, would remain. That is our current intention.
PN216
THE COMMISSIONER: Has that been flagged to the unions prior to today, Mr Bonanno?---I've - I sent a letter to the unions with respect to wages and conditions that if this case was successful, what would be the situation?
PN217
Is that in evidence - is that in evidence, Mr Murdoch?
PN218
MR MURDOCH: Yes, Commissioner, it is an attachment SLH6 to Mr Hays.
PN219
THE COMMISSIONER: Hays, thank you. Yes, thank you.
PN220
MR MURDOCH: Which is Hay Point 5. It is a letter of 14 March 2001.
PN221
THE COMMISSIONER: Yes.
PN222
MR MURDOCH: Now, in paragraph 21 of Mr Wall's statement, if you could just read that to yourself?---Yes.
PN223
There is a reference in the first sentence to what appears to be a prediction or forecast that the termination of the agreement would cause a further deterioration of the negotiations. Are there in fact current negotiations between Hay Point Services and the three unions?---No, there is not.
PN224
Now, in the second sentence in paragraph 21 it is stated, and I quote:
PN225
I believe that the members would be really upset and there would be more likelihood of industrial action as a result.
PN226
The agreement, of course, has not been terminated but has there been industrial action in any event?---Well, there has been industrial action in any event - you know, it is - the industrial action has been significant with the amount of time we have lost and the damage that it has been causing us as a business.
PN227
And when you say, the industrial action, do you mean at Hay Point Services Operations or?---Absolutely at Hay Point Services Operations.
PN228
THE COMMISSIONER: How much coal have you had to load, Mr Bonanno?---Just if I could clarify that - - -
PN229
THE COMMISSIONER: Well, in terms of this industrial action, I understood that the industrial action at Hay Point was a twin industrial action without going on to certain BHP mines?---Yes, there has certainly been industrial action going on at BHP mines.
PN230
So what was the stockpile situation in terms of coal to be loaded?---Well, at the moment it's - this won't be exactly accurate but it would be somewhere around 600,000 tonnes.
PN231
In the stockpile?---In the stockpile but most of that is not suitable product type for us to load and that is a result of action at Hay Point Services because they have been on strike and, again, this will not be an accurate number but it is probably around 17, 18 or 19 days through the history of the negotiations.
PN232
What period does that cover?---That covers the period from July last year.
PN233
July 2000?---Mm.
PN234
Up until now?---Up until now.
PN235
There has been 17 or 18 days of industrial action - - - ?---Yes, and - - -
PN236
- - - and stoppages emanating from that?---That stoppages emanating from that which has caused a significant amount of us not being able to load and ships waiting out at anchor and a significant incurring of cost.
PN237
Yes, thank you.
PN238
MR MURDOCH: Commissioner, I intend, through Mr Hays, to give detail in relation to actual dates of stoppages at Hay Point.
PN239
THE COMMISSIONER: Now, I am just trying to get a feel for the industrial action and its impact as to whether - given that its, as I understand it, its counter availing action in relation to matters that some of the BHP mines as to what product that was to load at Hay Point anyway.
PN240
MR MURDOCH: Mr Bonanno, could I ask you to revert back to Tuesday of this week and can you firstly indicate to the Commissioner whether the employees at Hay Point Services were at work or on strike on Tuesday this week?---On Tuesday this week the employees at Hay Point Services were on strike.
PN241
And are you familiar with the circumstances of two bulk carriers, the KoHo and the Empress?---Yes, I am.
PN242
All right. Now, as at Tuesday this week, do you know where those two vessels were?---Yes - well, both of those vessels were alongside the berth at Hay Point unable to load.
PN243
All right. Was there coal at the port to be loaded into each of those vessels?---Yes, there was and we made some attempts to get some coal into those vessels during that day.
PN244
And when you say, we made some attempt - you've said the employees were on strike, just explain what you mean by, "we"?---By that I mean a limited number of staff people tried to unload some trains and tried to put some cargo in a vessel, but very very limited capacity and was restricting the departure of those two vessels from the terminal.
PN245
And did the absence of the employees who were on strike result in any delay to the departure of those two vessels?---Oh, absolutely. Yes.
PN246
Was there any consequence of those vessels being delayed. I mean a money consequence, not a time one?---Both of those vessels are large cape size vessels. Their demurrage rate and they were both well into demurrage at that time would be costing us around $US20,000 per day for each day they are delayed.
PN247
Have those vessels now departed?---The Empress has certainly departed. I couldn't say for sure the KoHo has departed. My expectations would be that it has not. I have not been in touch with the terminal this morning to check that out.
PN248
All right. And what enabled the Empress to depart?---Probably two things. One was - there was a small amount of coal loaded during the day when the employees were on strike and the employees returned to work the following day and we were able to put some more coal on that vessel and sail it.
PN249
Now, going back to Mr Wall's statement - could I take you to paragraph 18 - just let you read that to yourself?---Yes.
PN250
What do you say about the opinion that is expressed there?---Oh yes, I can't give much comment on the calculation of that figure so I can't validate it one way or another but what I can say is that our intention at the moment is certainly that the aggregate wage and the bonus scheme would remain unchanged. So with respect to that loss I am not sure how is calculated.
PN251
Now, Mr Bonanno, according to your statement, attended a significant number of the negotiations with the union negotiators. Is that correct?---Yes, that's correct. This - the date I swore - this affidavit is 27 October but there's been also significant meetings post this date. In fact, I think the number of meetings - my last count is the vicinity of 40 meetings.
PN252
40 meetings?---40 meetings that I've had with the local delegates of the SBU and the majority of those meetings were of a day's length. You know, we would commence at 7.30 and we would conclude the day at around 2.30 or 3 o'clock, so it was a significant length of meetings. It consumed a lot of time in a significant part of my life for the last six months, nine months.
PN253
Did you, at any stage of those meetings, get to the situation where you believed you had a deal on a new certified agreement?---I believe we got very close at one stage. It was in November.
PN254
When was that?---It was in November. It was about the third week of November. I think it was about 22 November.
PN255
Yes?---We had a meeting with the SBU that day. We'd had very intensive negotiations in the two weeks leading up to that date. We actually went through the document. Everyone was comfortable in my view, in agreement, we were actually doing - - -
PN256
When you say the document was it a draft agreement, was it?---Yes, it was a full draft agreement, that's right.
PN257
Yes, go on then. You went through it?---The - we went through it and we were doing a page turn on the document, page by page. From my view the demeanour of the meeting was buoyant. There was a mass meeting of all employees scheduled for that afternoon.
PN258
Yes?---And you know, some of the banter around the table was, "Well, you know, we're glad this is all behind us now". One of the comments was to the effect of you know, "When is the company going to put the beer and prawns on", so to speak, and I was very buoyant about it and thought, "Well, okay, we've finally got a position where we're going to get a deal", so to speak.
PN259
Were you proved right or proved wrong?---I was proved significantly wrong, that - the document didn't even go to the meeting.
PN260
MR CRAWSHAW: Well, I object to this. How does - how can this witness give that sort of evidence?
PN261
THE COMMISSIONER: I suppose he can give his version of it and you've got the right to cross-examine him.
PN262
MR CRAWSHAW: Apart from anything else, it's very unfortunate that none of this was put in the material field by my friend, and now at 10.30 and we're still in evidence in truth, that - that's par for the course, but this witness cannot give evidence about what went on at the union meeting.
PN263
THE COMMISSIONER: I accept that. Mr Murdoch?
PN264
MR MURDOCH: Well, did representatives of the union report to you later on the outcome of the meeting?---Yes, they certainly did. They came back to me after the meeting. I certainly wasn't at the union meeting.
PN265
No, and what was the report when you got it post meeting?---Oh, the report - - -
PN266
THE COMMISSIONER: Are you referring to a diary note then, Mr Bonanno?---I keep a notebook and I particularly kept a note of the report back from that meeting.
PN267
Is that, in any way, mentioned in your statement or attached to it?---No, it's certainly in my statement, no.
PN268
MR MURDOCH: We can make it available to - that part of it to be copied if it is required, Commissioner.
PN269
MR CRAWSHAW: I will probably call for the whole notebook if it relates to these negotiations.
PN270
MR MURDOCH: All right.
PN271
THE COMMISSIONER: Well, you are on notice, Mr Murdoch, to that effect.
PN272
MR MURDOCH: Well, certainly, Commissioner. Come on, Mr Bonanno, you're using that to refresh your memory, I take it, are you?---Yes, well, it was so significant in that - you know, at where we were in the morning and what came back, with respect to the outcome from the meeting and this - I just took a note of what came out of that meeting at the time.
PN273
Okay, well, what did they tell you came out of the meeting?---It was that the settlement offer was rejected in its present form, and the issues were job security, apprentices, contractors' rates and unfettered use, workplace flexibility, union leave, employee duties, payroll issues, length of the agreement; and the unions advised that they were prepared to make themselves available for further negotiation.
PN274
Well, so far as that list of items went had they been, to your knowledge, on the table as unresolved items that morning when the beer and prawns banter had taken place?---We'd spent significant time over the last couple of weeks and going right back talking about those items, and we'd reached that position on those, that people were prepared to take to a meeting.
PN275
Well, when you say "we'd reached a position" do you mean the company or do you mean a broader group?---No, I'm talking about the company and the SBU negotiating group.
PN276
And when you use the expression "prepare to take to a meeting" what do you mean by that? What was your understanding of that?---My understanding is that we had a deal. We had concluded the negotiations.
PN277
THE COMMISSIONER: But subject of course to the majority acceptance of that by the workforce?---Oh, absolutely, yes.
PN278
MR MURDOCH: And did somebody report to you after the meeting, someone from the union delegation, in respect of whether or not the document had been put to the meeting?---There was certainly a report back from the meeting and the outcome of the meeting, and the document that went to the meeting.
PN279
THE COMMISSIONER: Well, that's not really the question.
PN280
MR MURDOCH: Well, the document that you'd done the page turn on, did the report to you from the people that came to tell you about the outcome, indicate whether that document had been put to the mass meeting or not?---No, my understanding is the document that we'd done the page turn on, which was the total certified agreement, did not go to the meeting, but there was a condensed version of it, which I believe did.
PN281
All right. Well, these beliefs that you have result from what?---Discussions with the delegates.
PN282
And on what occasion?---On that occasion and earlier in the day.
PN283
THE COMMISSIONER: Who were the delegates?---The delegates that were there - - -
PN284
Well, who reported to you on them, Mr Bonanno?---Oh, okay. It was Barry Spillman. There was also Steve Everist. There was also Peter Boswell. There was, I believe, Tony Conolly. There was also a number of State officials there - Mr Bill Welsh and I believe there was also Mr Steve Pearce there from the CFMEU.
PN285
What about Mr Wall?---I believe Mr Wall was there.
PN286
MR MURDOCH: Nothing further, Commissioner.
PN287
THE COMMISSIONER: Thank you. Mr Crawshaw, cross-examination?
PN288
MR CRAWSHAW: I call for the notebook and I'd ask for a little time to look at it as well as to get instructions on the new material.
PN289
THE COMMISSIONER: Very well.
PN290
MR CRAWSHAW: I wouldn't anticipate it being very long.
PN291
THE COMMISSIONER: No. Do you want a short adjournment to look at that?
PN292
MR CRAWSHAW: Yes.
PN293
THE COMMISSIONER: How long will you want; 5, 10?
PN294
MR CRAWSHAW: 10 minutes.
PN295
THE COMMISSIONER: Very well. I'll adjourn for 10 minutes to allow Mr Crawshaw to examine the notebook of Mr Bonanno and at that time we'll get an indication as to which pages or whether you want the whole of the document copied and, Mr Murdoch, you can arrange that if that is going to happen?
PN296
MR MURDOCH: Certainly, Commissioner.
PN297
THE COMMISSIONER: Thank you. On that basis I'll adjourn.
SHORT ADJOURNMENT [10.35AM]
RESUMED [10.51AM]
PN298
THE COMMISSIONER: Yes, thank you, Mr Crawshaw.
PN299
MR CRAWSHAW: Might I approach the witness, Mr Commissioner?
PN300
THE COMMISSIONER: Yes.
PN301
MR CRAWSHAW: Mr Bonanno, I hand you that notebook. Could you just identify where in that notebook you refreshed your memory on the evidence about the meeting on 22 November?---This only.
PN302
Thank you. And when did you commence writing in this notebook?---That notebook has been with me, I'd say, for probably nine months, ten months.
PN303
Yes, and when did you write the entry that you referred to?---That entry was done on the day that I reported back. I wrote that in the notebook that day.
PN304
Right. And then, does that entry cover two pages?---No. The finishing up of that meeting was the comment about the unions being prepared to make themselves available for further negotiation. That was when that was complete.
PN305
Right. On the next page, there's the word - could you read those words?---Whole page?
PN306
Well, the first two lines?---
PN307
And methodology to staff reductions award does not require such a process, medical scheme, pay as per CA, like effective over award payment, have a reserve right to pay in accordance with reward.
PN308
Right. When was that entry written?---I couldn't give you an exact date but to me that would be around the time we were starting to talk about putting together the letter with respect to sending to employees. It would probably be a conversation between myself and Stuart Hayes.
PN309
THE COMMISSIONER: Do you have the notebook, Mr Crawshaw? You're leaving the notebook with the witness?
PN310
MR CRAWSHAW: No, I just thought I'd come back because I don't need to be there.
PN311
So the reference on the subsequent page is to a conversation at a different point in time?---Yes.
PN312
And what point in time was that?---I couldn't give you an exact date but I would think, okay, that given that we started talking about letting our employees know what would occur if the current existing certified agreement was completed and Stuart and I - Stuart Hayes and I had some conversations about that with respect to, oh, what are we going to do with respect to letting employees know; we need to give them a letter with respect to what will happen if proceedings are successful and we were talking about those sorts of things and I would have made some notes of that.
PN313
Yes, but when I asked?---I would think it would be somewhere around early August - early March I should say because I sent the letter out dated 14 March I believe.
PN314
So you've had that notebook for nine months you say? Is that right? You have to say yes for the record?---Yes, I do, yes.
PN315
The page relating to the meeting on 22 November was written on 22 November you say?---Yes.
PN316
And you say the subsequent page was written in March?---Yes and - do you want me to complete that?
PN317
Well, have you got something to add?---Yes, I do. Look, there's all sorts of things in this notebook, okay, and I put things in there that are significant to me at the time, okay? It's not a chronological log, it's not a diary. It goes on a day to day basis.
PN318
Well, accepting that, how do you explain that the subsequent page entry to 22 November is something that occurred in March?---Like I said it's a notebook that I use and I make entries in. You probably see it's got entries at the front; it's got entries at the back; the time I make a note in it I'm looking for a page, clear page to write something on that I believe is significant.
PN319
May I just approach again, Commissioner?
PN320
THE COMMISSIONER: Yes.
PN321
MR CRAWSHAW: The second entry that I referred you to, the page begins with the word "and" in ampersand form?---Yes.
PN322
So that's additional to what?---I can't recall. Look, that page has also got medical scheme on it and I know we discussed medical scheme a number of times during the negotiations and arrived at a position on it which was settled.
PN323
But the second page, the March page, of the evidence that you said was written in March - - - ?---This section?
PN324
Yes?---Yes.
PN325
Well you say the section below the line was written in March, do you?---Yes, that's what I'm saying because - - -
PN326
And what about the section above the line?---I couldn't comment on that. If it has got comment to the medical scheme - okay, the medical scheme was discussed as part of our negotiations and could have been written at any time. It was certainly a topic of discussion many times.
PN327
Might I just have the notebook? You're sure that the words, "and methodology to staff reductions" doesn't follow on from, "unions prepared to make themselves available for negotiation"?---Yes, I'm sure that that's all I wrote on that day of the 22nd.
PN328
You accept that the same pen was used for the second page as the first page?---It certainly looks that way, yes. It's probably the same pen I have in my pocket.
PN329
Well you've obviously used a different pen to write "medical scheme"?---Yes, that could well be true. Yes, it is a different - - -
PN330
Well, it is true, isn't it?---Yes, it is a different colour absolutely and you'll find there's a different coloured pen on the stuff I wrote on the 22nd. I have a pen which has got red, blue and a pencil on it.
PN331
I'm tempted to tender the pen?---Go for it.
PN332
THE COMMISSIONER: Don't do that. He'll never ever get it back.
PN333
MR CRAWSHAW: So I suggest to you that the second page, at least the top half, followed on from the first page in the way you wrote it. In other words, I'm suggesting to you that you wrote the first page and the top four lines of the second page consecutively at the same time? What do you say to that?---I don't think that's correct.
PN334
Are you sure about it?---Absolutely because I cannot recall that coming out, and I can remember the final thing at the meeting was that after the delegates that reported back gave me that list and I was dumbfounded at the time and - - -
PN335
You didn't write that down, did you?---No, I never - - -
PN336
No?---- - - but I certainly wrote down the items that they believed we were apart on and we concluded the meeting by them saying, look, we still make ourselves available for continued negotiations and the meeting finished then. That was all that was said and that's the last thing I wrote in it.
PN337
So have you got any explanation why the following page has the words "and methodology for staff reductions"?---No, I don't. I know during the negotiations that it was certainly one of the issues that was discussed was methodology for the reductions that were part of what we were proposing for the certified agreement, okay? So it was part of the negotiations, okay, how we were going to reduce the numbers that we spoke about as part of the negotiations, so I'm not denying that it was - wasn't part of the negotiations at some time and I obviously made an entry about it because it was an issue on people's minds.
PN338
Well, do you remember when you made that entry?---No, I don't but I know it was definitely not on that day.
PN339
And so you don't know what the ampersand representing the word "and" means?---No, I don't but I do know that we discussed methodology of staff reductions through the negotiations.
PN340
By the way, it's the same pen, is it, that you used on 22 November that you still have in your pocket?---Well, it is but I've probably had a few refills since then.
PN341
I see. What I want to suggest to you is that the discussion about the award and the certified agreement that you had occurred at the same time as you wrote that entry. I withdraw that because it's ambiguous. Can you tell me the lower half of the second page refers to the award and certified agreement, and that you say refers to the letter that you sent to the employees and I think was identified earlier in these proceedings as annexure SLH6 to Mr Hayes' affidavit? Is that what we're talking about?---Yes, because I said, well, if a certified agreement is terminated people will be wanting to know how that affects them so we need to communicate to them about that.
PN342
But that question had come up before March, hadn't it?---Oh, absolutely. It would have been in our thoughts when we put the original application.
PN343
Which was when?---I couldn't give you a date with any sort of accuracy, sir.
PN344
Not long after 22 November, wasn't it?---I couldn't comment on that. I could try and find a date for you if you like but - - -
PN345
Well, I'm sure we can find out. Did you think about that issue before you put in the application?---There has been certainly thoughts on that issue, yes.
PN346
It was something you thought about before you put in the application, was it?---Yes, I can't give you the exact date when we made that original application but - - -
PN347
It was before 22 November, wasn't it? I'd ask you to accept that - - - ?---Yes, okay.
PN348
- - - that it was before 22 November?---It could well be so - - -
PN349
So there's no reason why you wouldn't have been writing about this issue on 22 November?---Which issue is that, sir?
PN350
The issue of the conditions that would apply subsequent to the termination?---Yes, I could have made some notes about it then too, but I know I certainly made some notes in this notebook about it since then.
PN351
Yes, and you say that that note was made - that was on the second page that we have been discussing, was on in March?---Yes, that's what I am saying, that's right.
PN352
Well, are you sure the other note, relating to the discussions on 22 November wasn't written recently as well?---I'm absolutely positive that it wasn't, and it was written on 22 November.
PN353
Have you got any notes there of the meeting held on 2 November?---Not that I know of, no.
PN354
THE COMMISSIONER: I have not seen your notebook, Mr Bonanno. But did you have a habit of jotting down a date when you made a comment, or is it just ad hoc?---This one - the notebook is ad hoc, okay.
PN355
There aren't any dates in there at all?---No, there are no dates anywhere in that.
PN356
I see?---But I took particular note of the report back on that day.
PN357
But your practice is that irrespective of what day it is, or the issue, you just find a page and there is no sequence, there is no order to the notebook?---That's correct.
PN358
Okay.
PN359
MR CRAWSHAW: So just before we leave it, tell me what the note about what happens on termination says?---This would have been my thoughts or what we discussed on that day?
PN360
Yes, what does it say. Can you just read it out again?---It says, reading word for word, it says:
PN361
Pay as per ..... like effective over-award, have a reserve right to pay in accordance with award.
PN362
That is what it says.
PN363
And you wrote that down where, where were you when you wrote that down?---I was at Hay Point.
PN364
And were you by yourself?---No, it was a discussion between myself and Stuart, and I said, "Well, what does that mean?"
PN365
Stuart Hayes?---That's correct.
PN366
Was Stuart Hayes there, was he?---Yes.
PN367
You where at Hay Point?---At the Hay Point Terminal.
PN368
Whereabouts?---It would have been in either Stuart's office or my office, I believe.
PN369
You don't remember where you were when you had the discussion?---No, we had a number of discussions about this.
PN370
And why did you write it down?---Because I thought that it was a significant issue with respect to letting people know.
PN371
And what did you use that note for subsequent to that?---Nothing.
PN372
Except to give evidence today?---Yes, that's all.
PN373
And was the letter written after that, was it?---I think the letter would have been written after that, yes.
PN374
Can you remember?---No, I don't.
PN375
Do you remember the date on which you wrote this?---This here?
PN376
Yes?---No, I don't.
PN377
This note about the conditions?---No, I don't remember the exact date.
PN378
Did you tell Mr Hayes what to put in the letter?---Mr Hayes and I consulted. He actually did the draft of the letter.
PN379
Right?---And spoke to me about the letter.
PN380
And what did he bring the draft to you?---Yes, a couple of times he brought a draft to me, yes.
PN381
Just for the record might the witness be shown annexure SLH6, it is attached to Mr Hayes' second affidavit, I believe, or it may be third, HP - I have written HP, Hay Point 5, yes.
PN382
THE COMMISSIONER: Oh that is the last - that seems to me to be - and which attachment are you referring to, Mr Crawshaw?
PN383
MR CRAWSHAW: SLH6.
PN384
THE COMMISSIONER: Yes, 6, I have that. Yes?
PN385
MR CRAWSHAW: Do you have it, Mr Bonanno?---This is the letter dated 14 March 2001 to all Hay Point employees, and signed by myself.
PN386
Is that the letter that you are talking about?---That's correct.
PN387
That is the letter that Mr Hayes brought two drafts to you of?---Yes, a number of times, and we spoke about it.
PN388
This all occurred at Hay Point, did it?---Yes, that's correct.
PN389
At the coal terminal?---That's correct.
PN390
And you say that he brought you a draft a couple of times. When did you write the note, before he brought you the drafts or after the first one, or after the second one?---I can't remember that, but it would have been during one of the discussions. I can't even remember if it was when I had one of the draft letters in front of me. But I wanted to know what the impact would be on employees with respect to their financial position. And I said, that is important, people will be interested to know what that is.
PN391
Well, when you were the one to decide that, weren't you?---In consultation with others, yes, I was certainly going to sign the letter.
PN392
Well, in consultation with others, who?---With Stuart.
PN393
Yes?---I believe we also spoke to our legal people.
PN394
Well, did you speak to any legal people?---I didn't speak to any legal people, but I'm sure Stuart would have.
PN395
Who else did you speak to?---I would have spoken to my superior about it.
PN396
Who is that?---Mr Gazzard.
PN397
And when did you speak to Mr Gazzard?---It would have been before I sent the letter out, and told him - - -
PN398
Before the first draft?---Oh no, I would have only spoken to him - my normal practice would be - - -
PN399
No, look, I'm not interested in your normal practice, Mr Bonanno. Do you remember what happened?---I believe what I did was I would have had the final draft, and then I would have told my superior what was in the final draft.
PN400
You say that is what happened?---Yes.
PN401
And did you speak to any one else in BHP Coal, other than Mr Gazzard?---No.
PN402
What did you say to Mr Gazzard?---I said to him, "Look, we are going to send a letter out to our employees about what the effects will be, if we are successful in the termination of the certified agreement, in order to inform them what their position will be."
PN403
That is all you told him?---Yes. He probably, or he did ask me, okay, what sort of things are in it, and I explained to him what was the content of the letter, and that was it.
PN404
Did you tell him who else had been involved in the drafting?---I did tell him that we had some legal help with respect to the drafting of the letter.
PN405
Did he know that already?---Not through me, and I would have told him on the day, and I don't think he would have known.
PN406
These were - the legal help were the solicitors for BHP Coal, is that right?---Yes, that's correct.
PN407
Blake Dawson Waldron?---That's correct.
PN408
Do you have any explanation as to how letters of a similar wording went out to various BHP coal mines, where BHP Coal was seeking to terminate certified agreements?---Oh if they were all seeking legal assistance, as I was also seeking legal assistance, there is a good probability that they were getting the same sort of advice.
PN409
So you just followed the advice of your solicitors, is that the situation?---Yes, I was certainly involved in the drafting of the letter.
PN410
Well, you had no input at all, did you?---Well, I'm certainly not going to sign a letter that I don't have input to.
PN411
Well, what part of the letter did you come up with?---I was involved in looking at the original drafts, and commenting on those. And the drafts were brought to me and when I was comfortable with them, with the advice that I was getting given by both HR people and legal people, I was then comfortable to sign the letter.
PN412
Which words are yours and which are those that were given to you by these other people?---Well, if someone is going to draft a letter for me, then effectively the words belong to the person that drafted them, and I was going to be happy with what they brought back.
PN413
You didn't change the words at all, did you?---I really can't remember whether I changed words at all, and whether this letter is exactly the same as others. But I was comfortable with what this letter said.
PN414
Well, you haven't seen the other letters, have you?---No, the Hay Point letter is the only letter that I have seen.
PN415
And it is dated 14 March?---Yes.
PN416
Do you see that?---Yes.
PN417
Just over two weeks ago?---That's correct.
PN418
May be going on for three?---Yes, 14 March.
PN419
Well, you remember getting this letter, getting the first draft from Mr Hayes?---I do, I do remember him coming to talk to me about the first draft.
PN420
Did you change anything with your multi coloured pen?---I really can't recall whether I changed anything.
PN421
THE COMMISSIONER: What turns on all of this, Mr Crawshaw? I mean it is all right for you to have a short at BHP about using solicitors and so forth, but what really turns on it?
PN422
MR CRAWSHAW: I would rather not say in front of the witness, Mr Commissioner.
PN423
THE COMMISSIONER: Okay. Well, you could - - -
PN424
MR CRAWSHAW: It does have a purpose though.
PN425
THE COMMISSIONER: Well, all right. I'm sure it does.
PN426
MR CRAWSHAW: I think the witness probably knows.
PN427
THE COMMISSIONER: Well, I guess somebody will tell me eventually. It would be nice if I knew what it was.
PN428
MR CRAWSHAW: This isn't the first time that he has been cross-examined.
PN429
THE COMMISSIONER: I see.
PN430
MR CRAWSHAW: By me.
PN431
So what about the second draft did you change that at all?---I really can't recall what I changed in the drafts. All I know is that I was comfortable with the final letter that came out.
PN432
Yes?---You know, to be quite honest I have a lot of paperwork come across my desk as a Terminal Manager each day, and I want to be comfortable with what I am going to sign to send out to employees.
PN433
While you have got that letter, can you tell me this: it doesn't cover the question of bonus at all, does it?---No, it doesn't mention bonus in here.
PN434
So in this letter you say that you have no intention of reducing your pay below the level of wages in the agreement. You are talking there about the wages component separate from the bonus?---Yes, that is what it is talking about here.
PN435
So the first time anyone has heard anything about your intentions with the boners are today?---Yes, we - look, we haven't - - -
PN436
Is that right?---We have not finalised - that's correct.
PN437
THE COMMISSIONER: Just answer that question, Mr Bonanno?---That's correct. And we have not finalised all the issues that would be involved with respect to termination of the certified agreement for Hay Point. And I would be seeking further advice from that - from HR people and legal people with respect to that.
PN438
MR CRAWSHAW: So you're not in a position to tell us today what the terms and conditions of employment of the employees will be if the Commission terminates the agreement. Is that the case?---With some of the issues, that's certainly the case because that position has to be formulated.
PN439
All right. In any event even if you did tell the Commission what the terms and conditions of employment were that will apply you reserve your right to change them at any time?---Yes, that's correct. I'm in a very dynamic business and industry and if there's changes to law I can't - - -
PN440
THE COMMISSIONER: Mr Bonanno, can you get to a situation where you answer "yes" or "no", please?---That's correct.
PN441
MR CRAWSHAW: I asked you about the meeting on 2 November. Do you remember attending a meeting on 2 November 2000?---I'd have to have my memory refreshed about that. I could well be at a meeting on 2 November, yes.
PN442
Well, have you had a look at Mr Hayes - the affidavits of Mr Hayes in these proceedings?---I have seen them, yes.
PN443
When did you see them?---Over the course of the last two days.
PN444
Why were you looking at them?---Just reading through the chronology of the meetings in his affidavit with respect to this case.
PN445
You will recall that there was an annexure that had a written chronology?---Yes, I do.
PN446
And that only went up to 26 October?---If I could see the documents that would help, sir.
PN447
Well, I'm just wondering whether there is any assistance in Mr - yes, there's two chronologies. Perhaps if I could show you the - perhaps I had better not show you my copy. It's got a mark on it. I would like you to accept that exhibit SLH5, which is Mr - an annexure to Hay Point 4 shows that Mr Hayes has you attending a meeting on 2 November?---Yes, okay.
PN448
So you accept in those situations that you were at a meeting on 2 November?---Yes.
PN449
But I take it that you don't remember what happened at that meeting?---Yes, that's correct.
PN450
I would ask you to assume that Mr Hayes' note of the meeting is that HPS finalised its response to the SBU counter offer dated 26 October 2000 and that the SBU made an amended verbal counter offer in response to HPSs position?---Okay, yes.
PN451
Does that jog any memory cells?---No, it doesn't, but if that's the chronological description of the meeting then I accept that.
PN452
What about this? I want to suggest to you that industrial action had been taken prior to that meeting?---That could well be. I just don't have the dates in front of me, sir.
PN453
You've probably got to go to Mr Hayes again for that. Maybe it's something that my friend is going to - yes. I think exhibit SLH - - -
PN454
THE COMMISSIONER: It's an annexure, is it, Mr Crawshaw?
PN455
MR CRAWSHAW: I think it's in the same annexure according to Mr Hayes' affidavit.
PN456
THE COMMISSIONER: Annexure 5.
PN457
MR CRAWSHAW: He says it's in SLH5.
PN458
I would ask you to assume that Mr - - -
PN459
THE COMMISSIONER: Well, the witness has that document.
PN460
MR CRAWSHAW: You have that?---Yes, it's the one I've got.
PN461
Do you see the industrial action at the end of SLH5?---I'll just find that if you just give me a minute. Which one is that again, sir? I've got SLH7 here and I've got SLH6.
PN462
Perhaps the easiest way is if I just approach - - -
PN463
THE COMMISSIONER: Very well.
PN464
MR CRAWSHAW: You've got the Commission's copies, I take it, have you?---I'm not sure, sir.
PN465
THE COMMISSIONER: No, it must be a spare, I think.
PN466
MR CRAWSHAW: I will just show you a copy of Mr - SLH5. You see Mr Hayes has said there was industrial action on 21 August and on - sorry, was notified on 21 August and that there was a 48 hour stoppage from 11 pm on 27 August?---Yes.
PN467
And then a four day stoppage occurred from 11 pm on 11 September?---Yes.
PN468
Three day stoppage from 11 pm on 26 September?---Yes.
PN469
And a four day stoppage from 9 October to 12 October, do you see that?---Yes.
PN470
So you accept that industrial action had been taken prior to the meeting on 2 November?---Yes.
PN471
And on 2 November the single bargaining unit indicated that they were willing to move on certain issues, is that right?---That could well be true. I just don't have the notes of those meetings in front of me.
PN472
Well, have you got any notes other than Mr - I've told you what Mr Hayes wrote. He said:
PN473
Hay Point finalised its response to the SBU counter offer dated 26 October. SBU made an amended verbal counter offer in response to the HPS position.
PN474
?---Right, okay.
PN475
Do you have any notes other than that?---I don't have any notes other than that here, no.
PN476
And what I was suggesting to you was that the SBU indicated they were willing to move on certain issues. You can either say "yes", "no" or "I don't remember"?---I really don't remember.
PN477
All right. And I want to suggest to you that the company said that their stance stands?---Again, I really don't remember.
PN478
And when I say "the company" I'm suggesting you said that. You still don't remember?---No, I don't, but if they are in Stuart's notes I know Stuart has a chronology of each of the meeting we had and I believe they would be correct. But I certainly - - -
PN479
Don't assume that I'm relying on Mr Hayes' notes?---Okay.
PN480
I want to suggest that you also made reference to the industrial action that the employees took at that meeting?---I could well have but I - - -
PN481
And you note - sorry?---I could well have but I certainly don't recall it, but I - if our employees went on strike or took some industrial action I could well have made some comments about that, that's true, because I would have been disappointed.
PN482
Yes, but I mean you'd had other meetings about - for example you'd met on 31 October where - which was after the period of industrial action. Did you mention the industrial action at every meeting?---Whenever my employees take industrial action I could guarantee that I would make some comment about the industrial action and being disappointed about it for whatever reason.
PN483
Well, what I'm asking is do you keep mentioning it at every meeting after the industrial action is taken?---I would say, yes, because I would not be happy about us losing time and losing productivity and holding shipping up.
PN484
Well, see, what I want to suggest to you at this meeting is you raised the question of industrial action in connection with the application to terminate the certified agreement?---I certainly can't recall that.
PN485
I want to suggest to you that you said that the application to terminate the certified agreement was because the employees took industrial action?---I certainly can't recall that.
PN486
Well, do you recall ever saying that?---No, I don't.
PN487
Are you sure about that, Mr Bonanno?---Absolutely.
PN488
And the Hay Point had made a counter offer at that meeting, hadn't they? You accept that?---Yes, I accept that.
PN489
It's in Mr Hayes' notes?---Yes.
PN490
Is that right?---I accept that.
PN491
I want to suggest to you that you said at that meeting that the counter offer was worse because the employees have taken industrial action?---I can't recall that but I certainly know that there were concerns at times because of the different offers that were being offered up; that some people saw the packages as being better, some people saw the packages as being worse, but I can't recall that.
PN492
Well, I'm not asking you about what other people thought, I'm asking whether you said that the counter offer of the company was worse because the employees had taken industrial action?---I can't recall that.
PN493
Did you ever say that?---Not that I can recall.
PN494
Do you deny it?---Absolutely.
PN495
And do you deny that you ever said that the application to terminate the agreement was because the employees had taken industrial action?---Yes, I deny that.
PN496
Who made the decision to make that application?---It was a decision that was made in consultation with others. I was certainly part of that process.
PN497
Yes. So who made the decision?---I guess the ultimate person.
PN498
Yes?---The ultimate person would have been my superior, Rick Gazzard.
PN499
Just for the record, can you tell us the position that Mr Gazzard holds?---He's President of Queensland Coal Operations so - - -
PN500
BHP Queensland Coal?---BHP Queensland Coal.
PN501
He's got no relationship to Hay Point Services Proprietary Limited?---Hay Point Services Proprietary Limited is managed and is part of BHP Coal Operations.
PN502
Well, does he have any position with Hay Point Services Proprietary Limited?---He's my superior.
PN503
Yes, but he's your - you work for BHP Coal Proprietary Limited don't you?---That's correct, yes.
PN504
And Mr Gazzard works for them doesn't he?---That's correct.
PN505
He's president of it isn't he?---That's correct.
PN506
Or President of the Queensland section of it?---That's correct.
PN507
Does he hold any other position in BHP Coal Proprietary Limited?---Not that I'm aware of, sir.
PN508
And you - you're employed by BHP Coal Proprietary Limited; is that right?---That's correct.
PN509
And Hay Point Services Proprietary Limited, who runs them?---Hay Point Services Proprietary Limited is a subsidiary company and reports in through to BHP Coal who is the operator and manager of the assets for the joint venture, and one of the assets for the joint venture is the Hay Point coal terminal.
PN510
Does it have a board of directors; Hay Point Services Proprietary Limited?---I really don't know: I can't answer that question.
PN511
Well, Hay Point Services is making this application to terminate the agreement isn't it?---Yes, that's correct.
PN512
And it's a company is it?---That's correct.
PN513
Well, it must have a board of directors doesn't it?---Well, if it has I'm not sure who they are and I could not name them. Okay? But as far as operating the company goes we report through to BHP Coal - - -
PN514
You just ignore Hay Point Services as an entity - Hay Point Services Proprietary Limited as an entity?---I'm not sure how to answer the question with respect to that.
PN515
They're of no relevance to you; that company is of no relevance to you is it?---No, it's the - I guess it's the place of my employment even though - - -
PN516
No, I'm asking about the company?---I'm not sure how to answer the question or understand the question, sir.
PN517
Well, I - sorry - you don't understand?---No. If you could just help me with what you're chasing and I'll try and answer it.
PN518
Well, I want to know how the company, Hay Point Services Proprietary Limited has any impact on your working life?---Well, Hay Point Services Proprietary Limited is the company which has employees which operate the terminal. It is a subsidiary company, okay, to BHP Coal and manages that terminal; that's my understanding, but I do not profess to be a corporations expert or understand how that works.
PN519
Well, you say it's got relevance because it pays the employees; is that right?---I believe so, sir, but you just go to understand that I'm not an expert in this area, so I can't make too many learned comments with respect to it.
PN520
THE COMMISSIONER: Why don't you put a set of propositions to him, Mr Crawshaw. He can say, "yes" or "no" to them.
PN521
MR CRAWSHAW: Well, the management of that Hay Point coal terminal are all employed by BHP Coal; is that right?---Yes, that's correct.
PN522
So Hay Point - from your perspective, Hay Point Services Proprietary Limited doesn't manage the terminal at all does it?---From a practical day to day concept, I would say that's correct.
PN523
Well, as far as your working life is concerned, BHP Coal Proprietary Limited manages the terminal?---That's correct.
PN524
All the management work for BHP Coal Proprietary Limited?---That's correct.
PN525
You take your orders from BHP Coal Proprietary Limited?---That's correct.
PN526
And it's BHP Coal Proprietary Limited that's authorised you to give evidence in these proceedings?---That's correct.
PN527
And coming back to my original question as to the application, it was Mr Gazzard from BHP Coal who authorised the making of the application?---Ultimately, he is the person responsible for managing - - -
PN528
THE COMMISSIONER: Well, that's not the question ?--- - - - those assets. Yes.
PN529
Just answer the question, Mr Bonanno?---Ultimately it was his responsibility, that's correct, and he made that decision.
PN530
MR CRAWSHAW: He made the decision; is that right?---That's correct.
PN531
And did he give you any reasons for that?---He didn't give me any reasons for that.
PN532
You say the idea emanated from you?---I was certainly involved in discussions which ultimately resulted to that decision.
PN533
Who first came - brought up the idea of making this application to your knowledge?---Our HR people.
PN534
Sorry. Which HR people?---I just - I'm talking about Greg Gerard and Paul Grogan.
PN535
Right?---Okay.
PN536
Greg Gerard who is sitting here?---Yes, that's correct.
PN537
He works in - over the road there does he?---That's correct.
PN538
In Brisbane, and Mr Grogan?---That's correct.
PN539
Where does he work?---He works at Queensland Coal office just next to the Peak Downs Mine.
PN540
Right. So you say they came up with the idea?---They first raised the idea, yes.
PN541
And which one of them raised it with you?---
PN542
MR MURDOCH: Commissioner, could I ask that the witness be excused so that I can raise a matter with you by way of objection to the time being taken on this line of cross-examination?
PN543
THE COMMISSIONER: Well, I'll let it go a little bit longer, Mr Murdoch, and then I'll hear you. Oh, no, well, I'm going to sit late if I have to, to finish these proceedings so nobody get any ideas about filibustering this.
PN544
MR MURDOCH: Thank you, Commissioner.
PN545
MR CRAWSHAW: I'm hoping to finish today, Mr Commissioner.
PN546
THE COMMISSIONER: I hope you're right.
PN547
THE WITNESS: Sorry. What was the question again?
PN548
MR CRAWSHAW: You said Mr Grogan and Mr Gerard and/or Mr Gerard raised the matter with you?---Yes, that's correct.
PN549
And when was that?---I couldn't give you an exact date.
PN550
Approximately?---I couldn't give you a date approximately.
PN551
And which one of them raised it?---My recollection was Mr Grogan because we were - we were looking at options that were available to us under the Act.
PN552
Mr Bonanno, we'll get through it a lot quicker if you just answer the question?---Okay.
PN553
What did Mr Grogan say to you?---He outlined options available under the Act.
PN554
What did he say about terminating the agreement?---He said that that was one of the options available under the Act.
PN555
He didn't put it any stronger than that?---No.
PN556
What about in subsequent conversations?---No.
PN557
So you say that Mr Grogan told you that was an option. When did it move on from there?---I asked him what that meant with respect to doing that and I said, "Well, what flexibilities will that allow us to have? How will that allow myself as a terminal operator to compete with my competitors?" because I wanted to know something about it before I got into discussion with anyone else with respect to recommending it for the operation that I was in charge of.
PN558
So you're at great pains to say that you recommended this application?---I'm at great pains to say that I was involved in that decision.
PN559
Well, who did recommend it, Mr Bonanno? Who took it beyond this options stage?---It was myself; it was Mr Grogan. We discussed it a number of times.
PN560
So everything is done in this consultory manner is it?---Well, I've got people that I consult with and get recommendations from in my job. I'm - - -
PN561
But you don't call the shots do you, Mr Bonnano?---I'm certainly involved in calling those shots. If it's within my authority levels, I call that shot. If I believe I need advice, I ask for it from appropriate experts and go to my superior to help me call that shot, and I will recommend to him or not recommend to him how to move forward that's how - - -
PN562
Well, who called the shots on this one?---Penultimately you're asking?
PN563
Not - well, I've asked and you say ultimately or penultimately - - -?---Ultimately - - -
PN564
THE COMMISSIONER: Well, ultimately you want to know don't you?
PN565
THE WITNESS: Ultimately.
PN566
MR CRAWSHAW: Yes?---It was Mr Gazzard's decision.
PN567
Yes, and who recommended it?---It was myself and Mr Grogan and others that I consulted with, but I took it to my superior because it was operation.
PN568
Mr Grogran, for the record, is - what position does he hold?---HR Manager for BHP Coal Queensland.
PN569
And he was the one that came up with the idea you said?---He was the one that first spoke to me that's correct.
PN570
And he was the one that recommended it go beyond the option phase was he?---He was the one that outlined it to me as an option because I was frustrated that we had an agreement which had been terminated. I'd been trying to negotiate a new agreement. I was trying to get new flexibilities and I went to - - -
PN571
Please, Mr Bonanno - - -
PN572
MR MURDOCH: No, Commissioner, that's a fair answer that the witness is giving. He should not be interrupted and I object to the interruption.
PN573
THE COMMISSIONER: Well - - -
PN574
MR CRAWSHAW: Did you see - - -
PN575
THE COMMISSIONER: No. Listen, in reality, this would go a lot quicker if Mr Bonanno would say "yes" or "no" to some of these questions instead of adding addendum after addendum to it.
PN576
Just try that, Mr Bonanno, you might get out of here a bit sooner?--- Okay.
PN577
We might all get out a bit sooner.
PN578
MR CRAWSHAW: You didn't see the application before it was filed did you?---No, I never.
PN579
And what about - when the application wasn't proceeded with, when it was listed before the Commission in December, that wasn't your decision was it?---No.
PN580
Whose decision was that ?---Rick Gazzard made that decision - - -
PN581
Right?--- - - - ultimately.
PN582
Sorry?---Rick Gazzard made that decision.
PN583
Did you say "ultimately"?---Yes.
PN584
Are you saying you recommended it?---I'm saying - I'm saying I was involved in that, yes.
PN585
Who recommended it or did anyone recommend it?---I don't think anyone recommended that one.
PN586
So Mr Gazzard just made the decision not ultimately, he made the decision didn't he?---Absolutely.
PN587
MR MURDOCH: Might I raise the matter of my learned friends style. It is quite unfortunate the he adopts a loud-mouthed standover type approach. There is no need for yelling at the witness. The witness, in my submission, has been polite. The Commission has cautioned in relation to length of answers and that is the Commissions prerogative, but there is no occasion for the witness to be yelled at consistently and I object to that method of standover.
PN588
THE COMMISSIONER: Well, I don't see it as standover, Mr Murdoch.
PN589
MR CRAWSHAW: And whose decision was it to revive this application?---Mr Gazzard.
PN590
Right. Can I just ask you this; do you propose to have any redundancies at Hay Point Coal Terminal in the near future?---Yes.
PN591
And how many?---Eight.
PN592
Eight. And you have told the unions this?---It was part of our negotiations. The number in the negotiations was nine but that has since changed.
PN593
The question of redundancies and how many has become involved in the enterprise agreement negotiations?---That's correct.
PN594
Is that a matter on which you had agreement?---I believe so.
PN595
But there is no agreement now because you don't have anything on the table, do you?---That's correct.
PN596
And moreover you don't - you have refused to negotiate any further?---That's correct.
PN597
Despite the single bargaining unit inviting you back to the negotiating table?---That's correct.
PN598
And inviting you back to the negotiating table without any involvement of people from outside the terminal on either side?---I couldn't answer that question, I don't know whether that's the case.
PN599
Well, you are aware that you were written to by the single bargaining union delegates on 26 March and they suggested the commonsense solution to the situation is to negotiate and reach agreement on a local level?---Yes, I'm aware of that letter.
PN600
And that the single bargaining unit was willing to undertake further negotiations with Hay Point Management at any time?---Yes, I'm aware of that.
PN601
Just for the record, that document is exhibit SLH8 which was annexed to the - 8.5. Didn't you take that as a suggestion that local management and the local delegates get together by themselves without any involvement from union representatives or BHP Coal representatives outside the terminal?---No, I didn't.
PN602
Would that have made a difference to you?---No, it wouldn't have.
PN603
So you wrote back on 28 March, for the record SLH9, do you remember that letter?---Yes, I do.
PN604
And that letter had no regard for the question as to whether it was only going to be the local people who negotiated or whether outsiders, if I can use that word, were to be involved?---Yes, I guess, if I could just say something here. We have had local negotiations with outside people from the union, outside before, so I'm not sure exactly what that meant.
PN605
No, but you see what I am suggesting to you is that the letter on 26 March was suggesting that no outside involvement from anyone and you said you didn't take it that way - - -?---That's correct.
PN606
Is that right?---That's correct.
PN607
And then I said, would it have made any difference to you if that had been made clear and express that it was only going to be local management and local delegates. Would it have made any difference to your answer?---No, it wouldn't have.
PN608
THE COMMISSIONER: Why is that, Mr Bonanno?---Because we've spent an exhaustive amount of time - - -
PN609
But isn't that - that's what the process is all about, enterprise bargaining?---Yes, it is and we have reached the position where we have just got fundamental differences between us.
PN610
But how do you know that they still exist?---I've had no indication that there are any difference in positions.
PN611
How would you know, you have refused to meet with these people?---Yes, that's correct.
PN612
So how can you make that statement?---I guess, I've been involved in 40 meetings where those positions have not changed.
PN613
But essentially, based on the questions that were just put to you, I want to know why BHP is refusing to recommence the negotiations with the SBU, based upon what they say they are willing to negotiate under?---Well, I've had exhaustive meetings with them - - -
PN614
No, just tell me why. I'm not worried about exhaustive meetings. Tell me why you are refusing to meet with them?---I see it as being futile.
PN615
Why? How do you know it's futile?---Because I've been involved for the last nine months with the discussion and these differences have been there.
PN616
Well, wait on. On 28 March - 26 March, the SBU writes to you and says that they want to recommence the negotiations and there will be no outside involvement of - outside union officials involved - - -
PN617
MR CRAWSHAW: Well, in fairness, Mr Commissioner, I don't think the witness accepted that.
PN618
THE COMMISSIONER: I see, I thought that - well, what does the letter say? I mean, this is an important point. I want to know why there is an offer made by the SBU to meet, BHP out of hand - it seems to me, rejects that. It doesn't say, we are willing to meet you under this set of circumstances, you've never said that to them, have you?---No.
PN619
Is it all bets are off?
PN620
MR CRAWSHAW: I think what the witness said was that it wouldn't have mattered - - -
PN621
THE COMMISSIONER: Yes, but I'm trying to find out why it wouldn't matter, because I think that's important.
PN622
MR CRAWSHAW: Yes.
PN623
MR MURDOCH: Commissioner, might I suggest that the witness be given the benefit of the correspondence?
PN624
THE COMMISSIONER: Yes.
PN625
MR MURDOCH: He is being - - -
PN626
THE COMMISSIONER: I don't know whether he has it or not. He has some documents. Where is that?
PN627
MR CRAWSHAW: It is SLH8. It is attached to - - -
PN628
THE COMMISSIONER: Which particular one of Mr - - -
PN629
MR CRAWSHAW: 8.5.
PN630
THE COMMISSIONER: That's the last of - - -
PN631
MR CRAWSHAW: Yes.
PN632
THE COMMISSIONER: - - - Mr Hayes.
PN633
MR CRAWSHAW: I think there is a copy.
PN634
THE COMMISSIONER: I don't see a 5. I see a 6. Is this - yes, I have that, that is 26 March. Do you have that now, Mr Bonanno?---Yes, I do.
PN635
Now, tell me what you make of the first sentence in the second paragraph of that correspondence?---It is a request to continue negotiations and reach agreement on a local level, yes.
PN636
Now, you have not sought an understanding from the SBU as to what they mean there, have you?---No, I haven't.
PN637
Well, what would it take for BHP or - I'd better not say that - Hay Point Services to recommence these negotiations with the SBU?---It would require some change in what there position has been.
PN638
But how would you know that until you sit down and talk to them?---I've had a number of meetings with them.
PN639
No, that's not the point. I want to know why - this is the most recent correspondence in this matter, they are offering to recommence the negotiations and they are saying that they want to negotiate and resolve this at a local level - - -?---Yes, and my response to that was the letter dated the 28th.
PN640
The 28th of what?---Of March.
PN641
Well, you in effect out of hand rejected that offer?---Yes, and an outline there of the issues or the reasons why.
PN642
Yes, well, I mean, it's all very well to say what you say in this correspondence but it shuts the door pretty sharply in their face, doesn't it?---Yes, it does because the issues between us are fundamental and I just - I can't see an - - -
PN643
But you are assuming that that the issues - that the difficulties between the parties are fundamental and that they will always remain so and that you can never negotiate this. That's what you are saying, isn't it?---Yes, that's correct.
PN644
Well, but how can you reach that conclusion when they make that offer on 26 March? In any event your correspondence is 14 March, not the 26th?---28th, sir.
PN645
I'm sorry, the 28th. You've got correspondence of the 28th - - -?---The - - -
PN646
I might be looking at the wrong correspondence.
PN647
MR CRAWSHAW: SLH9, the next annexure is the response.
PN648
THE COMMISSIONER: Yes, I'm sorry. Well, I don't resile from what I said. BHP or Hay Point Services, whatever you want to call yourselves, you have slammed the door shut on these people, haven't you?---Yes, we are saying that we don't see any benefit in further negotiations.
PN649
But you have not taken up their offer to ascertain that properly for yourselves, have you?---That's correct.
PN650
Mr Crawshaw?
PN651
MR CRAWSHAW: In any event, you say it wouldn't make any difference if it was just local people with no outside people; your response would be the same?---That's correct.
PN652
And this letter, when did you get the letter from the SBU; did you get it on 26 March?---I believe so. I wasn't at the terminal on the day.
PN653
Well, when did you first see it?---I believe I saw it on the 26th. I believe it was faxed to me.
PN654
Right, and where were you?---I was in Brisbane, here.
PN655
For the purpose of giving evidence in the proceedings before Commissioner Bacon, were you?---That's correct.
PN656
And so where did you see it, over at BHP Coal?
PN657
MR MURDOCH: Commissioner, I object to this, really, does it matter? If he has had it faxed to him does it matter where it has been faxed to him?
PN658
THE COMMISSIONER: I don't know.
PN659
MR MURDOCH: But Commissioner, it is the same as I raised before.
PN660
THE COMMISSIONER: Well, Mr Murdoch, I'll conduct these proceedings. You can raise your objections and I'll rule on them.
PN661
MR MURDOCH: Thank you, Commissioner.
PN662
THE COMMISSIONER: Mr Crawshaw, can we get to the point.
PN663
MR CRAWSHAW: It is relevant, I can tell you, Mr Commissioner.
PN664
THE COMMISSIONER: All right.
PN665
MR CRAWSHAW: Where were you?---I can't really recall whether I was in the BHP offices or I was in fact at over here.
PN666
Okay and did you go through your normal consultation process before answering this?---Yes.
PN667
And who did you consult with?---I spoke to my HR people.
PN668
Who is that?---I spoke to Stuart. Stuart Hayes.
PN669
Stuart Hayes?---Yes.
PN670
He was done here as well?---Yes, that's correct.
PN671
Yes?---I spoke to my superior, Rick Gazzard.
PN672
Yes?---And I spoke to some legal people - actually, I don't think I spoke to them, I think Stuart did. I can't recall speaking to them myself.
PN673
Well, you were down here it was what last week or the week before?---Yes, it was last week, yes. But I can't remember - - -
PN674
Did you speak to them or not?---No, like I said I did not - I can't recall speaking to them about this letter.
PN675
All right, and what did Mr Gazzard say?---Mr Gazzard looked at the letter that I was going to send back to - this letter - - -
PN676
I'm sorry. You only spoke to Mr Gazzard after you'd drafted a response, is that right?---Yes, that's correct.
PN677
Did you draft the response?---Again, it was myself, Stuart and the legal people discussed the response and I was part of that drafting or this letter, yes.
PN678
So when did you see a draft?---Late on the 27th I probably would have seen a draft.
PN679
And where were you?---I was back at the Hay Point terminal.
PN680
So the draft was faxed through to you, was it?---I think it come through by e-mail, yes.
PN681
E-mail and who from?---From Stuart.
PN682
And did you change the wording?---Yes, I did.
PN683
Which words did you change?
PN684
MR MURDOCH: Commissioner, again I object. If we're going to chase every baby rabbit down every hole the matter will never end. This cross-examination, I'd submit, Commissioner, is not relevant to any issue that arises in the proceedings.
PN685
MR CRAWSHAW: Commissioner, I don't think I'm giving anything away to the witness in saying it's highly relevant as to who is calling the shots in relation to what happens in these negotiations, whether it has been done locally or somewhere else.
PN686
THE COMMISSIONER: Yes, but at the end of the day this is a question of whether it would be contrary to the public interest for the Commission to terminate the agreement.
PN687
MR CRAWSHAW: Well, that will be one of the arguments that we run, that it's contrary to the public interest.
PN688
THE COMMISSIONER: How much longer do you think you'll be with this witness?
PN689
MR CRAWSHAW: Not long.
PN690
THE COMMISSIONER: How long is not long? I mean to ask this witness what words he actually changed I think is a bit rough.
PN691
MR CRAWSHAW: Well, I'm asking him what contribution. I'm trying to work out who actually called the shots on this letter.
PN692
THE COMMISSIONER: Well it sounds to me like a number of people did.
PN693
MR CRAWSHAW: All I'm trying to do is find out what his contribution was.
PN694
THE COMMISSIONER: All right, go on.
PN695
MR CRAWSHAW: Which words are yours?---I particularly wanted the words in there that the template agreement of 2001, parts of which were applicable to Hay Point.
PN696
Right. Those dates set out in the letter were meetings where your agreement was discussed in combination with the agreements relating to BHP coal mines; is that right?---That's correct, yes.
PN697
And so when the letter came to you it didn't mention the template agreement, parts of which were applicable to Hay Point?---I particularly wanted to insert that bit about only parts being applicable to Hay Point.
PN698
And that was as a result, no doubt, of my cross-examination of you just prior to that where the question came up; is that right?---No, it wasn't.
PN699
But anyway, whatever the reason, that was the part of the letter that you're responsible for?---That's correct.
PN700
Thank you. I just want to ask you about this. You say in paragraph 6 that BHP Coal has only a 42.85 per cent participating interest in the joint venture; is that right?---Is this my affidavit, sir?
PN701
Yes?---Okay.
PN702
Paragraph 6?---Yes, that's correct.
PN703
Can you tell me why in those circumstances BHP Coal Proprietary Limited is deciding what happens at Hay Point Services Coal Terminal?---Because BHP Coal is the designated manager - operating manager for the joint venture assets which belong to CQCA.
PN704
I see. But doesn't the CQCA own Hay Point Coal Terminal?---That's correct.
PN705
But they don't run the terminal is what you say?---They - if I can ad lib a little bit - they, the joint venturers, CQCA, have appointed BHP Coal as their joint venture manager which operates their assets of which Hay Point Coal Terminal is one of the assets.
PN706
But you say in paragraph 5 that Hay Point Coal Terminal is operated by Hay Point Services Proprietary Limited on behalf of the CQCA?---That's right. That's the company which is there which is - reports back into the joint venture which has appointed BHP Coal as the joint venture operator. That's my understanding.
PN707
So the CQCA owns the terminal, HPCT operates the terminal - right?---Yes.
PN708
And what do you say BHP Coal does, manages the terminal?---They're the joint venture manager which operates the assets on behalf of CQCA. Again, if you want to ask me about corporations law - - -
PN709
No, well, I won't take it any further. It's just that you've given this evidence so I thought you knew something about this?---I believe this to be true and correct.
PN710
Yes, thank you.
PN711
THE COMMISSIONER: Mr Sweet?
PN712
MR SWEET: I have no questions for Mr Bonanno. Thanks, Commissioner.
PN713
THE COMMISSIONER: Thank you. Mr Burton?
PN714
MR BURTON: I have no questions for Mr Bonanno.
PN715
PN716
MR MURDOCH: Mr Bonanno, you were asked in relation to the letter of 28 March that you signed whether the words, "Template agreement 2001, parts of which were applicable to Hay Point" were the part of the letter that you're responsible for and you agreed with that?---That's correct.
PN717
You're the signatory to the letter?---That's correct.
PN718
As the signatory what is your accountability in relation to the letter of 28 March?---I wanted to be comfortable with it so that it could go out to - as a response to the previous letter.
PN719
All right?---And I was authorised to sign it on that basis.
PN720
And when you say you wanted to be comfortable with it, are you talking about those words, "Template agreement 2001, parts of which were applicable to Hay Point" or are you talking about being comfortable with the whole letter?---Comfortable with the whole letter.
PN721
And when it ultimately went out under your hand, were you comfortable with the whole letter?---Yes, I was.
PN722
Now so far as the letter of 28 March 2001 goes, can I take you to the second paragraph in which you noted two things? The first was that the parties have now participated in negotiations at site level on approximately 40 occasions?---Yes.
PN723
And so far as the negotiations at site level were concerned, who did you negotiate with on the union side of the table?---It was the local SBU but at times there was visitors from outside of the local SBU which attended some of those meetings and discussions.
PN724
Now the second dot point refers to issues that have been discussed exhaustively at site and State level?---Yes.
PN725
Are you able to indicate whether there was any sequence; did it start at site level and then go to State level or was it a relay type thing or what? Will you just explain that to the Commission?---The discussions started definitely at site level with just local representation from both management on site and with local delegates from the unions. That went on for a number of months. It then moved at one stage where Mr Gazzard got involved in the discussions on site and also at some of the meetings there were State union representation officials in the discussions, and that took place a number of times. And then from there it moved on to State level discussions and this got larger than just Hay Point Services then - State level discussions between State union officials and what I call corporate people from BHP Coal, and there were a number of meetings and they occurred as discussed in the - as outlined in the letter in December and then in late January; so there was a number of levels it went through.
PN726
And in the letter of 28 March, in that second last paragraph in which there's a reference to the State level discussions and the template agreement, it said:
PN727
The unions rejected the template agreement and the company has since withdrawn its offer.
PN728
What do you know of the involvement, if any, of the Hay Point employees in the rejection of the template agreement that preceded the company's withdrawal of its offer?---Well, the template agreement was voted upon by the Hay Point Services employees I'm led to believe, and certainly the State officials from all three unions came to Hay Point to present that to the employees at Hay Point.
PN729
And when was that?---That was - I can't recall an exact date but my expectation would be it would have been early February.
PN730
2001?---2001, yes.
PN731
And since that point, since the rejection of the template, have there been any further negotiations that you are aware of with the SBU at Hay Point?---Yes, there have.
PN732
Yes?---We had one last go. The local SBU, just the site delegates, came back to Hay Point Services management - - -
PN733
That's after the rejection of the template - - - ?---Template.
PN734
- - - at the meeting that the State officials were at?---That's correct.
PN735
You again met the SBU?---Yes, on two occasions I think I can recall. There may be more but I'd have to look at a chronology of meetings.
PN736
They brought to us a proposal with respect to their revised position post rejection of the template. And we considered that, and we went back to them with another position. And that went to the employees on site - - -
PN737
In another meeting?---In another meeting.
PN738
I see?---And was rejected. So it was another opportunity post template.
PN739
And again can you assist the Commission with an approximation of the time of that later rejection by the employees at Hay Point?---An approximation it was probably mid February, I would think.
PN740
Now, so far as the template agreement went, to what extent did the template agreement have application to Hay Point?---The template agreement was only to have application at Hay Point for two issues.
PN741
Yes?---That we believed were outstanding, between Hay Point Services Management and Hay Point Services Union and Employees.
PN742
And what was to prevail in relation to other matters?---Other matters what had been negotiated on a local level was to remain where we were. There were only two outstanding issues.
PN743
And your reference, if we come back to the letter of 28 March, your reference in that final sentence in the second last paragraph to the company having since withdrawn its offer, did the company withdraw its offer between the mass meeting at Hay Point, the state officials attended, and the later mass meeting that arose out of the two further meetings that the SBU had with you, or was it withdrawn after the two final meetings with the SBU, their report back and the employees' rejection?
PN744
MR CRAWSHAW: I object to that, it is a leading question. In any event, I think Mr Hayes deals with this matter, and I don't know why we need to get it from this witness.
PN745
THE COMMISSIONER: I will allow it.
PN746
MR MURDOCH: Mr Bonanno, you understand the question, it is about sequence, and at which stage the company's offer that you refer to was withdrawn?---No, the offer that was withdrawn is after the final two meetings and after the rejection of that.
PN747
Right. And when you say the final two meetings, what are you referring to?---The meetings which occurred post the union's rejection of the template, where the local SBU came back with a revised position, and we went back with another position.
PN748
You indicated that was mid February?---Yes, I will have to check the dates, sir. But it would have been mid to late February when that occurred. I would have to get the dates.
PN749
Mr Bonanno, you were asked quite a lot of questions in relation to the matter of relationship between you, Mr Gazzard, and others such as Mr Grogan and Gerard, do you recall all of those questions?---Yes.
PN750
What is your responsibility as Production Manager of the Hay Point - I am sorry, what is your role as Manager of the Hay Point Coal Terminal?---I have got responsibility for the operations. I have got various sort of authority levels and approval levels, responsibility for all facets of things, safety, environment, a full range of issues.
PN751
With respect to consultation with Mr Gazzard, can you tell the Commission the range of matters upon which you have consultation with Mr Gazzard in your role as Manager of the Hay Point Terminal?---I would advise him and consult with him if we had a major safety issue as to what we were doing, and make recommendations to him. A major environmental issue, if we had any sort of issues with respect to production which would limit our production or hamper the operation of the terminal in any way, industrial issues I would speak to him about, if there was a concern with them. And certainly approval levels for authorisation of dollars above certain levels.
PN752
Now so far as consultation with others, apart from Mr Gazzard, illustrate to the Commission the areas in which you would consult with others outside of the Hay Point Terminal?---I would consult with BHP Coal's Safety Manager, about safety issues at the Hay Point Coal Terminal, seeking guidance and recommendations. I would seek guidance and assistance and advice on environmental issues. I would seek guidance from the Environmental Manager for BHP Coal. I would seek advice and guidance from the HR Manager, or the Employee Relations Manager for BHP Coal, on those sort of issues. On financial issues I would also seek guidance and advice from BHP Coal's senior finance person here in Queensland.
PN753
In answer to one of the questions from my learned friend, Mr Crawshaw, you used the expression, "Compete with my competitors." Can I get you to just clarify who you meant when you referred to your competitors?---I am referring to other coal terminals that sell under the same export markets or provide a service to the coal industry with respect to putting coal - receiving coal and putting coal onto a ship, and by compete I mean compete on a productivity basis and compete on a cost per tonne basis.
PN754
And can you specify the identity of those competitors?---Yes, they are terminals like Dalrymple Bay Coal Terminal, like Abbots Point Coal Terminal, the Gladstone Terminals which is the R.G. Tanner Terminal and the Barney Point Coal Terminal. In New South Wales they are the PWCS or Port Waratah Coal Services, those terminals.
PN755
All right. And when you used the term in that answer, compete, could you just explain what you mean by the term, "compete," in that answer that you gave?---Well, compete from a productivity point of view, or from a cost per tonne point of view.
PN756
THE COMMISSIONER: What on a bench marking basis?---On a bench marking basis because the cost of the terminal to put a tonne of coal in a ship, adds to the total cost of coal into that ship. And if I am more expensive on a cost per tonne basis, then I add to the supplier of that coal being un-productive, or un-competing on a world market.
PN757
MR MURDOCH: And had you, in the industrial negotiations, objectives in relation to that issue?---Oh absolutely, yes. I wanted to make sure that we got the flexibilities that allowed us to do that, and that was the actual vital parts of the negotiation that we wanted to achieve through negotiating a new certified agreement for Hay Point.
PN758
When you use the term, "vital parts", what do you mean by that?---I'm talking about use of contractors, unrestricted use of contractors at market rates. I am talking about no demarcations, flexibility in that area, those are the sorts of examples that I am referring to.
PN759
And how do those examples relate to your capacity to compete with your competitors?
PN760
MR CRAWSHAW: Well, I object to this. I didn't ask anything about competing with these competitors.
PN761
THE COMMISSIONER: I agree with that, Mr Murdoch.
PN762
MR MURDOCH: Very well, Commissioner, I won't take it any further. It was something that arose out of an answer that the witness gave, and I was endeavouring to clarify it.
PN763
THE COMMISSIONER: I'm happy with what you took the witness to prior to that, but not that particular aspect.
PN764
MR MURDOCH: Thank you, Commissioner, I won't quibble with that. Nothing further, Commissioner.
PN765
THE COMMISSIONER: Thank you, you are excused, Mr Bonanno?---Thank you.
PN766
THE COMMISSIONER: Is Mr Hayes available, Mr Murdoch?
PN767
MR MURDOCH: Yes, he is, Commissioner.
PN768
THE COMMISSIONER: Well, bring him in and have him sworn, and identify his affidavit, and then I intend to adjourn.
PN769
MR MURDOCH: Thank you, Commissioner.
PN770
THE COMMISSIONER: Mr Crawshaw, what do you want done with this notebook?
PN771
MR CRAWSHAW: That could be returned.
PN772
THE COMMISSIONER: No copies made, not relied on?
PN773
MR CRAWSHAW: Unless the Commission needs it to elaborate on the two pages that I cross-examined on.
PN774
THE COMMISSIONER: No, I don't believe that I do. Okay. Mr Hayes, could you come to the witness stand.
PN775
MR CRAWSHAW: Could I just suggest this, Mr Commissioner, before the witness is sworn, that if my friend has any extra evidence-in-chief, if that could be taken before the adjournment so that I don't have to take any time - - -
PN776
THE COMMISSIONER: Yes, very well. Are you going to lead any further extensive evidence-in-chief, Mr Murdoch?
PN777
MR MURDOCH: Commissioner, there is some, and I am happy to do it in the way suggested.
PN778
THE COMMISSIONER: All right, thank you.
PN779
THE COMMISSION: State your name and address, thanks.
PN780
MR S.L. HAYES: Stuart Hayes, 4 Michael Court, Mackay, Queensland.
PN781
MR MURDOCH: Now, Mr Hayes, you have sworn three affidavits in the matter that's before the Commission. You know that these were sworn and filed on 27 October, 4 December and 3 March this year?---That's correct.
PN782
Do you have copies of each of them with you?---I do.
PN783
Are the contents of them true and correct to the best of your knowledge and belief?---Yes, they are.
PN784
Could I take you to Hay Point 4, which is the - - -
PN785
THE COMMISSIONER: I'll simply refer to the fact, though, Mr Murdoch that the statements of Mr Hayes have been marked in the case of the statement filed and served on 27 October 2000 as exhibit 3. The affidavit served and filed on 4 December as exhibit 4 and the statement served and filed on 3 March 2001 is exhibit 5 and I will take those statements as having been read.
PN786
MR MURDOCH: Thank you, Commissioner.
PN787
Now, you provide a chronology in that affidavit, Mr Hayes. Are you familiar with the chronology that you refer to in paragraph 2?---In which affidavit, sorry?
PN788
That's in 4, the December one.
PN789
THE COMMISSIONER: That's the one of 4 December?---Yes.
PN790
MR MURDOCH: I will take you to that chronology.
PN791
THE COMMISSIONER: At which paragraph, Mr Murdoch?
PN792
MR MURDOCH: Paragraph 2. It's referred to SLH5.
PN793
THE COMMISSIONER: Yes, I have that. Yes, thank you. I thought you said paragraph 4.
PN794
MR MURDOCH: Now, that chronology, SLH5, that's a six page document which goes up to approximately - well, it goes up to 9 October 2000, is that correct?---It talks of a stoppage on 9 October.
PN795
Yes?---Yes. The chronology itself goes through to 29 November 2000.
PN796
We might be able to get there quicker with some co-operation, Commissioner. There's a schedule which is SLH7 to 5.
PN797
THE COMMISSIONER: To exhibit 5, yes.
PN798
MR MURDOCH: Yes.
PN799
You've got that, Mr Hayes?---I do.
PN800
All right. Now, are you able to firstly in relation to SLH5 and SLH7 indicate whether between step 17 in SLH5 and the commencement of SLH7 there was any industrial activity? That's between October 2000 and March 2001?---No, there wasn't.
PN801
All right. So the time gap between the two is for the obvious reason that there was no industrial activity?---No industrial action, yes.
PN802
Now, when we come then to SLH7 step 1 refers to the three unions giving notification of intention to take action on the 9th for 24 hours and then it said that a 24 hour stoppage occurred from 7 am on 9 March?---Correct.
PN803
Did that involve the three unions?---Yes, it did.
PN804
Okay. Then in step 2 of SLH7 on 15 March, and again you mention the three unions, gave notification of intention to take industrial action on 19 March 2001 for 24 hours. And then you say a 24 hour stoppage occurred from 7 am on 19 March. Now, did that involve the three unions?---Yes, it did.
PN805
Now, step 3, 20 March CEPU notification and then you say a 24 hour stoppage occurred from 7 am on 28 March 2001. Is that just the CEPU?---Yes.
PN806
In 4 we have the AMWU and the CFMEU giving notice on 23 March and then where there's a reference to a 24 hour stoppage occurring from 11 pm on 27 March was that those two unions?---Yes.
PN807
Okay. Then in step 5, further stoppage occurred from 11 pm on 29 March 2001 in respect of the CFMEU and from 7 am on 30 March in respect of the CEPU. And it said the stoppage is still continuing at the time of swearing your affidavit?---Correct.
PN808
Now, can I take it that the stoppage by those two unions didn't continue right through until now?---No.
PN809
All right. I will take you to some specific dates but since 29 March have you observed a pattern of any sort in relation to stoppages at Hay Point?---There has been a pattern appearing of basically 24 hours on, 24 hours off. That pattern was broken today whereas the employees remained at work today.
PN810
So you're getting two days - two consecutive days in a row?---Yes.
PN811
I will hand up to you a table and one for the Commission.
PN812
THE COMMISSIONER: Do you want this marked, Mr Murdoch?
PN813
MR MURDOCH: Yes, please, Commissioner.
PN814
THE COMMISSIONER: It will become Hay Point Services Exhibit 6.
PN815
MR MURDOCH: Now, you've had a hand in the preparation of this table?---I've prepared this table.
PN816
You've prepared it. Are the contents correct?---Yes.
PN817
Can you just explain to the Commission some of the terminology in it? Take, for example, the first date shown 19 March 2001. Under AMWU you've got 24 hours from 7 am and then the note "action taken as notified". And then for the day that follows, 24 hours from 7 am, "notice of stoppage withdrawn". What's the point of difference between the wording "action taken as notified" for the 19th and the wording "notice of stoppage withdrawn" on the 20th?---So on the Monday the 19th "action taken as notified" means the stoppage occurred. On the 20th it means "notice of the stoppage was withdrawn" so we received advice that the stoppage would not go ahead.
PN818
All right.
PN819
THE COMMISSIONER: Mr Murdoch, is this for my information, this line of evidence?
PN820
MR MURDOCH: Yes, Commissioner.
PN821
THE COMMISSIONER: Well, I understand what this all means.
PN822
MR MURDOCH: Very well, Commissioner. There is one further aspect that I want to take the witness to, Commissioner, to round off on it.
PN823
So far as the withdrawal of notices is concerned, is that done in a uniform way or in different ways?---In March at the start of the table we normally received a fax from the unions advising the stoppage had been withdrawn. Later on in the piece we received a verbal advice, I think it was from the CEPU and then the notices have ceased as far as withdrawing is concerned. So we're unaware as whether the employees are going to be at work or not until they show up.
PN824
Well today, for example, when was the company aware that they were coming to work?---When they appeared at work at 2300 last night or 11 pm last night.
PN825
And was there in respect of today a 72 hours notice of a stoppage today?---Yes, there was.
PN826
Not withdrawn?---No.
PN827
And so far as the second sheet of the table is concerned, today is of course Thursday the 5th, the reference there to 24 hours from 11 pm, that doesn't have against it any additional words as to whether action taken or no action taken?---Correct. Simply because we need to see what occurs during the day, whether we receive notification or whether the employees commence strike action tonight. This is updated on a daily basis.
PN828
All right. So that in relation to the present time, as at the shift that's currently working or the round of shifts, do we take that as being governed by the Wednesday 4 April bracket commencing from 11 pm last night?---Correct.
PN829
So in relation to that 24 hour bracket from 11 pm last night no action taken?---Correct.
PN830
But in relation to the 24 hours from 11 pm tonight you don't know where the company stands?---No.
PN831
And so far as notices are concerned, you've got notices up to and including the 24 hour bracket of time from 11pm on Saturday next?---For the AMWU, yes.
PN832
And for the CEPU?---From 24 hours from 7am on Saturday, and for the CFMEU 24 hours from 11pm on Sunday, the 8th.
PN833
And what is the system, if any, that you've observed in relation to the way in which you get these notices? Do you get a batch for the week or do you get a daily batch, or how does it work?---It's varying from unions. The CEPU seem to be coming through in batches; the CFMEU and AMWU notifications seem to be coming through on a daily basis.
PN834
Could I take you to Hay Point 3, attachment SLH4?---Yes.
PN835
Now in SLH4 you refer in the middle paragraph of the page to the fact that the SBU presented to Hay Point Services an SBU Hay Point Services proposed agenda, claims and draft national log of claims. Is that right?---That's correct.
PN836
I'll just show you two documents. Are they the documents that you refer to in that part of SLH4?---Yes, they are.
PN837
THE COMMISSIONER: Do you want those marked, Mr Murdoch?
PN838
MR MURDOCH: Yes please, Commissioner.
PN839
THE COMMISSIONER: Separately or is it collective?
PN840
MR MURDOCH: Commissioner, the one exhibit would be convenient.
PN841
THE COMMISSIONER: Okay. The SBU Hay Point Services proposed agenda/claims for EA to be ratified by R and F and the draft national BHP coal log of claims will become Hay Point Services exhibit 7.
EXHIBIT #HAY POINT SERVICES 7 SBU HAY POINT SERVICES PROPOSED AGENDA/CLAIMS AND DRAFT NATIONAL BHP COAL LOG OF CLAIMS
PN842
MR MURDOCH: Now could I take you to a copy of the statement of Steve Everist and I'll hand a copy of that up to you?
PN843
Commissioner, you have that on your file, I take it, the Everist statement?
PN844
THE COMMISSIONER: Yes.
PN845
MR MURDOCH: Do you see on the second page of that there is an account that Mr Everist gives of a meeting said to have been in early October 2000?---Yes.
PN846
And there's a series of statements that were said to have been made by, among others, Mr Grogan?---Yes.
PN847
Now were you in attendance at the meeting that took place in early October 2000 at Hay Point?---Yes, I was.
PN848
Are you able to give the date in precise terms for the date of that meeting?---It was 5 October 2000.
PN849
Did you keep notes of that meeting?---I did.
PN850
I'll show you some hand-written notes.
PN851
THE COMMISSIONER: Are they not attached, Mr Murdoch?
PN852
MR MURDOCH: Sorry, Commissioner?
PN853
THE COMMISSIONER: They're not attached?
PN854
MR MURDOCH: No.
PN855
THE COMMISSIONER: Oh, I see. Thank you.
PN856
MR MURDOCH: I'm handing a photostat up to you, Commissioner.
PN857
THE COMMISSIONER: Yes, thank you.
PN858
MR MURDOCH: Whose notes are those?---They are my notes.
PN859
When did you take them?---During the meeting.
PN860
Commissioner, I tender the notes.
PN861
THE COMMISSIONER: Are these not dated?
PN862
MR MURDOCH: Just point to the Commissioner, please, the date?---There's a date in the top right-hand corner.
PN863
THE COMMISSIONER: I'm sorry, the exhibit stamp has been superimposed over it. That will become Hay Point Services exhibit 8.
EXHIBIT #HAY POINT SERVICES 8 HAND-WRITTEN MEETING NOTES OF MR HAYES
PN864
MR MURDOCH: Now at the commencement of those notes there's a series of initials?---Yes.
PN865
Can you quickly just go through and tell the Commission what the initials represent?---Names of individuals who attended the meeting.
PN866
Can you run through them and identify them?---Paul Grogan, Stuart Hayes - myself, Geoff Edwards, Ian Wright, Lance Steindl, Col Harris, Peter Wall, Bill Doreham, Steve Everist, Tony Connolly and Peter Boswell.
PN867
Now, have you had the opportunity to consider the account of the conversation set out in Mr Everist's paragraph 4, and to compare it with your recollection as recorded in your notes?---Yes, I have.
PN868
What do you say about the accuracy of the conversation set out in paragraph 4 of Mr Everist's statement?---I don't recall the conversation going along those lines. Mr Grogan came along and gave our presentation with a number of overhead slides. There was some questioning which I refer to in my notes but I certainly don't recall, and my notes don't reflect, the line of questioning that is in Mr Everist's statement.
PN869
Would you expect that if that line of questioning had occurred that it would have been reflected in your notes?---I would expect that.
PN870
And you used the terminology that you don't recall it. When you use that expression in this context what do you mean?---I simply don't recall it occurring. I don't believe it occurred. I have referred to it in my supplementary affidavit number 4.
PN871
And so far as your notes are concerned, you attended many of these meetings I take it?---Yes, probably in excess of 40 I think the number is; yes.
PN872
And did you take notes at each of them - - - ?---Yes, I did.
PN873
- - - or just this one?---Each of the meetings.
PN874
All right, and did the notes at the other meetings follow the same format as the notes of this meeting?---Yes, they did.
PN875
Nothing further, Commissioner.
PN876
THE COMMISSIONER: Thank you. We'll adjourn until 2pm.
PN877
The witness isn't under cross-examination so he's free to discuss anything.
LUNCHEON ADJOURNMENT [12.55pm]
RESUMED [2.00pm]
PN878
THE COMMISSIONER: Yes, thank you, Mr Crawshaw.
PN879
MR CRAWSHAW: Mr Hayes, if I could go to your first statement, exhibit Hay Point 3?---Yes.
PN880
You say you commenced in the present position in November 1998. Is that right?---That's correct.
PN881
I'm just trying to marry that with the first dot point in paragraph 2, where you say you were at Port Hedland from 1988 to 1999?---No, that dot point is then incorrect. I left Port Hedland in November '98.
PN882
I see. So that should be 1997 to '98, should it?---In that position at Port Hedland I was in Port Hedland longer.
PN883
I'm sorry?---For that position in Port Hedland I was in Port Hedland for longer than that period of time.
PN884
But these previous positions, have they got anything to do with Hay Point?---No.
PN885
They're at Port Hedland as well, are they?---Correct.
PN886
In paragraph 4 you say you're duly authorised to make the statement on behalf of BHP Coal and Hay Point Services Proprietary Limited. Who authorised you from BHP Coal to make this statement?---Ultimately it would be the president Rick Gazzard. It's one of my roles in my position.
PN887
When you say ultimately, was there some other authorising person other than Rick Gazzard?---No individual has authorised me as such.
PN888
Sorry?---No individual has authorised me as such. It is an authorisation of my position.
PN889
So Mr Gazzard didn't authorise you to make the statement?---Well, ultimately as the president of the business, yes.
PN890
Well, are you saying this was done expressly or you just assume that Mr Gazzard is authorising it?---It was not done expressly. It is an authorisation in my position.
PN891
What, you were given an authorisation when you started the job, were you?---In my position description there are authorisations.
PN892
And what are those authorisations?---It covers financial, leave approval - there's a range in there.
PN893
To give evidence on behalf of BHP Coal; is that part of it?---In those terms, no.
PN894
So you're not authorised, are you?---I believe I am authorised.
PN895
And you believe Mr Gazzard somehow has authorised you?---Yes.
PN896
All right. Well, you also say you're authorised to make the statement on behalf of Hay Point Services Proprietary Limited?---Correct.
PN897
How did that come about?---Through the same system.
PN898
What, through Mr Gazzard?---Through my appointment to the position of superintendent of human resources safety and environment at Hay Point Services.
PN899
But who appointed you that?---Mr Bonanno.
PN900
Mr Bonanno?---Who works for Mr Gazzard.
PN901
Yes. But they're all BHP Coal people, aren't they?---Correct.
PN902
So has Hay Point Services appointed you to anything? Hay Point Services Proprietary Limited. Have they appointed you to anything?---My position is at Hay Point Services Proprietary Limited as part of their management team.
PN903
Your position is at Hay Point terminal working for BHP Coal Proprietary Limited, isn't it?---As part of the Hay Point Services management team.
PN904
You don't work at all for Hay Point Services Proprietary Limited, do you?---No.
PN905
And you're not authorised to make this statement on their behalf?---I believe I am.
PN906
Who in Hay Point Services Proprietary Limited authorised you?---I would say Mr Bonanno.
PN907
Mr Bonanno?---Yes.
PN908
You know he works for BHP Coal Proprietary Limited?---As the manager of the Hay Point Coal Terminal for Hay Point Services Proprietary Limited.
PN909
I'm sorry?---As the manager, he's employed by BHP Coal as the manager of Hay Point Services Proprietary Limited.
PN910
He's the manager of Hay Point Services Proprietary Limited. Is that what you're saying?---And the coal terminal.
PN911
Well, forget about the coal terminal. I'm talking about the company Hay Point Services Proprietary Limited. You've said here that you're authorised to make the statement on behalf of that company?---Yes.
PN912
And you say the way you come to that authorisation is through Mr Bonanno. Is that right?---Yes.
PN913
Have you got anything else to offer?---No.
PN914
Well, why didn't you say, "I'm duly authorised to make this statement by Mr Bonanno"?---The company is Hay Point Services Proprietary Limited.
PN915
Is this another case - well, I withdraw that. Is this a case of you being given wording by someone else and just adopting it?---This affidavit was drafted from my words by a solicitor.
PN916
This paragraph 4, did you say to a solicitor, "I am duly authorised to make this statement on behalf of BHP Coal and Hay Point Services Proprietary Limited"?---Not specifically that I can recall.
PN917
Those words were given to you, weren't they?---I can't specifically recall making that statement.
PN918
Do you know who is on the board of directors of Hay Point Services Proprietary Limited?
PN919
MR MURDOCH: Commissioner, I object to this line of questioning. It truly goes to matters quite irrelevant to the matters before the Commission. It is, I'd submit with respect to my learned friend, quite ludicrous to pursue the case on the basis that somehow a group of imposters, myself included, have come here to represent Hay Point Services without them knowing. How ridiculous.
PN920
MR CRAWSHAW: Well, the - - -
PN921
THE COMMISSIONER: Mr Murdoch, I really can't understand what paragraph 4 is intended to mean, why it's even in there. I mean, the man is here giving sworn evidence, and I would have thought that paragraph 3 really explains his role and somebody decides to put in there that he's duly authorised to make the statement on behalf of these people. Well, he is making it on their behalf, isn't he, Mr Crawshaw?
PN922
MR CRAWSHAW: Well, not from the evidence he's given. He's only making it on behalf of BHP Coal, and as for my friend's comment I - - -
PN923
THE COMMISSIONER: Well, really, you know, I'm at a loss. This is all about contrary to the public interest, about whether I'll terminate the agreement and here we are, there seems to be some sort of an argument about corporate law and who the directors of this company and who is and who isn't. So what?
PN924
MR CRAWSHAW: Well, my friend put it quite well. The real question arises as to whether this company that's the applicant has made any decision to make this application.
PN925
THE COMMISSIONER: Oh, well. Obviously that's something you'll develop.
PN926
MR CRAWSHAW: Let's move on, anyway, Mr Hayes.
PN927
THE COMMISSIONER: That's a great idea.
PN928
MR CRAWSHAW: Paragraph 13, you say that the changes that Hay Point Services has identified include the following. The first dot point is increased flexibility in industrial arrangements that apply to employees. In saying that, do you complain about any clauses in the present agreement?---There are clauses in the present agreement that fall under that category, yes.
PN929
And which clauses are they?---Let me just turn to the present agreement. Clause 9, temporary employment.
PN930
You're looking at your annexure, I take it?---Yes, sorry. SLH1.
PN931
All right. And will you identify where you - - -?---Clause 9, page 7.
PN932
Clause 9, page 7. Yes. What's the problem there?---It puts restrictions on the ability to use temporary employees at the terminal.
PN933
And so is that something that you've been seeking to change in the negotiations?---It is.
PN934
And which particular restrictions do you have a problem with?---Ultimately all. Any restrictions on the use of labour places a restriction on the business. This contains measures of when they can be used or how long they can be used for, minimum periods, maximum periods.
PN935
And what have you been seeking in the negotiations to remove?---Ultimately removal of all the restrictions for the use of temporary labour.
PN936
Your negotiating stance has been to have untrammelled access to temporary employees. Is that right?---The position changed through the negotiations as things were negotiated.
PN937
Right. So the last time you visited this issue, what was the position?---Removing or reducing the minimum period from 5 to 3 days. Some differences in words about maximum periods. I think there was some different words about when they could be used.
PN938
All right. And the position under the award in relation to temporary employees; what's that? You're now looking at - - -?---At SLH3. Yes. There's no restriction on the use of temporaries under the award.
PN939
So what do you intend to do if the agreement is terminated in relation to temporary employment?---Ultimately we haven't come to the final position on that.
PN940
So the answer is you're undecided?---Correct.
PN941
Can I just take you to Clause 8.11 of the award. It says:
PN942
A temporary employee means an employee who is engaged on a temporary basis for periods of not less than 5 consecutive days.
PN943
?---My apologies. It is in there, so we'll comply with the award.
PN944
What's in there?---The use of temporaries, in the award.
PN945
So in that respect you would agree that the award and the agreement aren't any different, would you, or - have you ever looked at - I withdraw that. Have you ever looked at a comparison of this before?---I have done a comparison, yes.
PN946
Well, you seem fairly ignorant, if I may say so, of the temporary employee provision in the award?---There are lots of provisions in the award. I don't know it intimately. That's why we're going through a process of identifying what we will apply.
PN947
Are you in a position to say whether the award and the agreement are different in relation to temporary employees or do you have to now examine it to see?---I would like to examine it if you want me to answer it in detail.
PN948
Well, I suppose we can all do that.
PN949
MR MURDOCH: Commissioner, in fairness to the witness, my learned friend either wants him to do the comparison or not, the observation of, we can all do that is unhelpful to the witness.
PN950
MR CRAWSHAW: Well, I was thinking on my feet. I don't seek to waste the Commissions time having this witness look at something that he hasn't looked at before.
PN951
Lets go to the next matter that you are worried about in the agreement as far as flexibilities. I assume there is another provision in the agreement that you are worried about, is there - - -?---Other than - - -
PN952
Other than temporary employees?---Under the flexibility?
PN953
Yes?---Going back to clause 7, Security of Employment.
PN954
Right, that's the one - there might be a shorter way of doing this, Mr Hayes, you have in - further on in this affidavit, a section, Reasons Why the Agreement is No Longer Acceptable to HPS, do you see that?---Yes.
PN955
I take it, in line with our earlier discussion, you really mean why it is no longer acceptable to BHP Coal?---Why it is no longer acceptable to the management team at Hay Point Services.
PN956
Yes, all right. And you nominate various clauses there. Clause 34, Custom and Practice and going on, clause 34, Demarcation and clause 7, Security of Employment?---Yes.
PN957
If I take you to paragraph 13 of your affidavit, in terms of the clauses in the agreement where you don't think there is sufficient flexibility, are there any clauses other than those, namely; the ones that you deal with later in your affidavit?---That fall under the flexibility dot point?
PN958
Yes?---Again, without another detailed look, no.
PN959
Right, well, I'm going to ask you the same question on the next dot point. You say you want to bring about a change to a number of outmoded and outdated work practices. Now, you can do that irrespective of what is in the agreement, can't you?---No.
PN960
Then what I want to know is which clauses in the agreement are the problem in relation to that dot point?---The Customer Practice clause, which is the clause 34, because it talks about having to reach agreement.
PN961
All right, well, that is one that you deal with later in your statement, isn't it?---Yes.
PN962
Yes, well, we'll deal with that when the time comes. And the last dot point, Maintain Employment Costs at a Competitive Rate; which clauses are a problem in that regard?---In particular the - - -
PN963
Well, I suppose I should first ask you are there clauses that are a problem in that regard or is that something that is outside the agreement?---No, in particular, the bonus clause, I'd need to look at - - -
PN964
The bonus clause?---The bonus clause. I'd need to refer to that.
PN965
Yes, the bonus clause in the agreement?---Yes.
PN966
Yes, anything else?---From employment costs, no, I'd say that would be it.
PN967
But in relation to the bonus clause, if the agreement is terminated and you are going back on the award, isn't that right?---That's right.
PN968
And that has a bonus clause too?---Correct.
PN969
In some respects, if productivity is low the bonus is better under the award; isn't that right?---No.
PN970
Well, lets go and look at the provisions. The agreement - the bonus clause in the agreement is at paragraph 15 of SLH1, page 18 of 41; is that right?---Under the agreement or the - - -
PN971
The agreement?---In my version it is clause 15 on page 13.
PN972
Well, have you got a page at the top of yours? I've got page 18 of 41 at the top of mine?---Mine says page 30. Clause 15 of the agreement.
PN973
THE COMMISSIONER: Performance bonus?---Performance bonus.
PN974
That is on page 18 of 41 of the document that I have.
PN975
MR CRAWSHAW: Maybe the witnesses - - -
PN976
THE COMMISSIONER: Yours might be out of order, Mr Hayes.
PN977
MR CRAWSHAW: Have you got the - is that the annexure or just your copy of the agreement?---That's the annexure in my copy of the agreement.
PN978
Might I just approach?
PN979
THE COMMISSIONER: Yes. I think the copy has a proper copy of the agreement you are referring to, Mr Crawshaw. Just leave that with the witness, that document.
PN980
MR CRAWSHAW: Yes, clause 15, so the bonus is found under this gross loading rate, is it?---The gross loading rate is part of the bonus.
PN981
Well, it is the principle part, is it?---No.
PN982
Well, what is the principle part?---Principle by volume would be the base rate.
PN983
Right, the base rate is 13,000?---Correct. In value terms, over the recent time, safety I would suggest would be the next highest in payment rate.
PN984
Safety. Just tell us how that works?---The safety is split into a monthly payment of $160 if there are no lost time injuries during the month.
PN985
So if you have got no lost time injuries, you get a $160?---For the month.
PN986
Yes?---There is also a year end bonus which is paid in December for safety performance.
PN987
Well, if you have zero for the whole year, you get $600; is that it?---That's correct. And there is also if the corporate goals are achieved a payment of $1400.
PN988
When it says zero LTI, that means no lost time for injuries for any employee does it?---Correct.
PN989
Does that get achieved?---Yes. Yes, we went a two year period without any loss on injuries.
PN990
While you have been there?---Yes.
PN991
And what about the $1400? Well, lets get it clear. The $600 was paid for the - is it a financial year?---Calendar year.
PN992
Calendar year, so it was paid for 1999 and 2000, was it?---Certainly paid in 1999. I'd have to check the records for 2000.
PN993
Well, what were the two years you were referring to, 1998?---The two year period of LTI free commenced before I was there then went into the period that I was there.
PN994
All right, well what about the 1400?---Again, I would have to check the records.
PN995
All right, and you don't know in relation to the monthly figures?---Monthly figures we are paying on a regular basis.
PN996
A regular basis?---Certainly.
PN997
All right. And the base rate gets paid no matter what?---Yes, that's correct.
PN998
And the gross loading rate, that gets paid depending on tonnage and shipped does it?---On the gross loading rates shipped over the shipload.
PN999
Gross shipped loading rates. And so 3000 and above that's 3000 what?---3000 tonnes per hour.
PN1000
3000 tonnes per hour. Over what period is this examined?---The loading of the vessel.
PN1001
Each vessel?---Each vessel.
PN1002
Right. And the payout is per vessel?---Correct.
PN1003
So you have got to be 3000 and above to get the $4, between 2735 and 3000 you get $2.75?---Correct.
PN1004
And then below - well these rates are set out. What is the most common figure recently in relation to that particular matter, putting aside the industrial action?---Again, without referring to the records I couldn't answer that.
PN1005
What you don't know how the gross loading rate has been working?---It is calculated on a monthly - - -
PN1006
No, but don't you have any idea - - -?---Which is the most common? I couldn't tell you, I didn't look at the figures. They don't look at the figures that closely.
PN1007
Well, you must know something about productivity?---Each ones of those have been paying over that period of time.
PN1008
Yes, but I'm trying to work out what is the productivity in relation to gross ship loading rates. Has it been - presumably 3000 and above is good productivity?---It is but it's for each individual vessel.
PN1009
Yes - - -?---It's not over a one month period in total, it is for each vessel and I don't go to the detail of each vessel.
PN1010
Right. Well, lets go to the award then and if you look at SLH2. My copy of this annexure doesn't have any page numbers - - -?---SLH2 for me is the Contractors Agreement.
PN1011
I'm looking at the performance bonus at 11.5 in the award?---In the award?
PN1012
Yes, that's the - - -?---In SLH3, sorry.
PN1013
Sorry, yes, SLH3?---Yes.
PN1014
THE COMMISSIONER: SLH3 is an award variation, that is in Hay Point 3. SLH3 to me is a bulk loading - it is an amendment to the award.
PN1015
MR CRAWSHAW: You don't have the award itself?
PN1016
THE COMMISSIONER: Then following that there is an award, yes.
PN1017
MR CRAWSHAW: I'm sorry, Mr Commissioner?
PN1018
THE COMMISSIONER: Yes, I have an award then. Yes, I'm with you now. Which clause are we going to there now, Mr Crawshaw?
PN1019
MR CRAWSHAW: I'm just wondering where the variation is. I don't have a variation in mine.
PN1020
THE COMMISSIONER: The cover page is - no I don't think it is a variation, I think it is just a consolidation of the award.
PN1021
MR CRAWSHAW: Right.
PN1022
Anyway if you look at - - -
PN1023
THE COMMISSIONER: This is a simplified award as I understand it.
PN1024
MR CRAWSHAW: I don't know what it is mine hasn't got page numbers.
PN1025
THE COMMISSIONER: Well, it's an order of Commissioner Wilks relating to allowable award matters, Sydney, June 30 1998.
PN1026
MR CRAWSHAW: Yes.
PN1027
THE COMMISSIONER: And then it seems to me to be then the award, BHP Coal Proprietary Limited Bulk Loading Hay Point Services Proprietary Limited Award.
PN1028
MR CRAWSHAW: Yes, I think we are seeing off the same sheet.
PN1029
THE COMMISSIONER: Which clause are you going to?
PN1030
MR CRAWSHAW: Well, I'm suggesting that the performance bonus under the award is clause 11.5; is that right, Mr Hayes?---Correct.
PN1031
And there you get a base rate of $13,000, so that's the same isn't it?---Correct.
PN1032
Now, the lost time injury matter, it is a different set-up, isn't it?---Correct.
PN1033
And do you understand the difference?---Yes, there is a sliding scale in the award.
PN1034
So in the award you can have lost time injuries and still get the bonus?---Correct.
PN1035
Whereas in the agreement that is not the case?---Correct.
PN1036
So in that respect the award is better than the agreement?---In that respect, yes.
PN1037
Better for the employees, I am suggesting, not for the employer?---Correct.
PN1038
And then with the gross loading rate there is also a different rate per tonnage for loading a ship, isn't there?---Correct.
PN1039
Now the $2.50 is the top amount in there in the award?---Correct.
PN1040
And that is less than the top amount in the agreement of $4, right?---Correct.
PN1041
And it is also less than the second top amount in the agreement of $2.75?---Correct.
PN1042
But on the other hand, you get that $2.50 if the tonnage is 2300 and above?---Correct.
PN1043
Whereas if the tonnage is 2300 - well, for example, for the tonnage of 2300, you get nothing under the agreement?---Correct.
PN1044
And indeed - and so in the award you have to go down to 2100 before you get nothing?---Correct.
PN1045
And you get $1.50 in between the two?---Correct.
PN1046
When you get nothing under the agreement?---Correct.
PN1047
And so you could go - so this is the position, isn't it, that unless a ship loading rate of 2735 is reached, the employees are better off under the award?---For that component, yes.
PN1048
And in going back to the award there is no incentive for the employees to load more than 2300, is there?---No incentive under the bonus system?
PN1049
Yes?---Yes, you could draw that conclusion.
PN1050
So that by going back to the award you are reducing the incentive created by the bonus?---Under the bonus system, yes.
PN1051
Well, I mean the only reason that you got the bonus system is to act as an incentive, isn't it?---Partially as an incentive and also to share the wealth or the profits of the business with the employees.
PN1052
And what do you plan to do if the agreement is terminated. Do you plan to have the award bonus system or the agreement bonus system?---Retain the bonus system under the agreement.
PN1053
Retain it?---Yes.
PN1054
But the award will be - the award provision will prevail, won't it?---Not, there was a letter issued to the employees by Mr Bonanno.
PN1055
Yes?---That stated that the remuneration would remain in accordance with the certified agreement.
PN1056
Stated that the wages would remain, didn't it, Mr Hayes?---And I see bonus as part of the wages.
PN1057
Oh I see. So you interpret that letter as meaning wages, wages including bonus?---Yes.
PN1058
And so what you intend to do if this agreement is terminated, is to ignore the bonus provisions in the award, is that right?---Yes, apply what is in the certified agreement.
PN1059
Yes, ignore the provisions that are in the award?---Yes, apply what is in the certified agreement.
PN1060
Can you just answer the question, Mr Hayes. I didn't ask you what you were going to apply, I asked you whether you were going to ignore - - -
PN1061
MR MURDOCH: I object, Commissioner, because the witness said, yes, and then added what would be applied. The witness did respond to the question.
PN1062
THE COMMISSIONER: I didn't hear him say, yes, but if the record says that he said yes, well, that is fine.
PN1063
MR CRAWSHAW: Well, did you say yes, Mr Hayes, do you say yes, let us resolve the problem?---Yes.
PN1064
Right. I am just trying to remember how we got onto the bonus. Didn't you say that it was the bonus provisions of the agreement that were a problem?---That we had been trying to address in negotiations, yes.
PN1065
Yet should you get rid of the agreement, you intend to apply the provisions in the agreement rather than in the award?---Yes.
PN1066
So presumably you see the award provisions as a problem too, do you?---Yes.
PN1067
There is nothing that you can do about them. Well, I withdraw that. Do you intend doing anything about them?---I have sought no advice on what could be done.
PN1068
Because you are not going to apply them?---Correct.
PN1069
You are going to apply the provisions that you say impede the achievement - sorry, maintain your employment costs at a competitive rate?---During the negotiations we attempted to change the bonus because that is one of the provisions that impedes employment costs.
PN1070
Okay. But it is not something that is going to be remedied by these proceedings, is it?---No.
PN1071
All right, moving on, and we will come back to those provisions in the award when you deal with them in your affidavit. So don't put them away completely. Paragraph 17 of Hay Point 3, you put down there that the representatives from HPS have various times been involved in negotiations. You would agree that any reading of your schedule of meetings and the details of the meetings would include within that list Mr Gazzard and Mr Grogan?---Yes, subsequent to this affidavit being prepared.
PN1072
Well, can I just take you to SLH4?---Actually, yes, that - - -
PN1073
Sorry?---Sorry, I was going to say that Mr Grogan did involved prior to this affidavit being sworn, I'm sorry, on 5 October.
PN1074
Well, also on 2 October, didn't he, or was he just there in spirit?---2 October.
PN1075
It says:
PN1076
HPS advised that Paul Grogan would make a presentation on the 5th.
PN1077
We will come back to 5 October in due course. Can I now come to the other clauses you nominated as a problem. You deal with clause 34 at paragraph 23. Do you see that?---Yes.
PN1078
And - sorry, what is the problem with this clause?---The custom and practice clause, that talks about, as it says there, if there is a custom or practice detrimental to the business the parties will meet to try to resolve the issues. There have been discussions on issues which have not resulted in agreement which means we still do have some custom or practices at site which are of an issue.
PN1079
But the agreement doesn't stop you removing a custom or practice, does it?---Let me just refer to the agreement.
PN1080
Well, you have to refer to the agreement on this issues, do you?
PN1081
THE COMMISSIONER: Well, the agreement on its face is quite clear. Clause 34 is in your paragraph 23. It's there?---I wasn't sure it was in total, Commissioner.
PN1082
Well, the means to change it are quite clearly there.
PN1083
MR CRAWSHAW: Sorry, I haven't cross-referenced it. What do you want to look at?---I just want to refresh my mind whether the agreement says that we have to reach agreement on the change to the custom and practice.
PN1084
Well, I suppose the question is whether Clause 34 is any bigger than what you've said, which is the Christmas question, that it is slightly bigger, if you look at page 38 of 41, Clause 34?---That's right. It says the company will work with the effect on employees. We have tried to progress the issues under that clause and have come up with obstacles.
PN1085
Yes, but coming back to my question, the clause itself doesn't stop you changing custom and practice, does it?---In my view, yes it does. If we were to unilaterally do it, we would be breaching that clause.
PN1086
All that clause requires is consultation. Isn't that the case, Mr Hayes?---I would argue that's not how the employees interpret it. They interpret it as agreement.
PN1087
THE COMMISSIONER: What does the disputes avoidance procedure provide, Mr Hayes?---A mechanism for progressing disputes.
PN1088
Yes?---Through to the Commission.
PN1089
Well, was this ever brought to the notice of the Commission?---Not to my knowledge, no. I don't believe it was.
PN1090
That was open, wasn't it?---It was.
PN1091
I mean, if you get to a veto situation, well, obviously it becomes a question of merit as to the issue that's causing the problem. But you've never seen fit to notify the Commission of any problems regarding this custom and practice clause?---No, because we've been trying to resolve them on site.
PN1092
But you're saying that there's a problem on site in getting them resolved on site?---Correct.
PN1093
But following that you never brought it to the Commission?---No, because they went into the negotiations.
PN1094
I see.
PN1095
MR CRAWSHAW: Sorry, what went into the negotiations?---The issues that were raised such as use of contractors, tool store.
PN1096
But prior to negotiations beginning, was this a problem?---Certainly with contractors it was.
PN1097
And you never notified it to the Commission?---No.
PN1098
You're not trying to use the fact that negotiations on the agreement were taking place as an excuse for not notifying the Commission, are you?---No.
PN1099
Can you point to anything in this clause that says you can't change a custom and practice if the employees don't agree?---No.
PN1100
Moving on, you refer to the expired and unregistered contractors' agreement?---Yes.
PN1101
That's not a certified agreement, is it?---No, it's not.
PN1102
You're not seeking to terminate that through these proceedings?---No.
PN1103
And what have you done with that agreement?---We had negotiations prior to negotiations on the certified agreement about it. It then became an issue raised by both parties during the negotiations for the certified agreement.
PN1104
And so is the agreement still in force?---Well, we are still honouring the agreement; it's not in force because it's not a registered document.
PN1105
So you still applying that agreement?---Yes.
PN1106
And you don't expect the Commission to remedy that, do you?---Well, no; it's an unregistered agreement.
PN1107
It's nothing to do with the Commission; is that right?---Nothing to do in the terms it's not registered, yes.
PN1108
Well, you don't - you haven't involved the Commission in it at all, have you?---I haven't - we have not involved the Commission, no.
PN1109
So it's nothing to do with the Commission?---No.
PN1110
And, in any event, can I suggest to you this: that there is a link between that agreement and the certified agreement in that it seeks to have the settlement of disputes procedure applied to disputes about the use of contractors?---Yes.
PN1111
And that could happen anyway, couldn't it, irrespective - I withdraw that. Disputes about the use of contractors could be taken by either party under the settlement of disputes procedure irrespective of whether there was a provision in the unregistered agreement or not?---Yes.
PN1112
And that applies under the agreement?---Yes.
PN1113
And there's a settlement of disputes procedure in the award too, isn't there?---Yes.
PN1114
And that's an unremarkable provision that disputes about anything should be dealt with under the settlement of disputes procedure?---Yes.
PN1115
You're not trying to stop that happening, are you?---No.
PN1116
Well, why do you say on sheet 8, in the second paragraph - - -
PN1117
THE COMMISSIONER: Sheet 8 of what, Mr Crawshaw?
PN1118
MR CRAWSHAW: I'm sorry?
PN1119
THE COMMISSIONER: Sheet 8 of what?
PN1120
MR CRAWSHAW: Sheet 8 of A.3. I'm trying to go through these affidavits in order so people aren't - - -
PN1121
THE COMMISSIONER: SLH3 and sheet 8?
PN1122
MR CRAWSHAW: No, sorry - Hay Point 3, the affidavit - paragraph 23, but it's a long paragraph. That's why I identified sheet 8.
PN1123
THE COMMISSIONER: Yes. It goes for a couple of - I see, and it's - - -
PN1124
MR CRAWSHAW: The paragraph goes for - - -
PN1125
THE COMMISSIONER: And what you're referring to is on sheet 8. Yes, I'm with you.
PN1126
MR CRAWSHAW: Yes, the paragraph goes for about four sheets.
PN1127
You see that, the paragraph? You say:
PN1128
HPS regards the terms of the expired contractors' agreement as inflexible. HPS wants the ability to engage contractors for any task without the requirement to progress the issue through the disputes procedure where the task has been performed by contractors on site before.
PN1129
You see that?---Yes.
PN1130
So you do seek to stop the disputes procedure being used on use of contractors?---Through the negotiations for the certified agreement, we sought unfettered use of contractors at market rates.
PN1131
Yes, and - - -?---There was no provision - never talked about preventing employees or their representatives progressing a matter of contractors through to the disputes - to the Commission.
PN1132
Well, why do you say here that you want the ability to engage contractors for any task without the requirement to progress the issue through the disputes procedure?---The contractors' agreement states that if the work to be performed has never been performed by a contractor on site before, it won't be undertaken until it has gone through the disputes procedure. We want the ability to use contractors.
PN1133
THE COMMISSIONER: So that would remove this question of where the task has never been performed by contractors on site before?---Correct.
PN1134
MR CRAWSHAW: You agree that irrespective of what is in this unregistered agreement, that matter could go through the disputes procedure under the agreement?---Sorry. That matter - - -
PN1135
Under the certified agreement. It's a matter that could be raised through the disputes procedure under the present certified agreement?---The use of contractors?
PN1136
Well, and the use of contractors where the task has never been performed by contractors on site before?---That's right, but the work would not be undertaken until that has occurred.
PN1137
Under the agremeent?---Under the contractors' agreement.
PN1138
Yes. Do you agree that it's something that can go - that could go to the disputes procedure under the present certified agreement?---Sorry, I'm getting confused.
PN1139
There's nothing to stop either side taking that matter to the disputes procedure, through the disputes procedure, under the present certified agreement, irrespective of what is in the contractors' agreement?---And that matter being - - -
PN1140
Being the use of contractors where they've never been used on site before?---That's right. It could go through the disputes procedure, but we could not engage those contractors while it was going through that system.
PN1141
And you agree that also the disputes procedure in the award could be used on that issue?---Yes.
PN1142
THE COMMISSIONER: Is that totally accurate? The certified agreement - what authority does it give the Commission to resolve matters? Is it confined to matters in dispute within the terms of the certified agreement?
PN1143
MR CRAWSHAW: I'd have to look at the provisions.
PN1144
THE COMMISSIONER: Well, clause 37 at page 39 at 41:
PN1145
Every endeavour we've made to amicably settle any dispute between us by adhering to the following disputes resolution procedure...
PN1146
I'm looking at the agreement.
PN1147
MR CRAWSHAW: Yes. I'm looking; I'm just trying to - - -
PN1148
THE COMMISSIONER: I'm just wondering - - -
PN1149
MR CRAWSHAW: Oh, yes. It says, "any dispute," Mr Commissioner.
PN1150
THE COMMISSIONER: "Any dispute," yes. It's not - - -
PN1151
MR CRAWSHAW: I don't know whether you're asking me or the witness.
PN1152
THE COMMISSIONER: Well, I'm really asking both of you, because you're getting this witness to make admissions about certain things, and I just want to be clear in my mind that the admissions he's making, given that he's not looking at the disputes resolution procedure is a fair way to allow him to answer those questions.
PN1153
MR CRAWSHAW: Well, I'm quite happy - I was just trying to save time - quite happy for him to look at the - - -
PN1154
THE COMMISSIONER:
PN1155
...settle any dispute between us...
PN1156
Well, I guess you'd get an argument about "any dispute between us" in relation to those matters contained in the certified agreement. That would be the first cab off the rank, I would have thought, of jurisdictional arguemnt you'd get if you brought it to the Commission. I just raise that just for the sake of accuracy.
PN1157
MR CRAWSHAW: I can deal with that matter in submissions.
PN1158
THE COMMISSIONER: Yes, very well.
PN1159
MR CRAWSHAW: I don't know whether the witness wants to say anything.
PN1160
THE COMMISSIONER: I'm just concerned about the witness being asked those questions without actually having a look at the certified agreement and clause 37 of it, because obviously if the use of contractors forms part of an unregistered agreement, it certainly is a question of - I doubt that the award would make provision for it to be dealt with, but then again it might be even broader than the certified agreement.
PN1161
MR CRAWSHAW: Is there anything you want to add, Mr Hayes, after having looked at the clause? You've presumably looked at it yourself now. Do you want to change your answer?---We'd need to go back through the questions, I'm afraid.
PN1162
Well, having looked at the - you're looking at clause 37?---Yes.
PN1163
Do you see any problem in there for a dispute about use of contractors being the subject of the disputes resolution procedure?---No.
PN1164
And just completing that exercise, if you look at SLH3, the award, clause 23, which I think is the last page of that annexure, has the settlement of disputes procedure. Do you agree that the dispute about the use of contractors could be processed under that clause?---Yes.
PN1165
Let's return then to Hay Point 3. Could I just ask you this: if you go back to sheet 8, you mention there that the contractors' agreement expired on 30 June 1999?---Correct.
PN1166
I know it's an annexure, but you might be able to tell me: does it have provisions that it continues on?---Explicit in there, no.
PN1167
All right. Well, if we could then go to the next page, it is where you deal with another clause that you have a problem with. That is the demarcation clause; do you see that?---Clause 34, yes.
PN1168
If I could just have one moment; I've just lost the document.
PN1169
THE COMMISSIONER: Yes.
PN1170
MR CRAWSHAW: We were dealing with clause 34, demarcation. What is the problem there with that clause?---Clause 34 is still the workplace flexibility - - -
PN1171
Oh, that's the same one, is it?---Yes. Demarcation is another issue that comes up under that area.
PN1172
Oh, I see. So I don't need to repeat my questions about the effect of clause 34 to you. Demarcation is a subset of the customs and practices that - - -?---Exist.
PN1173
- - - we were talking about earlier, is that right?---Yes.
PN1174
Just on the use of contractors, you agree with what Mr Spillman has said, that the CFMEU has not stopped the use of contractors?---The CFMEU; we have had issues with the other unions, yes.
PN1175
You've had issues. Have they stopped the use of contractors?---Yes, with other unions.
PN1176
Completely?---Yes.
PN1177
And you agreed to that?---Yes, at the time.
PN1178
What, even after you'd used the disputes procedure?---As I said, the disputes procedure said if the work had not previously been performed - sorry, the contractors' agreement states that if the work had not previously been performed by contractors, it doesn't go ahead.
PN1179
Irrespective of the disputes procedure?---It then goes through the disputes procedure.
PN1180
Yes, well, did you go through the disputes procedure with them?---The problem is we needed the work done at the time.
PN1181
I see. So you didn't go through the disputes procedure?---No.
PN1182
You didn't think about going through the disputes procedure prior to making the decision to engage these contractors?---I wasn't involved in a decision to use the contractors.
PN1183
And then you go on at the bottom of 39 to say:
PN1184
Until recently Hay Point Services has enjoyed a degree of flexibility with regard to demarcation.
PN1185
?---Yes.
PN1186
And then you say:
PN1187
However the unions recently advised HPS that in their view staff could only participate in the operation of the dump station for the purpose of relief.
PN1188
?---Yes.
PN1189
Was that a custom and practice?---Certainly since I've been at Hay Point my understanding was that any staff could operate in a dump station. During negotiations it was then - seemed to have changed around that it could only be used for relief purposes. That's certainly not the understanding from previous.
PN1190
So from your point of view it was the unions that were seeking to change a custom and practice there?---Yes.
PN1191
And you say:
PN1192
In the present industrial climate Hay Point Services believe the unions may attempt to further restrict the use of other labour including staff even where it is reasonably required.
PN1193
Do you see that?---Yes.
PN1194
And is that still a fear?---Yes.
PN1195
And that's not a problem that arises out of clause 34, is it?---It's a change to the custom and practice that's occurring on site.
PN1196
You're saying that in those respects they're trying to change the custom and practice, not the company?---That's right.
PN1197
Well, it's not a problem that arises out of clause 34, is it?
PN1198
THE COMMISSIONER: Well, do you want an answer to that or - - -
PN1199
MR CRAWSHAW: Yes?---Well, in my view it is. It's a change of custom and practice. Clause 34 talks about custom and practice.
PN1200
Okay. So the custom and practice is that - let's take the staff doing certain work. The custom and practice you say is that staff can do certain work?---Yes.
PN1201
Right. And you say the unions are seeking to change that custom and practice, not the company?---Yes.
PN1202
Well, clause 34 said:
PN1203
Should a custom or practice be assessed to be detrimental to the business the company will work with affected employees -
PN1204
Etcetera, etcetera. It doesn't apply to this custom and practice being changed, does it?---How it is applied on site is that if there are changes we have discussions about it.
PN1205
It may be so but that's got nothing to do with the wording of clause 34?---I would agree with the wording. The wording says company.
PN1206
Well, the wording is all about a custom and practice that's detrimental to the business?---That's right. And the unions - the unions were looking and trying to impose custom and practice that were detrimental on the business.
PN1207
Well, it's got nothing to do with clause 34?---But clause 34 talks about custom and practices that are detrimental to the business.
PN1208
Well, you're talking about something new being introduced is a custom and practice?---No. The custom and practice on site was that anybody could operate the dump station.
PN1209
Yes?---They were then trying to impose restrictions on that.
PN1210
Yes, I understand what you're saying, but clause 34 has no applicability to that situation, isn't that right?---No, I disagree. It says "the company will work with affected employees to" - - -
PN1211
Yes. "Should a custom or practice be assessed to be detrimental to the business". Was that custom or practice of staff operating the dump station assessed as being detrimental to the business?---Not by the company. The company liked it.
PN1212
Well, did the union say it's detrimental to the business?---No, they thought it was detrimental to them.
PN1213
Yes?---And they want to pose restrictions.
PN1214
The clause doesn't apply, does it?---I've stated I believe it does. It's a custom and practice for the site.
PN1215
Mr Hayes, you understand the English language, don't you?---Yes.
PN1216
And you understand that that clause doesn't apply to the dump loading business that you've referred to?---We talk about custom and practices on site.
PN1217
Yes. But that's apart from what's in the agreement. It's got nothing to do with clause 34, has it?---Clause 34 talks about custom and practice on site.
PN1218
Do you understand the point that I'm making, Mr Hayes?---I'm not sure I do because we seem to have a conflict over it.
PN1219
No, you understand what I'm saying about the applicability of that clause, don't you? You understand, don't you, in reading that clause that it only arises in certain circumstances?---The way I'm understanding it is you're saying that it arises circumstances where the company raises it.
PN1220
Where the company - well, where it's assessed as being detrimental to the business?---Yes.
PN1221
And you agreed that this dump loading example wasn't such a case, didn't you? You told us - well, let's start again. Do you agree that that custom and practice of the staff doing that work was not detrimental to the business of the employer?---Correct.
PN1222
And therefore clause 34 doesn't apply?---I say it does apply because the unions were trying to change the custom and practice.
PN1223
And you say it applies despite the fact that the custom and practice is not assessed as being detrimental to business?---Yes.
PN1224
And so you say clause 34 - we should ignore those words, should we?---I'm trying to explain to you how it applied on site.
PN1225
Well, what you're explaining to me applied to site was a situation where any change to any custom and practice is discussed?---Correct.
PN1226
That doesn't arise out of clause 34, does it?---My view is, yes, it does. That's how it was applied on site. The clause related to custom and practice and workplace flexibility. If there were issues on site we discussed it in accordance with that. That was how it was applied.
PN1227
Assuming that to be the case what's wrong with discussing it?---Nothing wrong. Nothing wrong with discussing it.
PN1228
Is it a problem?---It is when we can't reach agreement on it.
PN1229
What, because you don't implement it then?---Correct, because we - it's the view of the company of detrimental to the business.
PN1230
Well, that's not a matter that was discussed on site, was it, that change?---To the dump station?
PN1231
Yes?---It was raised during the negotiations. That's what raised the concerns.
PN1232
Well, it might have been raised in negotiation but it wasn't raised under clause 34, was it?---No, not specifically referencing clause 34, no, it wasn't.
PN1233
Well, it wasn't raised - clause 34 wasn't raised as the basis for that discussion at all?---The words of clause 34, no.
PN1234
Well, the agreement wasn't raised as the basis for that discussion?---Yes, it was.
PN1235
Who by?---The unions.
PN1236
Which one?---All of them. It was in one of the - one of the meetings with the unions. I can't remember if there was one in particular.
PN1237
But the only way it would be raised in the discussions is if you were seeking something in the new agreement?---No, no. The unions raised it on the basis that they believed that the ability for staff to operate the dump station at any time was not what was originally agreed to and they tried to impose the restrictions of only for relief. It was my clear understanding from the time that I arrived that anybody could operate the dump station. There was no restrictions on it.
PN1238
And have they imposed further restrictions since you wrote this statement?---No. But it's certainly been raised on at least two occasions.
PN1239
What's been raised?---That - - -
PN1240
The dump station?---Yes.
PN1241
But not under clause 34?---No. As a custom and practice.
PN1242
All right. Let's move on to the next clause you mentioned, the security of employment. What's the problem with this clause?---If forced redundancies are required it talks about the company will consult with the SBU delegates to determine an appropriate methodology to achieve the necessary staffing reductions. If failing to reach that it will progress through the disputes procedure.
PN1243
What's wrong with that?---Again that is still a restriction on the business.
PN1244
What, you don't want to consult about redundancies at all?---No, we were happy to consult about redundancies but there is a difference in view as to how the final selection system would be made.
PN1245
THE COMMISSIONER: Underpinned by what?---Sorry, Commissioner.
PN1246
What underpins that? What, are you saying that the unions have got the right of veto as to who will go?---No, no, no. No, what it's saying is if you can't reach agreement it will go through the disputes procedure but what we're saying is through the negotiations the company needs the right to manage the numbers and how the skills mix occurs on site.
PN1247
But you've got obligations under the Act when it comes to the way you select people for redundancy, surely?---Yes. Unions were coming from it's got to be last on, first off.
PN1248
Well, that's what I was trying to get to?---Sorry.
PN1249
I asked you did they have a right of veto and that's, in effect, the right of veto?---Sorry, I didn't understand it that way, Commissioner.
PN1250
Okay, all right.
PN1251
MR CRAWSHAW: The last on, first off is not provided by clause 7 of the agreement?---No.
PN1252
What's the problem with clause 7 of the agreement?---There are restrictions on a company. If we get into a forced redundancy situation that we would need to look at an appropriate methodology and failing to reach agreement progressing it through the disputes procedure.
PN1253
Yes. So what is the problem?---The company wants the ability to implement an appropriate system.
PN1254
You don't have a problem with the consultation in clause 7?---No.
PN1255
So the only problem you have is with it being progressed through the disputes procedure?---The - once the company has made the determination the employees can take it either through the disputes procedure or unfair dismissal.
PN1256
So the provision - I'm just trying to work out what in that clause is a problem. You've told us consultation is not a problem, is that right?---No, happy to consult - - -
PN1257
You've told us that going through the disputes procedure is not a problem?---After the decision has been made.
PN1258
Sorry?---After the decision by the company has been made.
PN1259
I see. Your problem is if you go through the disputes procedure before the company makes the decision?---Yes.
PN1260
Is that a problem, is it?---It may be a problem.
PN1261
But the unions have the right to take that matter - well, I don't want to re-visit the wording unless you need to - but the unions have a right to take the matter of the proposed redundancies through the disputes procedure whether you're under the agreement or the award, don't they?---That's right, but the company wants the ability to look at the skills mix and the other issues associated with the selection system.
PN1262
The clause doesn't stop that, does it?---But the company can't make a decision or implement anything until it has been through a process of the Commission which could take some period of time.
PN1263
THE COMMISSIONER: If you never notify it will take a long time.
PN1264
MR CRAWSHAW: Sorry, where does the provision say you can't implement redundancies until it's gone through the disputes resolution procedure?---If we fail to reach agreement on the process - on this process it shall be progressed through to the disputes procedure. My reading of that is that we will progress it through the disputes procedure without implementing anything.
PN1265
THE COMMISSIONER: Well, it's more than that, it's mandatory. Shall makes it mandatory.
PN1266
MR CRAWSHAW: But the question arises, doesn't it, as to whether the fact that you're going through the disputes procedure prevents you from making redundancies?---I believe it does.
PN1267
Well, is there a status quo provision in the disputes procedure, is there?---No, there isn't but the procedure takes it step through step taking it through to the Commission. It doesn't say anywhere in there that at some stage a company can act.
PN1268
THE COMMISSIONER: That's only if you don't reach agreement going through the steps of the disputes resolution procedure, isn't it?---Correct. If agreement is reached then you implement.
PN1269
Yes.
PN1270
MR CRAWSHAW: In any event, the cause doesn't prevent redundancies occurring without the approval of the union, does it?---No, only the selection system.
PN1271
Well, the union hasn't got a right of veto at all, has it?---Doesn't have a right of veto, no.
PN1272
So I'm just looking at your final sentence. You say:
PN1273
In HPS's view -
PN1274
I take that once again is the view of the management of Hay Point Terminal -
PN1275
clause 7 is restrictive and inflexible because it does not allow HPS to make changes to employment levels in order to meet the operational needs of the business without obtaining the prior approval of the unions.
PN1276
?---Correct, or going through the disputes procedure through to the Commission.
PN1277
Well, it's a pretty big exception, isn't it, Mr Hayes? You want to put those words into your statement now, do you, or without going through the disputes procedure?---But it says it above in the words from the clause:
PN1278
It shall be progressed through to the Hay Point disputes procedure.
PN1279
Yes, but that sentence is wrong as it stands, isn't it, but you've just clarified it by saying "or without going through the disputes procedure"? You want to add those words to make it correct?---I believe those words are in there by saying - by referencing the agreement, it says:
PN1280
If we fail to reach agreement on this process it should be progressed through to the Hay Point disputes procedure.
PN1281
Well, why did you add those words when we were just discussing the matter if you thought they were in there already?---To clarify it.
PN1282
THE COMMISSIONER: I took the witness's answer, Mr Crawshaw, to be more of a statement about the reasons why the company wants to be able to walk away from this clause. They want to make the free choice of whoever they want to select; they'll have consultation. At the end of the day if they don't reach agreement they'll tell these people don't come back Monday, we'll make the pay-outs to you, and they don't have to then - well, they'll end up in here in another way - but they then don't have to go through the disputes avoidance procedure and have the Commission involved at that level. That's basically what he said, and I take it that's what you were saying, Mr Hayes, isn't it?---Correct.
PN1283
Without you trying to put a spin on additional words?---Correct.
PN1284
MR CRAWSHAW: Well, I take it that way too but it's contrary to the last sentence.
PN1285
THE COMMISSIONER: Well, not really because what the witness is really saying is that BHP, in effect, doesn't want to be bound by those sort of terms. They don't want to have to progress these through the disputes avoidance procedure. They want to make the selection; they want to go through the consultative process, make the selection, irrespective of what the unions say; they'll choose these people based upon a mix of skills or whatever else they want and that's it. That's in effect what he's saying, and they see that as some estoppel upon flexibility in terms of the nature of the work force they'll employ. That's basically it, isn't it, Mr Hayes?---That is, Commissioner.
PN1286
MR CRAWSHAW: I'll move on, Mr Commissioner.
PN1287
THE COMMISSIONER: Good.
PN1288
MR CRAWSHAW: You as the - are you the human resources person?---Correct.
PN1289
Have you looked at the career path that applies under the award?---Yes.
PN1290
It's different to what's in the agreement, isn't it?---The training course and some of the skills are different. The career path is the same with the level structure.
PN1291
Isn't it more restrictive above level three in the award than in the agreement?---Can I have a look at the award.
PN1292
Perhaps before going to that - it may be irrelevant - do you intend to, once the agreement goes - - -
PN1293
THE COMMISSIONER: If it goes.
PN1294
MR CRAWSHAW: Sorry?
PN1295
THE COMMISSIONER: If it goes.
PN1296
MR CRAWSHAW: Yes, if it goes. I was rather taking the witness' assumption. If the agreement is terminated do you intend to get rid of the career path provisions in so far as the practical working on site?---No.
PN1297
Do you intend to apply the award provisions relating to career path?---The career path as far as the levels are concerned - without again looking at it in detail I think are the same.
PN1298
You think it's the same?---The - some of the training courses are obviously out of date and some of the terms in there are out of date, the same as they are in the current certified agreement.
PN1299
But you've considered this matter and you don't think the award is going to - applying the award is going to have any detrimental effect on flexibility - - -?---No.
PN1300
- - - in relation to the career path structure set out in the award as distinct from the agreement?---No.
PN1301
All right. So, what does that mean, that you are going to apply the award or the agreement or do you say they're the same?---No, effectively both are out of date.
PN1302
I see. So you aren't going to apply any of them?---We're going to apply what occurs on site, which is - - -
PN1303
But you've got - sorry?---Which is employees are trained in skills and competencies to operate equipment and do other tasks. We expect the employees to perform the duties in which they are trained and competent to perform.
PN1304
See, at the moment - well, perhaps you can just take us to the career path section in the agreement in SLH1?---Okay, it's at clause 16, page 19, it commences.
PN1305
All right. And are there provisions in this agreement allowing flexibility between what can be called the mechanical stream and the production stream?---There is some cross-skilling in areas.
PN1306
Where is that?---Okay. On page 21, level 2, it talks about general upkeep and maintenance of machinery and equipment.
PN1307
This is level two of the production people, is it?---This is a general stream.
PN1308
Right?---And then into the production stream if you look at level 3.
PN1309
Can we just get that - level 2 on page 21?---Correct. B, under level 2B.
PN1310
Yes?---Responsible for general upkeep and maintenance of machinery and equipment, with which they are - - -
PN1311
This is a general stream applicable to production or?---Correct.
PN1312
Or are mechanical people?---Correct, and electrical people.
PN1313
Yes?---Moving on to level 3 which is in the operations stream, service which is - sorry, bad layout - there is an A and then there is some text and another A, which says "service mobile plant".
PN1314
Yes?---E is basic light maintenance, F is basic maintenance functions.
PN1315
Right. What about above level 3?---Above level 3 doesn't say in detail but what it does say is qualification and skills. For example, if we look at level 4 on page 22.
PN1316
Yes?---Qualifications and skills satisfy the requirements of level 2, successfully complete and prove full competency in skills required A, C, D and 2 of 3.
PN1317
So it picks up the earlier ones that are applicable to level 2 and 3?---Correct.
PN1318
Yes?---And that concept works through the agreement.
PN1319
Right. What about the trades persons. Does it work in reverse? I see at the top of page 24 they've satisfied the requirements at level 2?---Level - yes, that's right.
PN1320
So that goes back to general career path?---Correct.
PN1321
And it includes level 1 no doubt?---Correct.
PN1322
So it allows line handling, operating light vehicle and truck?---Correct.
PN1323
And then go on higher ..... functions. That works through in the same way that describes the production stream?---Correct.
PN1324
Or the operation stream?---That is correct.
PN1325
Now if we go to the award, that's in clause 12?---Yes.
PN1326
Can you tell me how the cross-skilling, I think is the word that you used, were tiered?---The same type of process. If we go to level O which is induction, rescue boat training - maybe if I can go over the page, operator level 1.
PN1327
Yes?---It might be better. Skill requirements:
PN1328
Competent in all aspects of line handling, training and certified in light vehicle and truck driving, train in an approved operation to the Dingo and the Hyab cleaning functions.
PN1329
THE COMMISSIONER: Some of this could be dealt with in the submissions, couldn't it, Mr Crawshaw? It seems as if it's the award as opposed by comparison to the agreement.
PN1330
MR CRAWSHAW: I think in fairness it's got to be put to the witness. This witness has said there is no difference between them.
PN1331
THE WITNESS: From a level structure.
PN1332
MR CRAWSHAW: Sorry?---I said there was no difference from a level structure.
PN1333
What about on this cross-skilling point?---Again those areas are covered.
PN1334
Can you just explain quickly how cross-skilling works under the award?---In the same function - if we go back to 12.3.1.
PN1335
Yes?---Career path progression summary.
PN1336
Yes?---It talks of the levels.
PN1337
Yes?---And then relating to the competent at the lower level plus the additional skills so the same process applies.
PN1338
But you have just taken us to level 1 of the operator. There is no tradesperson-type skills in there, are there?---Operator Level 1. This is page 16 on mine.
PN1339
Sorry?---Operator Level 1.
PN1340
Yes?---Okay. Skill Requirements.
PN1341
Yes?---C.
PN1342
To be fully trained in the duties of mechanical trades assistant.
PN1343
Sorry, I've lost you.
PN1344
THE COMMISSIONER: Are you looking at the award or the agreement?---I've got SLH3, which is the award.
PN1345
MR CRAWSHAW: You've got page numbers on yours?---Yes.
PN1346
THE COMMISSIONER: We don't have that luxury?---My apologies.
PN1347
MR CRAWSHAW: I think this was a problem with the agreement. Well, if that - if you could just - Operator Level 1, is it?---If we go to, 12, Career Paths, where it started the clause.
PN1348
Yes?---Top of the next page is, 12.3, Operations Stream Career Path, then, again, the next page, Operator Level 1.
PN1349
Yes?---Bottom of that page, Skill Requirements.
PN1350
Yes?---C:
PN1351
To be fully trained in the duties of mechanical trades assistant.
PN1352
Yes. That is Operator Level 2?---Oh, sorry, Operator Level 2. My apologies.
PN1353
Yes?---That is cross-skilling.
PN1354
And then we go to Operator Level 3, and you say it carries through the - - -?---Correct.
PN1355
- - - to satisfy the requirements of level 2?---Correct.
PN1356
And just to complete the picture, the other way is the electrical and mechanical stream?---Okay. So 12.4 is Maintenance Stream Career Path.
PN1357
Yes?---And then there is a matrix that appears under 12.4, Electrical Electronics. I'm just picking the first one. It talks of, for example, line handling at the levels.
PN1358
Sorry, where was that? In the columns themselves?---Yes, in the columns themselves.
PN1359
Right?---For example, there is line handling.
PN1360
What others could be said to be from the operating functions?---Okay. If we go to 12.4.2, under HPS1, it talks of light vehicles, trucks, Dingo Hire Cleaning.
PN1361
Right?---Again, if you refer back to the matrix - - -
PN1362
The HPS 1 is there?---That's right.
PN1363
Anyway, I suppose it's a matter for submissions. Just returning to the body of Hay Point 3, paragraph 24: I take it that that's dated now; that that was the position at the time?---Correct.
PN1364
So we can move on to your later affidavits for a more up to date position?---Correct.
PN1365
At paragraph 29 - - -
PN1366
THE COMMISSIONER: Of which?
PN1367
MR CRAWSHAW: Of the same affidavit, Hay Point 3.
PN1368
THE COMMISSIONER: You are still on Hay Point 3?
PN1369
MR CRAWSHAW: I take it was can move on from that, can we?---Yes.
PN1370
To the current letter?---To the letter.
PN1371
What was the difference between the two?---I'm casting my mind back. In particular, the leave accruals would continue on. The letter states annual leave, long service leave, sick leave.
PN1372
I note the words "base wages rates" are used. Now, "wages" is used; is that right?---Yes; in the letter.
PN1373
And you take that to include - - -?---The bonus.
PN1374
- - - the bonus?---Correct.
PN1375
I want to suggest to you, the other significant difference between paragraph 29 and the current position is that you've put a saver in the current position that nothing could be guaranteed for the future?---Yes.
PN1376
That was on the advice of your lawyer no doubt, was it?---I can't recall if it was on the advice of the layers.
PN1377
Sorry?---I can't recall if it was on the advice of the lawyers.
PN1378
All right. Well, why do you change the position from being one where you said, "This will apply," to one where you say, "This will apply but don't thing that we won't change our mind."?---Simply because I don't know what the future holds.
PN1379
Let's go to your next affidavit; that's Hay Point 4. You'd agree that in your annexure SLH5 Mr Gazzard starts to appear more prominently in the negotiations from 31 October onwards? I withdraw that. He starts to appear in the negotiations from 31 October onwards?---Correct.
PN1380
And on a regular basis?---For a few meetings, yes.
PN1381
What brought that about?---Initially - initially he came along to see what the issues were between the parties.
PN1382
Couldn't he have been told that by you?---Yes; and he was.
PN1383
So he came - yes. So he came along for more than just to be told what the differences were and what the issues were, didn't he?---No, no, no. He wanted to come along to get a feel for himself sitting in in a negotiation.
PN1384
He didn't take part in the negotiations?---Through the entire negotiations on 31 - - -
PN1385
No. When he came along, did he just sit there like the inspectors used to do when they were inspecting school teachers?---On the 31st - no, he gave a market summary after - there was some initial discussion without Mr Gazzard's involvement, he then gave a market update, and talked generally about the business.
PN1386
You say in - I withdraw that. He also put forward proposals for the negotiations, didn't he?---On the 31st?
PN1387
No. Let's not restrict it to the 31st. I don't want to go into every meeting?---In subsequent meetings, yes.
PN1388
By the way, what was the reason for delaying the negotiations from the date of February to the middle of the year?---Our aim was to start in February. There was a benchmarking exercise that was being undertaken that took longer and involved some time. It took longer for us to come up with the issues we wished to discuss during the negotiations. There was also availability issues with Mr Bonanno who went overseas.
PN1389
And this benchmarking: what was that about?---Mr Bonanno was in a benchmarking exercise looking at other coal terminals.
PN1390
You would agree with me that you don't compete with the other coal terminals, wouldn't you?---We see them as our competitors.
PN1391
Can you answer my question then? You see - - -?---Yes. We see them - - -
PN1392
You do compete?---Yes.
PN1393
So the coal is being exported from your terminal. Could, if the exporters chose, be exported from another terminal?---Only some. They could go through Dalrymple Bay Coal Terminal.
PN1394
So the first inhibition on competition is the location of the terminal compared to the mine?---The logistics - yes.
PN1395
I suppose there's always a railway that could take coal from Central Queensland to Port Kembla, but it's unlikely, isn't it?---Yes.
PN1396
In fact, it's unlikely that the coal would go through your terminal - when I say - I withdraw that. It's not - it wouldn't be economic for the coal that goes through your terminal to go through any other terminals other than Dalrymple Bay?---I would answer yes without having looked at what it would cost.
PN1397
But it would be ridiculous to suggest it would go anywhere else?---I would agree with that.
PN1398
So in that sense you're not competing with the other terminals, are you?---From a logistics point of view, no; but from a cost of point of view, yes.
PN1399
But competition - how can you compete with someone who can't take your business away from you?---Well, they can take business away from a through-put point of view. We're part of a coal chain, and our costs impact upon the cost of the coal to the end user. So if our costs are excessive, that impacts upon the cost to the customer. If it could be seen - it could be a competitive advantage for other mines to have as low a shipping cost which could then either force down the price of coal or they could be able to sell it cheaper to the customers which would then reduce the through-put through Hay Point.
PN1400
But the cost of your labour at Hay Point is a minimal cost in that whole export chain, isn't it?---No. Sorry, in the whole export chain?
PN1401
Yes?---It would - minimal is arguable.
PN1402
Well, you're the one that's suggesting that this is how you end up competing with coal terminals other than Dalrymple Bay?---From a costs point of view?
PN1403
Yes?---Yes. We - - -
PN1404
The ultimate cost of the coal to the customer overseas - - -?---Yes.
PN1405
- - - will be affecting - - -
PN1406
THE COMMISSIONER: But you're really competing against yourself, aren't you? You're using the other companies for benchmarking - - -?---For benchmarking.
PN1407
- - - and competing against yourself to try and improve productivity and costs?---To try to reduce our costs, yes.
PN1408
Yes, basically. So they're not really your competitors in that sense. All that they are is an example for benchmarking to rate your own capacity and your performance. Isn't that it?---No. We - - -
PN1409
I get a bit sick of going round and round in circles over this. I mean, who are you competing with other than yourselves, and you're simply using benchmarking on the basis of what other terminals can do to see whether you can improve. Isn't that it?---But as part of a coal chain, our costs - - -
PN1410
But your coal is coming out of central Queensland, not out of New South Wales, is it?---No.
PN1411
All right. So at the end of the day when it gets to your terminal what you do with it is where the costs are associated for you, isn't it?---That's right.
PN1412
So you are competing against yourselves in terms of how quickly you can throughput the coal and at what cost you can get it through from A to Z?---But our costs impact on the costs of coal which could be supplemented by other suppliers.
PN1413
So exactly. But you are competing against yourself, essentially, to improve your own standards?---Correct. To reduce our costs so the overall cost of coal is reduced.
PN1414
All right. Well, have we had enough of that, Mr Crawshaw, I have?
PN1415
MR CRAWSHAW: Well, I think you probably dealt with it a bit more succinctly than I could, Mr Commissioner.
PN1416
Lets move on then to the statement of Mr Everist and you deal with that in paragraphs 12 to 14. In particular, in paragraph 14 you say that Mr Grogan was asked a question by one of the SBU representatives to the effect of, "Why are you trying to terminate the agreement?" Do you see that?---Yes.
PN1417
Now, do you remember who that was?---No, I don't.
PN1418
And then you say:
PN1419
Mr Grogan advised the meeting that just as the unions have the legal right to take protected action, HPS needs to protect its business and has the right to exercise its legal options which are; applying for termination of the bargaining period; applying for termination of the agreement and/or lockout.
PN1420
Do you see that?---Yes.
PN1421
Now, I'm just wondering - in relation to the question from the SBU representative that you don't remember the identity of, you would put words to the effect of as to the question that was asked; do you see that?---Yes.
PN1422
I take it that means that you don't remember the exact words but words similar to that were used, is that right?---Correct.
PN1423
In relation to Mr Grogan, you haven't put words to the effect of - was that deliberate - or do you say Mr Grogan said words to the effect of, "Just as the unions have the legal right to take protected action," etcetera?---Yes, in response Mr Grogan used some overheads and he spoke to the overheads which contained those three dot points.
PN1424
Can you just - - -?---He advised - - -
PN1425
I'm just trying to find out what words to the effect of, Mr Grogan used?---Words to the effect as I've put there. He advised the meeting. They're not verbatim words.
PN1426
No. But he said words to the effect of, and the we can start at "Just as the unions," can we, and put that in inverted commas?---Yes, we could.
PN1427
Yes, and go down to where?---To the third dot point.
PN1428
Right. So he said all - similar words to all of that?---Yes.
PN1429
By the way, where is Mr Grogan today?---I don't know, actually.
PN1430
He's not on leave, is he?---No.
PN1431
Have you spoken to him recently?---I saw him yesterday.
PN1432
Right. Down here?---Yes.
PN1433
Discuss this matter with him?---This matter being?
PN1434
The evidence of Mr Everist?---No.
PN1435
Have you ever discussed it with him?---Yes.
PN1436
When was that?---Oh, some time last year. It would have been around the time of the affidavit coming out.
PN1437
Now, you've handed up, or had tendered through you an exhibit of your notes of that meeting?---Correct. HPS8.
PN1438
8?---Yes.
PN1439
Hay Point 8, I think it is?---Oh, my apologies.
PN1440
We're not using the company's name. We're using the terminal's name. Where in those notes are the conversations that you depose to in paragraph 14?---They're not - these notes are not verbatim.
PN1441
Right?---These notes are just my contemporaneous notes at the time, but they're not verbatim.
PN1442
So that conversation that you depose to in paragraph 14 doesn't appear in your notes at all?---Correct.
PN1443
Do you remember where abouts in the chain in your notes that occurred?---It was at the end of the meeting.
PN1444
At the end of the meeting?---Yes. Mr Grogan had gone through - he had a set of overheads. He'd gone through the overheads and it came up after that.
PN1445
So there's no reason why you would have put in your notes Mr Everist's conversation either, is there?---I believe I would have.
PN1446
Why is that different to this conversation that you've deposed to insofar as your note-taking is concerned?---The question seemed a very pointed question, so I believe I would have. I haven't -
PN1447
Sorry. Do you still have Mr Everist's statement with you?---I don't have - do I? Sorry, I'll check. Do I have it? Sorry, yes, I do.
PN1448
You're ahead of me.
PN1449
THE COMMISSIONER: It's not marked yet.
PN1450
MR CRAWSHAW: Mr Everist had the question as being at the top of his paragraph 4, "Why have you applied to terminate our agreement"?---To the effect of, yes.
PN1451
Yes?---Yes.
PN1452
And you say you would have taken a note of that question?---No, that question was asked.
PN1453
That question was asked. Let's just go through it. That question was asked, was it?---Yes, and in my affidavit, in 14, it says words to the effect, "Why are you trying to terminate the agreement?"
PN1454
So that's the same question you're referring to?---I believe so.
PN1455
So you don't dispute what Mr Everist has said there?---From that question, no.
PN1456
But what do you dispute? From there on, or - ?---Well, my recollection of the response was Mr Grogan had some overheads he'd gone through. The question was asked, "Why are you trying to terminate?" He re-put up the overheads saying - and made the comment that in the same way as the unions have a legal right under the Act to take industrial action, the company has a number of rights, and he had three bullet points, which are the three bullet points that I've put into the affidavit.
PN1457
THE COMMISSIONER: These were overheads, were they?---Yes.
PN1458
Were they available?---I don't have a copy of them.
PN1459
MR CRAWSHAW: Does that mean they're not available?---From me, they're not available. Whether Mr Grogan has them - - -
PN1460
Mr Grogan has got overheads, has he?---He had the overheads at the meeting, yes. And I never had a copy of them.
PN1461
In any event, do you deny the rest of that conversation took place in paragraph 4 of Mr Everist's statement?---A conversation took place as outlined as what I've put Mr Grogan's response.
PN1462
Yes. I'm asking you whether you deny Mr Everist's conversation. I know what you've put there?---Yes, I deny that occurred.
PN1463
It couldn't be that your memory is faulty?---No.
PN1464
So you didn't take notes on this?---No. I can clearly remember Mr Grogan going back to the overheads.
PN1465
Well, maybe so, but do you remember all the conversation that took place on this issue?---Through that meeting?
PN1466
Yes?---I'd have to answer no. I can't remember every word - - -
PN1467
And you didn't take - sorry?---No, I can't remember every word that was said.
PN1468
You didn't take notes on this matter at all?---I took notes during the meeting.
PN1469
Yes, but not on this matter?---No.
PN1470
See, I want to suggest to you either you didn't hear this conversation or that your recollection is wrong?---My recollection is what I've put in that affidavit.
PN1471
So you don't agree with the suggestion that you didn't hear this conversation and that it occurred?---Correct.
PN1472
And you don't agree with me that your recollection is wrong?---Correct.
PN1473
And you say this occurred right at the end of the meeting, do you?---Correct.
PN1474
And when you say in paragraph 14, "I do not recall the question being asked regarding the reasons behind the termination of the agreement," which question are you talking about there?---From "What about Hay Point -" so I recall the initial question, words to the effect, but thereon, I have a different recollection.
PN1475
Right. Mr Ian Dymock, who you mention in paragraph 20, he speaks for BHP Coal, doesn't he?---He's the public affairs manager and the spokesman, yes.
PN1476
His job is to speak for BHP Coal?---Amongst other things, yes.
PN1477
All right. If I could just take you, then, to your third statement, Hay Point 5, you deal at paragraph 17 with the letter that Mr Bonanno sent to all the Hay Point Services employees?---Yes.
PN1478
Did you have any involvement in that letter?---Yes, I did.
PN1479
What was your involvement?---I drafted the letter.
PN1480
By yourself?---I did an initial draft which was reviewed by Mr Bonanno and a solicitor.
PN1481
Have you seen the letters that have been sent to employees at various BHP coal mines who are having their agreement terminated?---No, I haven't.
PN1482
Sorry, who are having applications to terminate their agreement?---No, I haven't.
PN1483
You've annexed this letter at SLH6 and you say you drafted the letter, did you?---I did an initial draft.
PN1484
Yes. And did that get changed by anyone?---Ah, yes.
PN1485
Who did it get changed by?---Mr Bonanno and the solicitor involved, I think it was.
PN1486
And what did Mr Bonanno change?---I can't remember exactly.
PN1487
Well, I want to show you a copy of the letter written by the mine manager at Peak Downs on 5 March to the employees there. Do you see that letter?---Yes.
PN1488
Is the wording familiar?---Yes.
PN1489
Did you use that letter to come up with your draft?---I have not seen this letter.
PN1490
You would acknowledge that it is almost entirely word for word of your letter?---Yes. There are some differences, but, yes.
PN1491
Can you explain how that happened?---I only suggest is through our legal advisers the same legal advice was applied to the other mines.
PN1492
The only explanation is that the letter that was written came from your lawyers, isn't it?---No, they were involved in it. I certainly did a first draft. There were changes made by Mr Bonanno and by the lawyer - by the solicitor. Now, if there was a template I had not seen this letter prior to being shown it here.
PN1493
But the changes that were made brought it almost word for word to be the same as the letter written to employees of Peak Downs?---Yes.
PN1494
And can I show you this letter?
PN1495
THE COMMISSIONER: Are you tendering these, Mr Crawshaw?
PN1496
MR CRAWSHAW: Well, I will. Have you seen that letter before?---No, I have not.
PN1497
It's an earlier matter, isn't it?---It is.
PN1498
Written to the - is it to the employees of Saraji mine?---Saraji by the looks of it, yes.
PN1499
Once again the wording almost identical to the letter that was written by your terminal?---Correct.
PN1500
The only explanation is that if you sent a draft in it came back from the lawyers in the same form as the letters written to the various mine employees?---The solicitor did make changes to it, yes, and possibly used these letters. I don't know, I haven't seen these before.
PN1501
Well, could I suggest that if you sent a draft in your draft was disposed with and this standard form of letter come up with?---There were changes made to the letter by the solicitor and by Mr Bonanno.
PN1502
But it wasn't a matter of getting your draft and changing a few words, was it?---No, there is a number of changes to it.
PN1503
A whole new letter came back, didn't it?---No. No, there were some words still in there that were mine.
PN1504
Which words are yours in SLH6?---I honestly couldn't answer that. I can't remember what the first draft looked like. I do a number of letters.
PN1505
Yes, I tender those.
PN1506
THE COMMISSIONER: Very well. I will mark those as the one exhibit, Mr Crawshaw. The two pieces of correspondence which are directed to mine employees at Saraji and Peak Downs will become CFMEU Exhibit 1.
EXHIBIT # CFMEU 1 TWO PIECES OF CORRESPONDENCE DIRECTED TO MINE EMPLOYEES AT SARAJI, DATED 27/02/2001 AND PEAK DOWNS, DATED 05/03/2001
PN1507
THE COMMISSIONER: And they're dated, insofar as Saraji Mine, 27 February, the year 2001 and Peak Downs, 5 March, the year 2001.
PN1508
MR CRAWSHAW: I'm afraid I didn't have copies of them for - - -
PN1509
THE COMMISSIONER: We will get copies of those made later, Mr Crawshaw.
PN1510
MR CRAWSHAW: Yes, thanks, Commissioner, and while we're dealing with the letters, SLH9 is - well, at the response of Mr Bonanno to the request of the local site representatives of the unions for further negotiations?---Correct.
PN1511
You were involved in drafting an answer to that letter?---Correct.
PN1512
And once again you submitted a draft to the solicitors?---Yes, and Mr Bonanno.
PN1513
And your position is, isn't it, that you're content to rely upon the legal processes that are taking place in this Commission, namely, this application and the application to terminate the bargaining period at Hay Point as an alternative to having further negotiations?---Correct.
PN1514
I should have asked you this earlier when we were going through the chronology of meetings. On 2 November there was a meeting - it's probably in your annexure - you might help me with - the annexure?---2 November appears in SLH5.
PN1515
SLH5?---In Exhibit 4.
PN1516
Yes. And you were at that meeting?---Yes, I was.
PN1517
And Mr Bonanno was at that meeting?---Yes.
PN1518
And your note of that meeting - I take it these notes are summaries of more detailed notes, are they?---Most certainly, yes.
PN1519
Do you have more detailed notes of this meeting as well?---I do, not with me.
PN1520
Right. And you say there that HPS finalised its response to the SBU counter offer dated 26 October and so I take it they gave a response - you gave a response to the counter offer?---Yes.
PN1521
And then the single bargaining unit made an amended verbal counter offer?---Yes.
PN1522
On the spot, as it were?---It was after lunch they came back - we gave the - finalised the response in the morning. We had lunch. They came back and posed questions.
PN1523
Right?---They were wondering whether they should dip their toe in the water - it was a line that was used - there was a break and they came back with a verbal position.
PN1524
And the single bargaining unit indicated that they were willing to move on certain issues?---Yes.
PN1525
And Mr Bonanno said for the company that your position stood as it was?---I would have to refer back to the detailed notes of the meeting.
PN1526
You remember Mr Bonanno at that meeting also referring to industrial action that had taken place?---Without referring to the notes, no.
PN1527
So when I suggest to you that he - Mr Bonanno - said that the application to terminate the certified agreement was made because the employees took industrial action?---I can't recall that. I would need to refer to the notes.
PN1528
Well, do you deny that that's the case?---I cannot recall that being said.
PN1529
Do you remember him also saying that the company's offer was worse because of the industrial action being taken?---No, I can't recall that.
PN1530
Do you deny that was said?---I can't recall it being said. I would need to refer to our notes.
PN1531
Yes, thank you, Mr Commissioner.
PN1532
THE COMMISSIONER: Thank you. Mr Sweet.
PN1533
PN1534
MR SWEET: Mr Hayes, you specify sort of throughout your affidavits and your various statements a number of meetings that took place between representatives of Hay Point Services, BHP Coal and the Single Bargaining Unit?---Yes.
PN1535
In your statement which is marked Hay Point 5?---Yes.
PN1536
Sorry, I take that back, Mr Hayes. In your statement in paragraph 9 you say - - -?---Of - sorry, of HBS5?
PN1537
Sorry, of the same affidavit. You say that you were informed that after the meeting on 31 - and I'm paraphrasing but if you have any problems with what I'm saying you'll obviously say, "No, that's wrong" - after the meeting on 31 January 2001 you were informed by Mr Gerard that an in-principle agreement had been reached. Is that correct?---Correct.
PN1538
And that was on 31 January 2001. And on 5 March - and I'm taking you now to paragraph 14 of that statement - and perhaps midway through that paragraph there - on 5 March a document was put to - sorry, it's probably more accurately paragraphs 14, 15 and 16 but the essence of what I'm putting to you, Mr Hayes, is that on 5 March, there was a mass meeting of employees on site at which the document of 2 March was tabled?---Correct.
PN1539
That document was a different document to the one that was put, the in-principle agreement of 31 January?---Correct.
PN1540
So can I assume, then, there's been some movement between 31 January and 5 March - or 2 March, in terms of negotiations?---Further negotiations occurred.
PN1541
Further negotiations take place and I think you discussed that in your statements?---Yes.
PN1542
And that document was rejected by the workforce?---That's correct.
PN1543
And then on 26 March - and it's contained in your annexure SLH8 - on 26 March the single bargaining unit says that they're willing - writes to Mr Bonanno and says that they're willing to undertake further negotiations with Hay Point Management at any time and an acceptable outcome could be achieved. Is that correct?---It says that in the letter, correct, yes.
PN1544
And on 28 March Mr Bonanno writes back essentially saying, "No, we don't want to meet any more." Is that correct, Mr Hayes?---Correct.
PN1545
Can you tell the Commission, perhaps, how it is that on 5 March you have a document that is going to the troops, so to speak, and then, around 20 days later, there's no hope? You've have movement from 31 January to 5 March. The documents have changed between these further negotiations and then, about 20 days later, there's no hope of reaching an agreement. How was that view formed?---The template agreement was rejected at the meeting - at a meeting at Hay Point. A further meeting was organised - and I'm just referring to my notes - on 27 February at which the unions presented a further document to the company which they said was their bottom line offer - - -
PN1546
I think we've gone through that because that's before 5 March, isn't it, Mr Hayes?---That's right.
PN1547
Yes. So we're up to - - -?---Okay, so - - -
PN1548
Sorry, we sort of said that, yes, there's been some movement between 31 January - - -?---But they came and - - -
PN1549
- - - and 5 March, yes, and - - -?---Okay. They came at that meeting and said, "This is our bottom line offer." We went back with an offer which was the offer of 2 March - - -
PN1550
Yes?--- - - - in a response and said, "Look, this is the best we can do," and it - - -
PN1551
Yes. Normal negotiations, would you describe it?---Yes, "Ad it's the best that we can do. That was then put to the troops and it was voted down - but the same issues that were between us, right back to the meeting of 2 March. We've had 40-odd meetings. We've done these issues to death. There is just no chance of an agreement.
PN1552
But you've moved, from 31 March to 5 March? There's definitely been some progress in terms of negotiations? Is that correct?---I don't think there was much movement. There were some changes with some words. There were issues pulled out of the template which were outstanding between us to try to come up with a final document.
PN1553
And then, the employees offered to meet again to try and continue the negotiations and the company says, "No." Is that correct?---After 40 odd meetings, after thrashing these issues out for six months, eight months, that would be a waste of time.
PN1554
I don't think I've got any more questions of Mr Hayes.
PN1555
THE COMMISSIONER: Thank you. Mr Burton?
PN1556
MR BURTON: I have no questions of Mr Hayes, Mr Commissioner.
PN1557
THE COMMISSIONER: Mr Murdoch, how long might you take in re-examination? I was only thinking about having a short break; that's all.
PN1558
MR MURDOCH: That would be a good idea, Commissioner, thank you.
PN1559
THE COMMISSIONER: We'll take a short break.
PN1560
MR CRAWSHAW: Can I just ask how long we're likely to sit tonight?
PN1561
THE COMMISSIONER: Oh, to the extent that I'm satisfied we can finish tomorrow. On that basis, I'll adjourn.
SHORT ADJOURNMENT [4.15pm]
RESUMED [4.25 pm]
PN1562
THE COMMISSIONER: Thank you, Mr Murdoch.
PN1563
MR MURDOCH: Mr Hayes, you were asked about the competency levels in the award verses the certified agreement?---Yes.
PN1564
And are you able to say which competency levels are actually used?---The levels that are used, the modules that go into the levels are out of date in both the certified agreement and the award. Some are still relevant and some aren't.
PN1565
Well, what is the bottom line of all of that, can you round off on that. What does that mean?---I see no change going on if the certified agreement is cancelled. The employees are trained and competent to perform their duties, and they would perform those duties.
PN1566
All right. And do you have personnel in all levels, or only in certain levels?---No, not in all levels, only in certain levels, mostly levels 4, 5 and 6 in operations, and mostly 5 and 6 in the mechanical area - in the maintenance area, sorry.
PN1567
Do you have any people in levels lower than 4?---There are some trade assistants who are level 3s, but no one lower than that.
PN1568
Okay. I take you to the matter of bonus, and so far as the bonus provisions in the award compare with bonus provisions in the certified agreement, have you ever done the exercise?---I have had our accountants do a comparison between the two over the same snapshot period, and there was a difference of $2.50 over a two year period per employee.
PN1569
Okay. What $2.50 a week or $2.50 over a two year period?---$2.50 over two years.
PN1570
I want to very briefly take you back to that matter of Hay Point and its competitors. You made a mention of the coal chain. Do you recall that?---Yes.
PN1571
Just quickly what did you mean by the coal chain?---From the mine through the transport logistics, so cost of production at the mine, there is then a freight cost to get it to the port and then there is a cost for the port in processing it onto the boat, and depending on how the customer takes the coal it could be what is called free on board or there is a transport cost for the coal from the terminal to the customer.
PN1572
So far as the coal chain goes, if you look, say, at Peak Downs coal, and just explain, will you, where the coal chain starts and where the coal chain finishes in terms of the costs that you have referred to?---From the initial moving of it from the mine, well through the mine process, so the cost of production of the coal at the mine from a blasting pre-strip phase through coal prep, onto the train, the train to the port, processing at the port, loading onto a vessel, and then again depending on the transport arrangements could be the cost of the vessel to the customer.
PN1573
Well, from the point of view of competition, taking that coal chain, just explain your concept of competition, somebody competing with the customer against that coal chain?---So the customer pays for the coal as a total price. That total price includes costs for that production process of which the terminal is part of that production process. So if our costs are higher compared to other coal terminals we are putting a burden on that cost of the production of the coal, a competitive advantage for other coal mines who have products, coal products which compete with the coal products produced out of the BHP mines in the Bowen Basin.
PN1574
All right. Well, when you say other coal mines, just quote an example, if you don't mind, so we know what you are talking about?---For example - I don't know the coal types intimately, but there are coals in the market, for example, taking the Peak Downs scenario, compete with the Peak Downs coal who are produced by a company other than BHP, or the coals that we ship through Hay Point. So if the costs of the shipping through Hay Point is higher it contributes to the cost of that coal to the customer. If other terminals where the coal is shipped through is shipped through at a lower rate, that could be a competitive advantage for the coals in competition with Peak Downs, for example.
PN1575
Now, you were asked a series of question in cross-examination concerning the document that is SLH8. That is the letter. You have still got that?---Oh yes, sorry.
PN1576
Now, Mr Sweet, in asking you about that, took you to 27 February, and you said - - -
PN1577
MR SWEET: Sorry, I didn't take him to 27 February at all, I took him to 31 January and 2 March. I did not ask him a question about 27 February.
PN1578
MR MURDOCH: Okay. Well, I am indebted for the help, as always.
PN1579
In answering Mr Sweet, did you use the term, "bottom line"?---I may have, I can't recall.
PN1580
All right. Did you refer to 27 February in the context of someone presenting a bottom line?---Yes, the unions came with the document that covered, I think, five points, from memory, and they said that was the best that they could do to try to get a deal through. We gave some initial responses to that, and then that was withdrawn.
PN1581
And then 2 March?---Okay, 2 March was a further meeting in which the company put a document to the employees which was our attempt to try to reach an agreement, taking up some of their points which was the absolute best that we could do. That was then put to a vote on 5 February to the employees, which was rejected - 5 March, sorry, which was rejected.
PN1582
Now, you were at both lots of discussions yourself?---27 February and 2 March, yes.
PN1583
And what was your attendance rate at those preceding 40 meetings. Were you at all of the other 40?---Not at all of them, no.
PN1584
Give us a percentage?---Oh a vast majority. I missed three, I think.
PN1585
Okay. Well, when it got to 27 February and 2 March, the lead-up to the mass meeting that rejected the best that we can do proposal, in your opinion was there any shortage of time at either 27 February or 2 March meeting. Did the parties run out of time to discuss their positions?---No, no.
PN1586
Were they rushed meetings, or were they meetings that the parties took some time at?---No, they weren't rushed meetings, we took time.
PN1587
Did you observe any matter that could have been sensibly discussed longer or debated longer between the parties at the bargaining table on either of those occasions?---No, we went through and we sought clarification, both parties sought clarification. Both parties acknowledged that we had a clear understanding of what was there before we left the rooms, the room, on those days.
PN1588
Okay. And the matters that were between the parties on 27 February and 2 March, were they fresh matters or were they matters that had been discussed and debated previously through the 40 meetings?---No, they had been canvassed. As I said, I think, earlier on they had been discussed exhaustively. The only one that may - it was back pay, but the - - -
PN1589
THE COMMISSIONER: Could you be a little less [sic] audible, please.
PN1590
THE WITNESS: But the term of the agreement which was a back pay claim was discussed earlier on. So no, they had all been discussed at length.
PN1591
MR MURDOCH: In the previous discussions had they been discussed with the local Hay Point union representatives, or with the Hay Point people plus state officials, or a combination?---A combination.
PN1592
At those meetings on 27 February and 2 March, just explain again the level of union representation. Was it local or - - -?---Local level. It was the delegates.
PN1593
On both of those occasions?---Both of those occasions.
PN1594
If you look at SLH8 please?---Yes.
PN1595
You see in the first paragraph, the observation that it had not been possible to reach an agreement which meets the current needs of the business, and then it goes on:
PN1596
This position has been reached despite the company's efforts in negotiating in good faith.
PN1597
Sorry, is this SLH8?
PN1598
THE COMMISSIONER: I think it's SLH9. That's the letter of 20 - - -
PN1599
MR MURDOCH: No. I was looking at 14 March, I'm sorry.
PN1600
THE COMMISSIONER: Which exhibit do you want to take the witness to?
PN1601
MR MURDOCH: Six. Sorry about that, Commissioner. SLH6. I take the witness to that. This is the 14 March letter, first paragraph. What I'm taking you to is:
PN1602
This position has been reached despite the company's efforts in negotiating in good faith.
PN1603
?---Yes.
PN1604
You were involved in the drafting of this letter, were you?---Yes.
PN1605
The reference there to the efforts in negotiating: what does that refer to - just the recent meetings or something - - -?---No. Over the period of 40 odd meetings that we'd had. There was a lot of effort placed by the company in trying to reach an agreement. We had a meeting twice a week for a long period of time; a huge amount of effort went into trying to negotiate an agreement.
PN1606
Nothing further, Commissioner. Might the witness be excused?
PN1607
THE COMMISSIONER: You are excused, thank you, Mr Hayes. Which of your witnesses do you want to call - - -
PN1608
MR CRAWSHAW: Mr Sweet is going to go first.
PN1609
THE COMMISSIONER: Mr Sweet, are you going to go first?
PN1610
MR SWEET: If I could, Commissioner.
PN1611
THE COMMISSIONER: You are going to call Mr Wall, are you?
PN1612
MR SWEET: Can I just do a little housekeeping before I call Mr Wall?
PN1613
THE COMMISSIONER: Yes.
PN1614
MR SWEET: We filed with the Commission - I just want to check that the Commission has it - two outlines of submissions.
PN1615
THE COMMISSIONER: Yes, I have those.
PN1616
MR SWEET: They do run concurrently. One would have been filed on 17 November 2000. It's simply titled CEPU Outline of Submissions; and the other one would have been filed - I believe it's 2 April 2001. It's just got a longer title, Outline of Submissions of - - -
PN1617
THE COMMISSIONER: Yes, I have that.
PN1618
MR SWEET: Also filed on 17 November was a witness statement of Mr Peter Wall.
PN1619
THE COMMISSIONER: Which of those documents, in terms of outlines, are you going to rely upon?
PN1620
MR SWEET: They actually cover different areas.
PN1621
THE COMMISSIONER: I will mark the initial submissions of the CFMEU Outline of Submissions as CEPU1.
EXHIBIT #CEPU1 CFMEU OUTLINE OF SUBMISSIONS FILED 17/11/2000
PN1622
THE COMMISSIONER: The further outline of submissions received on 4 April, I will mark as exhibit 2.
EXHIBIT #CEPU2 OUTLINE OF SUBMISSIONS RECEIVED ON 04/04/2001
PN1623
THE COMMISSIONER: I think that covers the two outlines, doesn't it, Mr Sweet?
PN1624
MR SWEET: It does, Commissioner.
PN1625
THE COMMISSIONER: The statement of Mr Wall, I will mark as exhibit CEPU3.
EXHIBIT #CEPU3 STATEMENT OF MR PETER EDWARD WALL FILED 17/11/2000
PN1626
MR SWEET: Could I call Mr Wall?
PN1627
MR MURDOCH: Before my friend does that, I should formally close my case before he commences. Before I take that step I wanted to tender a transcript of proceedings before Commissioner Bacon on 2 March 2001. That was in matter BP2001/379-388.
PN1628
THE COMMISSIONER: I will mark that as Hay Point Services exhibit 9.
EXHIBIT #HAY POINT SERVICES 9 TRANSCRIPT OF PROCEEDINGS DATED 02/03/2001 IN MATTER BP2001/379-388 BEFORE COMMISSIONER BACON
PN1629
MR CRAWSHAW: Commissioner, I've only just seen the transcript and - - -
PN1630
THE COMMISSIONER: I might reserve on that until tomorrow for you to say anything you want to about that.
PN1631
MR CRAWSHAW: I just - it's a huge wad of transcript. My initial objection is to relevance, this being a different matter, but my friend might overcome that objection by telling us which sections of the evidence he relies upon and for what on this proceedings, so that we're not left in the dark.
PN1632
THE COMMISSIONER: Yes, I agree. Mr McMurdo?
PN1633
MR MURDOCH: I'm happy to do that. The passages from the evidence of Mr Vickers, talking about PM410, PM411, PM412, PM486, PM487.
PN1634
THE COMMISSIONER: Is that it?
PN1635
MR MURDOCH: Yes, thank you, Commissioner.
PN1636
THE COMMISSIONER: That's the extended - - -
PN1637
MR MURDOCH: Yes.
PN1638
THE COMMISSIONER: And what pages are they?
PN1639
MR MURDOCH: They just give the paragraph number, Commissioner.
PN1640
THE COMMISSIONER: Mr Crawshaw, I'm sure you can find those.
PN1641
MR CRAWSHAW: I've found them already, Commissioner.
PN1642
THE COMMISSIONER: So your objection is no longer sustained?
PN1643
MR CRAWSHAW: Well, I haven't read them. We could perhaps leave that till tomorrow.
PN1644
THE COMMISSIONER: I will tentatively mark that, Mr Murdoch, until I determine tomorrow, subject to any objections raised. Thank you, Mr Sweet; I'll have your witness now.
PN1645
MR SWEET: Could I call Mr Wall, thank you, Commissioner.
PN1646
THE COMMISSIONER: Can I indicate to the parties the Commission intends to commence tomorrow at 10.15 am. I'm not saying what time I'm going to finish today, but that's when I intend to start tomorrow.
PN1647
MR SWEET: Can you state for the Commission your name and your address please?---Peter Edward Wall, 52 Range Road, Sarina.
PN1648
Have you prepared a statement for this matter, Mr Wall?---Yes, I have.
PN1649
Do you have a copy of that statement with you?---Yes, I have.
PN1650
Could I tender a copy of that statement, Commissioner?
PN1651
PN1652
THE COMMISSIONER: Are there any errors - - -
PN1653
MR SWEET: Sorry, Commissioner. Yes, I think before I tender it I probably should ask Mr Wall: when was that statement made, Mr Wall?---November of 2000.
PN1654
Are there any amendments that you would like, or updating you'd like to make of that statement, Mr Wall?---Yes, I would. AR.3 says that I'm a co-delegate at the site. That is no longer the case. I resigned approximately three to four weeks ago. On dot point number 8, adding onto that phrase is, from memory - - -
PN1655
Sorry, Mr Wall; adding on to - - -?---Adding on to number 8, about the number of meetings that I have been at, from memory, since that period when this was made in November, I have attended most of the meetings up to - sorry, all the meetings up to 12.12.2000, and the most of the meetings up to 5.3.01. The next one is number 10 regarding the outstanding issues: since November the number of issues have actually changed. They now include contractors, union leave, apprentices, back pay, and employees' duties.
PN1656
Is that in replacement of the ones listed there?---In replacement of the existing ones that are written in there. The number 18 regarding the loss of income if the agreement is terminated and we're put on the award. We have since this period received a letter to state that that will probably not happen; that we will stay on the income as in our certified agreement. And that completes the changes.
PN1657
Thank you, Mr Wall. Are the contents of the statement true to the best of your belief?---Yes.
PN1658
THE COMMISSIONER: The statement of Peter Wall will become CEPU Exhibit 3, and I will take that statement as having been read.
PN1659
THE COMMISSIONER: Are you intending to lead further evidence in-chief, Mr Sweet?
PN1660
MR SWEET: I am, Commissioner, I'm just being a bit slow about it. I apologise.
PN1661
Can I take Mr Wall to paragraph 8 of your statement. Could you provide the Commission with perhaps more detail about the negotiations after giving this statement - sorry, at the - since November 2000?---Regarding number 8 as in the how many meetings I attended, or how the negotiations proceeded?
PN1662
If you could tell the Commission about how negotiations proceeded after that?---Right. From that time, I believe that the negotiations were rather unfruitful. Although some matters did come closer, it just appeared that decisions on a company level weren't able to be made at that level - - -
PN1663
MR MURDOCH: Well, Commissioner, I object. This is not an updating in relation to meetings. This is the witness giving generalised opinions. In my submission, that is inappropriate and unhelpful to the Commission.
PN1664
THE COMMISSIONER: Mr Sweet?
PN1665
MR SWEET: That is fine, Commissioner.
PN1666
THE COMMISSIONER: You accept that is a valid objection?
PN1667
MR SWEET: That is fine, Commissioner, if I might move on then.
PN1668
Mr Wall, in paragraph 12 of your statement, you say that:
PN1669
At times it seems as though many of the decisions from the company side have been made above HSB Management, which has limited the negotiations.
PN1670
On what basis did you form this opinion?---As I've said, whenever a decision - whenever a question was asked and a decision had to be made, it appeared that it had to be left for the next meeting on all occasions, and from November onwards, we had a meeting when Mr Rick Gazzard attended, and decisions tended to be made during that period. May I also say that while the SBU, I believe, made changes all the way along the proceedings, there were a small amount of change in some areas from the company, but, on many occasions, they've said that this is our stance, and it stays, and also this is not negotiable on certain issues.
PN1671
Is that all, Mr Wall?---Yes.
PN1672
Can I take you, Mr Wall - does your statement have on it annexure PEW2?
PN1673
THE COMMISSIONER: That is a bonus history, Mr Wall?---Yes.
PN1674
Yes.
PN1675
MR SWEET: Could you tell the Commission how you worked out those figures?---Regarding the bonus history?
PN1676
Yes, yes?---The company gives out a report each month, and these figures come directly out of those reports.
PN1677
So you've taken them straight out of - - -?---Yes, it's a bonus - it's actually a report that shows the amount of bonus, and how much each one - how much bonus we obtained.
PN1678
Mr Wall, were you at a meeting of the single bargaining unit and the company on 5 October 2000?---Yes, I was.
PN1679
Did you take notes of this meeting?---Yes, I did.
PN1680
Do you have a copy - do you have those notes with you?---Yes, I have the originals there.
PN1681
Could I ask you to read out the note of that date?
PN1682
THE COMMISSIONER: Do you want to see this, Mr Murdoch?
PN1683
MR MURDOCH: It hasn't really been given any foundation; it is just coming from nowhere.
PN1684
THE COMMISSIONER: What is the purpose of this further evidence in-chief relating to these notes, Mr Sweet?
PN1685
MR SWEET: It is simply evidence that goes to the - I don't think it is disputed that he was at a meeting of the - - -
PN1686
THE COMMISSIONER: Well, why wasn't it part of his statement, or some supplementary statement?
PN1687
MR SWEET: I think, Commissioner - - -
PN1688
THE COMMISSIONER: Mr Murdoch will be talking about an ambush, in a minute.
PN1689
MR SWEET: I don't think Mr Murdoch would. I think we've already seen - - -
PN1690
THE COMMISSIONER: Well, don't be surprised.
PN1691
MR SWEET: Well, Commissioner, I don't think it is in dispute that Mr Wall was at a meeting of 5 October 2000.
PN1692
THE COMMISSIONER: Well, what turns on that? He can be at any number of meetings he likes, but so what?
PN1693
MR SWEET: Commissioner, I'm simply going to ask the witness what occurred at that meeting to the best of his recollection.
PN1694
THE COMMISSIONER: And that is not contained in his statement.
PN1695
Why is it raised now? That was before his statement - as I understand - before his statement was comprised.
PN1696
MR SWEET: Yes, well, Commissioner, we weren't aware of Mr Wall's meeting at the time. Sorry, Mr Wall's notes at the time of making this statement - Mr Wall making his statement.
PN1697
MR MURDOCH: Commissioner, I wonder if the witness might just be excluded for the moment, and let Mr Sweet just open what the evidence is that he wants to lead.
PN1698
THE COMMISSIONER: Mr Wall, would you just go outside for a few minutes, please, and my associate will ask you to come back in when that is appropriate.
PN1699
THE COMMISSIONER: All right, Mr Sweet. What is the purpose of this?
PN1700
MR SWEET: Commissioner, it just goes to what occurred at a meeting on 5 October 2000 to be put to a number of the applicant's witnesses. I think, from memory, Mr Bonanno was there giving evidence for over an hour on stuff that wasn't in his statement this morning, Commissioner. I think it is a little bit rich for Mr Murdoch to now get up and say, "Well, that's not on the statement; we object to it" or whatever he's saying. I don't think he is actually objecting to it, but I would be interested to know - - -
PN1701
MR MURDOCH: Commissioner, if Mr Sweet can open the evidence, tell us what the evidence is going to be, I can then determine whether it is objectionable or whether it is not. It is very simple.
PN1702
MR SWEET: I can't open - - -
PN1703
THE COMMISSIONER: What is the nature of the evidence.
PN1704
MR SWEET: The nature of the evidence is simply what occurred on 5 October. There has been statements by Mr Hayes to the effect of what occurred on 5 October; there is statements by Mr Spillman about what occurred in a meeting on 5 October - sorry, not Mr Spillman, Mr Everist - about that, and it happens that Mr Wall has written notes of that meeting, which we think - - -
PN1705
THE COMMISSIONER: Oh, this is the reference to "In early October" - this is Mr Steve Everist's statement - - -
PN1706
MR SWEET: Sorry, yes.
PN1707
THE COMMISSIONER: I see. So you are going to get Mr Wall to indicate the notes that he took of that meeting, which I assume will suggest that they support what Mr Everist says as opposed to what Mr Wall says; is that it?
PN1708
MR SWEET: Well, I think you should wait for his evidence, Commissioner, but - - -
PN1709
THE COMMISSIONER: Well, no, you see, if you want to get it in, you've got to tell us.
PN1710
MR SWEET: Well, it - - -
PN1711
THE COMMISSIONER: Otherwise, you'll get an objection from Mr Murdoch.
PN1712
MR SWEET: Mr Wall has taken notes on the meeting about - essentially his note is, Commissioner:
PN1713
The company applied to have the certified agreement terminated because we took industrial action and then other overhead presentations and verbal consultation.
PN1714
MR MURDOCH: Commissioner, it is objectionable for this reason: the conflict in evidence that we currently have is between one of my learned friend Mr Crawshaw's witnesses and one of my witnesses. It is one on one. Now that conflict has been - - -
PN1715
THE COMMISSIONER: Well, one on one is not really correct, is it? There were a number of people there. It wasn't one on one. It was what Mr Everist says he heard - he heard people say.
PN1716
MR MURDOCH: No, no, Commissioner, in terms of the statements before you, when we came here for the hearing, we had one statement saying black, the other saying white.
PN1717
THE COMMISSIONER: Yes.
PN1718
MR MURDOCH: Now the CEPU were in the fortunate position that they weren't involved in that controversy. They hadn't put in a version either way.
PN1719
THE COMMISSIONER: Yes.
PN1720
MR MURDOCH: Now it seems what they want to do now is belatedly put in evidence to bolster the case led by my learned friend Mr Crawshaw. Now if I had had notice of that, I may well have approached the preparation of my case in a different way, because, as matters stand, there is one witness from me, one witness from Mr Crawshaw, giving versions. If I had had notice it was going to be one witness from Mr Crawshaw, one from Mr Sweet, there were certain courses available to me. Now it is unfair for me to be - and I will use the word "ambushed" like this.
PN1721
THE COMMISSIONER: I've heard this before.
PN1722
MR CRAWSHAW: Well, this is all rather academic.
PN1723
MR MURDOCH: No, no - - -
PN1724
THE COMMISSIONER: That is not being derogatory, Mr Murdoch, because I could see that is the way it was heading.
PN1725
MR MURDOCH: And it is not a matter for my learned friend Mr Crawshaw. He doesn't seek to lead the evidence - - -
PN1726
MR CRAWSHAW: No, but the reason I rise is I just want to tell you what my intention is. If it is not led, I will cross-examine on it, so there is not much point in stopping it being led, because I am entitled to cross-examine on it, in any event.
PN1727
MR MURDOCH: Well, Commissioner, we will wait for that to happen, and I will have something to say in relation to my learned friend cross-examining a friendly witness.
PN1728
THE COMMISSIONER: Look, I'm going to make it very simple. I am going to allow it. I want to be made aware of all the circumstances.
PN1729
MR SWEET: Exactly, Commissioner, and it is not contended that Mr Wall wasn't at that meeting - - -
PN1730
THE COMMISSIONER: All I can say to you, Mr Sweet, is you could've prepared your case a lot better.
PN1731
MR SWEET: My apologies, Commissioner.
PN1732
THE COMMISSIONER: Well, you know, I think Mr Murdoch has got a genuine complaint about the way it has been done, but this Commission doesn't want to see matters kept under cover. I want to know everything that has gone on.
PN1733
MR SWEET: I think it is fair to say, Commissioner, if I was aware of it earlier, perhaps I - I definitely would've - - -
PN1734
THE COMMISSIONER: Well, I think you should've alerted Mr Murdoch to that. We will have Mr Wall back in, please.
PN1735
THE COMMISSIONER: All right, Mr Sweet.
PN1736
MR SWEET: Sorry, Mr Wall, I think I asked you a question of whether or not you were at a meeting of the single bargaining unit in the company on 5 October 2000?---Yes.
PN1737
I think you said yes. And I think you have also indicated that you took notes of that meeting?---That's correct, yes.
PN1738
Do you have those notes with you?---Yes, I do, yes.
PN1739
Could you produce them for the Commission?
PN1740
THE COMMISSIONER: Show them to the Mr Murdoch.
PN1741
MR SWEET: Yes. Commissioner, can I tender that actual page to the Commission?
PN1742
THE COMMISSIONER: Well, just hang on. You could give it to us.
PN1743
MR SWEET: Yes.
PN1744
THE COMMISSIONER: Anything to raise, Mr Murdoch?
PN1745
MR MURDOCH: Commissioner, I'm just wondering if the witness could help us and I know it's his document but maybe if he could just with some pink post-its identify the extent of the note that he's relying on.
PN1746
THE COMMISSIONER: Well, as I understand it Mr Sweet has provided a photocopy of one page - - -
PN1747
MR MURDOCH: Thank you, very good.
PN1748
THE COMMISSIONER: - - - and that seems to be the extent - is that the extent of it, Mr Sweet?
PN1749
MR SWEET: It is, Commissioner.
PN1750
THE COMMISSIONER: Very well. And you're - - -
PN1751
MR MURDOCH: All I'm getting at, Commissioner, it seems that within that page there's only about five lines that are sought to be relief on, if that's the case.
PN1752
THE COMMISSIONER: Okay. Well, your instructing solicitor has a copy of that page there now.
PN1753
MR MURDOCH: I just want to clarify, if we could, what on that page - and that's why I suggested the use of post-its to show us what on the page is being relied on for this purpose.
PN1754
THE COMMISSIONER: Okay, well, let's do that with the original. Give that back to the witness. Do you understand what is being sought of you, Mr Sweet?
PN1755
Is that the extent of it, that within those two pink post-its?---That's correct.
PN1756
You've done a good job, Mr Murdoch, in identifying that yourself.
PN1757
MR MURDOCH: Occasionally get one right, Commissioner.
PN1758
THE COMMISSIONER: Yes, I guess you do. Okay, so on that basis we will proceed.
PN1759
MR SWEET: Commissioner, my copy is not very good and I apologise for that but I think for ease of identification you should have a copy of that page.
PN1760
THE COMMISSIONER: Well, we will have that page photocopied.
PN1761
MR SWEET: However, it appears the paragraph that Mr Murdoch identified seems to come between a date of the 2nd of the 10th '00.
PN1762
THE COMMISSIONER: Yes, I can follow that.
PN1763
MR SWEET: And I think it's - I think that's 06 - - -
PN1764
THE COMMISSIONER: I will mark this as CEPU exhibit 4. That's an extract from a notebook held by Mr Wall relating to a meeting he attended of the SBU on 5 October 2000.
EXHIBIT #CEPU4 EXTRACT FROM NOTEBOOK HELD BY PETER EDWARD WALL
PN1765
THE COMMISSIONER: Yes.
PN1766
MR SWEET: Mr Wall, have you refreshed your memory from that note from what was actually said at that meeting?---Yes.
PN1767
And could you tell the Commission as best as you remember it what was said at that meeting?---It was a presentation given by Paul Grogan. After that presentation there was conversation as such and he said words to the effect that the company had applied to have the certified agreement terminated because we took industrial action.
PN1768
And Mr Wall, when did you write this note?---During that meeting.
PN1769
So you wrote it during the meeting?---Yes.
PN1770
Were there any other occasions during the enterprise bargaining negotiation meetings when the company discussed why they were looking to have applied to terminate the agreement?---Yes. On the 2nd of the 11th of 2000 there was reference made to the - the effect of the same.
PN1771
Do you recall who said or who made that reference?---Yes, Sam Bonanno, the Manager.
PN1772
Do you have a - did you make minutes or notes at that meeting as well, Mr Wall?---Yes, I did.
PN1773
Do you have a copy of those?---Yes, I have.
PN1774
THE COMMISSIONER: Do you have a copy of that, Mr Sweet?
PN1775
MR SWEET: I do, Commissioner.
PN1776
THE COMMISSIONER: Could you provide a copy of that to Mr Murdoch?
PN1777
MR SWEET: Sure. Commissioner, I should indicate this is a photocopy of the witness' minute book, if you like.
PN1778
THE COMMISSIONER: Yes. And that relates to which date? 2 November? 2nd of the 11th 2000. And that comprises three pages - photocopied copies of extracts from notes made by Mr Wall and that will become CEPU exhibit 5.
EXHIBIT #CEPU5 THREE PHOTOCOPIED PAGES OF EXTRACTS FROM NOTES MADE BY PETER EDWARD WALL
PN1779
MR SWEET: Mr Wall, have you refreshed your memory since making this note about this meeting?---Yes.
PN1780
And could you tell the Commission perhaps what occurred in relation to the comments of the company - or Mr Bonanno in relation to why this application was being made?
PN1781
MR MURDOCH: Commissioner, I object to this because my friend had the opportunity to cross-examine Mr Bonanno and didn't put any of this to him.
PN1782
THE COMMISSIONER: Browne and Dunn.
PN1783
MR MURDOCH: And basic rules of fairness in any Tribunal or Court.
PN1784
THE COMMISSIONER: Yes.
PN1785
MR MURDOCH: Quite improper, Commissioner.
PN1786
MR SWEET: Commissioner, with all due respect Mr Crawshaw covered this ground extensively. There was no need for myself to cover it as well. It would have been completely repetitive and a waste of the Commission's time.
PN1787
THE COMMISSIONER: Which ground do you way Mr Crawshaw covered?
PN1788
MR SWEET: Of whether or not Mr Bonanno told the delegates why the application was being made. I think it was expressly put to him, "did you tell him it was in relation to industrial action?"
PN1789
THE COMMISSIONER: I thought the question that was put to Mr Bonanno was, "on any of those occasions did you refer to industrial action?" And Mr Bonanno said that he - on every occasion there was industrial action taken at the terminal at any opportunity that he had he raised this question of industrial action but it was more in the context of he was complaining about it because of its impact upon the terminal. That was my understanding of the cross-examination.
PN1790
MR CRAWSHAW: I actually put 2 November to this - Mr Bonanno and Mr Hayes.
PN1791
THE COMMISSIONER: In which context do you say, Mr Crawshaw?
PN1792
MR CRAWSHAW: I suggested to them that there was a conversation about - with Mr Bonanno linking the industrial action to the termination of the agreement or the application to terminate.
PN1793
THE COMMISSIONER: Mr Murdoch?
PN1794
MR MURDOCH: Commissioner, Mr Sweet didn't. Mr Sweet sat there cosy in the knowledge that he had evidence he was going to present, didn't get up and put his evidentiary case to the witness. He should have done so, he didn't. And that, in my submission, makes it unfair.
PN1795
THE COMMISSIONER: Mr Sweet?
PN1796
MR SWEET: Yes, well, I mean, Commissioner I say two things. Firstly, if we were to cover all the ground Mr Crawshaw covered in his examination myself or Mr - - -
PN1797
THE COMMISSIONER: Well, no, that's not the complaint that Mr Murdoch is raising. Mr Murdoch is raising something specific, that you knew you were going to lead evidence about that and you didn't cross-examine Mr Bonanno. That's what - that's the complaint that Mr Murdoch is raising. It's not some general complaint.
PN1798
MR SWEET: Mr Bonanno is still in the room, Commissioner and if - - -
PN1799
THE COMMISSIONER: Well, so what?
PN1800
MR SWEET: Well, we certainly have the - - -
PN1801
THE COMMISSIONER: I mean, you had an opportunity.
PN1802
MR CRAWSHAW: Well, might I be heard on this, Mr Commissioner?
PN1803
THE COMMISSIONER: Well, it's not your objection, Mr Crawshaw.
PN1804
MR CRAWSHAW: Well, it doesn't matter. It's - I'm involved in this case - - -
PN1805
THE COMMISSIONER: All right, I will hear what you've got to say. All right, I will hear what you've got to say.
PN1806
MR CRAWSHAW: - - - and I want this evidence to come out. The rule in Browne and Dunn does not require each cross-examiner to repeat the same question.
PN1807
THE COMMISSIONER: Yes, I'll accept that.
PN1808
MR CRAWSHAW: That's a nonsense.
PN1809
THE COMMISSIONER: I accept that, that it's been raised in cross-examination.
PN1810
MR CRAWSHAW: Well, I put the question and it's been suggested that the same question - - -
PN1811
THE COMMISSIONER: All right. Look, I will deal with this quickly. I'll allow it but obviously it will be a question of weight and a question for submissions in that sense. Mr Sweet.
PN1812
MR SWEET: I will ask you again, have you refreshed your memory since making this note?---Yes.
PN1813
Could you tell the Commission what occurred with respect to the company indicating why they were making an application to terminate the Hay Point Enterprise Agreement?---Yes, there was reference made within that meeting that the - - -
PN1814
THE COMMISSIONER: Where particularly, Mr Sweet, have you recorded this?
PN1815
MR SWEET: Mr Wall, I think, Commissioner.
PN1816
THE COMMISSIONER: Mr Wall, I'm sorry?---It's on the bottom of the second page and finishing at the top of the third page.
PN1817
This is Response to Proposal?---That's correct, yes.
PN1818
I see, yes. Yes, continue, Mr Sweet.
PN1819
MR SWEET: I think Mr Wall was - - -
PN1820
THE COMMISSIONER: You were answering. Well, do you recall what the question was now, Mr Wall?---Yes, I do.
PN1821
Okay?---Sam Bonanno made the reference of the termination or the application of termination of the agreement because of the industrial action that we had taken. He also said within that that the offer that was made was a worse offer because we had taken industrial action as well.
PN1822
MR SWEET: And when did you make this note, Mr Wall?---Within the meeting after it was said.
PN1823
Is that your initial next to the note there, Mr Wall?---Yes, it is.
PN1824
I have no further questions for the witness.
PN1825
THE COMMISSIONER: Okay, thank you. Cross-examination, it's a question of who goes first. This has always been a bit of a problem.
PN1826
MR CRAWSHAW: Well, I would go first if I was going to but I don't have any questions.
PN1827
THE COMMISSIONER: Yes. No questions. Mr Burton?
PN1828
MR BURTON: I have no questions, Commissioner.
PN1829
THE COMMISSIONER: Mr Murdoch, cross-examination.
PN1830
MR MURDOCH: Commissioner, I'm just trying to decipher some of these notes. If I could have a moment?
PN1831
THE COMMISSIONER: Yes. Is it easier if you have a look at the original?
PN1832
MR MURDOCH: Commissioner - - -
PN1833
THE COMMISSIONER: I don't know whether it is or not.
PN1834
MR MURDOCH: I don't think so.
PN1835
THE COMMISSIONER: Okay.
PN1836
MR MURDOCH: It's more a matter of the different style of handwriting.
PN1837
PN1838
MR MURDOCH: Mr Wall, you attended a lot of these meetings, I take it?---Yes.
PN1839
Did you attend the meeting on 22 November?---I can't recall. May I look at my notes?
PN1840
Well, do you need to look at your notes to determine whether you went to the meeting on the 22nd?---Can I just have that period again, that date?
PN1841
22 November 2000?---I'm not sure but I would have to say yes.
PN1842
MR SWEET: But, Commissioner, he's got his notes in front of him. I think there's no problem - - -
PN1843
THE COMMISSIONER: Well, that's not the point of the cross-examination, the question.
PN1844
MR MURDOCH: Well, look, I don't want to waste time. You can or you can't recall without your notes?
PN1845
THE COMMISSIONER: Whether you attended the meeting: that's the question. Can you recall, without looking at your notes, whether you attended a meeting that day or not? That's the question?---I would say no, I would not know whether we had a meeting on that date. We had so many meetings, I wouldn't know.
PN1846
MR MURDOCH: Look, do you recall a meeting, late November, that preceded a mass meeting at which the company's offer at the time was rejected by the mass meeting?---There were meetings where offers were rejected, yes.
PN1847
Do you recall that there was a particular meeting in late November where there was a high degree of optimism on both sides of the table, that the parties finally had a deal?---The SBU was willing to put an offer to the rank and file.
PN1848
Do you remember people joking about who is going to get the beer and prawns organised and - - -?---Those sort of things happen all the time, yes.
PN1849
All right. But being sensible about it - - -?---Yes?
PN1850
- - - you'd sat through these meetings?---That's correct.
PN1851
It appeared, on 22 November, that there was a deal that the SBU could put forward to the employees as something they should accept?---We put an offer to the rank and file, yes.
PN1852
And you personally endorsed it?---I personally endorsed it?
PN1853
Yes?---Can - I don't know what that means. Can you explain that?
PN1854
Okay. You thought that it was a deal that you personally could live with?---I thought that - I'm just trying to say how somebody could think what I thought.
PN1855
No, but I'm asking you. Surely you know what you thought?---Me, personally?
PN1856
Yes?---I was willing to put that document to the rank and file and have them vote on it.
PN1857
But it was something that you personally were prepared to live with, to have as your certified agreement for a period of two years?---I'd have to say no.
PN1858
You'd have to say no?---That's correct.
PN1859
Well, did you tell the company that as the meeting broke on the 22nd, that you personally didn't like it?---No.
PN1860
You went along with the spirit of euphoria that, "Oh, well, gee, we've - looks like we're here."?---Yes.
PN1861
Why did you not be up front and say, "Well, look, the rest of you might think we've got a deal but I don't like it. I won't cop this." Why didn't you do that?---Because I felt that the offer had to go to the rank and file.
PN1862
But aren't you one of the rank and file?---That's correct.
PN1863
Perhaps we're at cross purposes. You personally were in favour of it but, naturally, the matter had to be voted by not just you but your colleagues. Is that right?---Sorry, can you just repeat that?
PN1864
MR SWEET: Commissioner, sorry, I don't think the witness indicated he was personally in favour of it. It's putting words in the witness mouth so I object to that question.
PN1865
THE COMMISSIONER: Well, I think he did say he was personally in favour of it?
PN1866
MR SWEET: No, I don't think so. I think he said he was willing to put it to the rank and file.
PN1867
THE COMMISSIONER: Well, the transcript will show that.
PN1868
MR SWEET: Yes, I think it will, Commissioner.
PN1869
THE COMMISSIONER: Mr Murdoch?
PN1870
MR MURDOCH: Commissioner, the idea of cross-examination is that you do put propositions to people.
PN1871
MR SWEET: Yes, but, sorry, Commissioner, you don't put words in the mouth of the witness that he did say, personally - - -
PN1872
THE COMMISSIONER: Well, if you can get away with it you do it.
PN1873
MR SWEET: Yes, if you can get away with it, you can, Commissioner. That's, I suppose - - -
PN1874
MR MURDOCH: No, well, Commissioner - look - - -
PN1875
THE COMMISSIONER: It's a question of whether the witness is willing to accept the proposition in the way that Mr Murdoch is putting it to him. That's really all that's at issue.
PN1876
MR MURDOCH: Commissioner, with respect, we'll get nowhere if, ever time I put a proposition to the witness, there's an objection on the basis - - -
PN1877
THE COMMISSIONER: All right. But I can't stop people objecting, Mr Murdoch, as you know.
PN1878
MR MURDOCH: No, Commissioner.
PN1879
THE COMMISSIONER: They don't always succeed, though, with their objection and Mr Sweet hasn't succeeded on this occasion.
PN1880
MR MURDOCH: Thank you, Commissioner.
PN1881
Look, you were there on the 22nd. You were there for the spirit of euphoria, the beer and prawns atmosphere. You agree with that?---I agree that I was willing to put an offer to the rank and file and have them vote on it.
PN1882
Okay. And was it something that you were prepared to recommend?---I - no.
PN1883
Did you tell management that you were not prepared to recommend it?---I did not tell them that, no.
PN1884
Well, you see, why go through the charade of having management think that, "We've got there," but then going out knowing that you weren't prepared to recommend it? Why do that?---Well, I - when I said that I would not recommend it, I did not go out there and say that I didn't recommend it, either. I tell the story as it is; let the rank and file make their own mind up. We've been told by our manager, Sam Bonanno that our union, the CEPU, is a minority and that the majority rules.
PN1885
Yes, but you sit at the table, don't you, at all those meetings?---Correct.
PN1886
And your members look to you for reports and guidance?
PN1887
Look - - -
PN1888
THE COMMISSIONER: You'll have to answer that. You'll have to answer that, Mr Wall?---Sorry?
PN1889
You'll have to answer that. Nodding your head doesn't get reported here. You need to answer the question?---I'm sorry, I didn't realise it was a question. I'm sorry.
PN1890
Yes. Well, it was a question, yes.
PN1891
MR SWEET: Just.
PN1892
THE COMMISSIONER: No, not just; it was a question?---That's my job - is to take the information back to the rank and file.
PN1893
MR MURDOCH: Well, look, during the 40-plus meetings, did the parties ever get close to something that - forget the others that you personally thought, "I can live with this."?---No.
PN1894
No? Didn't even get close?---Certain issues, no.
PN1895
Were you involved in the preparation of a letter to Mr Bonanno last week, making a proposal for certain talks?---As I stated before, I resigned two the three - two - sorry, three to four weeks ago so therefore, no, I wasn't.
PN1896
I'm just handing up to the witness SLH8.
PN1897
MR SWEET: Commissioner, can I ask - he said that he's resigned as the co-delegate. He's indicated that he doesn't know of a - well, certainly wasn't involved in the preparation of the letter and now Mr Murdoch wants to tender a letter. I ask Mr Murdoch for what purpose.
PN1898
THE COMMISSIONER: Well, I think it's already an exhibit, Mr Murdoch, isn't it?
PN1899
MR MURDOCH: It is.
PN1900
MR SWEET: It is an exhibit but, I mean, for what purpose for this witness, Commissioner?
PN1901
THE COMMISSIONER: What's the purpose of this, Mr Murdoch? He says he resigned three weeks ago.
PN1902
MR SWEET: Yes.
PN1903
THE COMMISSIONER: So it's a question of whether - I guess you want to ask him, does he have a knowledge of - - -
PN1904
MR MURDOCH: That's right, Commissioner.
PN1905
THE COMMISSIONER: - - - what went in the letter. Well, you can ask that.
PN1906
MR SWEET: I think he already has asked that, Commissioner. He's asked whether he - - -
PN1907
THE COMMISSIONER: Well, Mr Sweet, just stop objecting unless you've got something worth objecting about, please.
PN1908
MR MURDOCH: I'll have this handed up to the witness, thank you?---Thank you.
PN1909
Were you, in any way, involved in preparing that letter?---Can I read the letter, first, please?
PN1910
Certainly?---Can I have that question again, please?
PN1911
Were you involved in the preparation of that letter?---No.
PN1912
Had you seen it before you were shown it a few minutes ago?---No.
PN1913
Do you see where, in the first sentence, the negotiations that had taken place at Hay Point for renewal of the enterprise bargaining agreement were described as unsuccessful, at best?---Yes, I see that in there.
PN1914
All right. Do you agree with that?---Yes. It says that they were unsuccessful that an agreement was not made.
PN1915
Well, it says unsuccessful at best, meaning that at worst it's something quite dire, doesn't it?---I don't know.
PN1916
Look, you went to the 40-plus meetings, didn't you?---Yes, I did.
PN1917
Unsuccessful at best. Correct?---I was at the meetings, yes.
PN1918
And you agree that we can label the lot of them, the 40-odd meetings, unsuccessful at best. Do we put that label on them all?---Every individual meeting?
PN1919
Yes?---No.
PN1920
No. Well, which ones were successful meetings?---I don't know. With 42 meetings it is very hard to say which ones were good meetings.
PN1921
Well, let's look at the negotiations in aggregate. Do you agree that they can be described as unsuccessful at best?---When you mean - what do you mean by "aggregate", as in overall?
PN1922
Yes?---No.
PN1923
I beg your pardon?---No.
PN1924
No? Well, you disagree then with the description used in this letter?---I'd - I would say that there were some very good meetings. There were some very bad ones, too. It was unsuccessful in that the offer wasn't agreed to so we didn't end up with an agreement, yes.
PN1925
I take it that the sending of this letter wasn't preceded by any meeting of the rank and file to get authority to send it because you didn't even know about it, did you?---No, that's correct.
PN1926
And you see in the second paragraph it stated that the SBU feels that the common sense solution to this situation is to negotiate and reach agreement on a local level. Do you see that?---Yes.
PN1927
Those 40-plus meeting that you were involved with, they were at a local level, weren't they?---Some - most meetings were at a local level. Some were held in Brisbane with the State officials. I don't know whether the 42 that you are talking about incorporates both.
PN1928
Did you go to any of the meetings in Brisbane?---Yes, I did.
PN1929
How many did you go to in Brisbane?---The first set of the meetings, but the meeting was supposed to be held with all of the delegates, the State officials, and BHP management decided to go behind closed doors so we weren't available actually at the meeting.
PN1930
Was that the template issue?---Yes.
PN1931
Most of the meetings as you understand it were conducted at local level?---That's correct, yes.
PN1932
And you'd agree with me that there's no particular magic about the suggestion in the second paragraph of this letter that the parties negotiate and reach agreement on a local level?---I'm sorry, I don't understand the question.
PN1933
That's what the parties had been doing for many months, trying to reach agreement on a local level, hadn't they?---Yes.
PN1934
That has been tried before, correct?---Yes.
PN1935
And it had been unsuccessful?---Yes.
PN1936
Now, have you been to any mass meetings at Hay Point around the date of this letter at which the SBU have got the mandate from the rank and file to put a specific counter-proposition to the company?---Sorry - from the rank and file?
PN1937
Yes, because you're now rank and file, aren't you?---Yes, that's correct.
PN1938
You're not a delegate?---No, that's correct.
PN1939
Well, have you been at any mass meeting where the rank and file have given the SBU a mandate to go to management with a specific set of proposals to break the deadlock and get a deal?---No.
PN1940
No. Going to your own statement, CEPU3, you've said in the last paragraph, the last sentence, in relation to the prospect of the agreement being terminated that you believe the members would be really upset if it's terminated?---Yes.
PN1941
Why will they be really upset?---Well, we believe that over the period of our agreement, our current agreement, that we have done a lot of things to make benefits for the company, changing work practices, etcetera, and we just felt that were under that agreement there was good for the company and that we had done a lot of things, as I said, under that agreement to produce better productivity for the company.
PN1942
All right. Was your opinion related in any way to the paragraph that has now being taken out, paragraph 18, the belief that employees would lose up to $14,000 per year?---No.
PN1943
Money didn't come into it?---No, I don't think so.
PN1944
All right. So you've said that it was this belief that members had assisted to improve work practices and that had contributed to enhanced productivity - - -?---Yes.
PN1945
- - - that would leave them upset?---Yes. The rank and file believed that they were doing - they were doing extra things to help the company out and if the company chose to terminate that agreement that - an agreement that worked well at that time, yes, that they would see that it would be unfair.
PN1946
You knew that the term of the agreement had long since expired, didn't you?---Yes.
PN1947
You knew that there had been over 40 meetings at which there had been unsuccessful attempts to negotiate a replacement?---Yes.
PN1948
But you still say that people would be upset?---That's correct.
PN1949
Now, you go on and say in that last sentence that there'd be a likelihood - sorry, that there would be more likelihood of industrial action as a result?---That's correct.
PN1950
Now, that, of course, was a statement written some time ago, wasn't it?---That's correct.
PN1951
And you and your colleagues have been taking industrial action any way, haven't you?---That's correct.
PN1952
And that's despite the fact that the agreement is still in place?---That's correct.
PN1953
Now, do you still say that if the agreement is terminated that that will lead to industrial action?---Yes.
PN1954
So how do we have it that there will be more industrial action if the agreement is terminated, more than what there currently is?---Well, the protected industrial action that we've taken hasn't been continuous.
PN1955
No, but it has occurred hasn't it?---Yes.
PN1956
Well, I'm just trying to clarify what you're saying, you see, because you say in your statement that there's more likelihood of industrial action as a result of the agreement being terminated?---Yes.
PN1957
I just want to clarify, you see, what you're saying?---Right.
PN1958
What are you saying?---Well, I'm saying that the members would be upset.
PN1959
Yes?---And the only way that the members in turn - their legal right is to take industrial action so they have a choice to take further industrial action.
PN1960
But they've been taking it, haven't they, in recent weeks?---Yes.
PN1961
And, indeed, late last year they took it?---Yes.
PN1962
All right. Well, that's what I'm saying, they've been doing that anyway - - -?---Yes.
PN1963
- - - even though the agreement is still in place?---Yes.
PN1964
Well, are you saying that irrespective of whether the agreements is terminated or not terminated they will just keep taking industrial action?---The likelihood of industrial action occurring, more of it, there is a likelihood of more industrial action, more than what's been taken so far.
PN1965
THE COMMISSIONER: What's this industrial action designed to achieve, Mr Wall?---It's the only real way to send a message to the company, and our legal right, to say, "Look, we want to sit down and talk as has been indicated. We want to negotiate, we want to do it at a local level."
PN1966
So this industrial action you say is in support of the claims that are unresolved between you, the employees, and the company?---Yes.
PN1967
Right, thank you.
PN1968
MR MURDOCH: Thank you. Well, that's a different issue, isn't it, to the one that you refer to in the last paragraph of your statement which was more in protest if the agreement is terminated?---Sorry?
PN1969
In answer to the Commissioner I thought your evidence was that the industrial action is because you and your work mates want to force the company back to the negotiating table?---No. The industrial action that we have been taking so far is to get the company back to the negotiating table on a local level to talk about the outstanding issues and get a document made, get an offer made.
PN1970
Yes, but are you saying that there will be more industrial action for that purpose in the future?---There could be.
PN1971
All right. Well, what difference will it make to industrial action in the future if the agreement is terminated?---Like I said, I think the guys believe - the rank and file - believe that they have done extra things within a certified agreement that worked well.
PN1972
Look, you've said that and that's not the question?---Well, I'm sorry, I don't understand what you're aiming at.
PN1973
Well, I'll say it again for you. Your statement is that you believe that the members would be really upset?---Yes.
PN1974
You've said that. You go on and say "...and there would be more likelihood of industrial action as a result"?---Yes.
PN1975
You agree with me they've been taking industrial action in recent weeks?---Yes.
PN1976
And, indeed, right back to year 2000?---Yes.
PN1977
Even though the agreement is still in legal effect?---Yes.
PN1978
How will it make any difference if the Commission - Commissioner Hodder - terminates the agreement?---Well, like I said, if they're going to be upset about it because it works well, the agreement at the moment, in producing productivity for the company and in that the guys would be upset and industrial action is the way that you say that the company will - you know, this is not fair and it's your legal right.
PN1979
What is your legal right?---To take protected industrial action.
PN1980
Well, it used protected industrial action to take protest stoppages against any decision of Commissioner Hodder terminating the agreement, is that what you're saying?---Sorry, I didn't catch that, I'm sorry.
PN1981
I'll stay with it all day?---Yes, that's fine.
PN1982
Your statement, "...and there would be more likelihood of industrial action as a result"?---Yes.
PN1983
As a result of what?---The termination of the agreement.
PN1984
All right. Do you know who will terminate the agreement if it happens?---The Commissioner.
PN1985
All right. So if Commissioner Hodder is ultimately convinced that the agreement should be terminated, and he does so, you and your colleagues will take protest industrial action, is that what you're saying?---I haven't look upon it in that light, that the Commissioner is - - -
PN1986
Sorry?---That the company has made the application.
PN1987
Well, the company made that a long time ago, didn't it?---Yes.
PN1988
And you didn't take any protest industrial action over the company making it, did you?---No.
PN1989
All right. What you seem to be saying here is that there would be more likelihood of industrial action as a result and as I understand it you're talking about the result being the Commission terminating the agreement?---Yes.
PN1990
All right. So what you're saying is that if Commissioner Hodder terminates the agreement you and your colleagues will strike in protest?---Because the company has made the application. The company was the one who have asked for this to happen.
PN1991
But the company did that a long time ago?---Yes.
PN1992
All right. What you say here is that if there is a termination, ordered by the Commission, you will then take action?---I'm saying that there is a likelihood of more industrial action. I'm not saying there will be. I'm saying there's a likelihood.
PN1993
So this is in the same context of, well, there's a likelihood that there will be more cyclones in tropical North Queensland?
PN1994
MR SWEET: Was that a question, Commissioner?
PN1995
THE COMMISSIONER: Well, I think Mr Murdoch is trying to get a comparison and I'm having a little difficulty understanding what the witness is trying to say. I mean, it was this way, Mr Wall. You agreed with me before that the current industrial action is in support of the claims that are, in this point in time, unresolved between the work-force and the company?---Yes, the current - - -
PN1996
And that you're endeavouring by this industrial action to get the company back to the bargaining table because they've, in effect, refused to continue to negotiate with you people, haven't they?---That's correct, yes.
PN1997
All right. So then Mr Murdoch's gone on for a part of your statement which suggests that in the event the agreement is terminated that that potentially could lead to further industrial action and that's why he's asking you why?---Why we would take action if it was - - -
PN1998
Yes?---Right.
PN1999
That's what he's asking you?---Because we believe it would be unfair because we have worked so well under this agreement.
PN2000
MR MURDOCH: Okay, so a legal order is made - this is a scenario - a legal order is made by a member of the Commission and you will strike because that legal order is made?---No.
PN2001
No?---I did not say, will.
PN2002
Oh, I see, might.
PN2003
MR SWEET: Could Mr Murdoch be a little bit more precise about the legal orders made?
PN2004
THE COMMISSIONER: I think he's pretty precise.
PN2005
MR SWEET: Well, I don't know that he is. There's a number of applications going here and I think Mr Murdoch - - -
PN2006
THE COMMISSIONER: Well, Mr Murdoch, be specific with the witness.
PN2007
MR MURDOCH: Look, Commissioner, I'm always, even this late in the day, willing to assist.
PN2008
THE COMMISSIONER: Oh, it's not late yet.
PN2009
MR MURDOCH: You know the nature of the case that Commissioner Hodder is hearing, don't you?---Yes, I do.
PN2010
Okay. And you know that I've been asking you now for a while about the scenario of what happens if Commissioner Hodder grants the company's claim and orders that the certified agreement be terminated?---Yes.
PN2011
You understand all of that?---Yes, I understand all that.
PN2012
Okay. Now, let's put that into the context of what you say in the last sentence of your statement. Now, when you used the word, result - last work in your statement?---Yes.
PN2013
What's the result that you're talking about?---In that statement the termination of the agreement.
PN2014
Okay. And aren't you saying that the result, the termination of the agreement, if it's ordered by Commissioner Hodder, is more likelihood of industrial action?---That's what that statement says, but I will say that I hadn't looked at it in that light.
PN2015
All right. Would you like to change your statement?---Yes.
PN2016
What would you like to change it to?---I still believe the members would be really upset.
PN2017
Yes, you've said that?---Yes. But I would still like to see the company negotiate at local level with the SBU delegates.
PN2018
Okay. And you would be happy to put in those words that you would still like to see the company negotiate at local level with the SBU delegates instead of the words, "...and there would be more likelihood of industrial action as a result."?---Yes.
PN2019
We take those words out and we put those other words in?---Yes.
PN2020
Okay. Now, can we go to paragraph 13 of your statement? You're aware, are you not, that there has been significant new investment in plant and equipment at the Hay Point Terminal over the last 3 years?---Yes.
PN2021
And aware, are you not, that the investment in capital equipment has enabled increases in production rates through the terminal?---To this date?
PN2022
Yes?---Yes.
PN2023
And you would agree with me, would you not, that the company have communicated with the work-force progressively in relation to the capital equipment investment that was being made in the terminal?---Yes.
PN2024
It's very open about it?---Yes.
PN2025
It's very proud of it?---Yes.
PN2026
Tells the workers about it?---Yes.
PN2027
And you see it being built and installed and commissioned and everything else?---Yes.
PN2028
And you know that the figure bandied about for the capital improvement is in the order of 77 to 80 million?---Yes.
PN2029
Now, you have produced this table, Tons Shipped per Person per Month, is that right?---That's correct.
PN2030
All right. Now, you said that you got the data from work?---The question before was asked about the bonus history.
PN2031
That's right, yes?---That sheet, not this one.
PN2032
Okay. Well, where did you get the data from in relation to the tons shipped per person per month?---From the same place, from work.
PN2033
All right. Well, that's all I asked?---No, you asked where I got the information from for that.
PN2034
Now, was it in this form when it came from work or have you taken the data and done your own exercise?---I've done my own exercise.
PN2035
Okay. So that what you got was monthly tons shipped, correct?---Yes, correct.
PN2036
You also got staffing numbers for the various months?---Yes.
PN2037
And then you did a series of calculations?---That's correct.
PN2038
So that those tons per person figures are your figures not management's?---That's correct.
PN2039
And what are you attempting to demonstrate through the calculation of those figures of tons per month?---That productivity has gone up.
PN2040
Well, do you have some basis for measuring productivity through this means?---Regarding tons on the ship per man.
PN2041
But where do we get that basis from as a measure of productivity?---Putting coal on the boat is what Hay Point is about and if you can get the same amount of coal or more for the same amount of blokes or less then obviously to me productivity - that's your productivity level.
PN2042
I see, so what you're measuring is overall productivity not just employee productivity?---Yes, that's correct.
PN2043
So you intended that this comparison would also factor in the improvement resulting from management investing that 77 million in new capital equipment?---Absolutely. That's a portion of productivity.
PN2044
And what you're unable to calculate is what's attributable to capital investment and what's attributable to other factors?---I would not be able to put a figure on separating them, no.
PN2045
THE COMMISSIONER: Mr Murdoch, how much longer will you be with this witness?
PN2046
MR MURDOCH: Commissioner, it will be a while, unfortunately.
PN2047
THE COMMISSIONER: All right. Well, I think we'll adjourn until 10.15 in the morning.
PN2048
MR MURDOCH: Thank you, Commissioner.
ADJOURNED UNTIL FRIDAY, 6 APRIL 2001 [5.57pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #HAY POINT 1 OUTLINE OF SUBMISSIONS ON BEHALF OF HAY POINT PROPRIETARY LIMITED DATED 27/10/2000 PN91
EXHIBIT #HAY POINT 2 AFFIDAVIT OF SALVATORE GIUSEPPE BONANNO DATED 27/10/2000 PN93
EXHIBIT #HAY POINT 3 AFFIDAVIT OF STUART LACHLAN HAYES DATED 27/10/2000 PN103
EXHIBIT #HAY POINT 4 SUPPLEMENTARY AFFIDAVIT OF PN105
EXHIBIT #HAY POINT 5 SUPPLEMENTARY AFFIDAVIT OF STUART LACHLAN HAYES DATED 30 MARCH 2001 PN107
SALVATORE GIUSEPPE BONANNO, SWORN PN126
EXAMINATION-IN-CHIEF BY MR MURDOCH PN126
CROSS-EXAMINATION BY MR CRAWSHAW PN288
RE-EXAMINATION BY MR MURDOCH PN716
WITNESS WITHDREW PN766
STUART LACHLAN HAYES, SWORN PN781
EXAMINATION-IN-CHIEF BY MR MURDOCH PN781
EXHIBIT #HAY POINT SERVICES 6 TABLE OF DATES PN815
EXHIBIT #HAY POINT SERVICES 7 SBU HAY POINT SERVICES PROPOSED AGENDA/CLAIMS AND DRAFT NATIONAL BHP COAL LOG OF CLAIMS PN842
EXHIBIT #HAY POINT SERVICES 8 HAND-WRITTEN MEETING NOTES OF MR HAYES PN864
EXHIBIT # CFMEU 1 TWO PIECES OF CORRESPONDENCE DIRECTED TO MINE EMPLOYEES AT SARAJI, DATED 27/02/2001 AND PEAK DOWNS, DATED 05/03/2001 PN1507
CROSS-EXAMINATION BY MR SWEET PN1534
EXHIBIT #CEPU1 CFMEU OUTLINE OF SUBMISSIONS FILED 17/11/2000 PN1622
EXHIBIT #CEPU2 OUTLINE OF SUBMISSIONS RECEIVED ON 04/04/2001 PN1623
EXHIBIT #CEPU3 STATEMENT OF MR PETER EDWARD WALL FILED 17/11/2000 PN1626
EXHIBIT #HAY POINT SERVICES 9 TRANSCRIPT OF PROCEEDINGS DATED 02/03/2001 IN MATTER BP2001/379-388 BEFORE COMMISSIONER BACON PN1629
PETER EDWARD WALL, SWORN PN1647
EXAMINATION-IN-CHIEF BY MR SWEET PN1647
EXHIBIT #CEPU3 STATEMENT OF PETER EDWARD WALL PN1652
EXHIBIT #CEPU 3 STATEMENT OF PETER EDWARD WALL PN1659
WITNESS WITHDREW PN1699
PETER EDWARD WALL, RECALLED PN1735
EXAMINATION-IN-CHIEF BY MR SWEET PN1735
EXHIBIT #CEPU4 EXTRACT FROM NOTEBOOK HELD BY PETER EDWARD WALL PN1765
EXHIBIT #CEPU5 THREE PHOTOCOPIED PAGES OF EXTRACTS FROM NOTES MADE BY PETER EDWARD WALL PN1779
CROSS-EXAMINATION BY MR MURDOCH PN1838
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