C2002/1988, Transcript of Proceedings [2002] AIRCTrans 1639 (14 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2002/1988

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Thiess
Pty Ltd for an order to stop or
prevent industrial action at Burton Coal Mine

BRISBANE

9.18 AM, TUESDAY, 30 APRIL 2002

PN1

THE COMMISSIONER: Could I have appearances, please?

PN2

MR G. ARNOLD: Grant Arnold.

PN3

THE COMMISSIONER: Well, when you address this Commission stand up, please, Mr Arnold.

PN4

MR ARNOLD: Sorry, Commissioner. Grant Arnold, Personnel Relations Manager for Thiess, and BOB McKERROW, Mining Operations Manager for Thiess, Commissioner.

PN5

THE COMMISSIONER: Thank you.

PN6

MR A. VICKERS: Thank you, Commissioner. Vickers A. for the CFMEU.

PN7

THE COMMISSIONER: Can I indicate to the parties that the Commission has another matter at 10 o'clock which shouldn't take so long, but I will be adjourning at around about 10 to 10 to allow that to proceed, and then I would obviously ask the parties to stay within close proximity of the Commission in the time in which the Commission is in adjournment. Yes, thank you, Mr Arnold.

PN8

MR ARNOLD: Commissioner, the section 127 application is before you for a dispute currently at Burton coal mine. I'd just like to give you some background, also, regarding the current dispute. Some of the background - Thiess operates the Burton coal mine at Glenden in Queensland. The coal from the mine is exported overseas. The mine operates on a 24 hour a day roster, seven days a week. The Burton Coal Agreement 2001 is the certified agreement for the mine and governs the terms and conditions of employment at the mine.

PN9

THE COMMISSIONER: Do you happen to have a copy of that certified agreement with you, Mr Arnold?

PN10

MR ARNOLD: Yes. I've got one here, Commissioner.

PN11

THE COMMISSIONER: I'll mark that at Thiess exhibit 1.

EXHIBIT #THIESS1 BURTON COAL AGREEMENT 2001

PN12

MR ARNOLD: The agreement was certified before the Commission on 24 September 2001 and commenced operation on that day, and its nominal expiry date is 23 September 2004. In regard to the current dispute, on Sunday evening of the 28th, the CFMEU Burton lodge withdrew its labour at the mine, for what they stated was an indefinite period. Shortly thereafter, Thiess received a disputes letter which I believe you should have there, Commissioner - - -

PN13

THE COMMISSIONER: Yes. That forms part of the bench file, Mr Arnold.

PN14

MR ARNOLD: - - - setting out the union's concerns. Bob McKerrow, as I said, the Operations Manager for the pit, attempted to contact the relevant CFMEU officials that night to discuss their concerns and was unable to do so. The disputes letter indicates that the Burton lodge is concerned about the Thiess's use of contractor employees. Under clause 9 of the certified agreement, the parties acknowledge there is substantial involvement of contractors. Thiess believes its engagement of contractor employees is in accordance with the agreement. On Monday morning, Mr McKerrow had discussions with Troy Martin and Robert Greaves, lodge officials of the CFMEU.

PN15

THE COMMISSIONER: Well, you'd better - he's going to give evidence, isn't he?

PN16

MR ARNOLD: Yes, Commissioner.

PN17

THE COMMISSIONER: Well, you're better off to let him give that evidence rather than you give it from the bar table.

PN18

MR ARNOLD: Okay.

PN19

THE COMMISSIONER: I just generally want you to outline to me that you've got industrial action, it's continuing at this point in time, and that under section 127 of the act, that the jurisdictional requirements have been met. If you could take me to those?

PN20

MR ARNOLD: As it stands at the moment, Commissioner, they withdrew their labour on Sunday night and at this time are still on strike. Pursuant to section 127 of the Workplace Relations Act, the Commission has power to stop or prevent industrial action where the requirements of the Workplace Relations Act have been met. To withdraw the labour constitutes industrial action under section 4 of the act. The industrial action is still occurring and looks like it will continue in the future for an indefinite period. Industrial action relates to work regulated by the agreement, and the agreement has not yet reached its nominal expiry date. Accordingly, the Commission has jurisdiction. Some of the discretionary factors - - -

PN21

THE COMMISSIONER: Well, it takes more than that.

PN22

MR ARNOLD: The industrial action is prohibited under section 170MN as it's been taken before the nominal expiry date of the CA. The industrial action is contrary to the stated aims of the agreement which include:

PN23

To achieve a cost effective and productive mine, to reduce costs and to provide a rewarding and stable work environment.

PN24

The certified agreement provides that there will be no stoppage of work whilst the disputes process is being followed, which is clause 8.3 of the agreement.

PN25

THE COMMISSIONER: I bet you've had a lot of fun in getting that enforced.

PN26

MR ARNOLD: And the employees are enjoying the benefits of the agreement but they're not accepting their responsibilities. The purpose of the industrial action is to obtain from the company an undertaking to restrict the use of contractors. The use of contractors is regulated by the agreement and Thiess believe that we've complied with the agreement. If the CFMEU disputes Thiess's interpretation of the agreement, the agreement itself provides a mechanism for resolving the disputes - clause 8.3. The CFMEU has not sought to utilise this procedure and, indeed, the disputes letter states that the Burton lodge demanded that the union executives do not negotiate with the company over this issue.

PN27

The union and its members have resorted to the industrial action which is prohibited by the Workplace Relations Act and it also contrary to the certified agreement. We are prepared to follow the procedure set out in the certified agreement and have proposed a meeting on Wednesday, which is designed to discuss the matters of concern in accordance with the disputes procedure. From the lodge itself, there appears to be no urgency in the subject matter of the dispute. There is no reason why the matters can't be dealt with in an orderly way under the disputes procedure in the agreement, and Thiess is prepared to follow that process.

PN28

It should be noted that no Thiess employees have been displaced by the use of the contractors and that the contractors employees are expected to be utilised for a fixed period to handle the peak in the workload. We've attempted to conciliate the dispute by agreeing to meet with the CFMEU to discuss its concerns. We've attempted to secure a return to work by proposing to meet with the CFMEU to discuss its concerns on Wednesday, which was the earlier opportunity that we were available to go up to site. Those attempts thus far have been unsuccessful because of the insistence of the lodge that Thiess accepts the demands in writing before the employees return to work.

PN29

In granting a section 127 order, it won't inhibit the resolution of the dispute. On the contrary, if the order is granted and if the parties comply with it, we can work to continue to deal with the underlying issues in accordance with the agreement, clause 8.3, the disputes procedure. The impact on us, on Thiess, at the moment, it's preventing us from complying with the terms of the contract to operate the mine and our approximate loss of revenue thus far is $360,000.

PN30

We've also got a failure to meet with our client's shipping and marketing requirements to produce coal, which can expose us to a claim for damages and some examples of that are demurrage costs which are approximately $12,000 a day, and our coal sales contracts could be put at risk. The contract with Thiess and the client contains no force majeure protection for local issue stoppages and, therefore, if there's no production we can be exposed to consequential damages.

PN31

THE COMMISSIONER: All right. Now, you're intending to call Mr McKerrow, are you, to give evidence?

PN32

MR ARNOLD: I'd pretty much stand by Mr McKerrow's - - -

PN33

THE COMMISSIONER: Well, you can't stand by it unless Mr Vickers agrees he doesn't want to cross-examine Mr McKerrow. Do you want to cross-examine Mr McKerrow in relation to this statement, Mr Vickers?

PN34

MR VICKERS: Not in relation to the statement, Commissioner. No.

PN35

THE COMMISSIONER: Very well. All right. Well, I'll mark this statement then as - perhaps what we might do is get Mr McKerrow sworn firstly.

PN36

THE COMMISSION: Please state your full name and address, Mr McKerrow.

PN37

MR McKERROW: Robert Dawson McKerrow, 26 Sugars Road, Bellbowrie.

<ROBERT DAWSON McKERROW, SWORN [9.27am]

<EXAMINATION-IN-CHIEF BY MR ARNOLD

PN38

THE COMMISSIONER: Just take a seat, thanks, Mr McKerrow. If you'd just like to lead from McKerrow, his name and position please, Mr Arnold.

PN39

MR ARNOLD: Sorry, Commissioner, I didn't catch that.

PN40

THE COMMISSIONER: I'd just like you to lead from Mr McKerrow his name for the record, and the position that he holds at the mine.

PN41

MR ARNOLD: Mr McKerrow, could you please state your full name and position with Thiess?---Robert Dawson McKerrow and I'm the Mining Operations Manager, and I'm responsible in my management role for the operations of the Burton coal mine. The staff on site report back through myself.

PN42

THE COMMISSIONER: Thank you. Now, you provided a witness statement, Mr McKerrow. Do you have a copy of that statement with you in the witness box?---Thank you.

PN43

Now, do you want to make any errors - rather, do you want to correct any errors or omissions now that you've had a further chance to read that statement?---No. I think it's still my understand that what I've got there, Mr Commissioner, is correct.

PN44

Is accurate. Okay. Well, the statement of Robert McKerrow will become Thiess exhibit 2 and I'll take that statement as having been read.

EXHIBIT #THIESS2 STATEMENT OF R.D. McKERROW

PN45

THE COMMISSIONER: And you've indicated you don't desire to cross-examine Mr McKerrow, Mr Vickers.

**** ROBERT DAWSON McKERROW XN MR ARNOLD

PN46

MR VICKERS: On that statement, Commissioner.

PN47

THE COMMISSIONER: Yes, thank you. You're excused, thank you, Mr McKerrow.

<THE WITNESS WITHDREW [9.29am]

PN48

THE COMMISSIONER: Mr Arnold, in terms of the orders that you're seeking, those orders seem to me to be wider than the industrial action that's currently on foot. I don't know whether you know it or not, but the Federal Court of Australia doesn't - isn't very amenable to orders that are of a universal nature and cover the field, so to speak, in terms of what the orders seek to overcome. So I just raise that with you now, because I've got no doubt that Mr Vickers is going to raise it. But that's something that you might just consider.

PN49

MR ARNOLD: Yes. I understand that, Commissioner, and I've actually taken the liberty to draw up an order which narrows that - - -

PN50

THE COMMISSIONER: Very well. If you could provide that to my associate then. Do you have a copy for Mr Vickers?

PN51

MR ARNOLD: No, I don't, Commissioner. I'm sorry.

PN52

THE COMMISSIONER: Well, we might get that photocopied then.

PN53

MR ARNOLD: Yes.

PN54

THE COMMISSIONER: Okay. Thank you. When that comes back, I'll mark that as an exhibit. Mr Vickers.

PN55

MR VICKERS: Thank you, Commissioner. Commissioner, the CFMEU doesn't dispute that there is currently a stoppage of work taking place at Burton. It commenced some time in the evening of Sunday and there have been as I'm instructed two attempts by Lodge officials to effect a resumption of work pursuant to the proposal from Thiess for the convening of a, if necessary, State level conference on site on Wednesday tomorrow. Both of those attempts met with failure and there is a reason behind that, Commissioner, at least in the eyes of the employees, the majority of the employees, as far as I'm instructed.

PN56

Commissioner, Mr Arnold has provided you with a copy of the Thiess Burton agreement. There is some background information which is important because that's what is concerning the employees, members of the CFMEU at the mine at the present time. If I could take you, Commissioner, firstly to subclause 1.3 which if my copy is the same as that Mr Arnold handed up to the Commission, you would find on page 4 of 31.

PN57

THE COMMISSIONER: Yes, I have that, thanks.

PN58

MR VICKERS: Thank you, Commissioner. Commissioner, you'll see that there is an obligation imposed by clause 1.3. I'll read it quickly:

PN59

The company undertakes for the duration of this agreement to maintain a permanent workforce appropriate for the production targets provided by the client and shall ensure access to union starter kits -

PN60

and it goes on and I don't read the rest of it. Commissioner, at the date of certification of this agreement or more correctly at the date of the commitment of the employees, the valid majority of employees, to accept the agreement, there were in fact an average of 32 permanent Thiess employees on each of the four crews operating the mine. I say average because my instructions are that on one crew there were 29 employees, and on another crew 33 employees, and then 32 on each of the - - -

PN61

THE COMMISSIONER: What were those numbers again?

PN62

MR VICKERS: 29 on one crew. 33 on another.

PN63

THE COMMISSIONER: Yes.

PN64

MR VICKERS: And 32 on the other two crews. So as I say an average of 32 permanent employees per crew. In the last couple of months, Commissioner, through natural attrition as I understand it - - -

PN65

THE COMMISSIONER: I'll just mark those orders as Thiess exhibit 3, Mr Vickers.

EXHIBIT #THIESS 3 ORDERS

PN66

MR VICKERS: Yes, thank you, Commissioner. My instructions, Commissioner, are at the present time those numbers have in fact dropped to three crews of 30 and one crew of 29. I'm further instructed that management recently and I understand this may be - - -

PN67

THE COMMISSIONER: Now, sorry. Now, it's - - -

PN68

MR VICKERS: 30.

PN69

THE COMMISSIONER: 30.

PN70

MR VICKERS: On each of three crews.

PN71

THE COMMISSIONER: Yes.

PN72

MR VICKERS: And 29 on the fourth crew.

PN73

THE COMMISSIONER: So what was the numerical strength of the crews? I only got three numbers from you earlier.

PN74

MR VICKERS: I'm sorry, Commissioner.

PN75

THE COMMISSIONER: 29, 33 and 32 you gave me.

PN76

MR VICKERS: Yes, there were two crews of 32; one of 33 and one of 30.

PN77

THE COMMISSIONER: So now we've got three of 30 and one of 29.

PN78

MR VICKERS: One of 29 so an effective reduction - - -

PN79

THE COMMISSIONER: So essentially we've had three, five, seven.

PN80

MR VICKERS: It's - - -

PN81

THE COMMISSIONER: Minus seven.

PN82

MR VICKERS: It's either seven or eight. I may have one of those numbers wrong, Commissioner, I was - - -

PN83

THE COMMISSIONER: Well, I get seven.

PN84

MR VICKERS: Yes.

PN85

THE COMMISSIONER: Because you've got two 29s. The rest are 30s.

PN86

MR VICKERS: One of 29 and three of 30 currently.

PN87

THE COMMISSIONER: And yet before that you had one of 29, a 33 and two 32s.

PN88

MR VICKERS: Yes.

PN89

THE COMMISSIONER: On my reckoning that's seven.

PN90

MR VICKERS: I'll accept that, Commissioner. My maths aren't what they ought to be.

PN91

THE COMMISSIONER: Okay. So you're saying that the permanent workforce is down - has been reduced by seven?

PN92

MR VICKERS: Yes. Exactly and - - -

PN93

THE COMMISSIONER: Which you say is inconsistent with 1.3.

PN94

MR VICKERS: Exactly, Commissioner. Exactly. And those - - -

PN95

THE COMMISSIONER: Well, yes.

PN96

MR VICKERS: Those positions, Commissioner, and at the heart of the dispute those positions are currently being filled by Legra employees on a labour hire basis to Thiess. There are other forms of contractors at the mine currently and they are unquestionably working in accordance with the contractors provision in the agreement. And there is no dispute about those and in fact a notification which is attached to the application, the dispute letter, makes it clear that there is a current arrangement with the 994A excavations at Ellensfield; that's a I think best described as a satellite deposit currently being worked by contractors. There is no argument about those contractors' employees.

PN97

It is not a global dispute about contractors. It's an issue about the use of labour hire employees contractors to replace permanent positions. In addition to which it's an argument that those labour hire employees are receiving preference in training and recognition of prior learning, RPL-ing, over the existing permanent employees and I'll come to the fundamental concern in respect of that in a moment.

PN98

THE COMMISSIONER: Can I just ask you this before you go on? 1.3 says:

PN99

The company undertake for the duration of this agreement to maintain a permanent workforce appropriate for the production targets provided by the client.

PN100

Now, if that's not the areas that the argument will be in I'll walk from here to Bourke.

PN101

MR VICKERS: Well, Commissioner, the simple concern of the employees is that the permanent employees numbers have been allowed to drop by natural attrition and those permanent numbers have been replaced by contractors.

PN102

THE COMMISSIONER: So are you saying that the production targets have increased - - -

PN103

MR VICKERS: They haven't changed.

PN104

THE COMMISSIONER: - - - remained static or changed?

PN105

MR VICKERS: They haven't changed so have remained static, but the permanent workforce numbers have been allowed to drop and those employees have been replaced by contractors' employees and that is the nub of the dispute.

PN106

THE COMMISSIONER: Well, at the time that the agreement was made, was there agreement between the parties as to what the minimum manning would be?

PN107

MR VICKERS: Those numbers aren't specified in the agreement, Commissioner.

PN108

THE COMMISSIONER: No, I didn't think they were, but of course that's what negotiation is all about, isn't it?

PN109

MR VICKERS: Yes, Commissioner.

PN110

THE COMMISSIONER: Not going on strike and saying, "We won't talk about it".

PN111

MR VICKERS: Yes, Commissioner. Commissioner, could I also take you to subclause 2.3 of the agreement which you will find on page 7 of thirty - - -

PN112

THE COMMISSIONER: 2.3?

PN113

MR VICKERS: 2.3 which you will find on page 7 of 31.

PN114

THE COMMISSIONER: Yes.

PN115

MR VICKERS: That's a short subclause, Commissioner. It says:

PN116

When a vacancy for a permanent position exists, appointment of a permanent employee to fill this position shall occur within a period of no longer than eight weeks or otherwise by agreement.

PN117

That hasn't occurred and if I could take you to subclause 9.2 which you will find on page 21 of 31.

PN118

THE COMMISSIONER: What was that clause again, I'm sorry?

PN119

MR VICKERS: 9.2.

PN120

THE COMMISSIONER: On page 21?

PN121

MR VICKERS: Yes. 21 of 31, Commissioner.

PN122

THE COMMISSIONER: Yes.

PN123

MR VICKERS: That deals in my submission with the current situation.

PN124

Contract labour hire may be used from time to time for the coverage of permanent employees' annual leave and temporary shortfalls of permanent positions as per clause 2.3. Relief contractors shall work the relevant roster cycle.

PN125

Now, there is no intention on the part of management as advised to the local Lodge to replace the seven or eight positions dependent on the information I've provided the Commission - the accuracy of that information other than filling one position. The - - -

PN126

THE COMMISSIONER: How long have the contractors been used now?

PN127

MR VICKERS: My instructions are for a period in excess of three months.

PN128

THE COMMISSIONER: So the numbers diminished three months ago?

PN129

MR VICKERS: Over a period of time.

PN130

THE COMMISSIONER: By seven?

PN131

MR VICKERS: Yes, over a period of time, Commissioner; not all on the one day.

PN132

THE COMMISSIONER: Well, no, but essentially then there must have been a start-up date from the time that you say that the company has let the numbers drift so to speak and has maintained their manning levels by the use of Legra contract employees.

PN133

MR VICKERS: Yes.

PN134

THE COMMISSIONER: And that you say that's been going on since the time the seven were engaged in those permanent places that had gone you say there's at least three months.

PN135

MR VICKERS: Yes.

PN136

They're my instructions, Commissioner.

PN137

THE COMMISSIONER: Have there been any discussions with the company about this prior to this?

PN138

MR VICKERS: Yes, they were raised initially at least, Commissioner, formally with the company on Friday of last week. Whether - that was by way of a formal notification to the company in writing. What other discussions have taken place, I haven't been able to ascertain that at this point in time.

PN139

THE COMMISSIONER: So it was let go for three months before somebody decided to do something about it?

PN140

MR VICKERS: No, my understanding is that it's been bubbling for some time and been raised, Commissioner, but obviously not settled. The issue came to a head following the notification by the lodge to the senior person in charge, Mr Caton, I understand on Friday with a demand that no more Legra employees be RPLed or trained on the specific items of equipment, those being the 996 and the 994B excavators because there were a significant number of the permanent employees who hadn't been trained or RPLed on those particular items of equipment, and as perhaps the Commission would understand, the excavators are an integral part and therefore a key skill that would be held by employees. Now, the concern of the employees that raises itself, not only from the - - -

PN141

THE COMMISSIONER: Who's been training the contractor's work-force? The company?

PN142

MR VICKERS: Yes, Commissioner.

PN143

THE COMMISSIONER: To the exclusion of the permanent work-force?

PN144

MR VICKERS: My instructions, Commissioner, are that the employees have been advised that there are insufficient numbers and too much work to be done by the permanent employees for them to be put into a training scheme, so as Legra employees are engaged, they are either trained or RPLed against these key items of equipment. Now, the concern that underlies all of that, Commissioner, from the employees' point of view is perhaps explainable by referring to clause 10.3.1 of the agreement, which starts on page 23, but the important element you will find on the following page, page 24 at step 6.

PN145

This subclause, Commissioner, steps out a - if you like a deselection process, or a redundancy process to determine who will be made redundant in the event of a downturn, given that Thiess as a contractor of course have little or no control over the marketing arrangements or the contractual arrangement for the supply of coal or quantities of coal, and in step 6, Commissioner, you will find that as one of the final arbiters, if you like, for want of a better word in choosing people for selection is the application of seniority in relation to a prioritised list of skills required for the area.

PN146

Now, excavator skills, as I say, is fairly obviously a key skill required to be held by employees. So their concern is that if they're not being trained or RPLed on these critical items of equipment for the operation at the mine, then they lose their ranking, if you like, in the deselection process. Now, that's the concern, as I am instructed, which has been raised, so we have a combination of what the employees understand to be a commitment from the company to maintain numbers, a dwindling of those numbers over time, a replacement of those numbers by temporary contractors, or labour hire employees, which in the view of the employees, and I think is strongly arguable, is in breach of provisions 1.3, 2.3 and 9.2 of the agreement to which I've already taken you, coupled with the fact that the lack of training being provided to the permanent employees and the prioritisation of training to these contractor employees potentially dramatically impacts upon the permanent employees in the event of a downturn as a consequence of the agreed procedures, admittedly, which is contained at step 6 of subclause 10.3.1.

PN147

Now, Commissioner, it's a fairly simple and straightforward submission of the CFMEU that the company should not be afforded or provided the assistance, support or the protection or whatever other term might be applied by the Commission under Section 127 of the Act when we say quite clearly the company is in breach of its own obligations under its own certified agreement. Now, I accept without the Commission telling me again on this occasion that two wrongs don't make a right, and this is a dispute arguably capable of being dealt with in accordance with the disputes procedure, but I should add, Commissioner, that on my instructions at least, when the matter was raised with management officials on Friday, the lodge officers received a response from management to the effect, "All right. We won't do any more training and we won't allocate any more Legra employees to these items of equipment until Monday when the Commission is open for business."

PN148

When that was communicated to employees late on Sunday night, that was the straw that broke the camel's back and they said, "Enough is enough. We want a commitment from the company that this stops. No more training is provided to Legra employees on these key items of equipment in preference to permanent employees." That commitment, as Mr McKerrow's statement clearly spells out, was not forthcoming from Thiess. They said, "We'll come up and have a talk to you on Wednesday." Lodge officials said, "Well, that is a way of resolving the dispute." The lodge members have said to the lodge officials clearly and on two occasions, as I'm instructed, "No, it's not on. Enough is enough. We're not going to be treated like this, and we'll get this sorted out another way."

PN149

That's the reason for the ongoing stoppage, and despite the urging of the lodge officials, they've been unable to effect a resumption of work and permit the procedure to be followed. But that's in light of, and in my submission as a direct consequence of, the rather naive and provocative actions, it would appear if the allegation is correct, that they were confronted with on Sunday. "All right. We won't stir the hornets' nest over the week-end because it might be too hard to find a Commissioner, but it's on on Monday when the Commission is open," with the intent of running straight here and doing what the company now seeks to do today, and that's hide behind the skirts of 127 and the Commission to ensure that they can continue to keep reaching their obligations contained within the certified agreement and simply blame the employees.

PN150

In the circumstances, Commissioner, we say that the Commission ought to exercise its discretion and not issue the order. If I could just take two seconds, Commissioner, to quickly look at the new order which is being sought, and, Commissioner, I would simply reiterate what I was going to put to the Commission in any event. I don't believe, with due respect, that the revised order, which is Thiess 3 in this matter, is substantially different from the global type of order that was sought initially. It is all-encompassing; it is all-embracing. I know the Commission's attitude to these matters; that it is not the Commission's responsibility to draft orders for applicants. The responsibility is on - - -

PN151

THE COMMISSIONER: The Commission will tell parties what they'll issue.

PN152

MR VICKERS: Yes, Commissioner, I understand that, and notwithstanding my very clear understanding of the Commission's views, and they are held widely by - held consistently by all the Commissioners that I've appeared before, and there aren't too many that I haven't for 127 applications. I would oppose the granting of the application in the form which it's sought, even if the Commission is of a mind to, because clearly it does not refer to the specific industrial action which the company complains of which is taking place. In any event, because of my earlier submission I would urge the Commission to exercise its discretion and not issue any form of order in any event. That's my submission.

PN153

THE COMMISSIONER: Okay. Mr Arnold, in reply?

PN154

MR ARNOLD: Commissioner, those numbers that Andrew put up in regard to the crew strengths, initially they were 32. However, our production targets go up and down. A manning schedule has actually been given to the lodge up there on a couple of occasions to justify that the crews now only need 30 because of the new production targets.

PN155

THE COMMISSIONER: Well, why do you need 7 contractors, if this is sufficient?

PN156

MR ARNOLD: Andrew was quite right; there are essentially two lots of contractors. One, that's in the Ellensfield area - - -

PN157

THE COMMISSIONER: Well, that's not the issue that he's raising.

PN158

MR ARNOLD: No. The ones that are there now, Commissioner, are for relief contractors for our crews there at the moment, so there is only really one position with the new manning figures that are there; the manning schedule.

PN159

THE COMMISSIONER: When you say they're relief contractors, who are they relieving?

PN160

MR ARNOLD: Who are they relieving?

PN161

THE COMMISSIONER: Who are they relieving?

PN162

MR ARNOLD: Mr McKerrow is probably a better one to answer that than me.

PN163

MR McKERROW: Mr Commissioner, the - - -

PN164

THE COMMISSIONER: Just stand up, thanks, Mr McKerrow.

PN165

MR McKERROW: The manning schedule that has been discussed in detail with the project manager, Mr Caton, and the lodge is to show the long-term manning requirements, not the current short-term, the next month or so of manning requirements. It's the longer term manning requirements that show and it's been through on the basis of the number of truck operators, the number of dozer drivers, the number of excavator operators that are required to run the pit, basically to run the mining operation through till the middle of 2004. I mean, it's not - it's the longer term plan, is to have four crews by 30 and that's what's been given to the lodge and discussed in great detail, and I guess we've adopted the philosophy of, "Well, is it reasonable that we go and put eight permanent people on our books and then very shortly we have to instigate the reduction in Anscors.

PN166

THE COMMISSIONER: Well, I don't think you'd have a dispute on your hands if you did, to be quite frank - - -

PN167

MR McKERROW: Well, I'm not - - -

PN168

THE COMMISSIONER: - - - because that would be consistent with the terms of the certified agreement.

PN169

MR McKERROW: We have booked - - -

PN170

THE COMMISSIONER: It's not a matter of being fair. It's a matter of whether you're meeting the spirit of the certified agreement, and that would seem to me to be what you would do if you did just what you said would be unfair.

PN171

MR McKERROW: Mr Commissioner, we've - as I said, we've had those discussions and I thought we'd reached agreement that the manning levels of 30, 30, 30, 30 were the long-term manning requirements. Now, those discussions - - -

PN172

THE COMMISSIONER: Well, that might be - I mean, sure, that's reality, but if you've got to maintain seven additional staff for three months at least, there seems to have been a suggestion by Mr Vickers that for at least three months there have been seven people there, contract employees of a company called Legra, who have been receiving training in advance of the permanent work-force, and I don't know a better recipe for a bit of disaster than that one at a ..... mine.

PN173

MR McKERROW: Mr Commissioner, could I respond on that?

PN174

THE COMMISSIONER: And then you're saying that these seven people are relieving. Well, I want to know who they're relieving.

PN175

MR McKERROW: Could I just respond on the training. A couple of points there. I mean, my understanding is those seven people have left at varying times since Christmas. There haven't been, to my knowledge, seven people left for longer than three months. We think it's been a progressive thing. In terms of the training I think it's important to recognise the difference between training and recognised prior learning, which was the RPL word that Mr Vickers used. Training is taking somebody who doesn't have the skill and going through a process, a structured process to give them the skill. Recognised prior learning is a process of somebody who has the skill on a similar piece of equipment, albeit maybe not a Lebaire 996 but maybe an O and K or something of a similar size excavator and physically passing them out, that they have the capability to operate that different type of equipment.

PN176

There is a significant difference. I'm aware of RPL-ing of contract labour but I don't believe that we are going down a training program as such to give contract labour new skills in advance of our existing employees. And that is a very fundamental difference.

PN177

THE COMMISSIONER: Yes, but isn't - I mean, this is a recipe for disaster what you're talking about. There's a nice set of words and I always love these platitudes that people put in certified agreements about "We're going to do all sorts of wonderful things with one another and to one another and for one another" and then very shortly after that all hell breaks loose.

PN178

The company undertakes for the duration of this agreement to maintain a permanent workforce appropriate to the production targets provided by the client.

PN179

Now, it seems to me that at the moment your production requirements are that you need 127 permanent workforce on the basis of what I can read into the numbers. It's not 120, you need 127 if you're going to meet the spirit of 1.3, because you can't meet your production targets without these extra seven people.

PN180

MR McKERROW: Mr Commissioner, I guess what we've put to the lodge is that the request for replacement of the seven or eight, whatever is the right number, it's one of those two numbers, is a short-term peak load and that was one of the reasons we've filled it with contractors.

PN181

THE COMMISSIONER: Well, what - how long do you anticipate these seven people will continue in employment?

PN182

MR McKERROW: I think it's only of the order of one or two months, Mr Commissioner.

PN183

THE COMMISSIONER: So that's nearly six months.

PN184

MR McKERROW: No, they haven't been there. As I'm saying - as I was saying before there's been a natural attrition progressively since Christmas is my understanding, not - they weren't all employed on 1 January.

PN185

THE COMMISSIONER: But essentially the people that left left not because of being made redundant, they left of their own free will, didn't they?

PN186

MR McKERROW: That's correct.

PN187

THE COMMISSIONER: Well, then why weren't they replaced? Because obviously you had production targets that required that many people so when they left your production targets didn't change, did they?

PN188

MR McKERROW: The forward projection requirements, and I'm talking about from now on or in a month's time onwards, only has a requirement for four crews of 30 people and that has been given to the lodge and discussed in some length, to the length of going through individual items of equipment and the manning requirements for those individual items of equipment.

PN189

THE COMMISSIONER: And is that the number of people you've currently got employed?

PN190

MR McKERROW: We're only - the issue in question is just the - - -

PN191

THE COMMISSIONER: Well, you're actually down one.

PN192

MR McKERROW: It's just the mining operations. I mean, the 120 people are just the open cut mining operations. I mean, we have a - - -

PN193

THE COMMISSIONER: But you've got 119.

PN194

MR McKERROW: Yes. And we've said we will be adding another person to that list. So we will be employing somebody shortly to fulfil the four groups of 30.

PN195

THE COMMISSIONER: I see. Okay, thank you. Mr Arnold.

PN196

MR ARNOLD: Yes, Bob has already spoken about the RPL issue. In terms of Andrew's point, clause 10.3.1, the application of skill, in step 6 the contractors wouldn't be part of that step 6 anyway. And also - - -

PN197

THE COMMISSIONER: No, but if you had - if you maintain the same numbers that you had before the permanent employees would be. I mean, that's the point Mr Vickers was making.

PN198

MR ARNOLD: Yes, I understand that, Commissioner. In that - - -

PN199

THE COMMISSIONER: I don't think he's suggesting the casuals get a guernsey or the contract employees get a guernsey, but he's saying that essentially if you want to downsize that there's a way to do it; downsize to 120 there's a way to do it.

PN200

MR ARNOLD: Yes. Well, as far as that application of skill goes there's a production training plan exists up at the site which is a working document that recently, on 25 March and 10 April, was reviewed by the training committee. That committee comprises employees representing the crews, officials of the lodge up there and staff and management and it's scheduled to meet monthly to carry out a range of tasks including the monitoring and communication of the training plan.

PN201

Part of that training plan is a training matrix which is used to track the development skills of the employees on the crew and it was modified in a draft issued to the workforce on 19 April. It was also given to the supervisors and employees as a communication tool that enables the crews, the supervisors, the lodge to clearly understand where training is up to, who is getting the training and in accordance with the guidelines agreed to in the agreement, specifically those clauses that Andrew related to, 10.3.1, so that it could be clearly understood by everybody the preference for training in the next available opportunity for the crews.

PN202

So the lodge has that document, the crews have that document and it is our understanding that that will be the training plan for the next couple of months. That's all I've got, Commissioner.

PN203

THE COMMISSIONER: Thank you. Well, now, what about these orders? I mean, these orders don't look any different to me in terms of their intent than the ones that I referred to earlier. They are not specific as to the industrial action and this Commission, if it does finally decide to issue orders in this matter, would not issue orders of that nature. It has to be specific. So what I think - the Commission will have to adjourn now in any event as I indicated to the parties earlier.

PN204

I'm going to adjourn. The parties can stay here because we're going to do the other matter next door. And in the meanwhile I think the parties should have a bit of a talk about how between you you can get these blokes back to work and have some standard of communication that everybody understands because it seems to me as if either you're not talking to them in clear terms or they are not listening in clear terms, one or the other. I mean, you've both got positions that you've put but essentially it seems to me that - and I think, Mr Vickers, it's the old story about how long is a piece of string when you start to argue what does clause 1.3 mean.

PN205

I don't think that's any secret. And just how much of your hat you want to hang on clause 1.3 in this argument is a pretty interesting question but at the end of the day, as I've told you before when I was in this panel, that your members don't seem to believe there's any point in bringing matters to the Commission until they get dragged in here kicking and screaming by way of a 127 application. They could have been down here without being on strike, without losing pay, and having their say in this Commission about the issues that you've raised and perhaps you might have made some progress on that.

PN206

MR VICKERS: Yes, Commissioner.

PN207

THE COMMISSIONER: Yes. And again you've acknowledged all of the righteousness of that statement, Mr Vickers, as usual.

PN208

MR VICKERS: Yes, Commissioner.

PN209

THE COMMISSIONER: Okay. So I'm going to adjourn now but I think the parties should have a talk and see what you can sort out here and see if we can get these blokes back to work and get some understanding as to what won't occur on return to work and until such time as a conference can take place tomorrow between the parties to try and get some resolution to this. Because frankly I don't think using a big sledge-hammer on a little nut is the way to fix this one up, because that's what you've really got. So on that basis I will adjourn. My associate will indicate to the parties when the Commission intends to resume. Thank you.

SHORT ADJOURNMENT [10.01am]

RESUMED [10.52am]

PN210

THE COMMISSIONER: Yes, thank you. Mr Arnold, did you wish to say anything further?

PN211

MR ARNOLD: Commissioner, if I could I'd like to ask Mr McKerrow to clarify for you some of the issues regarding the numbers of the use of contractors.

PN212

THE COMMISSIONER: Yes?

PN213

MR ARNOLD: And when Mr McKerrow is finished with that I'd continue.

PN214

THE COMMISSIONER: Very well. Yes, Mr McKerrow?

PN215

MR McKERROW: Mr Commissioner, while we were out I just made a phone call to the site to just confirm a couple of issues about those numbers and I've conveyed this to Mr Vickers in the meantime. In the mining operations in the Burton pit, which is the pit that is the issue and the discussions at the satellite pit of Ellensfield I don't think are an issue in dispute. We currently have four contract people actually filling positions that are - or the union may say are - should be vacant positions. What I've conveyed to Mr Vickers is that two of the employees from those positions are on a short term assignment with Thiess in New Caledonia assisting in training of a project that we're setting up over there, and they were due back, I think, in early May.

PN216

I'm not sure of their current return date. And two of the other people that were part of the permanent crews have, over the past 12 months, at different times suffered fairly traumatic personal situations in that one fellow lost his wife during childbirth and we've granted him extended leave and said to him you really need to come back and tell us when you think you will be ready to resume your position. And the other fellow actually lost his leg above the knee in a motor bike accident. And similarly, I mean, I've had ongoing discussions with Gary and said to him, well, we'll keep your position open, we're happy for you to come back but you just need to let us know what the timing is. Now, he's going through a fitting of prosthetics to try and actually get himself back to be able to resume work.

PN217

THE COMMISSIONER: Is it realistic that he'll come back to the pit?

PN218

MR McKERROW: Well, in his view it certainly is and I guess we - - -

PN219

THE COMMISSIONER: But would you people put him through an NMA, wouldn't you, before you allowed him back on the site?

PN220

MR McKERROW: Yes, we would. We would have to.

PN221

THE COMMISSIONER: Yes?

PN222

MR McKERROW: And in terms of the numbers, the 29, 33, 32, 32 - I'm not exactly sure when those numbers were deemed to be the average number of people in the pit, but certainly up until November last year we had a fourth large excavator working in the Burton pit. That machine was subsequently transferred to Newlands and that may have been part of the reason for the reductions from those numbers. But we did table with the lodge on 14 March the 4 x 30 crews. So that was gone through in great detail and it is my understanding that the lodge could not see any flaws in that logic.

PN223

It was gone through on the whiteboard and then subsequently it was given to them, it was my understanding. At that point in time we actually had 30, 30, 31, 30.

PN224

THE COMMISSIONER: 30, 30?

PN225

MR McKERROW: 31, 30.

PN226

THE COMMISSIONER: 31 and 30. When was that; November?

PN227

MR McKERROW: That was 14 March, when we - - -

PN228

THE COMMISSIONER: Of this year?

PN229

MR McKERROW: Of this year. When we went through with the lodge the requisite manning - the projected manning levels going forward.

PN230

THE COMMISSIONER: So what's the maximum number of contractors that are on site working in those roles; four not seven?

PN231

MR McKERROW: Well, from what I've been told this morning is that there are four people filling crew roles and there is one contractor that is working on a drill and that drill works between Ellensfield and Burton.

PN232

THE COMMISSIONER: Four filling crew roles - - -

PN233

MR McKERROW: Four filling crew roles.

PN234

THE COMMISSIONER: - - - one on a - - -

PN235

MR McKERROW: One on a drill.

PN236

THE COMMISSIONER: - - - drill. And it's a mobile drill, it's not in situ?

PN237

MR McKERROW: No, it's a crawler drill.

PN238

THE COMMISSIONER: Crawler drill.

PN239

MR McKERROW: It moves between the two pits and we have one subcontract pump attendant who is basically - looks after the pumping and the dewatering, and that has been there for some time. We've actually done that - I mean, the guy is rigged up with his own vehicle, he's got all the special gear for welding pipes and doing all those sorts of things. The only contract labour that is used in Ellensfield over and above those numbers I've just given you, Mr Commissioner, are when we have short term requirements for either excess annual leave coverage or sick leave coverage.

PN240

THE COMMISSIONER: Excess annual leave, sick leave and what about workers comp?

PN241

MR McKERROW: Well, probably workers comp as well, Mr Commissioner. And those - - -

PN242

THE COMMISSIONER: Well, I would have thought somebody is there for the guy that lost his leg. When did he get injured?

PN243

MR McKERROW: Well, they wouldn't - that's not workers comp, it was a motor bike injury.

PN244

THE COMMISSIONER: So it's an extended - it's an extended absence from the site?

PN245

MR McKERROW: Yes, it is.

PN246

THE COMMISSIONER: When did that occur?

PN247

MR McKERROW: I think that was late last year.

PN248

THE COMMISSIONER: I mean, but realistically you would have thought that you guys would have made a decision and put somebody in there permanently, wouldn't you? I mean, that seems to me to be part of the problem here. A clear example of somebody who is going to be away for quite some time. He got hurt late 2001 and here we are getting towards the end of April, four maybe five or six months.

PN249

MR McKERROW: Well, I guess, Mr Commissioner, in hindsight that's, I mean, you probably are correct and Mr Vickers has pointed that out, that we probably are in error. Those two people who we - I guess, we've kept their positions open on compassionate grounds and probably should have been replaced.

PN250

THE COMMISSIONER: I think the guy with the personal problems is clearly understandable and that can be a long or a short term thing, that would be hard to assess I would have thought, his position.

PN251

MR McKERROW: Well, it is.

PN252

THE COMMISSIONER: Yes. But the other guy I would have thought it's pretty clear. Okay. Did you want to say anything further?

PN253

MR McKERROW: No, that's it, thank you.

PN254

THE COMMISSIONER: Mr Vickers, I'll give you an opportunity to respond because there has certainly been some new material and information provided which you certainly couldn't have addressed in your submissions.

PN255

MR VICKERS: Thank you, Commissioner. I have had a fairly detailed discussion with Mr McKerrow and Mr Arnold during the adjournment, Commissioner, and Mr McKerrow did advise me of the information that he had received in respect of those four positions. I should put to the Commission what I've, in fact, put to Mr McKerrow and that is firstly, Thiess are to be congratulated for the compassionate stance that they have taken, particularly in respect of the two employees who suffered these most traumatic and unfortunate circumstances. Secondly, I have no difficulty at all with the circumstances of two other employees being afforded the opportunity to take on some short term work still with Thiess in New Caledonia, who I now understand are due back in early May.

PN256

What Mr McKerrow didn't advise me of before and I didn't ask him was how long they had been gone. But, Commissioner, it doesn't get away from the fact, notwithstanding, that Thiess are to be applauded for (a) their compassion and (b), if you like, the unique opportunity for someone to go and work in New Caledonia. I assume it's probably a more pleasant working environment, perhaps - at least when you're rostered off than what's at Burton. But it doesn't get away from the fact, Commissioner, and this is one of the fundamental problems, that those arrangements as compassionate or as beneficial as they may seem are contrary to the terms of the certified agreement. And the employer has as much responsibility as the union for ensuring that the terms of the certified agreement are complied with.

PN257

And no amount of justification on compassionate or other grounds is an excuse for not complying with the terms of the certified agreement, and those terms are clear. Now, sitting here after the event, 800 kilometres away from the mine where the pot's boiling, it's easy enough for me to say well, that's understandable - - -

PN258

THE COMMISSIONER: It couldn't be boiling too hot, there's nobody there is there?

PN259

MR VICKERS: Well, they're in fact still there. I mean, like most other circumstances that I'm used to in Central Queensland they'd have all gone home - they haven't, they've spent their two days on strike at the mine, still waiting there. That's my advice. So notwithstanding the circumstances - and I'm not derogatory about those circumstances - a simple process of ensuring that the agreement was complied with would have, on face value at least, would have avoided the circumstances that we're confronted with at the present time.

PN260

THE COMMISSIONER: Well, I think there's a need for a bit better communication about what the company was doing and why for the lodge officials.

PN261

MR VICKERS: Exactly, Commissioner.

PN262

THE COMMISSIONER: But then again, that may have occurred, I don't know.

PN263

MR VICKERS: Well, it's I'd have to say slightly unusual, Commissioner, that the first time I hear about these somewhat exceptional and extraordinary circumstances is after Mr McKerrow talks to the mine during the adjournment. But be that as it may, I haven't been up there for the last two or three months.

PN264

THE COMMISSIONER: But then again in saying that, Mr Vickers, it seems to me that your lodge officials are au fait with certain things, and they're not being listened to by your members.

PN265

MR VICKERS: Yes, but I don't know precisely - I don't know, Commissioner. I simply don't know whether the circumstances that Mr McKerrow has just now outlined to the Commission were known to the lodge officials, have been discussed with the lodge officials, or were put to the meeting. What I was told was put to the meeting was that there's proposal to have a state level conference tomorrow, and go back to work and we will sort it out at this state level conference - or attempt to sort it out at this state level conference. So notwithstanding that, Commissioner, I said it earlier, I repeat it again: two wrongs don't make a right. I know about the disputes procedure. I support the disputes procedures, but I can't be a lodge official at 32 pits in Queensland. It is not possible. It is not possible.

PN266

Just the same as Mr McKerrow can't be on the job 24 hours a day 7 days a week at each of the mines that he's responsible for, and he's only got four of them.

PN267

THE COMMISSIONER: Well, tell me this: how can we get your people back to work so that people can sit down and sensibly discuss these issues and look for some resolution?

PN268

MR VICKERS: Commissioner, I have.

PN269

THE COMMISSIONER: Short of the Commission issuing these orders.

PN270

MR VICKERS: Yes, Commissioner. I have discussed that with Mr Arnold in particular during the break, and Mr Arnold, I understand, is keen to pursue the issuing of orders. He may well wish to ultimately seek to slightly modify even the most recent order that he provided to the Commission, which is Thiess 3.

PN271

THE COMMISSIONER: Well, if he wants to get his orders issued, he'll need to, because I won't issue those.

PN272

MR VICKERS: Yes, Commissioner. Commissioner, my preference, I would have to say, is that - and in full recognition of the concerns of Mr Arnold on behalf of the company. I would see great benefit, in fact, in the Commission issuing a recommendation to the effect that the employees resume work as soon as practicable, and I would ensure that that message gets across clearly to people as well. I can't do it personally to the rank and file, but I can do it via the lodge officials and in writing.

PN273

THE COMMISSIONER: Mr Vickers, I'm willing to issue such a recommendation to you orally right now.

PN274

MR VICKERS: Commissioner - - -

PN275

THE COMMISSIONER: But I then in turn need you to get on the phone and tell your members the Commission has recommended a return to work immediately or as soon as practically possible in the interests of safety and so forth at the pit, knowing that there have to be some pre-inspections carried out. But I'd need to know that they were going to do that. You know, cast iron guarantee if they don't, well, then, the Commission to consider the issue of orders.

PN276

MR VICKERS: Commissioner, the proposal that I - - -

PN277

THE COMMISSIONER: Can I say this to both of you - can we just go off the record?

OFF THE RECORD [11.05am]

RESUMED [11.12am]

PN278

THE COMMISSIONER: So essentially, Mr Vickers, what the Commission is willing to put to you and obviously the applicant in this matter is that your members return to work as soon as possible. It's the Commission's recommendation, strong recommendation, I might add, that they return to work immediately or as soon as possible, that in the interim the company does not press the employment of Legra employees into those areas which have given rise to this dispute, but only until such time as a state level conference which the Commission understands has been, or is attempted to be, organised for tomorrow, actually takes place and an outcome satisfactory to both parties is reached arising out of that conference.

PN279

In the event that that doesn't occur, the company is entitled to place Legra employees into those areas of the pit that they have a need - where they see a need to do so and any objection to that by your members will have to be progressed under the disputes avoidance procedure of the certified agreement. In the event that they return to work under those terms, the Commission will not, at this point in time, issue the orders sought by the applicant. However, in the event of the company informing the Commission that the recommendation of the Commission is not accepted - is either not accepted or is being breached by your members, the Commission will issue the orders as sought - will issue orders of a nature as sought to deal with specifically the industrial action which gave rise to this notification.

PN280

And the period will then be determined by the Commission on the basis of the attitude of your members and their actions. Now, I'm happy to issue that recommendation to you now. Are you in a position to convey that to your members?

PN281

MR VICKERS: I'll convey that as soon as possible, Commissioner.

PN282

THE COMMISSIONER: I'll just get - Mr Arnold, are you willing at this point in time to be a party to that recommendation?

PN283

MR ARNOLD: Can I just put forward - - -

PN284

THE COMMISSIONER: You'll have to stand up now. We're back on record.

PN285

MR ARNOLD: Sorry. Could I just put forward what we were seeking, Commissioner, then take it - - -

PN286

THE COMMISSIONER: Sure, that's fine. Well, that's the nature of a strong recommendation the Commission would be willing to issue if you're willing for that to occur.

PN287

MR ARNOLD: From our point of view in the issue that's before the Commission, we've attempted to follow the disputes procedure as per the EBA from the commencement of the dispute. The lodge hasn't. As stated previously, the granting of the orders won't inhibit the resolution of the dispute, and if the order is granted and if the parties comply, work can continue while both the parties deal with the underlying issues in accordance with the agreement. The word from the site is that the lodge won't return to work unless it's ordered to do so by the Commission. We seriously doubt the ability of the lodge officials to get the lodge to return to work without those orders.

PN288

THE COMMISSIONER: Well, I'll tell you what we'll do, Mr Arnold. I'll adjourn this matter now, and I'll give Mr Vickers till midday to come back and tell me what's happened. In the event at midday he tells me that his members aren't willing to return to work under a recommendation of that order, the Commission will issue the orders. Now would that satisfy you in terms of the recommendation at this stage?

PN289

MR ARNOLD: Mr McKerrow has just got a question in regard to interpretation of some of the things you said, Commissioner.

PN290

THE COMMISSIONER: Yes.

PN291

MR McKERROW: Mr Commissioner, can I just - I'd just like to understand what your interpretation is, because I don't want to, I guess, leave here and say, "Yes, we thought the recommendation - - - "

PN292

THE COMMISSIONER: Yes, you want to clearly understand.

PN293

MR McKERROW: "We thought the recommendation meant X, Mr Vickers thought it meant Y, and when it gets to the lodge and the rank and file, they thought it meant Z."

PN294

THE COMMISSIONER: Well, the Commission is happy to issue a written recommendation if that's going to clarify those issues.

PN295

MR McKERROW: What - I guess the position that I would be prepared to accept - I mean, the difficulty with accepting that we won't - that we will limit purely the truck drivers is that there may be a situation where we already have a person who has been operating a dozer, he is ticketed to operate a dozer and because we have someone away on sick leave or for whatever reason, we need that relief operator to operate that - - -

PN296

THE COMMISSIONER: Well, we could have an emergent circumstance let out on that.

PN297

MR McKERROW: What I was going to suggest to the Commissioner, I'm happy to put the position that I put to the guys the other day - is that we won't involve this RPLing. We won't do any further RPLing of Legra employees until this matter is resolved, so that basically whoever is there now and whoever is operating now and the flexibility that we have to do that, that allows us to continue to operate the pit in a normal mode of operation, but that we won't be changing that normal mode of operation - - -

PN298

THE COMMISSIONER: Well, you wouldn't be extending it by bringing other people - other contractors.

PN299

MR McKERROW: We shouldn't need to, apart from the fact that if we have - I mean, if there's a bubonic plague goes through the camp and we lose 20 people or something, we may have no choice.

PN300

THE COMMISSIONER: Well, we'd hope that that's not going to happen between now and tomorrow afternoon.

PN301

MR McKERROW: I accept that. I mean, it certainly wouldn't be our intent to bring more people in to - - -

PN302

THE COMMISSIONER: So you want to see a maintenance of the status quo but you won't extend the status quo, in essence, unless there's an emergent situation arises.

PN303

MR McKERROW: That's what I'm saying. We won't make any changes to the way we've been doing business prior to receipt of this letter and we won't RPL any more Legra people, because it seems that this RPLing and this upping of skills and training of skills is a crux issue in the matter, so I'm happy to put that to one side.

PN304

THE COMMISSIONER: Yes, well, it's created a sense of insecurity in the minds of some people.

PN305

MR McKERROW: And I'm happy to put that to one side until we try and resolve this thing tomorrow.

PN306

THE COMMISSIONER: Okay. Mr Vickers. Thank you.

PN307

MR VICKERS: Commissioner, I would be, I think misleading the company and the Commission, and I don't want to do that, if I gave the impression that a recommendation in that form is liable to be accepted. I'm happy enough to put it, but I don't do so, Commissioner, with any confidence and I don't like, as I said, doing that, particularly to the Commission, nor to an employer.

PN308

THE COMMISSIONER: Well, what I'll do, Mr Vickers, I'll adjourn this now. The Commission is going to look at the orders it will issue. You've got till 12 o'clock to come back and satisfy me and the company that the orders shouldn't issue, okay?

PN309

MR VICKERS: Very well, Commissioner. Thank you.

PN310

THE COMMISSIONER: Now, Mr Arnold, there's going to be a need for you to look at these orders again. You will need to include in here specific terms as to the nature of the industrial action you're seeking to have these orders apply to, and that's not existing in these.

PN311

MR ARNOLD: Yes. Some words I had here, Commissioner, to take on board your comments - - -

PN312

THE COMMISSIONER: Do you have these in electronic form?

PN313

MR ARNOLD: Yes. Got it there, Commissioner.

PN314

THE COMMISSIONER: Okay. Well, we can - I might leave you to discuss that with my associate and we'll have a look at those, and we can them compile orders appropriately - - -

PN315

MR ARNOLD: Can I just run by these couple of words I've got?

PN316

THE COMMISSIONER: Sure.

PN317

MR ARNOLD: Yes? Where I've got in there the use of contract employees, or contractors' employees - - -

PN318

THE COMMISSIONER: Just whereabouts is that? 3A, is it?

PN319

MR ARNOLD: 3A and then it follows through.

PN320

THE COMMISSIONER: Yes. Use of contractors' employees, yes.

PN321

MR ARNOLD: Yes, the words I had there, Commissioner, is "the use of contractor employees in the open cut production operation, which in effect localises the orders into the area that's in dispute."

PN322

THE COMMISSIONER: "In the open cut - - - "

PN323

MR ARNOLD: "Production operation."

PN324

THE COMMISSIONER: Yes, okay. Now, if those orders issue, Mr Vickers, your members need to understand that all bets are off and their concerns about the use of contractors and so forth will go by the board. So, you know, the ball is in their court. So I'll adjourn now and we'll prepare these orders and then subject to what you tell me at midday, the Commission will indicate to the parties what it intends to do. On that basis, I'll adjourn these proceedings.

SHORT ADJOURNMENT [11.20am]

RESUMED [12.48pm]

PN325

THE COMMISSIONER: Now, Mr Vickers, can you report to the Commission the outcome of representations you may have made following suggestions put to you by the Commission and supported by the applicant in this matter?

PN326

MR VICKERS: Yes, Commissioner. During the adjournment I contacted by phone both Mr Martin and Mr Greaves, lodge officials. Mr Greaves was at the mine, Mr Martin was not at the mine. They both undertook that they would pursue the recommendation which the Commission made with vigour.

PN327

THE COMMISSIONER: Well, flagged.

PN328

MR VICKERS: Flagged with vigour. And it's my understanding, Commissioner, that there has indeed been a resumption of work effected as we speak. There is one relatively minor problem in that some three or four employees of the crews which are currently rostered on have departed the mine. The mine is a remote access mine, which the Commission is probably aware, and Mr Greaves, the lodge official on site has undertaken to attempt to contact those three or four employees, members of the CFMEU, as quickly as possible and advise them of the resumption of work.

PN329

We would anticipate if they are able to be contacted then they will return to work to complete their tour. If they are unable to be contacted or are unaware of the resumption of work then the CFMEU would simply expect that no penalty be imposed on them by Thiess other than obviously they not be paid for any non-attendance at work.

PN330

THE COMMISSIONER: Yes, thank you. Mr Arnold.

PN331

MR ARNOLD: Commissioner, I concur with Andrew's comments in regard to the return to work. We've had conversations with our staff up there and it appears that the guys are coming back to work. As far as the three or four people who have left the site, there won't be any penalty of those people but they won't be paid until they do return to work on site.

PN332

THE COMMISSIONER: Yes, very well. Well, the circumstances are that the Commission now formalises the recommendation that it had indicated to Mr Vickers it was willing to issue prior to the adjournment. The parties now have copies of that recommendation. It's contained in print 917241. It will form part of the Bench file in this matter. I should also indicate to the parties that in the event that recommendation D needs to come into play I should formally place on the record that the Commission is satisfied that the jurisdictional settings required for the issue of orders under section 127 of the Act have been established by Thiess in their submissions and in the issues raised to the extent that an industrial dispute is occurring.

PN333

The work that is subject to the industrial dispute is work that is regulated by an award or a certified agreement and whilst the Commission has, at this point in time, issued a recommendation those orders will issue in the context of the issues placed before the Commission this morning in the event that the employees do not comply with the recommendation and that is made clear to them in recommendation D of such recommendation.

PN334

There will not be a need for Thiess to come back to this Commission to have those orders issued. The Commission is simply staying the issue of those orders on the basis of the undertakings given by Mr Vickers and the information now provided to the Commission that there has been a return to work and under those circumstances the parties are provided with draft copies of those proposed orders in the event that such became a reality.

PN335

I would hope that commonsense will prevail and that there will not be a need for the Commission to issue those orders but the Commission will issue those orders appropriately on receipt of advice from Thiess that such orders should issue in the event that industrial disputation arises around the issues which gave rise to the original application. So if there's nothing further from the parties the Commission will adjourn these proceedings.

ADJOURNED INDEFINITELY [12.52pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #THIESS1 BURTON COAL AGREEMENT 2001 PN12
ROBERT DAWSON McKERROW, SWORN PN38
EXAMINATION-IN-CHIEF BY MR ARNOLD PN38
EXHIBIT #THIESS2 STATEMENT OF R.D. McKERROW PN45
WITNESS WITHDREW PN48
EXHIBIT #THIESS3 ORDERS PN66