C2002/4297, Transcript of Proceedings [2002] AIRCTrans 3467 (9 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/4297

APPLICATION FOR AN ORDER TO STOP OR
PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the
Act by Endeavour Coal Pty Limited for an
order to stop or prevent industrial action

SYDNEY

10.16 AM, THURSDAY, 22 AUGUST 2002

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR A. McCOWAN: If the Commission pleases, I appear on behalf of Endeavour Coal and Eloura Colliery, and with me I have MR H. PINKSTER, the Mine Manager.

PN3

MS J. GRAY: If the Commission pleases, I appear with MR B. MITCHELL, who is our South West District Secretary and the two lodge officials, MR P. CURTIS, the Lodge President of Eloura and MR J. TWIST, the Lodge Secretary of Eloura. Commissioner, I have a jurisdictional issue to raise initially in respect to this application and that is that what we submit is that although there is strike action for a 24 hour period commencing yesterday at 3.30pm at Eloura, the issue over which that strike action was taken was one which we say falls within the exclusion to the definition of industrial action in section (4) of the Act and that exclusion being action by an employee if the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety.

PN4

What we say, Commissioner, is that the issue over which the strike action occurred was one which relates to the health of the members of the union at Eloura Colliery. Eloura Colliery is a very wet pit, it is an unusual thing on any shift for the members not to have water go over the top of their gumboots and there has been provision by the company of anti-tinea powder for as far back as anyone can recall at the mine site.

PN5

The company unilaterally and without prior advice removed that provision of anti-tinea powder and as such the membership regarded it as a health risk for them to continue to work with wet socks in wet conditions in gumboots without the provision of the tinea powder and certainly took offence at the company's method of withdrawing the provision without prior consultation, without discussion, and in fact without even raising it at the most recent health and safety meeting which was held on 6 August, they simply took it away and as such, Commissioner, we would say that there is a lack of jurisdiction for the Commission to make a section 127 order as sought by the company today.

PN6

However, we would like to seek to resolve the issue of the provision of tinea power to our members at Eloura and we would most certainly welcome the assistance of the Commission by way of chairing conciliation either before or after determining the jurisdictional issue that we've raised. May it please the Commission.

PN7

THE COMMISSIONER: Just say we get off on the right foot about this. I take your jurisdictional point but I take it to be one which I consider in terms of whether I agree to grant the order or not so I'd still hear full argument about it and then take your point as a threshold issue. What do you say now, Mr McCowan, do you want to address me or would you like to go into conference?

PN8

MR McCOWAN: No, I'd like to address you, Commissioner.

PN9

THE COMMISSIONER: By all means that's your right, proceed. But I do intend to call a conference at the end of your address.

PN10

MR McCOWAN: That's fine, thanks. Commissioner, the application for orders, and I'll just refer to Ms Gray's point to start with about jurisdictional issue, regardless of what slant you might want to put on it these employees are on strike and I believe section 127 deals with that. As for whether it is based on a reasonable concern of imminent risk I'd have to argue that that's certainly not the case there is no imminent risk to safety. Commissioner, I'll go through my submission and certainly we can talk about that if you wish at the end.

PN11

Commissioner, the application for orders under section 127 arises because of wildcat strike action which commenced at the company's Eloura Colliery at about 3.30 pm yesterday afternoon, Wednesday, 21 August. The strike action arises the company has been informed allegedly to do with the actions of the company in withdrawing the provision of foot powder to employees at Eloura Colliery. Commissioner, the company had been supplying foot powder to employees for some years something that was done over a period of time, it is certainly not a condition of their employment, not a condition of the certified agreement, but had been happening for some years.

PN12

But approximately three years ago, Commissioner, there was a first aid audit, an audit of first aid supplies conducted by the company, and it was found at that time that we were actually supplying any amount of pharmaceutical items the likes of the foot powder, antiseptic eye drops and a number of other products. Commissioner, the company was concerned that we were providing items, these pharmaceutical items or medical items, when really there were a number of guidelines around consistent with the work cover guidelines which basically say that we shouldn't be providing pharmaceutical or non-prescription items to the workforce.

PN13

Commissioner, we made a conscious decision three years ago and this was involving a number of people across the group which included our resident occupational physician, Dr Jerry Bissett, about that we shouldn't be carrying items of this medication on the site. The whole purpose of pharmaceutical goods being issued out of a pharmacy is that the pharmacies and the pharmacy assistants are people who are actually trained in the use of the administration of non-prescription medication and things as simple as when you go to purchase something and someone asks you, you know, have you seen the doctor about that, is it an ongoing problem, a lot of these medications are only initially short term fixes to the issue.

PN14

It might be that, you know, they give the right instruction for using that particular type of medication and I mean things such as if it hasn't improved in two weeks you should go and see your doctor. I think a lot of that time even a lot of that medication I think its actually written on the containers in the boxes and the tubes, Commissioner. But, Commissioner, we believe that that contact by those medical people or pharmaceutical type people ensures that the right medication is being used and that was one of our major issues about the fact that we're providing medication and are we in fact providing the right medication or is it the right medication for a particular person's condition and that was one of the issues with our occupational physician, Dr Bissett.

PN15

He also saw a potential legal problem where providing such medication could be seen as dispensing that medication. I believe there are some rules out there that say that only pharmacies can dispense particular types of medication and therefore what we do by dispensing those we take on certain medical responsibilities for that employee and part of that is that we have got a concern that the employees were basically self-medicating something without an appropriate diagnosis from a GP and that's a concern for us as well.

PN16

So the fact that we're providing this powder in this case or the other drugs at that time were that we may be encouraging the use of something which is not an appropriate use for that person's condition.

PN17

THE COMMISSIONER: But foot powder is prophylactic rather than - it's issued as a prophylactic, isn't it?

PN18

MR McCOWAN: Not as an ingestive - - -

PN19

THE COMMISSIONER: Not a curative?

PN20

MR McCOWAN: No, but at the same time, Commissioner, you can't buy that anywhere else but pharmacies and I guess that's the point that the doctor was making at the time. Commissioner, what's occurred in this particular occasion is that at the moment all of our mine sites are under a cost restructures, under cost review and what brought this to the fore was that there was a certain amount of dollars spent that came to the mine and someone asked the question and said now, what's that money been spent for? It was of the order of about $24,000.

PN21

It's not something that's going to break the colliery, however the main thing was it was something that was supposed to, if you like, disappear or be taken out of circulation some three years ago. For some reason it didn't happen and I'm not sure of what that reason is, but I guess maybe people just bought in a bit here and there and it was basically probably designed to keep the peace as I would see it. Commissioner, basically this happened about two weeks ago. There had been some discussion between the mine manager and the members of the CFMEU executive at Eloura.

PN22

I understand that Mr Rob Davey who I think is the treasurer of the lodge, but he's also, Rob, I believe, is the guy who looks after the general house rehabilitation, that sort of stuff. I'm not quite sure what his role is in that regard, but he had had some discussion actually with the site services co-ordinator and the doctor. I'm not sure exactly what came out of that, but there have been some discussions. But basically in this regard what happened yesterday was that Mr Curtis, who is the CFMEU president, approached the mine manager yesterday morning and advised him that they wished to speak with him later in the day.

PN23

Commissioner, what had happened yesterday I understand and I'll be corrected if I'm wrong, but there were a number of meetings held. There was some report back meetings, I understand they were, I don't believe they were specifically called to talk about this foot powder issue, but obviously that got raised at the time. The report back meetings were to happen. They had a meeting, I think, after night shift and they had one with day shift before day shift went into the pit and the idea was that they'd also speak to afternoon shift before they went into the pit.

PN24

Sometime during the day, Mr Curtis informed Mr Pinkster that he wished to talk to him about a number of issues and then approximately 12.30 yesterday they had that meeting. The question I believe was asked about the foot powder issue and Mr Pinkster advised Mr Curtis that he wasn't going to change his mind, but he was happy to get Dr Bissett involved to talk some more about the issue.

PN25

Commissioner, what then occurred was that the afternoon shift had their meeting, their report back meeting and we were informed at approximately 3.30 that the afternoon shift had embarked upon strike action. We also understand that what happened during the meetings of day shift and night shift is that they also voted to partake of a 24 hour stoppage and we believe that the afternoon shift was basically the last meeting and probably to vote on a motion that may have been put forward by the members. But obviously because I wasn't there, I can't say, but maybe the CFMEU can confirm what happened there.

PN26

Commissioner, so what happened yesterday afternoon was that they were through their labour. Commissioner, what I would like to hand up if I could is a copy of a grievance form that was actually handed to Mr Pinkster yesterday at approximately 12.30 which he duly answered. If I could just go through that with you, Commissioner.

PN27

THE COMMISSIONER: If you could just wait a moment while it's stamped. Yes, Mr McCowan?

PN28

MR McCOWAN: Commissioner, this is the standard grievance form used by the colliery.

PN29

THE COMMISSIONER: Do you wish me to mark this?

PN30

MR McCOWAN: Yes, please.

PN31

THE COMMISSIONER: Well, the grievance form will become exhibit M1 in these proceedings.

EXHIBIT #M1 GRIEVANCE FORM

PN32

MR McCOWAN: Commissioner, if I can just read through the grievance that was handed to Mr Pinkster:

PN33

Rank and file of Eloura strongly object to the removal of the foot powder from our PPE -

PN34

Personal protective equipment supplies, I take that to mean, Commissioner -

PN35

that has been supplied for a number of years without ...(reads)... before this develops into industrial action.

PN36

Commissioner, that tells me a fair bit about it, just reading those last couple of lines about "We would like the powder to be re-supplied immediately before this develops into industrial action", which to me tells me that this is pretty well premeditated that we were going to give the company a whack around the ears if it wasn't re-supplied immediately. So I guess what happened was that when Mr Pinkster advised Mr Curtis that he would happily get Dr Bissett involved, then he was told, "Don't worry about it, there's no point in doing that, we will basically let the blokes make up their minds".

PN37

Commissioner, Mr Pinkster provided a reply to that grievance yesterday. I'll read that for you:

PN38

In accordance with policy and work cover guidelines, Eloura ...(reads)... for their individual circumstances.

PN39

We stand by that, Commissioner, that really at the end of the day if someone has an issue then they should be going and seeking some medical attention. Now, I don't know how many people this does involve and perhaps our colleagues can tell us how many it is, but certainly we made a conscious decision that this couldn't possibly affect 160 people but there may be some people it does affect, but they certainly should go and get some medical attention.

PN40

THE COMMISSIONER: So you say they must have the tinea first?

PN41

MR McCOWAN: No, I don't say that, Commissioner, but if someone is prone to it, then perhaps if they continue to get that problem.

PN42

THE COMMISSIONER: But just off the top of my head, I mean you don't know you are prone to it until you get it, do you?

PN43

MR McCOWAN: That's correct, yes, but you would have to, well, I'll come to it, Commissioner, but you'd have to wonder about the use of - if your feet are getting sopping wet each day, you'd have to wonder, and I'm not a medical person, but you'd have to wonder about the use of powder in that regard anyway, whether it actually does anything towards it.

PN44

THE COMMISSIONER: Well, just I can just tell you from my own brief experience, the Army issues it for tropical use.

PN45

MR McCOWAN: Yes, because your feet sweat.

PN46

THE COMMISSIONER: Yes, foot powder is a standard tropical issue in the Army.

PN47

MR McCOWAN: Because your feet sweat, but if your feet are getting sopping wet, I don't see how it would help.

PN48

THE COMMISSIONER: I presume it's to be used after the sopping wetness has gone away and you've dried your feet and you put the powder on as sports people do.

PN49

MR McCOWAN: Yes, well, Commissioner, I think again we can certainly discuss the use of it, but I guess the primary purpose of today if I could keep going is really about the fact of strike action over such an issue. Commissioner, at the moment work is not being performed at Eloura with the obvious consequence that there's no production and the company will lose in the order of 3000 to 4000 tonnes of coal per shift. The strike action which commenced yesterday affected the afternoon shift, the night shift and the day shift today.

PN50

We understand that there's a likelihood of return at afternoon shift today, although we've not been informed whether that will occur. We understand it was only for a 24 hour period. But, Commissioner, there's once again been a clear failure on the part of the members of the CFMEU who are employed at the colliery to follow the appropriate dispute settlement procedure and this is set out in the relevant certified agreement which all parties have signed last August and I might at this stage, if I could, hand a copy of that disputes procedure to you.

PN51

THE COMMISSIONER: I'll mark the disputes procedure document as exhibit M2.

EXHIBIT #M2 DISPUTES PROCEDURE DOCUMENT

PN52

MR McCOWAN: Commissioner, this clause is an extract from the Eloura Colliery Certified Agreement 2001. It's an agreement which was certified by Vice President McIntyre on 6 July 2001. The agreement is within its nominal term and these dispute settlement procedures are similar, if not identical, to those contained in the underlying award which covers employees, which is the P&E Award of 1997. Basically they follow the ordinary course which is that there's to be escalating levels of consultation where matters are in dispute and that in the meantime work continues normally.

PN53

As the matter stands, strike action has taken place and this action is clearly in breach of this process. Commissioner, the union went through the right process to start with. They filled out a grievance yesterday at some stage, but what concerns us, Commissioner, is that it was prior to the afternoon shift meeting. They've gone to the afternoon shift meeting. They voted to partake of the stoppage and also the fact that we understand the day shift and the night shift had already voted to partake of strike action is a definite concern to us.

PN54

I'll say once again, Commissioner, it's a clear failure on the part of the members who are employed at the colliery to follow the appropriate dispute settlement procedure and again something we agreed to. Commissioner, we were only in this Commission before Senior Deputy President Drake on 27 June in matter C2002/3308 concerning wild cat stoppage at the same colliery upon which orders were sought and issued on that particular occasion.

PN55

THE COMMISSIONER: Under section 127?

PN56

MR McCOWAN: Yes. Now, Senior Deputy President Drake made it very clear in the course of those proceedings to the elected officers of members of this colliery who are in the room today that there's a proper approach to be taken when members do have a grievance and that certainly the taking of industrial action is not that course. There is a way of going about these things where matters can be resolved between the parties without there being an economic loss suffered not only by the company but certainly by the employees concerned.

PN57

It would certainly be hoped, Commissioner, that we are not going to revert to the ways of the not-so-distant past at Eloura Colliery where the standard way of dealing with problems at the site was to just take wild cat strike action. There's been a number of 127 applications for this particular site over the last couple of years, Commissioner, so it's nothing new. But it would appear that despite the hearing before Senior Deputy President Drake on 27 June that the membership of the CFMEU and the elected officers here today have taken absolutely no notice of this Commission and one could argue that they basically treated the whole matter with contempt.

PN58

Six weeks or eight weeks is not a very long time to have the same sort of thing in mind, Commissioner. Obviously they don't really care about the consequences of their actions or one would presume they would have taken the previous advice that strike action was not an option and gone about - if they couldn't resolve an issue, Commissioner, with the mine manager, it's about step three of the procedure, that there's another two steps involved, with the final step basically being the involvement of this Commission by way of potentially a section 99 application.

PN59

That has certainly been made clear to them many times in the past, that it doesn't just stop at one area, "That's all right, we'll give them a whack around the ears and we'll smarten them up". It may well have been, Commissioner, that with some discussion that we could have worked through this quite easily. I mean that particularly is my role and I see that as being a role of the district union to get involved at potentially - it provides the barrier or stops the site at loggerheads.

PN60

I'm not sure, Commissioner, if it will make any difference, but certainly the elected officer of the Eloura Lodge here today potentially need a further reminder from someone like yourself regarding the view of the Commission about matters such as are here before you today and that they pass them back on some very strongly worded advice about the potential implications of their actions. We know, Commissioner, there's going to be issues from time to time that will arise. I mean that's one of the main reasons why they put a disputes procedure in the award in the first place.

PN61

We've been having issues for years. No doubt they've certainly reduced, but I would say they've reduced because people are talking. But if we're going to get back to the old head-butting stage, well, that's not going to do anyone any good. Commissioner, it may be that following the discussion here before Senior Deputy President Drake on 27 June that Mr Curtis, the president and Mr Twist, the secretary, tried to talk their membership out of strike action. I don't know that, but I would hope that that would have been the case.

PN62

However, to me it would appear the basic problem is that if they're going to accept a motion for strike action off the floor, then they're only asking for trouble and if they don't show some leadership and reject the motion because it's illegal, then we're going to be back here again and again and again. Commissioner, the company says that these are the facts and circumstances which the Commission ought to take into account in determining whether or not to make an order under section 127. Firstly, as I've said, Endeavour Coal owns and operates Eloura Colliery.

PN63

Eloura employs about 160 people in total, of them about 138 are CFMEU members. The mine operates on a 24 hour continuous basis, Monday through Friday, with there also being some rostered work on Saturdays and Sundays. But the strike action which started yesterday afternoon has included three shifts, one complete day's loss of production. I guess if there's any positive that has come out of this issue, Commissioner, it's at least that the lodge has shown some maturity in that they've provided volunteer labour to operate the longwall which as of now and as of recent times has been in some pretty precarious roof conditions and they need to keep it moving.

PN64

So at least they've had some foresight there, but that doesn't help when you've got five people at work and chasing people around to operate a machine and no-one else is at work. It's certainly, to me, no excuse for saying, well, the rest of us will have the day off. Commissioner, we're already significantly behind budget at this pit for the 12 months. We spent a significant amount of money trying to keep the pit going in terms of the bad roof conditions. Currently for this month we're at about 75,000 tonne. For three weeks through the month, we should be at 150,000. So any time that anyone has off and this sort of nonsense is going to have a greater impact.

PN65

Commissioner, no matter the issue, the strike action is just not the appropriate way that these matters ought to be dealt with and it severely hurts the company each time it occurs and I daresay it hurts the employees. Obviously the primary purpose of the strike action was to hurt the company and force something to happen. This had been the historical approach to the way things go at Eloura and I would hope that that's not what we're getting back to and that's the sort of thing I'm happy to talk in conference about, Commissioner.

PN66

Commissioner, the enterprise agreement or the certified agreement is clear. It has at clause 24 an appropriate way to address these issues and that's clearly not been done on two occasions in the last two months.

PN67

THE COMMISSIONER: Well, given that the employees are currently on strike and that time is moving on, you will have a chance to address me further if you wish after any conference. So I would suggest we go into a conference subject to Ms Gray wishing to make any comments on the transcript and then we can come back to transcript and formal proceedings again.

PN68

MS GRAY: Yes, Commissioner, I'll be very brief. I just want to counter a couple of issues of fact raised by Mr McCowan. One is that Mr McCowan suggested that the strike action was premeditated, in other words that the vote had already been taken on night and day shift prior to the afternoon shift and prior to the lodge officials putting the grievance form in. I'm advised by our lodge officials, Commissioner, that in fact the night and day shift meetings resulted in a resolution and that resolution was adopted and it was in fact the content of the grievance as contained in exhibit M1.

PN69

In other words this outline of what the grievance is, Commissioner, is word for word the resolution of the night and day shift. The result or the response from the company was then reported to the afternoon shift and seeing that response is unsatisfactory, that's when the strike action was voted in favour of by the afternoon shift and then followed through by the night and day shift as they were about to commence work. The use of the powder, Commissioner, is that as I'm advised the powder is essentially used at the end of the shift. It's available from the bath house attendant.

PN70

People have their shower, dry their feet and then use the powder before putting on their socks and so on and heading off home. Mr McCowan has very belatedly and in passing mentioned that although strike action was taken it was determined by the membership to man the longwall and fourthly, Commissioner, that in terms of the disputes procedure, compliance must be a two way street. What we say is that the company acted in a unilateral manner without prior consultation in removing the foot powder.

PN71

They can then turn around and say to this Commission that we've been acting in contempt of the Commission and that the type of process which occurred before her Honour, Senior Deputy President Drake, some weeks ago, as I understand it because I wasn't involved in that particular matter, Commissioner, but as I understand it the Senior Deputy President didn't issue a section 127 immediately, rather she set a process for further discussion to occur between the parties.

PN72

What was lacking in this case was prior consultation before unilateral action by the company.

PN73

THE COMMISSIONER: So what happened? Was the foot powder just not available one day at the bath house?

PN74

MS GRAY: That's exactly it, as I understand it, Commissioner and as a result of that Mr Davey had some discussions last Thursday, well after the company had removed the product, with the company to ask for an explanation and have it reinstalled or made available again.

PN75

THE COMMISSIONER: Mention was also made about medicated eye-drops, I think, and a couple of other things. Were they also withdrawn at the same time?

PN76

MS GRAY: No, apparently, and this is an important point, Commissioner, a few years ago when the company did this audit, one of the things which were identified as being a pharmaceutical product was Panadol in the first aid kits. It was intended to remove that from the first aid kits, but a process of consultation occurred at the mine site and a method of monitoring the use of Panadol was introduced.

PN77

THE COMMISSIONER: Panadol is a supermarket item anyway.

PN78

MS GRAY: It is, Commissioner, but apparently there's some schedule which makes it a pharmaceutical or medicated product.

PN79

THE COMMISSIONER: Yes, it's listed as a pharmaceutical, there's no question.

PN80

MS GRAY: It falls much into the same sort of category as the tinea powder, but the point is that the company at that stage rather than withdrawing the panadol completely through discussions at the mine site introduced a process whereby a limited amount of panadol would be available in the first aid boxes. There would be a small book and people who utilised the panadol would sign out for and put the amount and it was monitored for about a year and found to be a satisfactory process.

PN81

Now, what we say is that the company did that a few years ago, they can't now say, oh, we discovered that we didn't remove the tinea under the same policy, and really what appears to be the justification for the company doing this is not compliance with its policy but rather the saving of the $24,000 as the major issue which has really got under the skin of the membership, Commissioner.

PN82

THE COMMISSIONER: Now, the foot powder has been withdrawn, what remains in these PPEs or whatever, items of a broadly medical nature, what remains?

PN83

MR CURTIS: In the PPEs we have face masks, nothing medical other than the powder, that's it, the rest is just the face masks, safety gear.

PN84

THE COMMISSIONER: Thank you. Sorry, Ms Gray.

PN85

MS GRAY: That's all I wanted to put on the record, Commissioner, and we'd be happy to go into conference if that's now convenient to the Commission.

PN86

MR McCOWAN: Commissioner, I've just got clarification on that if I may.

PN87

THE COMMISSIONER: I should have given you an opportunity, Mr McCowan, I apologise.

PN88

MR McCOWAN: Thanks, Commissioner, it is only very briefly. Ms Gray, talked about how the strike action came about yesterday afternoon and how the night shift and the afternoon shift just followed when they came to work. Why we say it was premeditated, Commissioner, the night shift never turned up for work, they didn't come to work and find out that people were on strike they didn't turn up for work and neither did the day shift, and yes, it was premeditated, they'd have to vote on day shift and night shift and they weren't coming to work and that's what the afternoon shift knew, I would suggest. Commissioner, in terms of the matter before Senior Deputy President Drake on 27 June, orders were issued, Commissioner.

PN89

THE COMMISSIONER: On that day.

PN90

MR McCOWAN: On that day, after conference they were issued.

PN91

THE COMMISSIONER: That's a question of fact that's easily established. We may adjourn into conference now.

OFF THE RECORD [10.49am]

RESUMES [12.05pm]

PN92

THE COMMISSIONER: This matter has now resumed. During the conference break I've had the opportunity of discussing the matters outstanding with the parties individually and collectively and the parties have conferred at length together and I'm told that there is an interim settlement to this matter. Ms Gray?

PN93

MS GRAY: Thank you, Commissioner. Yes, the parties have agreed that they will meet on Thursday, 29 August at 1.00 pm at site to have a district level conference with both parties bringing along persons of particular expertise such as the company medical expert will be in attendance and that meeting will be to develop an agreed process for the availability and use of foot powder, foot powder at site.

PN94

There will be an attempt to have a meeting earlier than Thursday the 29th, Commissioner, but that will be the latest that it will occur. The parties have then undertaken to resolve the matter by an agreement on a process for the availability of the tinea powder by Wednesday, 4 September, and if an agreement is not possible within that time frame then the union has indicated that it will be making a section 99 application pursuant to the disputes procedure under the certified agreement to seek to have the matter resolved by the Commission. The union undertakes that there will be a resumption of work by the work members at Eloura at 2.00 pm today, Commissioner.

PN95

THE COMMISSIONER: Is the union also willing to give me an undertaking that it will strongly advise its members not to take further industrial action over this matter pending the outcome of any possible section 99 application.

PN96

MS GRAY: Certainly, Commissioner, and I think that it might be helpful if our lodge president just confirm that on transcript.

PN97

THE COMMISSIONER: I would think so.

PN98

MR CURTIS: Yes, Commissioner, I will inform the men that we will not go on strike on this issue up until the 29th, whenever, 4th of the 9th.

PN99

THE COMMISSIONER: Till September 4, I take it.

PN100

MR CURTIS: Yes, Commissioner. Mr McCowan?

PN101

MR McCOWAN: Commissioner, I concur with what Ms Gray said about that that is the agreed process. Commissioner, I don't wish to withdraw my application for the 127 orders but what I would be prepared to say is perhaps it could be held in abeyance until the process has worked itself out. Just on the basis that I hear what Mr Curtis says and Ms Gray says but the members at the colliery by their actions over the last couple of months have shown that they probably don't take a lot of notice of that so I would be keen to keep it at least in abeyance, Commissioner.

PN102

THE COMMISSIONER: That's a reasonable request, Mr McCowan. The matter won't be closed and will remain active and you may make an application at any time in the reasonably near future to have the matter reopened at very short notice and to rely on material that you've already put to the Commission in seeking the granting of an order. This matter is now adjourned.

ADJOURNED INDEFINITELY [12.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 GRIEVANCE FORM PN32
EXHIBIT #M2 DISPUTES PROCEDURE DOCUMENT PN52