C2002/833, Transcript of Proceedings [2002] AIRCTrans 423 (18 February 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

C2002/833

UNITED COLLIERIES PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Application pursuant to 127(2)
of the Act to stop or prevent
industrial action

SYDNEY

12.27 PM, WEDNESDAY, 30 JANUARY 2002

Continued from 29.1.02

Adjourned sine die

PN46

THE COMMISSIONER: Before I hear from the parties I would like to make a short statement. This morning I had a brief telephone conversation with Mr McCann, which I initiated, as the Act requires me to act urgently on these matters and I made the call to ascertain the actual urgency of it. The merits of the case were not canvassed but I thought I should inform the respondent that such a telephone conversation occurred. Are there any changes to appearances?

PN47

MR K. ENDACOTT: Yes, Commissioner, I appear for the CFMEU, Mining and Energy Division and at the bar table with me is MR P. MURRAY, a Vice President of the Northern Districts of the union, if the Commission pleases.

PN48

THE COMMISSIONER: Thank you. Mr McCann.

PN49

MR McCANN: Commissioner, as occurred yesterday it was indicated that if further problems arose with this matter time would be set aside today at 12.00 noon to hear any further issues. Problems have arisen in the interim. Last night at 10.30pm when the night shift attended for work a dispute arose as to what site inspections had been done and by whom and what had to be done. I am instructed that this mine, as you know, has not been working, today being the 11th day.

PN50

Now, with that there must be safety inspections conducted during those days to ensure that when they do go back into the mine it is a safe place to go and do the work. An inspection was done by the engineer in charge, Mr Brown who is certified under the Coal Mine Regulation Act and he ensured that the electrics in the mine were safe and operating. It is that action which the men came into dispute with. It was their view that they should be the ones doing the inspection when they were about to recommence the work in the pit. The view was taken by the mine that Mr Brown being the most competent person, most qualified person, he should be the man doing that task and he did so.

PN51

There was still remaining inspections to be done around the coal face areas and yes, they could have been done by the men when they returned to work but due to those actions they said, not happy, and went home. The day shift attended this morning and unfortunately they formed the same view. We do expect that this afternoon at 2.30pm the afternoon shift will be attending and we are hoping that this matter can be completed by then to have the afternoon shift to commence work and have the mine up and operating.

PN52

As I have indicated, this is the 11th day and we are very concerned, given the history of this matter, to get the men back at work in the mine operating once more. With regard to last night, there is a disputes procedure under the certified agreement. We would have expected that the men would comply with the terms within that agreement set out in clause 37 which was exhibited here in the Commission yesterday and would follow through that procedure. It is there, it has been in existence now for two years, there is no reason why that could not have been followed and the men could have undertaken their normal duties. I just want to clarify regarding inspection, Mr Brown had turned the power back on, the inspection had been done by the undermanager, again a very competent person and again who is certified under the Coal Mine Regulation Act.

PN53

Commissioner, given the history of this matter, it has been before the Commission in April 200, January 2001 and again in December last year. With all that behind us, one would have expected that the men would have said, well, it's time to start complying with the grievance procedure as set out in the award, but unfortunately that has not occurred, so today we do seek an order to cover the issue that's currently taking place and an order advising the men that they must go back to work and commence working at the mine.

PN54

As we indicated yesterday, the company has significant plans for expansion of this plant, $55 million is to be invested in the plant to move to a longwall operation, that has benefits for the company and for the men in the long run. If the men can show that yes, they can comply with this agreement and follow the disputes procedure, the company can say yes, it will be worth while to keep going with that project. We have drafted a new amended order, if I can hand that up, and in fact at clause 7 I have handwritten in a time at the end, it did say 4.00 pm, we have written there instead of 4.00pm, 2.30pm to commence today. I hand that up, I have handed a copy to my friend.

PN55

THE COMMISSIONER: Except for that I take it it's substantially the same draft order that you e-mailed to my office.

PN56

MR McCANN: Yes, that's correct. Thank you, Commissioner.

PN57

THE COMMISSIONER: Thank you. Mr Endacott.

PN58

MR ENDACOTT: Commissioner, just a couple of things. My friend has made submissions about the issues that arose last night upon the men's return to work. The Commission will recall that there was an application before and it's a continuation which is today's proceeding for orders over industrial action regarding performance pay issues. Mr Slevin appeared for the CFMEU. Certainly there is currently no pending or probable industrial action over performance pay issues, the employees resolved yesterday that industrial action over that issue would cease and that there was a prescription put in at which discussions would occur.

PN59

We submit today that industrial action over that issue has ceased and even my friend in his submissions makes no reference to the issue of performance pay other than to anecdotally note that that was the issue before this Commission yesterday. He again alleges that the industrial action occurring now is one of performance pay and we submit that it is not the case.

PN60

The issue that arose was that employees have been in industrial action under the Coal Mines Regulation Act and associated inspections are required to be done. I believe they are generally referred to is 103 and the major one in dispute is what I think they call Code A, there are certain safety inspections that are required to be done weekly. What happened is that the employees upon return asked to sight the inspection reports. That is their right, these things have to occur. The company could not find them, did not have them, and said, you trust us that they have occurred but we don't know where the paperwork is. The employees didn't walk off and leave the place, they stayed on the surface and they said, how about you produce the inspection reports, the Code As, that are required. No one should have turned on the electricity in the pit without those inspections being conducted and the reports being filled in.

PN61

The employees asked to see the documentation, it wasn't there, they waited around on the surface and said they would perform the inspection if they could perform it and they were not prepared to commence working if there wasn't some sort of evidence or the reports could be produced. The company never produced them. Not only was it the employees' right not to enter the pit without those reports, without knowing those inspections had taken place, the company should never have instructed them to do so.

PN62

At the moment there is no industrial action. This morning the day shift attended and according to my instructions sought to obtain a copy of the inspection. The employees also contacted the district check inspectors who are authorised to investigate these matters under the Act. I have had an opportunity to speak to the district check inspectors and my instruction, Commissioner, is that even though as his preliminary investigations have determined, even though Mr Henderson had conducted the inspections on the 24th and the 25th, he conducted the inspections on that day and he's required to fill in the paperwork at the conclusion of that shift, had failed to do so.

PN63

So last night when the guys reported to duty, there was no paperwork indicating that these inspections had been performed and in fact I'm informed that Mr Henderson had admitted that he didn't fill them till this morning, indicating that they were filled in on the 24th and the 25th. Now, I am informed that the employees are in the process of trying to initiate a return to work now that the documentation has been produced and I'm not sure when that return to work can be obtained.

PN64

The lodge official indicated that he thinks he'll be able to get them back by 6 o'clock but there is no industrial action and in fact what happened was the company didn't do what it was meant to do, we submit, because the employees were taking industrial action and then when the employees returned to work, the material, the inspections had not been conducted and if they had been conducted, the paperwork that was to establish they'd been conducted hadn't been fulfilled and the employees not only had a right not to enter the pit, should never have been instructed to perform the work.

PN65

We submit that they are the circumstances that prevail. This issue of performance pay, the issue of the industrial action, the 127 application issue, there is no industrial action over that point. This is an issue that was complicated as a result of the closure of the mine and the paperwork not being completed. Now, these inspections are required to be done weekly and as long as those inspections are done as normally occurs, there's no problem.

PN66

THE COMMISSIONER: Is the paperwork ready now? Are the alleged problems with the paperwork now fixed?

PN67

MR ENDACOTT: I believe so. I was informed by the district check inspector that all the issues surrounding the paperwork would be fixed by the time the guys returned to work is what he told me.

PN68

THE COMMISSIONER: Well, what time was that?

PN69

MR ENDACOTT: 6 o'clock is the time that has been indicated. There was a question that arose between myself and the district check inspector over what is a weekly inspection.

PN70

THE COMMISSIONER: So you're telling me that the district check inspector says that people shouldn't return to work until or can't return to work till 6pm?

PN71

MR ENDACOTT: No, he hasn't given any indication of that, Commissioner. He just indicated - I asked him for a view about the paperwork and what his preliminary investigations had established about the paperwork and I didn't ask him for a conclusion on whether or not it was -

PN72

THE COMMISSIONER: Has he indicated any way there's been a breach of any rules or legislation?

PN73

MR ENDACOTT: He indicated that it was his view and he didn't use the word "breach" that the paperwork should have been concluded, should have been filled in and I think he used the word "required" by the end of shift on the day of the inspection. So that is if he inspected on the 23rd, the 24th and 25th, the paperwork was required to be filled in before the guy leaves that shift.

PN74

THE COMMISSIONER: Has he gone on to indicate that persons shouldn't commence work until the paperwork has been completed?

PN75

MR ENDACOTT: He hasn't indicated that to me but you can't officially commence work until the inspections have been done. We say that the documentation is proof - - -

PN76

THE COMMISSIONER: So is this a technical breach or a fundamental breach that stops people working?

PN77

MR ENDACOTT: Well, we say it's a fundamental breach. If the employee asked to see that the inspections have been done and the documentation can't be produced, then there is a - - -

PN78

THE COMMISSIONER: So do you say that the employees have not withdrawn their labour but are the victims of force majeure, I suppose you'd say?

PN79

MR ENDACOTT: Well, that's correct. The employees have a bona fide apprehension as a result of the schedules and procedures not being followed.

PN80

THE COMMISSIONER: Has that bona fide apprehension now evaporated or not?

PN81

MR ENDACOTT: Well, from the last conversation I had with the secretary of the lodge, it was a message left on my message bank, he said that he was commencing to get people back to work. I'm not aware of all the discussions that have been going on at the mine involving the district check inspector in the mine.

PN82

THE COMMISSIONER: But I take it that if labour has not been withdrawn in your submission, then the persons who are due to attend at 2.30 this afternoon are holding themself in readiness to attend are they?

PN83

MR ENDACOTT: Well, I haven't received instructions on that point. I haven't specifically been instructed they've been contacting them. Mr Plunkett has said to me that he's had difficulty contacting them and that he should be able to have a return to work by 6pm. Now, I haven't got any sort of more detailed instructions than that was his position. He'd had difficulty contacting them. Whether he's contacted some but certainly the message referred to that he would be able to establish a return to work by 6pm.

PN84

What I would like to do, Commissioner, is also tender a copy of the dispute notice that was placed. I don't have copies of this. I received a fax. It was delivered to -

PN85

THE COMMISSIONER: We can make copies now, that's no problem.

PN86

MR ENDACOTT: Basically that involves the formal dispute notice form and there's a handwritten note on the back which I think was -

PN87

THE COMMISSIONER: Well, I'm not going to refer to them till the applicant has also had a chance to look at them so we'll await my associate's return with the copies. So you can proceed without reference to that document.

PN88

MR ENDACOTT: Yes, thank you. Other than issue, Commissioner, we would submit that the company has brought no evidence today saying that the issue at which the 127 was notified is ongoing and I don't think it's been alleged that the dispute involves, that's currently before this Commission today - I know the application does but the submissions does not involve anything to do with performance pay. Certainly the meeting we've had with the employees and the CFMEUs position, there's no industrial action being taken over that issue and there is a schedule in place.

PN89

With respect to the separate issue, the issue of the documentation, I've made a submission as I've been instructed. The company has made a submission that in some parts deviates from the submission we make. It may be that as an issue of evidence that needs to be contested. Certainly if the company wishes to bring evidence on the process that was followed, we'd seek the opportunity to cross-examine and if necessary, I'd be prepared to give evidence about the instructions I had received even though it would be somewhat hearsay evidence because I haven't been directly involved in any of - - -

PN90

THE COMMISSIONER: Well, we've had a lot of hearsay evidence so far, haven't we?

PN91

MR ENDACOTT: Yes, because I haven't been directly involved in discussions. I've had people report to me third hand.

PN92

THE COMMISSIONER: Given the urgency of the matter, I'm prepared to be very broad in putting some trust in hearsay evidence but I mean, you don't have the district mine inspector here, do you?

PN93

MR ENDACOTT: No.

PN94

THE COMMISSIONER: So I'll have to rely on your word for that and I'll have to rely to some extent on the word of the company if they put a contrary position if you expect me to rely on what you're telling me.

PN95

MR ENDACOTT: You are right, Commissioner. Certainly if it was inclined to go to evidence, we would submit that because of the speed at which the application was brought on that we would, if the company was inclined to proceed, if the Commission was inclined to proceed and make orders, then we would seek the opportunity to be able to bring evidence in a direct form.

PN96

THE COMMISSIONER: When would you anticipate doing that in terms of time?

PN97

MR ENDACOTT: Well, as quickly as I could get the relevant personnel here.

PN98

THE COMMISSIONER: And who are the relevant personnel?

PN99

MR ENDACOTT: Well, I would attempt to get one of the lodge officials, Mr Plunkett and I would also attempt to get the district check inspector.

PN100

THE COMMISSIONER: I take it Mr Plunkett is on his way here now, is he?

PN101

MR ENDACOTT: No, he's -

PN102

THE COMMISSIONER: Where is Mr Plunkett located at the moment?

PN103

MR ENDACOTT: Well, I'm unaware of exactly where Mr Plunkett is but my understanding is the last message he left me was that he was in the throws of trying to contact everyone to get a return to work.

PN104

THE COMMISSIONER: I now have the copies of your proposed exhibit. It consists of two documents, a handwritten document headed Safety Issues from 30 January '02, a second photocopied document headed Appendix D United Colliery Dispute/Grievance Communication also dated 20 January 2002. I'll mark them together as exhibit R1.

EXHIBIT #R1 HANDWRITTEN DOCUMENT HEADED SAFETY ISSUES FROM 30/01/2002 AND PHOTOCOPIED DOCUMENT HEADED APPENDIX D UNITED COLLIERY DISPUTE/GRIEVANCE COMMUNICATION DATED 20/01/2002

PN105

MR ENDACOTT: Just to take you to those, Commissioner, Appendix D is a copy of the form that appears as an appendix to the certified agreement, it is one that is to be filled in if a dispute arises. You will see it was raised by Bill Plunkett and R. Earl who are lodge officials, and the date, and it says, "The dispute concerns the issue of 103 inspections not being done while mine idle, a major safety issue, see attached sheet."

PN106

The second part of it is the attached sheet, it says, "Safety issues from 30.1.02, person who powered pit, no authorisation found, electrical 103s not proven to be done, told verbally by word, no paperwork to provide this, 103 should have been done prior to power, this has been put on." Then it says, "Power removed between 11.00 and 11.05 and 12.25 pm, no written evidence as to why, refer to point 3." Commissioner, they were the issues raised.

PN107

THE COMMISSIONER: Are those issues still in issue?

PN108

MR ENDACOTT: I can indicate that only with respect to the conversation I have had with the district check inspector and the message that was left on the message bank by Mr Plunkett was that the paperwork should be okay by the time there is a return to work. He didn't say what time that would be. He did indicate that he had looked at the documentation and had been informed that Mr Henderson completed the material this morning for inspections on I believe the 24th and 25th. They are my submissions, Commissioner, the industrial action being taken is over, we are in the process of trying to organise a return to work, as I indicated previously, we are getting in contact with those people and we should be able to organise a return to work by 6.00, those are the instructions I have, Commissioner.

PN109

THE COMMISSIONER: Just to make it clear to me, has the district check inspector at any stage suggested to your knowledge that the person should not work due to the lack of this paperwork?

PN110

MR ENDACOTT: I didn't ask him that question but we submit that if there is no proof of the inspections being performed the employees should not work. As an issue of policy, unless these inspections are done it is our instruction to our members not to work. I haven't inquired of the district check inspector about his position on that other than inquired about the paperwork, but they are inspections that are required to be done. Without them being done the mine shouldn't work.

PN111

THE COMMISSIONER: That is the view of the CFMEU.

PN112

MR ENDACOTT: I think that's the view of everyone, Commissioner. I think the company would submit that if the inspections weren't done the mine shouldn't work.

PN113

THE COMMISSIONER: Well, they will no doubt come and tell us their view on that.

PN114

MR ENDACOTT: We might dispute whether or not the inspections were done but I can only indicate to the Commission as instructed. We submit that there is no industrial action complained of, no industrial action in the definition. The section 4 interpretation of the Act has a definition of industrial action and it is certainly the first part of that, A, B, C and D of the definition is pretty broad and any sort of action falls within in and I can take the Commission to that, but it is the last part which says "but does not include" and that appears just before E.

PN115

If I could take the Commission to G:

PN116

Action by an employee if the action was based on a reasonable concern by the employee about the imminent risk to his or her safety ...(reads)... was safe and appropriate for the employee to perform.

PN117

I note that the terms used in G(I) says the action was based on a reasonable so it's not one on which an employee has to have a reasonable doubt concern, it's reasonable and you will recall, Commissioner, I used the words "a bona fide apprehension." Certainly this mine is a gaseous mine and certainly issues of electrical safety inspections are paramount.

PN118

THE COMMISSIONER: Say for the sake of argument we take it that G(I) applied, I would take it then that the employees concerned are awaiting instructions to perform other duties pursuant to G(II) and therefore should be very easily found.

PN119

MR ENDACOTT: Well, it's my instruction that last night they waited for a number of hours on the surface.

PN120

THE COMMISSIONER: You haven't told me this before.

PN121

MR ENDACOTT: I apologise, Commissioner. On night shift last night it wasn't an issue of, you haven't done the inspection, we walked off. I believe they waited until 3am in the morning, there was no other work forthcoming, there was no instruction to do other work and they simply left. I note that the terminology used is "the employee did not reasonably fail to comply with the direction." Now, we submit the employee has been making no direction and I am instructed that in the case of day shift they also waited at the mine for a number of hours for these things to be sorted out.

PN122

THE COMMISSIONER: I don't want to limit you in your submissions, Mr Endacott, but with your agreement I would like to hear from the company now, there's a lot being put by you that needs a response. Mr McCann.

PN123

MR McCANN: Thank you, Commissioner. I am instructed that both last night and this morning the offer was made to turn the power off, let's do the electrical inspections again and then get into work, but that wasn't accepted. Those electrical inspections had been done prior to last night by the electrical engineer, a most competent person, and he was there saying, I have done the inspections, I have not done the paperwork but I have done the inspections and it's all OK. The paperwork was completed this morning and was all up to speed. I am instructed that the mine manager spoke to the district check inspector and they were both happy with the condition of the paperwork presently it's all ready to go.

PN124

THE COMMISSIONER: At approximately what time was this?

PN125

MR McCANN: I am instructed it was 9 or 10 o'clock this morning. I am also instructed that there was no breach of the regulations as per inspections, it's a question of how much content was in the report itself.

PN126

THE COMMISSIONER: The relevant union officials representing the employees were informed of this?

PN127

MR McCANN: Yes, that is the case, they were informed, that's right. It is interesting to note the two documents now being tendered, one of those is Appendix D which is the grievance dispute document from the award. Now, why didn't they just follow that procedure through? They wouldn't be here today had they done so. We do expect that this afternoon the men are due to turn up to work at 2.30. We do expect them to be there and as such were somewhat surprised at what we're told that they have to be contacted and can't turn up until at least 6 o'clock.

PN128

THE COMMISSIONER: I think I understand the position of both parties. Now, if you wish to continue to address me, that's acceptable but I would suggest that we'll adjourn into a short, no longer than 10 minute conference to discuss some of the issues that have arisen and then we'll go back into formal proceedings, but I'll only do so with the consent of both parties.

PN129

MR ENDACOTT: Yes, we consent to that course of action.

PN130

MR McCANN: We do consent, Commissioner.

PN131

THE COMMISSIONER: We'll adjourn into conference.

OFF THE RECORD [12.59pm]

RESUMES [1.30pm]

PN132

THE COMMISSIONER: I'll indicate for the record that I've had the opportunity of meeting with both parties in conference. We've had a broad ranging discussion about this matter and now I wish to hear from each party on the record as to where they think the situation currently is and I'll hear from the applicant first.

PN133

MR McCANN: Commissioner, it is our view that due to the nature of this matter and the history that's behind this matter, that we think an order is appropriate and it should be dealt with. The issues that arose last night and again this morning do allege a safety concern, but it is our submission that that is just a cover screen for what's going on in the background. It is obvious that at the time the under manager and the electrical engineer both said it's all okay, we're happy to do all the inspections but no, the people weren't happy with that situation.

PN134

The men were at work this morning at 7am, they turned up for the shift. It could have been easily dealt with on that occasion, the paperwork filled out completely, everyone satisfied as to what the true situation was but no, that didn't take place and the men left. Now, we do expect that the men will turn up at 2.30 this afternoon unless they have been told otherwise. The actions that the men have taken up to this point, we submit is industrial action and as such an order can be made in the situation.

PN135

We do have a concern that there is a meeting set for tomorrow at 10am on the performance pay issue and what we would seek is that an order is made today to give an indication to the workforce that this is not a matter that is taken lightly, it's not a matter that they can turn up for five seconds and say, no, we're not happy, we're going off. It would tell the workforce that there is a procedure within the award that must be followed and unless those steps are taken, then it unfortunately leads to action which leads to this Commission having a say and advising the people that no, what you're doing is not proper, does not comply with the law. You must comply with the certified agreement and follow the disputes procedure through.

PN136

So therefore today we do seek an order be made by the Commission. Thank you, Commissioner.

PN137

THE COMMISSIONER: Thank you. Mr Endacott?

PN138

MR ENDACOTT: Thank you, Commissioner. This company is asking this Commission to make an order that would render the alleged conduct of industrial action by the employees unlawful. It is certainly seeking a serious steps. The Federal Court has used those words in describing an application of this nature. So we would submit that an order of section 127 should not be made wantonly or on the basis of imprecise indirect evidence.

PN139

Certainly we submit as follows, that this application that's before the Commission concerned a dispute regarding negotiations over a performance pay. Certainly we would submit that all the evidence is that issue has been resolved. I know it's been submitted anecdotally that the issue that was created last night is somewhat of a smokescreen so that there could be ongoing industrial action over the performance pay issue but we would say that other than speculation, there's no evidence before this Commission to support that.

PN140

Certainly we would say that the company's submission is one of speculation about there's ongoing industrial action over that issue, then jumping to allegation and then assumed fact. We say that that is not the case and this Commission should be reluctant to accept that as assumed fact without some sort of concrete submission that would indicate to the Commission that the two are related.

PN141

Certainly the second issue, which is not an issue of which this application was originally notified but is an expansion on the application but there has been no amended application, is one of the dispute regarding safety inspections conducted by management staff of United Collieries Proprietary Limited on 27 January 2001. Certainly we would submit a couple of points. One is the Commission shouldn't make an order that would encompass that issue for a couple of reasons. One, it is imprecise. Certainly imprecise. Employees would be unable to understand what that means and in fact, read literally, it may mean, well, if the company doesn't conduct any safety inspections, then you're still required to attend for work.

PN142

Well, certainly that wouldn't be the intention of the order and that's more important in hindsight because with respect to the exclusions, the company has not excluded industrial action over bona fide safety concerns or has not sought the Commission to exclude that. If you recall, Commissioner, that one of the very first cases that dealt with this issue was the Coal and Allied case in which the Full Bench did put that as a specific exclusion within the document.

PN143

The other thing, Commissioner, is we say it's an issue of fact. The company in asking you to make this application which would have serious ramifications for the employees has not really brought any evidence to say well, this is the documents, this was filled in, we followed the process right, the inspections were conducted. Certainly not any direct evidence or any sufficient evidence that would enable the Commission to make an order that would have such serious ramifications.

PN144

I understand that in responding to the submissions, the union has put the position as it's been instructed. Certainly I understand we've had the same difficulty in that because of the rate at which the application has been brought on, because there were no specific grounds or reasons set out in any application that set out what the dispute regarding the safety inspections were, but we would submit that in erring on the side of caution, without direct evidence the Commission shouldn't make the order sought, especially when seeking to restrain action that we say was bona fide and related to safety.

PN145

THE COMMISSIONER: It only refers to such action in the past tense though, doesn't it, a specific incident which is covered in 4A(ii) of the proposed draft order?

PN146

MR ENDACOTT: Yes, well, it says a dispute regarding safety inspections conducted by management staff, United Collieries Proprietary Limited on 29 January 2002. The reality is there were no inspections conducted that day but in any event, that would be one at which if it was sought to be enforced, the employees would no doubt rely upon the fact that well, there was no dispute regarding inspection issues on that day but regardless of that, Commissioner, we've indicated in conciliation and certainly indicated on the record that we have made attempts to contact the lodge officials to expedite a return to work.

PN147

We can't give this Commission any commitment that that will occur. Certainly it's my instruction that there will certainly be a return to work by 6 this evening, but if there's any doubt about the industrial action that has taken place, whether it is or isn't industrial action, it could only be between 2.30 and 6 when the afternoon shift was meant to return because there was, I think it's almost been conceded that there were certain problems with the paperwork.

PN148

The other point I wish to raise and that's the final submission of my friend and he says, he expects that the employees will turn up at 2.30 unless they've been directed otherwise. Certainly he's saying, we'll, we suspect they'll turn up unless they've been directed. We bring no evidence and make no submissions that they've been directed not to turn up but make an order that they should return anyway.

PN149

The last point I wish to make, Commissioner, is that because of the nature of the order that it would be almost impossible to comply with and that is that if the order was made that simply logistically to be able to contact people and have a return to work by 2.30, even though it's my understanding that we're in the process of trying to ascertain a return to work for that period and the Commission shouldn't consider making an order that logic - well, I won't use the word "logic" but a reasonable understanding of timetables would lead to the view that there would be trouble complying with it anyway.

PN150

The last point is the orders been sought for two months. We would submit that there's been no evidence brought before the Commission that the industrial action will be ongoing for two months. In fact, it's not even been submitted that they expect the industrial action will go on for two months. It's been submitted that the industrial action will go on for the afternoon shift which commences at 2.30 to when the next shift commences. So that they're in fact at point 7, terms and date of effect are asking you to make an order that would cover a period at which I don't even think they're alleging it's industrial action taking place for two months.

PN151

We would submit that no more than the shift in question or in fact a period of 24 hours would be sufficient and if the company is of the view that the industrial action is ongoing after that period, then no doubt they can revisit the claim and would be able to make submissions based on direct evidence and certainly some substance, based on some substance that there was industrial action that's pending or probable, whatever the wording of the act is. I haven't got the exact wording before me, until 30 March 2002. I make no more submission than that if the Commission pleases.

PN152

THE COMMISSIONER: Perhaps I can put something to you, Mr Endacott. As I understand it, your submission on behalf of the CFMEU is that work was not performed from 10.30 last night on health and safety grounds.

PN153

MR ENDACOTT: Yes.

PN154

THE COMMISSIONER: It's been accepted I think, the transcript should reflect this, that those health and safety concerns no longer exist. You have disputed that industrial action within the meaning of the act occurred as the matter was a bona fide health and safety issue but the fact remains that the employees are still not at work and there is no health and safety issue which is common ground. Therefore, what are they doing if they're not taking industrial action?

PN155

MR ENDACOTT: Yes, I understand that and I make no submission. I understand the comments this Commission has made on that point.

PN156

THE COMMISSIONER: Well, I make the comment that they are taking industrial action now in the sense that they are not performing duty as they're required to do. Now, you're saying to me and of course you'll tell me if I'm wrong that this industrial action which is now occurring will cease on and from 6pm tonight.

PN157

MR ENDACOTT: Well, that's correct in that - well, if we draw the two distinctions. The day shift turned up and stayed for a number of hours and then left. Certainly the afternoon shift hasn't presented itself.

PN158

THE COMMISSIONER: Withdrew their labour.

PN159

MR ENDACOTT: Yes. Well, we submit at the time that they made themselves available to do other work there was no paperwork establishing the inspections had been done but regardless of that, certainly by the next shift - - -

PN160

THE COMMISSIONER: I'm really worried about now, 1.40pm now. Labour has been withdrawn and even on your submission, there's no bona fide reason for it to have been withdrawn at this stage. If we ignore the past from last night, we talk about right now, there are no grounds on which your members have any bona fide reason not to present for duty as rostered.

PN161

MR ENDACOTT: As at 2.30, yes.

PN162

THE COMMISSIONER: Thank you. Do you have anything more to put to me, Mr McCann?

PN163

MR McCANN: No, nothing further.

PN164

THE COMMISSIONER: I'm now going to adjourn for a further five minutes to consider my position. I'll come back and issue a ruling in this matter.

SHORT ADJOURNMENT [1.46pm]

RESUMES [1.55pm]

PN165

THE COMMISSIONER: I've taken the opportunity of the short break in proceedings to review material put to me by the parties and I now wish to advise that I will issue an order pursuant to section 127(2) of the Workplace Relations Act 1996 concerning industrial action at the United Collieries Proprietary Limited colliery situated at 134 Gerrys Plane Road, Warkworth, New South Wales.

PN166

The parties have before them a copy of the draft order as submitted by the applicant. I'll go through that and refer you to the variations that I'm making to that draft order and then my associate will later hand you formal copies. In the first instance, it will be the Commission orders pursuant to section 127(2) the title will become United Collieries Proprietary Limited Industrial Action Order January 2002.

PN167

In point 2, A and B will be striking the words "here" and "after". At point 5, exclusion, the preamble will read: "For the purpose of this order industrial action in relation to clauses 4A(i) and 4A(ii) above means". The technical change to (ii) of 5A, the word "practice" will be spelt correctly. In subparagraph (d), I see no need for the inclusion of sections III and IV, so it will be finish at II. To the next page which is 6A(i), I strike the word "the" before 30 January. In II, the original draft produced by the company, that the order take effect at 4pm today will be inserted. Point 7, term and date of effect, this order will come into effect at 4pm on 30 January 2002 and shall remain in force until 28 February 2002.

PN168

As I said, I so order and I'll issue the formal order to the parties within some minutes. I request the parties to remain in the precincts of the court to receive service of same. This matter is now adjourned.

ADJOURNED INDEFINITELY [1.59pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 HANDWRITTEN DOCUMENT HEADED SAFETY ISSUES FROM 30/01/2002 AND PHOTOCOPIED DOCUMENT HEADED APPENDIX D UNITED COLLIERY DISPUTE/GRIEVANCE COMMUNICATION DATED 20/01/2002 PN105