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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT DUNCAN
COMMISSIONER BACON
C2003/956
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
and
PACIFIC COAL PROPRIETARY LIMITED and OTHERS
Notification pursuant to Section 99 of the Act
of a dispute re application for exceptional
matters order under section 120A at Hail Creek Project
BRISBANE
10.10 AM, THURSDAY, 10 APRIL 2003
PN1
VICE PRESIDENT ROSS: May I have the appearances, please.
PN2
MR B. DOCKING: May it please the Commission, I seek leave to appear for the CFMEU, together with MR PASSFIELD, solicitor. Also appearing with me is MR BUKARICA of the CFMEU.
PN3
MR F. PARRY: If the Commission pleases, I appear for Pacific Coal Proprietary Limited, Hail Creek Coal Proprietary Limited and Hail Creek Management Proprietary Limited, if the Commission pleases. With me is MR TUCK.
PN4
VICE PRESIDENT ROSS: Leave is granted in both cases. Any preliminary matters?
PN5
MR DOCKING: Thank you, Members of the Commission. There's one matter I would like to deal with quickly, more for the convenience of the witness. Foreshadowed in the primary statements filed was reliance upon a statement of Irene Margaret Ling. It was one of the attachments to Mr Barnes's statement. Filed yesterday is also a further statement of Irene Margaret Ling dated 9 April 2003. It does two things. It corrects a typographical error as to the year a conversation took place and, secondly, responds to the suggestion that what was said to her was wrong or incorrect. I can indicate Mr Ling is currently in the body of the hearing room, available to be called, and I propose to call her to make her available for cross-examination. I understand it was communicated on Tuesday that she would be available.
PN6
VICE PRESIDENT ROSS: Mr Parry?
PN7
MR PARRY: If the Commission pleases, we've advised the other side before today, and I've advised again today, we don't require Mrs Ling and we didn't require her to be here so - if the Commission pleases.
PN8
VICE PRESIDENT ROSS: Well, in that case, there's no need to call her.
PN9
MR DOCKING: Yes, certainly, your Honour. Perhaps, in due course, I'll tender her statement, but I will get it communicated to her. She's in the back of the hearing room that she's - - -
PN10
VICE PRESIDENT ROSS: Sure.
PN11
MR DOCKING: - - - at least not required formally to be here to confirm her evidence.
PN12
VICE PRESIDENT ROSS: Mr Parry, my associate received advice that you had some additional evidential material you were going to tender at the commencement. Is that right?
PN13
MR PARRY: If the Commission would excuse me.
PN14
VICE PRESIDENT ROSS: Is it convenient to do that now?
PN15
MR PARRY: Yes. The Commission has large parts of the proceedings that were before the Full Bench before it.
PN16
VICE PRESIDENT ROSS: We've got large parts of every proceeding, I think.
PN17
MR PARRY: Well, I'm going to add to those large parts. There are statements and evidence of Mr McCrea, Mr Yeates and Mr Keag below in the - well, not below - in the other proceedings that dealt with the PER system and its operation. That's referred to in both the majority judgment and also the judgment of Senior Deputy President Kaufman. We have folders of that evidence, which is the statements and the transcript. That's the further evidentiary material.
PN18
VICE PRESIDENT ROSS: Well, we can deal - we don't mark any of the material at this stage. We'll deal with it when you come to it. I just - I wasn't sure whether it was in some way supplementary evidentiary material of the new evidence, if I can describe it that way, in which case it was really just to invite you to provide it, if you hadn't already done so, to Mr Docking, and we'll get to it in due course.
PN19
MR DOCKING: Yes. I can indicate, so far as my side of the bar table is concerned, that is the first time I have become aware that this further information was to be relied upon.
PN20
VICE PRESIDENT ROSS: Well, in the respondents' submissions in reply, don't they make the point that - well, they characterise your submission as relying selectively on some of the evidence before Commissioner Hodder and then on the subsequent appeal, and that that material ought to be considered in context. And I think they actually refer to Mr McCrea's evidence. They don't say that it's all attached or anything of that nature, but I thought they made a reference to it. But you'd be familiar with this material, in any event, wouldn't you, Mr Docking?
PN21
MR DOCKING: I think for those at the bar table, apart from the former employees behind me, I'm the longest surviving person in this litigation in relation to Pacific Coal.
PN22
VICE PRESIDENT ROSS: Yes. Well, from that - - -
PN23
MR DOCKING: I just make the point, it might be we have to consider, once I've had a look, and others have had a look. I've made it clear in our submissions in reply, we are not inviting the Full Bench to read every bit of transcript and every statement.
PN24
VICE PRESIDENT ROSS: Okay. Well, is there an agreement at the bar table as to how the matter might proceed, for example, presumably we'll deal with the witness material first before turning to - of all parties before turning to submissions. Has there been any discussion as to which of the witnesses are required for cross-examination?
PN25
MR DOCKING: As I understand the position, confirmed this morning with Mr Parry, is that the only witness required by the respondents for cross-examination is Mr Barnes, and I think that includes a consideration of the material served in reply. It's still only limited to Mr Barnes.
PN26
VICE PRESIDENT ROSS: All right. And what's your position in relation to the Pacific Coal witnesses?
PN27
MR DOCKING: The three witnesses for the respondent are required for cross-examination.
PN28
VICE PRESIDENT ROSS: There are four, aren't there? Messrs Davies, Coughlan, Duncan and Sandon. Is that right?
PN29
MR PARRY: Yes, your Honour.
PN30
MR DOCKING: Sandon will be a new one for my side of the bar table, that there has only been Davies, Coughlan and Neville Duncan served on my side. I appreciate things have been done using modern technology by e-mails and some faxes have gone forward, but certainly that's all I retain.
PN31
VICE PRESIDENT ROSS: Well, we received it on the 8th, I think, of April. Well, let's get to the bottom of that now so everyone has got the same set of materials.
PN32
MR PARRY: Well, my instructions were it was served on the CFMEU at the same time as it was served on the Commission. It's a statement from Mr Sandon. I don't have a spare copy here now but I can, no doubt, quickly provide it.
PN33
VICE PRESIDENT ROSS: Well, we can arrange for one. Well, it's not a particularly long statement. It's two pages. Well, two and a half pages, but I'd appreciate you would want to have a look at it before we take it much further, but we'll get a copy to you shortly.
PN34
MR DOCKING: Certainly. And if that person is put at the moment as the fourth witness, and during the course of the day my side can look at what's in the statement.
PN35
VICE PRESIDENT ROSS: Certainly.
PN36
MR DOCKING: I should indicate before dealing with any statements, I want to confirm there's been filed by the CFMEU both its primary submission and submission in reply as a separate document.
PN37
VICE PRESIDENT ROSS: Yes. That's right.
PN38
MR DOCKING: I just wanted to note now what's in the submission in reply so far as seeking dispute findings, or sustaining any order by dispute findings, is concerned. I note paragraph 17 of the reply submission, pages 9 and 10.
PN39
VICE PRESIDENT ROSS: Yes.
PN40
MR DOCKING: Members of the Commission will be able to see that there set out are three alternatives that are relied upon by the CFMEU, two of which being the second and third would require the finding of a new industrial dispute during the course of these proceedings. All I do for the moment is foreshadow and make it clear that that is being sought during the course of the proceedings as the evidence unfolds. The other issue I now want to deal with is calling upon a summons for production - - -
PN41
VICE PRESIDENT ROSS: Can I just ask a question in relation to that? If we accept the respondents' argument that there's no dispute, both because it's in relation to - and I understand the argument, in essence - it's Pacific Coal as to the employer. There's also a question about the log and whether or not that generates sufficient ambit to deal with the matter you are seeking but, in any event, it is said that it doesn't provide a jurisdictional basis in respect to the entities you've identified, other than Pacific Coal as an employer. And if that argument, if we accept that, and then we deal with your proposition that we should find a dispute on the basis of what you will advance, if we found such a dispute, well, there wouldn't be jurisdiction to make a retrospective order, would there? You can't make an order pre-dating a dispute, can you?
PN42
MR DOCKING: Your Honour, might I respond to that in due course.
PN43
VICE PRESIDENT ROSS: Certainly.
PN44
MR DOCKING: Certainly the retrospectively point is squarely aimed at the 1995 industry log.
PN45
VICE PRESIDENT ROSS: Yes. No, I appreciate that. I'm just wondering - I thought I'd bring it to your attention because, given it is put - your argument is put in the alternative, that if you're unsuccessful on the first point, you move to your second point. It seems to me that, on the face of it - I've not had to look at the legal position for some time - but my recollection is that the jurisdiction - an award can't pre-date a dispute on which it is based. But, in any event, you can come to that in due course.
PN46
MR DOCKING: Yes. I mean, something that I would propose to trace in more detail than I've had time at the moment is, for example, the list of paper products.
PN47
VICE PRESIDENT ROSS: Yes.
PN48
MR DOCKING: And I appreciate there were many challenges to many aspects.
PN49
VICE PRESIDENT ROSS: No, that's fine, in your own time, Mr Docking. I didn't mean to distract you.
PN50
MR DOCKING: Members of the Commission, might I also indicate in response to what your Honour, the Vice President, said, it's just not on the case mounted by the CFMEU. In part, it's driven by the material that was put on, for example, Mr Davies's statement, as to corporate structure and the involvement of Rio Tinto Limited and the companies in that structure. The other matter I wanted to deal with, and I'm reminded it's three summonses to produce which I should call upon and get an answer to. I've got in mind that at this stage, and I appreciate it was only foreshadowed as a draft Friday once my side had had a chance to look at the statements and material of the other side, and I'm calling upon it the following Thursday. But I've got in mind that at least while some of the witness evidence is called; so as to make sure there is no gaps in time, people assisting me can start looking at the material.
PN51
VICE PRESIDENT ROSS: Have you had a discussion with Mr Parry about that material?
PN52
MR DOCKING: There's been some very preliminary discussions of a small number of minutes this morning and some options have been thrown around; but there's, I think, no agreement. But I think there can be practical ways of dealing with some of the concerns.
PN53
VICE PRESIDENT ROSS: Well, I mean, in the normal course my preference would be for counsel to sort out what is the most expeditious way of dealing with it. Do you need a short period of time in which to do that?
PN54
MR DOCKING: I think it is appropriate because I really don't want to have myself as the person having to look at documents. I'd rather get through the cross-examination so witnesses on both sides can go.
PN55
VICE PRESIDENT ROSS: Mr Parry, do you think a short discussion is going to reach some satisfactory way of dealing with it?
PN56
MR PARRY: I have no objection to that. My learned junior, Mr Tuck, has been dealing with the summonses. But I have no doubt that with some discussions we'll advance the position anyway.
PN57
VICE PRESIDENT ROSS: Well, we'll adjourn until 10.30 but if you need more time - if there are any other issues you're able to resolve, that might be helpful too.
PN58
MR PARRY: We'll do what we can.
SHORT ADJOURNMENT [10.22am]
RESUMED [10.46am]
PN59
VICE PRESIDENT ROSS: Yes, Mr Docking?
PN60
MR DOCKING: Thank you, Members of the Full Bench. There's been agreement on most of the items other than for items 10, 11 and 12 of the summons for production. Whilst the Members of the Commission are obtaining a copy of that summons for production, there was also sent separately a letter from Slater Gordon in relation to another class of documents. And a practical solution has been worked out for those documents. 10, 11 and 12 in the summons for production are really in one class as to why there is a legitimate forensic purpose to the CFMEU in obtaining the documents.
PN61
For example, can I remind the Commission what the respondents' submissions say in paragraph 166(d)? At least on my copy it's page 46 where I've printed it out electronically.
PN62
VICE PRESIDENT ROSS: What was the paragraph number?
PN63
MR DOCKING: Paragraph (d), paragraph 166. It talks about the 16 selected in a merit based process as being lesser performance would get jobs ahead of potential employees with perhaps better qualification, competence and merit, and who perhaps have greater need of the job.
PN64
VICE PRESIDENT ROSS: Yes.
PN65
MR DOCKING: The reference the respondents makes is to the class of people comprising - it's about 44 internally from Rio Tinto - and then separately 52 from the Mackay region about being perhaps something twice and a greater need of a job. Filed, I think, in the Commission this morning is a supplementary statement of Garry William Barnes. By that I mean it was handed up to your Honour, the Vice President's, associate. Can I go to paragraph 12 at the bottom of page 2 through to paragraph 15 on page 3?
PN66
VICE PRESIDENT ROSS: Just before we do that; in relation to subparagraph (d) of 166 of the respondents, as I read it the respondents - that's a submission. The respondent isn't asking us to make a finding that the persons who have made application are better qualified, or are in more need of a job, and there's no material on which we could do that, is there?
PN67
MR DOCKING: Well, I would have thought whether it be a selective redundancy or this type of matter, it's sufficient to show that the process has been here harsh, unjust, applied unfairly and it's a difficult issue. I put a question mark over whether in any case the Commission or Court, for that matter, could go on and find who should have been selected or retained. I find that an interesting suggestion: that's a standard either in a reinstatement case or a union in this type of case would have to reach. But, in the meantime, there's this legitimate forensic purpose. Mr Davies' statement reflects the sort of sentiment in the subparagraph of the submissions.
PN68
It's saying there was a fair process to interview people. I was just going to go to Barnes and this is the sort of material. I won't read it, but the CFMEU comes here in a sympathetic way to respect in people's names. What I've suggested is like happened before Commissioner Hodder. If access to the material was granted, the 44 people from the Rio Tinto group could be called RT1 through to RT2 with the names next to those identifiers for use of only the Members of the Full Bench and the representatives of either side. Those from Mackay region, as it's called in the statements, can be M1, M2 and the like.
PN69
But it can be seen from Mr Barnes, paras 12 to 15 of the supplementary statement, he apparently knows at least two employees now picked up - I'll use neutrally - at Hail Creek and know something about their background and experience and the like. The Members of the Full Bench would have read Mr Coughlan's statement. Even though they come here with no specific recollection of dealing with they say only 12 of the 16 former employees at Blair Athol - I put to the side for the moment the dispute that it should have been 16 applications - but they say in hindsight, looking at a tick sheet, "Oh, these are all the problems with these applications and this must be why they didn't proceed" - that is the 16 former employees - "any further in that initial Rio Tinto selection".
PN70
So there's a legitimate forensic purpose to show that, for example, the applications of the 16 were the same or similar as some people who got ultimately selected in either stream. There's a legitimate forensic purpose to say it's, look, just nonsense to suggest that these coal miners with anything - I think it's from 8½ to 18-odd years experience in coal mining were not more experienced or perhaps more experienced and qualified. And the only way it can properly be done is, for example, the CFMEU is able to look at the two people referred to in the paragraphs I've taken to the Commission and let us see what is on the application form to see if it's any different to those seriously criticised by Mr Coughlan. And I repeat, we are happy to use a code of some sort and not use their names.
PN71
VICE PRESIDENT ROSS: Well, is Mr Coughlan to be cross-examined?
PN72
MR DOCKING: He certainly is.
PN73
VICE PRESIDENT ROSS: And Mr Barnes?
PN74
MR DOCKING: Yes. And really to cross-examine people like Mr Davies and the other three properly, I really need to have Mr Passfield in the meantime - or perhaps I'll need a short break to look at the documents myself to start marrying up the 44 applications form the Rio group and the 52 from the Mackay region.
PN75
MR TUCK: Your Honour - - -
PN76
VICE PRESIDENT ROSS: Yes, Mr Tuck?
PN77
MR TUCK: - - - I'm not sure it's been made clear. We produced the majority of these applications. What we ask the Commission to do is allow us to have permission to delete the personal details including the employer of these people in their application forms and provide them on that basis. So if there's questions about the experience etcetera, that will appear, but you won't be able to identify who these people are. That is their personal information provided to the company presumably on that confidential basis and we say that it ought to be provided on that basis, that they simply delete the personal details. We're prepared to do that.
PN78
VICE PRESIDENT ROSS: Why do you need the personal details? You've only referred to these two.
PN79
MR DOCKING: Members of the Full Bench, it might be the misconception of Mr Passfield and myself. I just checked. Our understanding was that there was a denial of us even seeing the names, because I specifically used the examples in Mr Barnes' statement that I wanted to match up.
PN80
VICE PRESIDENT ROSS: Well, there is a denial of you seeing the names. They're prepared to provide you with, presumably in two bundles, the forms from the 44 employees recruited within the Rio Group and in a separate bundle the forms from the 52 recruited from the Mackay region.
PN81
MR DOCKING: I see. So the names aren't going to be left on. I thought - sorry - there was a shift.
PN82
VICE PRESIDENT ROSS: Well, I might - no, the personal details will be deleted. That would include name, address - - -
PN83
MR TUCK: Which includes their name. It includes their name, your Honour. The name comes off.
PN84
VICE PRESIDENT ROSS: Yes.
PN85
MR DOCKING: Well, how can my side possibly match up the applications made for the two persons described in paragraphs 12 to 15 of Mr Barnes' supplementary statement?
PN86
VICE PRESIDENT ROSS: Well, if Mr Barnes - - -
PN87
MR DOCKING: And I should add - - -
PN88
VICE PRESIDENT ROSS: Well, just a moment, though. Why do you need to match it up?
PN89
MR DOCKING: There's a strong criticism of Mr Coughlan in critiquing after the event without recollection using a tick sheet flaws in the applications of 12 of the 16 former employees.
PN90
VICE PRESIDENT ROSS: Yes, but that's a separate question. You say you need to match up Mr Burgess and Mr Page's applications with what Mr Barnes says about them. Is that right?
PN91
MR DOCKING: Yes, and to compare their qualifications - - -
PN92
VICE PRESIDENT ROSS: And why do you need to do that? Why wouldn't we - if Mr Barnes is not cross-examined in relation to what he says at paragraphs 12 through to 15, why wouldn't we accept that?
PN93
MR DOCKING: I would make the submission that the Full Bench would accept it, but as well I'm entitled to look at their application forms of these two people we know of to see was there anything different in any way to the 12 applications which Mr Coughlan criticises as being not good enough to go any further. That is the 12 of the 16 former employees at Blair Athol. It says things like they haven't put enough information on, they missed a question - - -
PN94
VICE PRESIDENT ROSS: But you'll see from - you'll view all the successful applications, and you'll see from those whether any of them suffer from the defects which it's said that the 12 suffered from.
PN95
MR DOCKING: I have to accept that. That would be clear on the papers, but it doesn't permit a cross-referencing with the two that are named in this supplementary statement and I should foreshadow - and it may be elicited in cross-examination from the respondent's witnesses - it is suspected - I put it in that way - by the CFMEU that there are other people from Clermont as well who have been picked up. That may become clearer in cross-examination.
PN96
VICE PRESIDENT ROSS: Well, you can ask the witnesses about that, can't you?
PN97
MR DOCKING: Then to identify what their experience was, whether it lacked any mining experience, one needs to know which form does one look at to match the person to the form.
PN98
VICE PRESIDENT ROSS: Well, you can be told which form to look at. They can be numbered.
PN99
MR DOCKING: Happy if there's a sensible arrangement like that, but I just still can't see the problem with having the names. Certainly before - - -
PN100
VICE PRESIDENT ROSS: Well, it's only these two that you've identified by name anyway, so it's only those two you an possibly match.
PN101
MR DOCKING: At this point, that's correct, your Honour.
PN102
VICE PRESIDENT ROSS: Yes. Well, Mr Docking, we think you should be provided with the material on the basis that Mr Tuck has outlined. We're not persuaded that there's a need at this stage to identify any individuals by setting out their personal details. So you'll be provided with the - in one bundle the 44 employees recruited from within the Rio Group. They should be numbered sequentially so that if needs be they can be identified later, and similarly in a separate group the 52 employees recruited from the Mackay region.
PN103
MR DOCKING: If it pleases the Commission, another issue would be I think there's also objection even in that form to showing the excised forms to anybody apart from Mr Passfield and myself. Now, I certainly would be seeking, particularly if they're edited in that form, that I be permitted to show them to people like Mr Barnes, Mr Bukarica - - -
PN104
VICE PRESIDENT ROSS: Yes.
PN105
MR DOCKING: - - - who frankly might have a better understanding of some of the industries.
PN106
VICE PRESIDENT ROSS: Yes. Mr Tuck, what's the difficulty? If there are no personal details it can't be said there are privacy considerations because I don't know who it relates to. What's the problem? The other alternative is that simply more time is provided and that might unnecessarily delay procedures.
PN107
MR TUCK: I understand. I'm conscious of that, your Honour. They are my instructions. It is a matter for the Commission as to the basis upon which you direct that it be released.
PN108
VICE PRESIDENT ROSS: Okay.
PN109
MR TUCK: Can I just indicate, though, the agreement that we have in relation to the agreements that we are providing without debate; it's on the basis that they are provided only to Mr Docking and to his instructing solicitor on the basis that they don't disclose the information to anyone. I just want to make that clear, your Honour. We're happy, again, in relation to - if the Commission was to order in relation to 10, 11 and 12 that they are provided to a representative from the applicants or from the union, again, that it be clear that the basis upon which they're provided is absolutely confidential and the information not be used for any other purpose.
PN110
VICE PRESIDENT ROSS: Well, what's been raised is that they ought to be able to confer with Mr Barnes and Mr Bukarica. If it's limited to that group and it's on the basis that it's regarded as confidential to that group, is there any difficulty?
PN111
MR TUCK: It's a matter for you, your Honour.
PN112
VICE PRESIDENT ROSS: All right. Anything further on that?
PN113
MR DOCKING: No. I can note so far as the proceedings before Commissioner Hodder were concerned there's never been a complaint about the representatives or the employees or the CFMEU ever breaching any confidentiality.
PN114
VICE PRESIDENT ROSS: That might be right, but a lot of water has gone under the bridge since then.
PN115
MR DOCKING: And still no complaint of any breach of confidentiality.
PN116
VICE PRESIDENT ROSS: Mr Docking, our view is that you should be entitled to show and discuss the material with Mr Barnes and Mr Bukarica, but the discussions of you, your instructor and those two gentlemen should be regarded as confidential on the material and shouldn't be shown to anyone else or used for any other purpose.
PN117
MR DOCKING: If it please the Commission. I apprehend what might happen is the flow of material may start coming from my left to the right, then Mr Passfield - - -
PN118
VICE PRESIDENT ROSS: You don't want to be interrupted or - - -
PN119
MR DOCKING: No, Mr Passfield will, as it comes, start looking through the material.
PN120
VICE PRESIDENT ROSS: Sure.
PN121
MR DOCKING: But I might need at some stage with Mr Davies to seek some time for an examination quickly by myself of documents in the last class that the Commission just dealt with.
PN122
MR TUCK: Your Honour, can I just make one thing clear just so I'm not criticised at a later time. In relation to document 10, the request is for spread sheets as referred to in paragraph 30 of the statement to Mr Davies. The original spread sheets cannot be located. My instructions are that they may well have been destroyed. What is produced is subsequent spread sheets which were prepared on the basis of that earlier information. So it was an updated process.
PN123
But that is the document that will be provided. And just so that it's clear, I just been instructed, your Honour, in 10, 11 and 12 that they are the only documents that are to be disclosed to the members of the union. And the agreement in relation to the earlier documents is that they will be restricted only to the solicitors and to Mr Docking.
PN124
MR DOCKING: I can confirm for the other categories that's right, and I've said if there's any need perceived by Mr Passfield or myself to go further I'll make inquiries with the other side and absent any - if there is a problem it will be raised with the Commission.
PN125
VICE PRESIDENT ROSS: Yes.
PN126
MR DOCKING: If that be the case, I call Garry William Barnes.
PN127
MR DOCKING: Thank you, Members of the Bench.
PN128
Please state your full name?---Garry William Barnes.
PN129
Are you presently unemployed?---I am.
PN130
You are a member of the CFMEU?---I am.
PN131
Are you on any council-type position with that union?---I am on the Queensland District Board of Management.
PN132
And for how long have you been on that board of management?---Approximately eight years.
PN133
What is your residential address?---3 Francis Court, Clermont.
PN134
Mr Barnes, you completed the first and larger statement; are there some errors of a typographical nature in that first statement you wish to correct?---There is.
PN135
Did you make a list of those so you can go through them?---I have.
PN136
Could you, by reference to paragraph number, indicate what those changes are of a typographical nature?---The first one is in paragraph 2, probably by more way of explanation the 17 August mentioned there was actually the date at the end of the notice period. The actual termination date was 21 July, and that was the last day that we actually worked.
PN137
VICE PRESIDENT ROSS: Sorry, 21 July?---July 1998, sorry.
**** GARRY WILLIAM BARNES XN MR DOCKING
PN138
MR DOCKING: Is that the day you received the letter of retrenchment; at least for yourself and most of the other 16?---Yes, that is correct.
PN139
If you could continue indicating the corrections, or points of clarification?---In section 42 there are two paragraphs. In the bottom of the first paragraph, the last sentence, it should be at the time.
PN140
So instead of t-h-e-w, it should be the, t-h-e?---Then in 113 where it says Mr Crichton, it should be Mr Rodgers. And - - -
PN141
Do you see in paragraph 113 on that first line it refers to writing for, you say, Mr Rodgers and Mr Yeates - - -?---Was, sorry?
PN142
Mr Parry has got no objection; is it the case the two people you intend to refer to, paragraph 113, first line, a Mr Crichton and Mr Rodgers, as opposed to Mr Crichton and Mr Yeates?---That is right.
PN143
And paragraph 172, is it the case that a little over halfway there is a reference to Mr Poole, P-o-o-l-e; that is the name appearing in the transcript, but is the person really Mr Pill, P-i-l-l-?---Yes, Mr Trevor Pill is the person.
PN144
Subject to those points of clarification, is that statement true and correct to the best of your knowledge and belief?---It is.
PN145
I tender the statement of Garry William Barnes, together with the annexures referred to therein.
PN146
VICE PRESIDENT ROSS: I will mark that exhibit CFMEU 1.
EXHIBIT #CFMEU1 STATEMENT OF GARRY WILLIAM BARNES WITH ANNEXURES
**** GARRY WILLIAM BARNES XN MR DOCKING
PN147
MR DOCKING: Have you also completed a supplementary statement, some 20 paragraphs, dated 9 April 2003?---I have.
PN148
Is that supplementary statement true and correct to the best of your knowledge and belief?---It is.
PN149
I tender the supplementary statement of Gary William Barnes dated 9 April 2003.
PN150
VICE PRESIDENT ROSS: I will mark that exhibit CFMEU 2.
EXHIBIT #CFMEU2 STATEMENT OF GARY WILLIAM BARNES DATED 09/04/2003
PN151
MR DOCKING: I have no further questions.
PN152
VICE PRESIDENT ROSS: Thank you. Mr Parry?
PN153
PN154
MR PARRY: Mr Barnes, in your first statement - do you have a copy of that before you?---I do.
PN155
Paragraph 25, you express there an understanding about the employer of all employees in Rio Tinto's Queensland Coal operations; are you aware of the Kestrel Mine?---I am.
**** GARRY WILLIAM BARNES XXN MR PARRY
PN156
Are you aware of who is the employer there?---The best of my knowledge, Pacific Coal.
PN157
Right. On what do you base that?---Literature I have seen, I think it is called the Insight magazine that gets sent to employees, articles in newspapers. All the operations in Queensland are classed as part of Pacific Coal.
PN158
So you base your understanding on statements in the media that all operations in Queensland are part of Pacific Coal?---I do. And it goes further - to finish off the first part - at addresses by different members of Pacific Coal at the mine site, I have been there, it has always been spoke about that Pacific Coal is the Rio Tinto area of Queensland.
PN159
Have you heard of Kestrel Coal Pty Ltd?---Kestrel Coal, yes - as Pty Ltd, I am not real sure.
PN160
Are you aware of there being a certified agreement in operation at Kestrel Coal?---Yes, I believe there was some Commission hearing about it back when the decisions about the changing from Gordonstone to Kestrel; there was some agreement, but I don't know what is in that agreement, or ever seen it.
PN161
You don't know who the employer is referred to in that agreement?---No, I don't.
PN162
With regard to Hail Creek, are you aware of who has made the offers of employment to the production and engineering staff?---Best of my knowledge, Pacific Coal.
PN163
You attach a document, I think, which is referred to in paragraph 40, which is an offer of employment for future employees of the Hail Creek Coal Mine; that is marked exhibit GB29?---Yes.
**** GARRY WILLIAM BARNES XXN MR PARRY
PN164
Do you have GB29 before you?---I have.
PN165
Are you aware it makes no reference at all to Pacific Coal?---That document does make reference to Pacific Coal.
PN166
Right. Where does it make reference to Pacific Coal?---Section 13, Relocation Costs.
PN167
Right.
PN168
You are entitled to the benefits of the Pacific Cola long-term relocation policy attached.
PN169
Where else?---Section 28, the bottom of that section says:
PN170
For further information about the Hail Creek Coal information handling process, please refer to Pacific Coal policy guidelines.
PN171
Then it goes on about the website, and whatever, of Pacific Coal.
PN172
I see. Those are the only references to Pacific Coal?---I think so, yes.
PN173
On the front page of that document there is a reference to Hail Creek Coal Pty Ltd, isn't there?---Yes, there is.
PN174
And indeed, the obligations throughout there are expressed to be on the company; correct?---Yes, appears to be.
**** GARRY WILLIAM BARNES XXN MR PARRY
PN175
Is this the whole document?---I am not certain.
PN176
Not certain?---No.
PN177
And it is upon that, is it, that you base your view that Pacific Coal is the employer at Hail Creek Coal?---Further to that, the application forms had Hail Creek on them - sorry - had Pacific Coal on them. The internal ad, I think, also the newspaper ones.
PN178
Now, you've also attached to your statement, your first one, a number of applications for employment made in October 2002, and this is referred to in paragraph 37. Do you have paragraph 37?---Yes, I have.
PN179
You've attached an application for employment by Mr Crichton. Do you see that?---Yes.
PN180
Do you know when he sent that in?---I can't remember the exact date but I know that it was faxed from the union office in Mackay.
PN181
Well, when - any idea roughly?---It would have been a few days - in the early part of the next week, I think, after the applications closed, because he was actually away working at Newlands but I'm not 100 per cent certain on that fact.
PN182
I see. It's dated 15 October, which is after applications closed, isn't it? It's the first application?---Yes, it's 26. Whereabouts is the date on it?
PN183
On the last page?---15th of the 10th where it's signed, yes.
**** GARRY WILLIAM BARNES XXN MR PARRY
PN184
But apart from that - apart from knowing it was in the next week, you don't know the date it was sent?---No, I don't. The only reason that the application form - I believe I had to - and peruse it there, I think it's got my fax number on the top because once the date of the applications closed it was taken off the Web site and the only way he could get the application form was I had to fax it to the union office.
PN185
Now, Mr Halverson: you also refer to Mr Halverson's form. Do you know when it was sent in?---No, I don't.
PN186
I see. Now, with regard to your second statement - - -?---Yes.
PN187
In paragraph 19 you refer to a news item appearing on the local Channel 7 news in the Mackay region on 1 April 2003 and during the news item a spokesman from the Hail Creek Coal Mine was quoted. Do you know who that spokesman was?---No, I did not hear the report myself. There was some of our group heard the news item and told us about it.
PN188
I see. So you did not see that news item yourself. What you're reporting there is what somebody else told you was said on that news item?---That's correct.
PN189
And did these people that told you what was said on that news item say that the quote was made by a newsreader or by the spokesman?---I was told by the spokesman.
PN190
By the spokesman?---Yes.
PN191
I see. I have nothing further of Mr Barnes, if the Commission pleases.
PN192
VICE PRESIDENT ROSS: Any re-examination?
**** GARRY WILLIAM BARNES XXN MR PARRY
PN193
PN194
MR DOCKING: At one stage, Mr Barnes, you referred to In-Site Magazine. I just want to clarify what you mean. If you can go to your annexures for your first statement, GB8, using the page numbering in the top right-hand corner, page 130, do you have that in front of you?---Yes, I have that one.
PN195
And do you see it's headed Logo appearing, typed words Pacific Coal, Out of Site. Is that the publication you referred to?---That's one of them, yes.
PN196
Do you know who distributes that publication?---I believe Pacific Coal in Brisbane.
PN197
Just before leaving GB8, can you go to page 131, being the next page. Do you see the heading, From the Managing Director, the fourth line first column states, "Pacific Coal One Business"?---Yes, I can see that.
PN198
Is that an example of what you relied upon concerning Kestrel and Hail Creek?---Yes, it's one of the many times you see things like that.
PN199
Finally, you confirmed to Mr Parry that you knew Mr Crichton had faxed his application the following week from the union office in Mackay. How do you know that was the location from which Mr Crichton faxed his application?---Because of one of the women that works there was the one that rang me to fax over the application form and to what she then told me later that that application had been faxed away.
PN200
I have no further questions.
**** GARRY WILLIAM BARNES RXN MR DOCKING
PN201
VICE PRESIDENT ROSS: Thank you for your evidence, Mr Barnes. You're excused.
PN202
MR DOCKING: I next tender the statement of Irene Margaret Ling dated 9 April 2003, together with the annexure IML1. That's the statement that's been clarified. Although she was present, Mrs Ling was not required for any cross-examination by the respondents.
PN203
VICE PRESIDENT ROSS: I'll mark that exhibit CFMEU3.
EXHIBIT #CFMEU3 STATEMENT OF IRENE MARGARET LING DATED 09/04/2003
PN204
MR DOCKING: Might I clarify - I'm assuming so far as Commissioner Hodder's decision is concerned and then what our materials refer to as the reconstituted Full Bench decision is concerned, there is not a need to tender or otherwise make available copies to the members of the Full Bench.
PN205
VICE PRESIDENT ROSS: Of those decisions?
PN206
MR DOCKING: Yes.
PN207
VICE PRESIDENT ROSS: No.
PN208
MR DOCKING: Thank you. I next - - -
PN209
VICE PRESIDENT ROSS: You refer to a number of other decisions in your submission. Will you be tendering those - as does the respondent.
PN210
MR DOCKING: Yes, I have to concede that that task of photocopying them all has not been undertaken. It's certainly something - it might not be - - -
PN211
VICE PRESIDENT ROSS: Well, we may not get to submissions today anyway, but if you can take that on board that you will be needing to get copies of those decisions.
PN212
MR DOCKING: Thank you, your Honour. I next tender - and I'm not sure if the Commission will prefer to mark where there's a supplementary statement like Mr Barnes separately. So I first tender the statement of Gary Wayne Mannion dated, I think it's 7 March 2003. Separately or together I tender a supplementary statement of Gary Wayne Mannion dated 9 April 2003.
PN213
VICE PRESIDENT ROSS: The first statement is exhibit CFMEU4, the supplementary is CFMEU5.
EXHIBIT #CFMEU4 STATEMENT OF GARY WAYNE MANNION DATED 07/03/2003
EXHIBIT #CFMEU5 STATEMENT OF GARY WAYNE MANNION DATED 09/04/2003
PN214
MR DOCKING: I next tender the statement of Trevor Murray Kelly dated 7 March 2003. I tender separately the supplementary statement of Trevor Murray Kelly, 9 April 2003. I can confirm for this batch of witnesses with supplementary statements, they're actually in the hearing room and not required for cross-examination.
PN215
VICE PRESIDENT ROSS: They'll be marked exhibit CFMEU6 and 7 respectively.
EXHIBIT #CFMEU6 STATEMENT OF TREVOR MURRAY KELLY DATED 07/03/2003
EXHIBIT #CFMEU7 STATEMENT OF TREVOR MURRAY KELLY DATED 09/04/2003
PN216
MR DOCKING: I next tender the statement of Athol Ernest Finger dated 7 March 2003, together with the supplementary statement of Athol Ernest Finger dated 9 April 2003.
PN217
VICE PRESIDENT ROSS: They'll be marked exhibit CFMEU8 and 9 respectively.
EXHIBIT #CFMEU8 STATEMENT OF ATHOL ERNEST FINGER DATED 07/03/2003
EXHIBIT #CFMEU9 STATEMENT OF ATHOL ERNEST FINGER DATED 09/04/2003
PN218
MR DOCKING: I should note so far as the first annexure is concerned of Mr Finger, AF1, where matters have been blacked out, that was just accepting without re-arguing, some deletions that had occurred before the re-constituted Full Bench. So when members see there's that sort of blacking out, there was an interlocutory decision and the intent was to just respect what had been ruled previously. I next tender the statement of Robert David Smith dated 7 March 2003. I tender separately the supplementary statement of Robert David Smith dated 9 April 2003.
PN219
VICE PRESIDENT ROSS: I'll mark them exhibits CFMEU10 and 11.
EXHIBIT #CFMEU10 STATEMENT OF ROBERT DAVID SMITH DATED 07/03/03
EXHIBIT #CFMEU11 STATEMENT OF ROBERT DAVID SMITH DATED 09/04/03
PN220
MR DOCKING: I next tender the statement of Edward Hugh Appleton dated 7 March 2003. I tender the supplementary statement also of Edward Hugh Appleton dated 9 April 2003.
PN221
VICE PRESIDENT ROSS: I'll mark them exhibits CFMEU 12 and 13.
EXHIBIT #CFMEU12 STATEMENT OF EDWARD HUGH APPLETON DATED 07/03/03
EXHIBIT #CFMEU13 SUPPLEMENTARY STATEMENT OF EDWARD HUGH APPLETON DATED 09/04/03
PN222
MR DOCKING: I next tender the statement of Tony Maher dated 27 March 2003. Separately I tender a second statement of Tony Maher dated 9 April 2003. Again, although Mr Maher is not here, the communication has been he is not required for cross examination.
PN223
VICE PRESIDENT ROSS: I'll mark those as exhibits - sorry, Mr Parry?
PN224
MR PARRY: If the Commission pleases, there was, I think, foreshadowed in our submission an objection to part of that which deals with part of the first statement which dealt with negotiations and discussions that had taken place. In our submissions - - -
PN225
VICE PRESIDENT ROSS: This material seems to go to 89A(7)(a)
PN226
MR PARRY: We see it as that we don't take any issue with (a) or (b) at all.
PN227
VICE PRESIDENT ROSS: Oh, well in that case, what if (a) and (b) aren't in issue, why would we need to traverse Mr Maher's material about the discussions?
PN228
MR DOCKING: It is dealt with in the submission in reply at page 15, paragraphs 27, for example, through to 29 inclusive.
PN229
VICE PRESIDENT ROSS: Yes, but the evidence is directed to 7(a) and (b), isn't it?
PN230
MR PARRY: No it is not. It's not limited to that at all.
PN231
VICE PRESIDENT ROSS: Well, what does it go to?
PN232
MR DOCKING: It - when I say it's not limited, that is part of what goes - - -
PN233
VICE PRESIDENT ROSS: What else does it go to?
PN234
MR DOCKING: It also goes to the industrial situation to confirm, as set out in the reply submissions, why there should be an industrial dispute found between companies including Rio Tinto Ltd and Pacific Coal.
PN235
VICE PRESIDENT ROSS: Where do you say that in the submission of reply. At 29(d) you seem to be confining it to (a) and (b).
PN236
MR DOCKING: Not at all, because it is in that part of the submission dealing with that corporate structure argument, which has been raised squarely by Mr Parry on behalf of the respondents. It has in no way limited this evidence to 89A and D. It is relied upon for a broader purpose in support of the industrial situation, and as part of the evidence to confirm there should be a dispute finding. There seems to be this suggestion, for example, that Pacific Coal is in a different branch, if I can call it that, from Hail Creek Coal Pty Ltd.
PN237
And if this goes, and is capable of showing with other evidence that there really is one corporate structure involving Rio Tinto at the Queensland level, it is Pacific Coal, for example, it's the one business approach across dealings with employees and the public generally.
PN238
VICE PRESIDENT ROSS: Well for the purpose for that argument, is it sufficient to note that Mr Maher met with Mr Boyce, and discussed with him the inability to reach solutions regarding disputes with Pacific Coal? Why do we need to know what the detail of those discussions were?
PN239
MR DOCKING: Because the details of the discussions included raising squarely as long ago as, when one goes to Mr Maher's first statement last year, the employment or engagement of 16 former employees at Hail Creek. There has been a matter in dispute with the Rio Tinto Group as long ago as last year, when Mr Maher raised the point 14 October 2002, on or about, in London. There was then a series of discussions in Australia he deals with, where that was pursued. The intent was to confirm the topic that was being raised.
PN240
VICE PRESIDENT ROSS: All right. Well is there - is it conceded that the topic - that issue, was raised and if that concession is made, why would we need to traverse any of the other material?
PN241
MR DOCKING: It is also relevant to show that it is just not Pacific Coal in Queensland. It is with the Coal and Allied group in New South Wales who is the same - - -
PN242
VICE PRESIDENT ROSS: Well, you need to articulate fully what it is you want this evidence for. And once you have done that, we will see whether there is a concession about those issues. So why don't you set out fully upon which where you say this evidence goes in relation to the matters under 89A(7). Because the jurisdictional question is A and B. A and B isn't an issue. It's put that that won't be - - -
PN243
MR DOCKING: I think it is conceded for the present case.
PN244
VICE PRESIDENT ROSS: Conceded, that's right. So it is only then in respect of your argument that there is an industrial dispute in relation to this issue that has persisted for some time. No - and upon - you based that on the fact that Mr Maher had discussions about the 16, or 16 jobs at Hail Creek with Mr Boyce over whatever period. I want you to articulate what the findings are that you want us to make on the basis of this evidence, and then we will see whether those findings would be contested.
PN245
MR DOCKING: I understand what your Honour the Vice President is saying, but the finding sought is to show that as is represented in the material elsewhere, that there is an international group, Rio Tinto. So far as Australia is concerned there is Rio Tinto Ltd. It has a corporate structure in which Pacific Coal, it is submitted by the CFMEU, is the one business, using that out of site reference controlling, or influencing or both, all of the Rio Tinto coal mines in Queensland. Separately there is the Coal and Allied group, who performs the same role in New South Wales.
PN246
There has been, this is separately relied upon, a series of disputes about which, I think, the Commission could almost take judicial notice concerning terminations, and related to that re-engagement of - - -
PN247
VICE PRESIDENT ROSS: Yes. Perhaps you are at cross purposes. I appreciate those are the ultimate findings you want us to make, but on the basis of Mr Maher's evidence, what do you say that tells us. That he met with who, and over what period and what did he raise. So that's sort of - what sort of conclusion do you want us to draw. Not the ultimate conclusion as to the question of control or otherwise, but what is that you draw from Mr Maher's evidence that you say will support that ultimate conclusion?
PN248
MR DOCKING: Firstly, the corporate structure I just described.
PN249
VICE PRESIDENT ROSS: Where does he say that?
PN250
MR DOCKING: It's not a question of one witness having to say that, it's taken with all the other evidence.
PN251
VICE PRESIDENT ROSS: No, no, no. You are misunderstanding the point. I'm not asking you to defend or argue your point now. What I want to know is, what do you say - what's the relevance of Mr Maher's evidence. You said earlier:
PN252
Well, it shows that he met with Boyce, the head of energy mines for Rio Tinto in London, and he raised these issues.
PN253
That may well not be contested. But what other particular factual points do you say you would draw from this evidence?
PN254
MR DOCKING: The second topic I was alluding to was, there has been an industrial situation involving disputes in both New South Wales and Queensland concerning the Rio Tinto group.
PN255
VICE PRESIDENT ROSS: No. That's your ultimate conclusion. Where does - what part of Mr Maher's statement is necessary to lead to that, or is relevant for a finding about that issue?
PN256
MR DOCKING: If one looks at top of page two, it confirms there is the discussion with the disputes concerning Coal and Allied. Coal and Allied is a subsidiary of Rio Tinto based in New South Wales. Picking up this New South Wales point, or perspective, there is - - -
PN257
VICE PRESIDENT ROSS: Well, that is a legal statement, isn't it? It's not - I mean, I'm going to what facts is Mr Maher giving evidence as to.
PN258
MR DOCKING: I don't think it is challenged that that is factually right.
PN259
VICE PRESIDENT ROSS: No, no. I appreciate that, but he had a meeting with Mr Boyce on or around October 2002, at which he raised what?
PN260
MR DOCKING: What, I would only be repeating what is in that paragraph which is numbered 3. There then appears a series of follow-up meetings, which includes what is set out in paragraph 5. You dealt with both New South Wales and Queensland. Members of the Commission will also be able to read the second affidavit to which no objection is taken confirms, if I can use it as a label, the industrial situation which existed for some years across the two states. I'm not suggesting, your Honour, the Vice President, that this evidence by itself is relied upon.
PN261
VICE PRESIDENT ROSS: No, no. I appreciate that.
PN262
MR DOCKING: It's, if you like, the usual part of a jigsaw.
PN263
VICE PRESIDENT ROSS: No, no. I appreciate that. Yes.
PN264
MR DOCKING: So it's for those purposes that it's relied upon.
PN265
VICE PRESIDENT ROSS: Mr Parry, is there any part of the material that we can deal with by way of concession?
PN266
MR PARRY: We concede that Mr Maher met with Mr Greg Boyce, who is the head of Energy Mines with Rio Tinto PLC, which is the international company. There was - Mr Maher, in those discussions, raised the issue of the 16 who had been dismissed at Blair Athol and he suggested there be employment at Hail Creek.
PN267
VICE PRESIDENT ROSS: And that there were meetings with representatives between - of Pacific Coal between November 2003 and January 2003 - 2002, sorry?
PN268
MR PARRY: Yes. And in those meetings the same issues were raised by Mr Maher.
PN269
VICE PRESIDENT ROSS: And your objection is in relation to paragraphs 2 through to 10; is that right? Or - - -
PN270
MR PARRY: Yes.
PN271
VICE PRESIDENT ROSS: - - - 2 through to 9? Presumably 10 is just - - -
PN272
MR PARRY: I don't take issue with 10.
PN273
VICE PRESIDENT ROSS: Yes. Well - thank you.
PN274
MR DOCKING: Your Honour, Vice President, I still want to rely upon the fact that the matters discussed extended to the Coal and Allied situation in New South Wales, and the disputes about retrenchments and the like.
PN275
VICE PRESIDENT ROSS: And that's it?
PN276
MR DOCKING: I think that is what is being attempted.
PN277
VICE PRESIDENT ROSS: All right.
PN278
MR PARRY: It's a bit difficult to get instructions on this matter.
PN279
VICE PRESIDENT ROSS: No, no.
PN280
MR PARRY: But I - - -
PN281
MR DOCKING: I'm happy if he wants to come back to it later and it not be marked for the moment.
PN282
VICE PRESIDENT ROSS: No, no. But let Mr Parry finish. Yes.
PN283
MR PARRY: I'm comfortable in conceding that Mr Maher raised the position of Coal and Allied.
PN284
VICE PRESIDENT ROSS: Yes. Well, that being the case, why wouldn't we exclude 2 to 9?
PN285
MR DOCKING: I suppose the only other footnote is - I don't want it to be confused. It's only said London was with Mr Boyce. The people spoken to in Australia are different people. It's - - -
PN286
VICE PRESIDENT ROSS: No. I think that's understood. I referred to the three meetings of representatives of Pacific Coal between November 2002 and January 2003.
PN287
MR DOCKING: It's also representatives of Rio Tinto, Coal and Allied and it is specifically Dr Grant Thorne, Managing Director of Pacific Coal.
PN288
VICE PRESIDENT ROSS: Yes. Well - - -
PN289
MR PARRY: We accept that Dr Grant Thorne is the Managing Director of Pacific Coal. He is also the director of other boards, but that appears from the company records.
PN290
VICE PRESIDENT ROSS: Yes.
PN291
MR PARRY: I don't - we'll obviously be making submissions about what all this means at some stage.
PN292
MR DOCKING: I think that would satisfy our intended purposes.
PN293
VICE PRESIDENT ROSS: Well, on that basis we'd mark Mr Maher's statement, first statement, as exhibit CFMEU14. We would exclude paragraphs 2 to 9 inclusive.
EXHIBIT #CFMEU14 STATEMENT OF TONY MAHER, EXCLUDING PARAGRAPHS 2 TO 9 INCLUSIVE, DATED 27/03/2003
PN294
MR DOCKING: There was also the second statement.
PN295
VICE PRESIDENT ROSS: Yes, I'm sorry. The supplementary statement will be marked exhibit CFMEU15.
EXHIBIT #CFMEU15 SUPPLEMENTARY STATEMENT OF TONY MAHER DATED 05/04/2003
PN296
MR DOCKING: It was also intended to have tendered in the present proceedings some of the documents which I think were referred to in a letter 8 April 2003 to the Commission, being the original coloured lists. Might I inquire if it has been possible for the original exhibits, limited to what is in that list, to have been obtained here in Brisbane?
PN297
VICE PRESIDENT ROSS: Well, I'm told we have them, but there was no exhibit 69A.
PN298
MR DOCKING: I'll check the exhibit list and - - -
PN299
VICE PRESIDENT ROSS: There is an exhibit 69, but we don't seem to have 69A.
PN300
MR DOCKING: Yes. I actually have a copy of the Commissioner's associate's handwritten list which I'll check. It was made available to both sides. Might access be obtained?
PN301
VICE PRESIDENT ROSS: Sure.
PN302
MR DOCKING: In due course I wanted to tender them. There are also - - -
PN303
VICE PRESIDENT ROSS: Well, perhaps if you have a look at them and whatever you need to do with them, you can do later.
PN304
MR DOCKING: And might I suggest there were some other lists which have been colour coded to show who was on AWAs and the like. What I would suggest, I could show them to Mr Parry and by no later than after lunch I could tender them then. It might be out of the ordinary course, but that would permit - - -
PN305
VICE PRESIDENT ROSS: Sure.
PN306
MR DOCKING: - - - being able to get on with the rest of the cross-examination of his witnesses, if we did it that way.
PN307
MR PARRY: Yes. The only thing I would raise is that, the minute one tenders something out of the first proceedings, which went for 5000 transcript pages and about four volumes of exhibits, that it almost inevitably leads to some other document. So all I can say at this stage is, when we see what is to be tendered, there might be another folder that we need to say. Hopefully not.
PN308
VICE PRESIDENT ROSS: Yes. No, that's right.
PN309
MR PARRY: But that is a reservation I made, if the Commission pleases.
PN310
VICE PRESIDENT ROSS: Is that all you wish to do at this stage?
PN311
MR DOCKING: And I think foreshadowed in our reply submissions, we think it's unnecessary and inappropriate for this Full Bench to go behind the findings, but in view of the volumes that have been put on by the other side, it is proposed to tender the volume of individual submissions on appeal, which I think, in 14 out of 16 of the former employees, deals seriatim with each of the allegations. But, having been driven to that, the primary submission is this Full Bench, due to the majority decision and Commission Hodder's decision about there being no valid conduct of capacity reason, really is not required or is unable to go behind those findings.
PN312
But it's really in response to what is being put on against the CFMEU I will tender that volume. Whilst Mr Passfield is obtaining those, there will also be tendered some extracts of minutes out of exhibit PC40 which show that Hail Creek was being discussed as long ago as 1997 and 1998 by Pacific Coal, including, amongst other things, approaching the then Premier about a matter. But I'll show those in a bundle to Mr Parry and deal with those after lunch. I can provide, in the meantime, this folder of individual submissions. These are the appeal submissions. They're nothing new.
PN313
MR PARRY: They might be new to this Bench.
PN314
VICE PRESIDENT ROSS: Sadly, that's right, Mr Parry. I'll mark those exhibit CFMEU16.
PN315
MR DOCKING: Subject to attending those matters I've foreshadowed, I'm happy to move on to cross-examining Mr Parry's witnesses.
PN316
VICE PRESIDENT ROSS: Mr Parry?
PN317
MR PARRY: If the Commission pleases, I assume the Commission doesn't want a detailed opening in this matter.
PN318
VICE PRESIDENT ROSS: That's correct.
PN319
MR PARRY: Correct. Yes, so I will proceed on that assumption. If there is nothing that the Commission wants to raise I call Paul Michael Davies.
PN320
MR PARRY: Mr Davies, what is your full name and address?---Paul Michael Davies, 17 Sir Griffith Way, Rural View.
PN321
Have you prepared a witness statement for these proceedings?---I have.
PN322
Do you have a copy of that before you?---Yes, I do.
PN323
If the Commission pleases, the Commission has given fairly stringent directions about the calling of new evidence and I propose certainly to follow that, but there are two - firstly there are some amendments to this statement that need to be made before the witness swears to it. And secondly in the most recent set of statements from Mr Mannion and a couple of other employees they make reference to not receiving replies and the process that was followed. And I propose brief evidence with regard to those matters with the leave of the Commission.
PN324
VICE PRESIDENT ROSS: No, that's fine, Mr Parry.
PN325
MR PARRY: If the Commission pleases.
PN326
Mr Davies, paragraph 28 of your statement, do you want to make an amendment to - half-way through that there's a reference to:
PN327
Managers undertook the assessment with assistance from myself, Neville Duncan, Mining Superintendent.
PN328
?---Yes, I do. Neville Duncan is the Coal Handling Preparation Plant Superintendent. In fact, the same error occurs in paragraph 30 on the fourth line.
**** PAUL MICHAEL DAVIES XN MR PARRY
PN329
Now, paragraph 58 has within it a set of dates in the second line. Do you seek to amend those?---Yes, I do. The orientation weekends were held over two separate periods of time. The first one was held on 23 and 24 November and the second one was held on 5 to 8 December.
PN330
So the references to the 7th, 8th, 10th and 11th are incorrect?---Correct.
PN331
Paragraph 63 - - -
PN332
COMMISSIONER BACON: I'm sorry, just before you leave 58, so it's 23 and 24 November and 5 and 8 December?---No, the 5th to the 8th.
PN333
To the 8th, thank you.
PN334
MR PARRY: 2002?---Correct.
PN335
Now, Mr Davies, paragraph 63 has an attachment PMD12, being a letter from the Queensland Anti-Discrimination Commission. Do you have a copy of that attached to your statement? I'm checking whether the Commission has a copy of it attached to its statement as well.
PN336
VICE PRESIDENT ROSS: Yes, I do.
PN337
MR PARRY: I think it came late. Senior Deputy President Duncan does not have that.
PN338
VICE PRESIDENT ROSS: No.
**** PAUL MICHAEL DAVIES XN MR PARRY
PN339
MR PARRY: Two out of three is not bad.
PN340
VICE PRESIDENT ROSS: Yes, I do have it.
PN341
MR PARRY: Well, we will provide a copy - perhaps I can hand up a copy now to Senior Deputy President Duncan.
PN342
Mr Davies, paragraph 68 refers to the recruiting process for 2003 and there's reference to the next recruitment drive will not be until in or about January 2004 in relation to the commissioning of the dragline. Is there other recruitment contemplated before the end of the year?---Yes, there is. That statement relates to the recruitment of operators. We will be recruiting for operator/maintainers in September this year.
PN343
Now, Mr Davies, there has been some further statements filed in these proceedings from Mr Mannion and others, but in particular Mr Mannion has put in a statement which says that he was told - it refers to the process of him putting in his application form. And he is certain that it was forwarded on Friday, 11 October 2002 and he was told by his daughter-in-law that she had faxed the form prior to lunchtime from a local business known as C.H. Auto Spares. And his daughter-in-law told him that she personally witnessed the fax go through to the point of completion. Now, have you made inquiries as to what happened with faxed applications?---Yes, I have.
PN344
And who did you make those inquiries of?---Mr Ken Taylor, one of the principals of Cadden Crowe.
PN345
What was the process followed as he related to you in respect of faxed applications?---The applications that were received - and let me deal firstly with applications that were received in time. In other words by the close date. Those applications were collected and categorised by whether they were an operator or maintainer. Where we did have - or where he had some applications which were incomplete in terms of their fax transmission they contacted that person and asked them to resend the application.
**** PAUL MICHAEL DAVIES XN MR PARRY
PN346
Now, you raised in that answer applications that were faxed within time. What about applications received after the close date on 11 October either by fax or by mail or by some other means. What was the process followed with regard to them?---Applications received after the close date were not considered as part of - in the selection process. They were stored on a separate database.
PN347
Yes. I have nothing further of Mr Davies, if the Commission pleases.
PN348
MR DOCKING: I should just note there is an objection to paragraph 51 but it just goes to weight.
PN349
VICE PRESIDENT ROSS: Just bear with me for a moment.
PN350
MR DOCKING: If - - -
PN351
VICE PRESIDENT ROSS: Just bear with me for a moment. 51?
PN352
MR DOCKING: Is the reference in the third - I should say beginning the second line:
PN353
I'm informed by Mr Ken Taylor and I believe that the following applicants were sent a letter informing them of the outcome of their applications.
PN354
The Members of the Full Bench will be aware that there's been no cross-examination of a number of the former employees providing supplementary statements who have said they have never received any such letter and, in fact, at Clermont, where they have lived for many years, they have never had any problems receiving mail in the past. So I note it as a matter of weight and it is clearly hearsay. There's no evidence here of the system of how the posting was done or the like.
**** PAUL MICHAEL DAVIES XN MR PARRY
PN355
VICE PRESIDENT ROSS: Well, I suppose it's not the only - it's not an isolated example of hearsay in the statements.
PN356
MR DOCKING: Not - in this case it's not.
PN357
VICE PRESIDENT ROSS: In all the statements.
PN358
MR DOCKING: Well, there's been no objection taken by the other side.
PN359
VICE PRESIDENT ROSS: No. Well, both parties can make submissions as to weight at the appropriate time.
PN360
MR PARRY: I think the one thing I didn't do was ask Mr Davies whether the statement was true and correct and tender it. Now, perhaps if I could have the leave to stand up and do that?
PN361
VICE PRESIDENT ROSS: Yes.
PN362
MR PARRY: Mr Davies, subject to those amendments that you've advised the Commission of is that statement true and correct?---There is one further correction that needs to be made.
PN363
Yes?---Following the receipt of Mr Barnes' most recent statement indicating that Mr Mitchelson had received a letter from Cadden Crowe dated 12 March, overnight I made contact with Mr Taylor to pursue that matter. He has this morning advised me that the separate database that he refers to, that I didn't know existed until this morning, contains 27 names. Mr Mitchelson was one of those 27 names. And so a letter was sent to him dated 12 March.
**** PAUL MICHAEL DAVIES XN MR PARRY
PN364
This is the database of late applications?---Correct. Apart from that correction it is true and correct.
PN365
Yes. I tender the statement.
PN366
VICE PRESIDENT ROSS: I will mark the statement exhibit PC1.
PN367
MR PARRY: Is the Commission going to mark the submissions?
PN368
VICE PRESIDENT ROSS: Not at this stage. I think we will deal with all the evidentiary material and then - - -
PN369
MR PARRY: If the Commission pleases.
PN370
PN371
MR DOCKING: Just to clarify, Mr Taylor is employed by who?---Mr Taylor - I'm not sure whether he's employed. He is the principal of the Brisbane activity of Cadden Crowe, who are - is the recruitment consultant we used for the purpose.
PN372
And I've been critical of you. You certainly had nothing to do with organising and personally sending out the mail?---Certainly didn't.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN373
In your statement at one stage you said that you sat through some of the proceedings before Commissioner Hodder. I think from memory that included when Dr Arnold gave evidence in cross-examination about various aspects of the performance appraisals being grossly unfair and a fundamental denial of procedural fairness, didn't it?---I was certainly here for some of Dr Arnold's evidence but not all of it.
PN374
But you heard her make those types of concessions, didn't you?---I can't recall, Mr Docking.
PN375
Is it the case that the uniform worn by persons at Hail Creek has on it - the shirt for production workers one side has Pacific Coal on it, doesn't it?---Yes, it has a Pacific Coal logo and Pacific Coal and someone's name.
PN376
And that's the standard issue for the - if I can call them production engineering employees; shirts and tops that have the Pacific Coal logo on them at Hail Creek?---Correct.
PN377
I'm wondering if you can assist. There are some minutes relied upon which originate from Blair Athol. They're the manager's minutes and they have a reference, for example, to MD Team Meeting. Can you just assist to explain what the MD refers to?---Managing director.
PN378
And that refers, does it not, to a level above say Blair Athol itself? It refers to the managing director of the Pacific Coal company, doesn't it?---It refers to the managing director of Pacific Coal, yes.
PN379
And for those minutes, which were PC40 before Commissioner Hodder, in the position you then held back in 1997 and 1998, were those minutes sent on to you?---No, they weren't.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN380
If you could just assist, can you indicate by number for present purposes, in either, if I can call it the Rio Tinto intake of 44 or the Mackay intake of 52, how many in each intake came from Clermont?---In terms of the first intake, which is the Rio Tinto intake, there were three people. In terms of the 52 people, I cannot tell you how many people came from Clermont. I don't know the answer to that question.
PN381
Well, it's more than the two Mr Barnes has referred to in his supplementary statement, isn't it?---I don't know, Mr Docking.
PN382
I actually wanted to get a breakdown for the Rio Tinto intake. Let's deal with Pacific Coal's operations. How many came from the Kestrel mine in that intake?---Without the numbers in front of me it would be difficult to be precise. I can give you an approximation only.
PN383
Well, I actually wanted to get a breakdown for Western Australia as well. Would it be over lunch possible to look at records and we could get an exact number from each of the various Rio Tinto mines or work sites where people have come from?---Yes, we can get that information.
PN384
And the same applies to how many have come from Clermont?---In terms of the second intake?
PN385
Either intake?---Yes, that's possible.
PN386
You know the position is, don't you, that neither Rio Tinto or Pacific Coal actually sent an application for employment at Hail Creek to any of the - if I can call them the former 16 employees from Blair Athol?---I know that no-one from Hail Creek did. I don't know what happened across Pacific Coal.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN387
Is it not your understanding that so far as the Rio Tinto group was concerned both in Queensland or in any other state in Australia, the employees, being production and engineering employees, were being told by way of written notification that there were positions to be applied for at Hail Creek?---There is a standard system for recruitment and that was used.
PN388
And that included what I just asked you about, did it, a note to all the Rio employees right across Australia?---No, a note goes to each business unit. It's then a matter for each business unit to distribute it in accordance with their local practice.
PN389
You certainly took no steps, did you, to make sure that an application form was sent to each of the 16 former employees, given you knew they were not allowed on site at Blair Athol?---No, I didn't give them an application form. I didn't know whether they were allowed on site or not.
PN390
Are you saying you didn't know that they were not allowed, save for the purposes of performing work of a production mining site - they were not allowed on site at Blair Athol?---I was aware that when they had been re-instated Pacific Coal or Blair Athol had said to them that they weren't required to attend for work. Beyond that I was not aware of any further restrictions on them.
PN391
If you've got your statement in front of you it might be easier to follow some of the questions. Paragraph 24, how many applications were processed, even though they didn't contain all the information required on the application form?---I wouldn't know that number, Mr Docking.
PN392
How many successful applicants in either intake had that vice, if I can call it, said to be that they didn't complete the whole application form?---I don't know that number, Mr Docking.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN393
Paragraph 28, you made that correction today about Neville Duncan being the coal handling preparation plant superintendent. The person who was the mining superintendent was Ian Thomson, appointed from Pacific Coal, wasn't it?---Correct.
PN394
Was he involved in this selection process, whether for the Rio intake or for the - if I can call it the Mackay intake, at any stage?---Yes.
PN395
So he was involved in which of the two intakes?---He was involved in both arms of the intake.
PN396
Why have you made no reference to Ian Thomson the mining superintendent being involved in paragraph 28?---Because in the early days of the Rio Tinto intake, which was the period when the 400 applications were reviewed, he was not involved in that component of the recruitment process.
PN397
When did he become involved in the Rio intake?---Precisely I couldn't give you a date. He was certainly involved by the time we got to assessment centres. He participated in those.
PN398
You can't be more definite when he became involved?---No, I can't.
PN399
And you know, don't you, from looking at the applications of the 12 that the respondents accept were received, that Mr Thomson was referred to as a referee on eight of the 12 applications?---I know he was referred to as a referee on some of them, whether it was eight or not, I can't tell you.
PN400
To your knowledge, was Mr Thomson consulted about any of the 12, including if it's eight, who listed him as a referee, being the 16 or - - -?---Not to my knowledge.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN401
Why not?---At that stage of the process we were doing a Desktop screen of the 400 applications. We didn't speak to any referees.
PN402
I'm just wondering - again, you use this expression in paragraph 31, the third-last line:
PN403
And in most cases it was not considered further -
PN404
this is about the incomplete application. How many applications were considered further where they were incomplete?---I don't know that answer, Mr Docking.
PN405
How many applications were incomplete but somebody still got picked up in either of the two intakes?---I don't know the answer to that.
PN406
In the position you occupied was there a consideration, even before either of these processes were instituted to take up people, to just employ the 16 as a starting point?---No, there wasn't.
PN407
It wasn't looked at at all, you say?---No, it wasn't.
PN408
To your knowledge?---To my knowledge it was not looked at.
PN409
But you were well aware, were you not, that Pacific Coal was trying to quash the reinstatement orders at Blair Athol?---Yes.
PN410
You were well aware, were you not, that it had been raised in the appeal proceedings there were alternative production positions at Hail Creek?---No, I wasn't aware. After I moved into my role at Hail Creek I didn't have any contact with BAC appeal proceedings.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN411
At one stage I think you indicate there were not as many applicants for the coal handling preparation plant as general - there was for mining; how many positions were there in the coal handling preparation plant?---I can't give you a precise figure.
PN412
Well, how many applications were there for that specific job in the coal handling preparation plant?---I can't give you a precise figure that I can - - -
PN413
If you look at paragraph 35, it talks about if an applicant received a no or marginal rating, then in most cases the applicant was not considered further. Who, in any of the intakes had that rating and ultimately succeeded in obtaining a position?---As part of this process we have not made individual names available to you as part of the request to provide information. That would disclose the name of an individual, and I feel not able to do that for the purposes - - -
PN414
I am asking for numbers?---In terms of numbers?
PN415
Yes, how many, that is said to have been given a no or marginal - - -
PN416
MR PARRY: You did ask - - -
PN417
MR DOCKING: I am sorry, Mr Parry said I said - to begin with I was trying to convey a number at the moment?---I don't know, Mr Docking.
PN418
Well, is it the case there are some people who got a job in either intake who originally were assessed as no or marginal?---It is possible.
PN419
Is that because some of the applicants had the good luck that people on the panel knew them, and therefore knew of their work?---Yes, in some cases, that is right.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN420
And no step was taken, was it, for the 16 former employees to make any inquiry with his referees?---No, there wasn't.
PN421
To give them that advantage of speaking to somebody who knew their work, was there?---At that time, there wasn't.
PN422
At any time, has there been?---No.
PN423
Paragraph 39, again you use - not quite halfway down - about some cases in which an application received either a no on safety, or a no on two other criteria, and proceeded to the next stage of assessment. How many, to begin with by numbers, are you talking about, so proceeded?---Again, Mr Docking, I can't give you precise numbers of who was in what category at what stage of the process.
PN424
It is the case you don't say it is incorrect to conclude that some people have either a no on safety or a no on two other criteria, but have nevertheless been picked up in either intake?---That may be possible. These were general guidelines.
PN425
When you say they were guidelines, not hard and fast rules, they were never reduced to writing anywhere, were they?---There is, as part of the material in the application forms a cover sheet which sets out these criteria.
PN426
Going to paragraph 47 - this is where you talk about for the, at least 12 applications you were aware of, that you did not take an active role. You certainly knew Mr Barnes, didn't you?---Correct.
PN427
And you knew him in his CFMEU capacity, and as a production worker for some years before you had any involvement of the type you talk about in paragraph 47?---Correct.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN428
And you did know by name some of the other people, like Mr Appleton, did you, as well?---Correct.
PN429
In fact, you would have identified all of the people in the 12 applications that were talked about as being part of the 16?---I am not sure whether I could have identified all 12, but I would certainly know a significant number of them by name.
PN430
I am not being critical for present purposes; you have looked at the submissions of the respondents that have been put in support of their case?---No, I haven't.
PN431
Well, are you aware that it is suggested that little is remembered of the rejections in any particular case?---No, I am not.
PN432
Is that your position for each of the 12 applications that were received out of the 16; that you have little memory of the discussions about them?---Correct.
PN433
Do you have any recollection about what was discussed for any of the 21, including somebody like Mr Barnes?---I didn't review Mr Barnes, Mr Docking.
PN434
I see. So which of the 16 former employees were you involved in reviewing?---Those people who are set out at paragraph 42.
PN435
Well, I think you accept you knew who Mr Appleton was, didn't you?---Correct.
PN436
Are you saying - I will use him as the example for present purposes - you can't tell the Commission anything by recollection concerning what was discussed at any stage of this process about Mr Appleton?---As an individual, no.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN437
Is it the case you can't tell the Commission anything at all for any of the people you refer to in paragraph 42?---Anything of what happened at that time, no.
PN438
And do you know one of the criticisms that has been made in the context of the unfair dismissals at Blair Athol is the absence of notes backing up someone's recollection, don't you?---Yes, I do.
PN439
And you know that was a criticism made and accepted by, I think, Deputy President Leary in the Hunter Valley 1 matter about there is just no notes?---No, I wasn't aware of that.
PN440
In any event, despite knowing that was a criticism for Blair Athol, did you take no step at all to ensure either yourself or somebody else in this selection process took a contemporaneous record to record what was considered for each of the 12 out of 16, who you say, applications had been received for?---Yes, we did.
PN441
Is the only note - and I call it the single-page sheet, which has some ticks and crosses on it?---Correct.
PN442
But that was the same sheet used for everybody, wasn't it?---That is right.
PN443
None of the other 400 were involved in any pending litigation about the security or whether they would have a job, were they?---I don't know, Mr Docking. I know those 12 were; what else was going on around the group in Australia I couldn't respond to. What we sought to do was treat everybody exactly the same.
PN444
But to the best of your knowledge, nobody else in the 400 was in the position of the 16 who had an appeal pending to determine whether their reinstatement stood?---To the best of my knowledge, that is right.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN445
And despite knowing that, you took no steps, did you, or anybody in the selection process, to make a record of what was discussed for any of the 16?---Yes, we filled out that front form.
PN446
I am sorry; apart from that sheet, there is nothing else?---No, there is not.
PN447
In your statement, paragraph 55, I think it is PMD8, you have an example of the completed form. It deals with someone who is a maintainer; you know none of the 16 applied for positions as maintainers, did they?---No.
PN448
Why haven't you produced one for a production worker, whether it be mine operator, drill and blast, or coal handling preparation plant, which are the three types of work that was actually applied for by the 16?---They will be made available as a result of the arrangements agreed this morning.
PN449
Now, in terms of the assessment centres, did you use external providers to assist in running those assessment centres?---Yes, we did, we used Cadden Crowe.
PN450
You didn't use Dr Arnold or Trish Williams, did you?---No, no, we didn't.
PN451
Dealing with the Mackay intake, which I think starts from about paragraph 59, can you indicate - and I apologise that the figures are here - how many of the 52 in the Mackay intake were employed in, if you like, the non-maintainer roles; in other words, drill blast, machinery operators, and coal handling preparation plant?---Of the 52 people in the second and third intake, they were all in operating positions.
PN452
So none of the 52 are maintainers?---Correct.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN453
I apologise if it is in here - - -?---Sorry, could I amplify that? None of them have been employed as a maintainer; some of them possess trade backgrounds.
PN454
But you know people like Mr McGuiness, one of the 16, has a trade background, and Mr Finger has a trade background; you know that, don't you?---No, I don't.
PN455
Are you able to assist, by giving us a breakdown, how many of the 52 for the Mackay intake, although not employed in a trade position, have a trade background?---The - - -
PN456
I would rather you didn't guess. Are you able to give us any proper guide, without guessing?---Yes, we could probably do that.
PN457
Is that again if you looked at the figures you could just check it that way?---Yes, I mean, it is not something along the way that we have - we have tracked.
PN458
But certainly, it was not essential, or even necessary, was it, to have a trade background to be picked up in the Mackay intake of 52?---Absolutely.
PN459
Are there quite a number who have no such trade background in that intake?---Correct.
PN460
In the 52 how many had no mining experience whatsoever, whether it be open cut, underground coal mine or some other mine in WA or - - -?---Again, I would have to check the numbers. There would be a significant number.
PN461
Who had no experience in mining of any type?---Correct.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN462
Paragraph 62; do I understand the correctly that some in one of the last cuts for the Rio Tinto intake got put into the pool for the Mackay intake as well?---Correct.
PN463
How many succeeded when they missed out on the Rio Tinto intake, got into the Mackay intake to get a job in the 52?---To the best of my knowledge, there is two.
PN464
In what positions?---Operators.
PN465
Do either of those two have trade backgrounds?---I can't confirm that. I don't think they do.
PN466
For each of those persons, without their name for present purposes, how many years mining experience did each of those people have?---I can't answer that without details.
PN467
Paragraph 66, you deal with the offers made to the 52. What step was taken to confirm to any of those persons that there is outstanding a claim by the CFMEU to have engaged at Hail Creek 16 miners who had been terminated at Blair Athol?---There wasn't.
PN468
Well, what step was taken when the exceptional matters order was filed on 7 February 2003 to tell anybody who might take up a job, "There's an outstanding claim for a recruitment procedure which would see, if it succeeded, 16 people taking some of the 52 jobs."?---Prior to employment, there wasn't.
PN469
But it was known prior to employment, wasn't it, that there was this claim there should be a recruitment procedure which, if it succeeded, would see the 16 employed?---Yes, it was.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN470
I just want to clarify, I think it's PMD1. This corporate structure; is it the case that there should be another vertical stroke going to a rectangle under Pacific Coal, and in that rectangle should be Kestrel?---Are you talking about the mine or Kestrel Coal Proprietary Limited?
PN471
Deal with either?---Kestrel Coal Proprietary Limited is a wholly owned subsidiary of Pacific Coal.
PN472
Is that the employer you say at Kestrel?---It's the employer of everybody other than the senior management team.
PN473
So there should be under Pacific Coal, as it's a wholly owned subsidiary, the Kestrel company you just referred to?---You could add that. This was prepared on the basis of showing the position of Hail Creek Coal.
PN474
VICE PRESIDENT ROSS: What's the name of that company again?---Kestrel Coal Proprietary Limited.
PN475
Thank you.
PN476
MR DOCKING: I just want to ask you - it's one of your annexures. It's PMD8. This is the maintainer application for employment example you provided. I don't think there's any pagination, so I wanted to ask you about - it's a page which states as follows, as the last sentence. It's about two-thirds of the way down. It's about what work practices - it's a little bit hard to read on mine because it's been faxed, but it talks about:
PN477
I hope to work in other teams with similar culture.
PN478
It should be, at least on my faxed copy, the fourth page if you exclude the title page for PMD8. And it's a little over halfway down, nearly two-thirds of the way down, the last sentence. It says:
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN479
I hope to work in other teams with similar culture.
PN480
?---Mm.
PN481
For the sound recorder, that was yes?---Yes, sorry.
PN482
What mine did this person come from?---I don't know.
PN483
What do you understand the culture to refer to?
PN484
MR PARRY: I'm not sure that this witness' evidence as to what is written down here - his view of it is really going to advance the position.
PN485
MR DOCKING: I won't press it.
PN486
You've just got no idea who that person is - - -?---No, I don't.
PN487
- - - or what mine they came from, have you?---No, I don't.
PN488
If you then go - I'm just wanting to clarify something. It should be the third page on from the one I just asked you about. And there's typed in, a little over halfway down, a whole lot of courses commencing with workplace trainer/assessor. Do you see what I'm referring to?---Yes, I do.
PN489
Is it your understanding all of those courses were internal courses offered by Rio Tinto to that employee?---I can't answer that. I don't know whether the individual did them of their own initiative or through work sponsored arrangements.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN490
You certainly knew, didn't you, that from March 1998 when 12 of the 16 former employees were sent to Mine Services at Blain Athol that they've been offered no ongoing training opportunities or development by Pacific Coal or Rio Tinto?---I don't - I can't recall what happened in my services. Certainly from the time they were retrenched that would be the case as I understand it.
PN491
Well, at the very least from about July 1998, didn't you raise with people, "Look, I know of the 12 that you say were received they've had no opportunity internally within Rio to be trained"?---No, I didn't.
PN492
But you knew that was factually correct, didn't you?---Yes, I did.
PN493
I just want to, then, go to PMD9. Is this the PowerPoint presentation that you were responsible for?---Yes, it is.
PN494
I'm just trying to understand your earlier evidence. The very first page; are the dates wrong where it talks about 7, 8, 11 and 12 for the assessment centre, or are they the correct dates?---No, there are two situations. This is the assessment centre date. There was then a further orientation week-end which happened on the dates that I referred to earlier.
PN495
Just bear with me for a moment. I just want to ask you about some documents before going to the PowerPoint presentation. Members of the Full Bench, there was filed and is relied upon by the CFMEU - it's a folder that has some 19 flags or dividers. It has - if one looks at - there's paginated pages in the top right hand corner. I'm told that there's at least one copy obvious. It is headed, page 1, "Evidence of the prior conduct of Pacific Coal that supports the finding of the majority of the reconstituted Full Bench". I suspect they may be blue. It's something that I should tender - - -
PN496
VICE PRESIDENT ROSS: Yes. I should make the observation that you shouldn't assume that just because you've filed something we'll have any regard to it. We'll only have regard to those exhibits which are marked.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN497
MR DOCKING: Yes. It did occur to me - - -
PN498
VICE PRESIDENT ROSS: That will avoid any - - -
PN499
MR DOCKING: - - - and it's my omission that - - -
PN500
VICE PRESIDENT ROSS: No, no. I wasn't raising it as a criticism. It's just to clear up any misunderstanding. Unless it's marked as an exhibit, we won't be looking at it. So if you want us to look at something, other than decisions that you've referred to obviously - and we'll come to your submissions in due course.
PN501
MR DOCKING: I should for caution, then, tender and have marked this folder that - the style is it sets out for each divider the majority's findings. Usually there's a reference to an exhibit or transcript or, as I've said in the reply, it's - - -
PN502
VICE PRESIDENT ROSS: Yes, and you've got the - - -
PN503
MR DOCKING: - - - clear what - - -
PN504
VICE PRESIDENT ROSS: - - - material behind it. Yes.
PN505
MR DOCKING: It's clear what they referred to.
PN506
VICE PRESIDENT ROSS: Yes. So that would be exhibit CFMEU17?
EXHIBIT #CFMEU17 FOLDER RELATING TO EVIDENCE OF PRIOR CONDUCT OF PACIFIC COAL
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN507
MR DOCKING: I've got a clean copy I can show Mr Davies, if that can be handed to him.
PN508
Have you had a chance to look at this folder?---No.
PN509
All right. Well, I'll take you to - - -
PN510
VICE PRESIDENT ROSS: Just have a quick flip over it now if you like and - - -
PN511
MR DOCKING: There's fortunately specific pages I'll take you to?---Okay.
PN512
And there's some stamping in the top right hand corner. Page 48 - just tell me when you've turned up page 48, then I'll further identify what I want to ask you about?---Yes.
PN513
Do you see that something that's part of, you can assume, was called the productivity improvement plan for Blair Athol Coal, 1997 - - -?---Correct.
PN514
Can you make that assumption? Now, this is a plan that you would have seen in your role; is it not?---I may well have, Mr Docking. I don't have a - I don't have a recollection of this page.
PN515
Well, just go back to page 41 - that's the title page. And then just look, without reading it out, what appears on page 42. It has the contents - to see if that will refresh your memory?---It would have been - as I said, I may well have seen it. I don't have a recollection of it.
PN516
Well, let's go back to page 48. There's the first action and the person with responsibility and resources, PD - that's you, isn't it?---Yes, I think it is.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN517
And I think you get a mention as well - pagination, page 54. For action 6, there's four sets of initials listed. Your the third, PD - that's you, isn't it?---I don't have any pages between 51 and 55.
PN518
Is that the same for the members of the Full Bench?
PN519
VICE PRESIDENT ROSS: No. I have a full set this time.
PN520
MR DOCKING: Perhaps if I can approach Mr Davies with my page 54 to show him? What I'm asking you about is action 6, "Develop model certified agreement and new minimalist award based on 1 to 4 above" and the PD referred to is the third set of initials under "Responsibility and Resources". That's you, isn't it?---Yes, it is.
PN521
RA is Russell Allen, partner of Pacific Coal, isn't it?---Partner of Freehills.
PN522
That's right. I make that mistake - very Freudian. I should say - - -
PN523
COMMISSIONER BACON: How could you forget, Mr Docking?
PN524
MR DOCKING: - - - Freehills.
PN525
VICE PRESIDENT ROSS: You might want to give Mr Allen the good news, Mr Parry.
PN526
MR DOCKING: It's just they seem to merge. TW would be - is it Mr Willett?---Winnett, Trevor Winnett.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN527
And his role, you understood?---At that stage, he was the - the title might be wrong, but he was the employee relations superintendent at Blair Athol.
PN528
PMc is Paul McCrea, isn't it?---Correct.
PN529
And whilst looking at that page, do you see what's marked with the heavy black line as actions 9, 10 and 11 and, in particular, do you see that part of improving labour supply was listed as non-union labour?---Yes, I do.
PN530
And you were aware this was part of the productivity improvement plan back in 1997 for Blair Athol, weren't you?---Well, it's in this document. No, I didn't know it was there.
PN531
You certainly knew, didn't you, that given - you accept your role was, don't you, to develop a model certified agreement and a new minimalist award?---Yes, I do.
PN532
And that's been your ongoing role, has it, across a number of Pacific Coal mines?---No, it hasn't. The - this was specifically directed to the situation at Blair Athol in seeking to have a site-based award and a certified agreement.
PN533
But you're saying that you've got no recollection of this document, aren't you?---What I'm saying is, I have no recollection of seeing this particular document. I'm not saying I haven't seen it. I have quite clear recollections as to what that task was.
PN534
Well, let's have a look at - I think it's page 59, using the pagination, and it's got in black marking, exhibit CFMEU63. Do you have that page?---59? Yes, I do.
PN535
And I'll just draw your attention to what's down at sub-point (iii). Can you read that to yourself and when you've done it, confirm that included union membership reduced to 30 per cent?---Yes.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN536
And you know, don't you, given your involvement with Pacific Coal back in 1997 that that was one of the targets or goals - that Pacific Coal was to have union membership reduced at Blair Athol?---I was aware that there was certainly a view at Blair Athol to review - to remove or to reduce the extent of unnecessary influence on the way the business operated.
PN537
Are you saying that you've never seen a copy of what I've just taken you to which included membership reduced to 30 per cent dealing with union membership?---I cannot recall ever seeing this document before.
PN538
Quite separately from seeing this document, you knew within Pacific Coal there was a move for Blair Athol to reduce union membership?---No. I knew that within Pacific Coal there was a concern to ensure that the business could operate effectively and efficiently and that part of that was to remove some of the influence that the union was having at that time.
PN539
When you talk about influence - I'll just take you back to the productivity improvement plan and see if you agree this is the sort of influence that was sought to be removed. Paginated page 50. Have you turned up that page?---Yes.
PN540
And do you see it's the first heavy marking in black, "Agreements that support union activity will be removed." That was part of the strategy to your knowledge, wasn't it?---Yes, it was.
PN541
And you see the next marking that appeared that was sought to be removed by Pacific Coal was, "Practices that restrict contractors, temporaries will be removed"?---Correct.
PN542
And you know, don't you, that the clause 20 agreement that actually had provisions dealing with use of contractors at Blair Athol, didn't you?---Contractors, yes.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN543
And you understood, didn't you, that Pacific Coal was trying to remove the sort of certified agreement obligation dealing with contractors?---No. Pacific Coal was trying to get to a situation where it could use contractors or temporaries as were needed by the business. To do that, they had to reach agreement given that it was part of what was the arrangements that were in place on that side at that time.
PN544
Because you know part of that arrangement was some provisions in the certified agreement dealing with the use of contractors?---Restricted use, yes.
PN545
And in your position you would never have condoned, would you, people being marked down in performance appraisals for having views which were consistent with what was in the certified agreement on things like contractors or quarantining of skills?---Consistent with the agreement? No, I wouldn't.
PN546
And if someone had of come to you, do you say you cannot use that as part of the reason to give someone a lower rating in a performance appraisal?---If they were acting in accordance with the procedures that were in place on that site, yes.
PN547
And if they had of come to you and said, "We're actually going to use that as part of the reasons to justify that individual's termination", you would have said, "Stop, you cannot do it", wouldn't you?---Marking somebody down? Yes.
PN548
I'm now asking you; including it as part of the reasons for terminating their employment, you would have said, would you, "Stop, you can't do it"?---No, I wouldn't.
PN549
So you would have permitted - if you had of been informed - employees being terminated where part of the reason was they wanted to stick to the certified agreement?---No. What I'm saying is that when you get to the point where you're reducing the number of people in the organisation, what you're looking to do is to maintain the best people in the organisation, and that's a comparative process. You have to make judgments to do that.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN550
So you're saying your advice would have been in a comparative judgment; if somebody wanted to stick to the certified agreement, that was okay to use it as part of terminating them?---If - I would - I have never been in a situation where someone has put something as bald as that to me, Mr Docking.
PN551
So are you saying you were not consulted about using those types of reasons to justify the termination of any of the 16 former employees at Blair Athol?---Correct.
PN552
Assuming you were consulted, would you have stopped it?---I would have asked to understand the total reasons why that person was being nominated for retrenchment.
PN553
And even if it was only part of those total reasons, would you have stopped it being used as part of the reason?---I would have said that if someone was doing that as a reason for termination only, then it was not appropriate.
PN554
If it was part of the reasons for termination, would you have said that was inappropriate for Pacific Coal to use it as part of the reasons?---Yes.
PN555
And you know that's what happened, don't you?---No, I don't.
PN556
All right. Just to confirm the sorts of restrictions you say that Pacific Coal at Blair Athol wanted to remove, go to the productivity improvement plan, paginated page 55. Again there's a series of bold dark markings. Tell me when you've read them to yourself?---Yes.
PN557
And they're the sorts of restrictions you referred to earlier: those which are marked on paginated page 55 that Pacific Coal wanted to remove at Blair Athol?---These were the type of improvements that Pacific Coal wanted to have available to it in its business.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN558
Therefore wanted to remove them?---Yes.
PN559
And you've become aware, haven't you - let us use Mr Appleton as an example, that part of his PER and therefore part of his retrenchment reasons was that he claimed sick leave under the award. You've been made aware of that?---No, I haven't.
PN560
Well, that's an example, isn't it: if someone had of consulted you, you would have stopped them and said, "You cannot use it as even part of the reasons to terminate him"?---If someone had asked me whether Mr Appleton should be retrenched because he'd claimed sick leave, the answer was "yes". I would seek to know more information about what the entire circumstance. As I said earlier, you don't take retrenchment decisions on one sentence. You take them on an overall assessment of individuals and their performance.
PN561
So are you saying you would have permitted the employer at Pacific Coal using the employee claiming his or her entitlement for sick leave under a certified agreement, you would have permitted that to be used as part of the termination reasons?---I didn't say that, Mr Docking.
PN562
Well, you'd never allow that, would you?---If that was the - if that was the sole basis upon which someone was being terminated, no, I wouldn't.
PN563
Just address my question. Would you have permitted it if it was only part of the reasons?---The answer to that would be, I would need to know all of the reasons, Mr Docking.
PN564
Well, are you saying you understood the culture was at Pacific Coal - Mr Appleton had had I think 113 days of sick leave left in his bank, he claimed a number of days of sick leave in a PER. The culture was that could be used in his PER to mark him down?---That's what you're putting to me, Mr Docking, I don't know that.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN565
Well, your knowledge of the culture - that's an expression I see in a lot of these documents - at the time in Pacific Coal for Blair Athol, was that accepted as being a justification to mark someone down in a PER?---The decisions that were being taken on PERs were a site by site basis. And it was a matter for site management to determine how they rated people in PER situations.
PN566
I accept you've distanced yourself by not being consulted. But if someone had of come to you, you'd never have let that be used as part of the reasons, would you?---No. Again, Mr Docking, if someone had of said that to me, I would want more information before I would take a decision as to whether the answer to that was "yes" or "no".
PN567
All right. I just then want to take you to paginated page 67. It's part of exhibit PC40 being the General Manager Team Meeting Minutes for Blair Athol Coal. Do you see again there's the heavy marked - - -?---Sorry. What page was that, Mr - - -
PN568
Page 67?---Yes.
PN569
You can read it yourself what is marked under the heading, AWAs Action by Paul McCrea, and tell me - for under the heading Minutes - when you've read that part?---Yes.
PN570
And was it reported to you that the CFMEU at Blair Athol had lost 52 per cent of their members by 10 February 1998?---Precisely that number? I can't - I don't have a recollection of that report, Mr Docking.
PN571
Is that the type of report you received, the percentage reduction in union members and the position you then held with Pacific Coal?---From time to time, I received reports from our pay-roll system as to the number of people who were having pay-roll deductions taken out of their pay-roll.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN572
And you know, don't you, that Blair Athol Pacific Coal had a target of reducing CFMEU membership in this 1997 and 1998 period?---No, I don't.
PN573
I'll take you to paginated page 61. Tell me when you turn up that page and whilst you are looking for it, you know Mr Yeates. He's now the manager of Pacific Coal's mine at Tarong, isn't he?---Yes, he is.
PN574
I want to ask you about - he was asked at line 8:
PN575
Well, there was a target of reducing the CFMEU membership, wasn't there?---Yes.
PN576
In other words, reducing the influence of the union at Blair Athol Coal project, wasn't it?---Less union members, yes.
PN577
Do you see what I'm referring to?---Yes, I do.
PN578
You know the culture at the time for Pacific Coal is what is reflected in those two answers given by Mr Yeates, don't you?---My understanding of the approach that was being adopted at that time was to reduce union influence in the way work was done as distinct from union membership.
PN579
Are you denying that was your understanding of the culture as admitted to unequivocally by Mr Yeates?---Yes.
PN580
All right. I then want to go to your PowerPoint presentation that I'd begun to ask you about.
PN581
VICE PRESIDENT ROSS: Is this a convenient time, Mr Docking, or - - -
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN582
MR DOCKING: Certainly, your Honour, the Vice-President.
PN583
VICE PRESIDENT ROSS: We'll adjourn until 2 pm.
LUNCHEON ADJOURNMENT [12.48pm]
RESUMED [2.05pm]
PN584
VICE PRESIDENT ROSS: Yes.
PN585
MR DOCKING: Thank you, members of the Commission.
PN586
Before the luncheon adjournment you confirmed that at the time of the consideration of these applications for positions at Hail Creek you well knew Mr Appleton. You also at that time knew the name Robert Smith, didn't you?---I knew the name, yes.
PN587
Is it the case for all of the 12 you refer to in paragraph 42, you knew that they were part of the 16 employees waiting the result of the appeal to the Full Bench?---Yes.
PN588
Going to that topic, you were going to kindly check some numbers over lunch. The numbers from Clermont in the Rio intake, was it only three?---Yes, it was.
PN589
For the Mackay intake, how many from Clermont?---Four.
PN590
Also you were going to look at how many from the Rio intake were from Western Australia and which mines?---In terms of Argyle there were seven people in total. In terms of the Comalco group of companies there were seven in total.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN591
Which mines would that encompass?---It would encompass Weipa and it would also encompass the Boyne smelter.
PN592
If you could continue with the Western Australian - - -?---Only Western Australia, okay. In terms of the Hamersley group, there is 14. In terms of Robe there is four, and that covers off the Western Australian companies.
PN593
Is there any from Ranger in the Northern Territory?---Yes, there is.
PN594
How many?---In terms of Ranger there is three.
PN595
Going now to Queensland, which mine and what numbers, apart from I think we've got the three from Blair Athol already?---There are four, sorry, three from Kestrel.
PN596
And apart from the ones at Weipa and Blair Athol, that's it for Queensland?---Yes.
PN597
What about in the intake, the Mackay intake included some who missed out on the Rio intake. Did the numbers you just give include - - -?---No, they don't.
PN598
Well, for the Mackay intake, whether it be Western Australia or Queensland, how have you got it summarised - how many and which mine?---My understanding is - my recollection, and I didn't check this over lunch. My recollection is there is only two, and I wouldn't like to say what mine they're from.
PN599
In terms of the Mackay intake how many had no mining experience? Did you have a chance to look at that?---There were - I'll give you the figure the other way around, Mr Docking. There are 29 that have previous mining experience.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN600
And in terms of - one might have had a couple of months' mining experience, did you have a chance to look at - - -?---Not in the time.
PN601
All right. Members of the Commission, this might be subject to an objection, so I foreshadow it now. What I did want to do is show the folder of applications in relation to the Mackay intake and our best reconciling is there's some confidence that two of the applications can be related to the people Mr Barnes identified. I raise it now. I'm not sure - I'm sure there will be an objection but I'm not sure if the Commission will uphold that objection, that I show the applications and ask is that the application of either of the two people identified by Mr Barnes.
PN602
MR PARRY: We do object. I mean, this is the sort of exercise that brings unpleasantness into these things. We provided these documents without the names and addresses, obviously for the purpose of disguising these documents that were provided to us in confidence. That leads to an exercise where they're dissected over and names are attempted to be put to them, which really puts to nought the effort of blacking out names. Now, we continue our opposition. These applications have been provided to us in confidence. People have given the information and made the applications. I maintain the objection.
PN603
MR DOCKING: Can I indicate I don't propose to mention their name on the record. I can do it by showing the witness the paragraph of Mr Barnes' statement and ask is that the application for that named person. That's my approach to these matters.
PN604
VICE PRESIDENT ROSS: Does that change your objection, Mr Parry?
PN605
MR PARRY: Well, we're really just moving closer to - I understand the position that's put. I understand the transcript won't have any names attached to it.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN606
VICE PRESIDENT ROSS: We can also isolate the transcript in that it won't be - that part of it wouldn't be publicly available.
PN607
MR PARRY: We should clear the courtroom then perhaps.
PN608
VICE PRESIDENT ROSS: We could do that.
PN609
MR PARRY: Well, if the names aren't going to be used, well, we can proceed on, but I maintain the objection.
PN610
MR DOCKING: The only other matter, before the Full Bench rules, I should foreshadow also I wanted to have identified the two other Clermont applications other than the two Mr Barnes named. So there's two separate matters.
PN611
VICE PRESIDENT ROSS: But you don't want the names of the two other Clermont, you just want the applications identified?
PN612
MR DOCKING: I'm happy in that last category if we could do it that way.
PN613
VICE PRESIDENT ROSS: Yes. We're upholding the objection, Mr Docking.
PN614
MR DOCKING: If it pleases the Commission.
PN615
If I can return to your statement, Mr Davies, you're well aware, aren't you, when discussing the certified agreement, what's set out is we want to focus on our direct relationship?---Sorry, this is the Hail Creek certified agreement?
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN616
Yes, your PowerPoint presentation, which is part of, I think, PMD10?---Yes.
PN617
And you know, don't you, it also says:
PN618
The CA provides a fire wall to protect our arrangements from external intervention.
PN619
You're familiar with where it makes that representation?---Yes.
PN620
That reference to external intervention includes, doesn't it, a reference to the CFMEU?---It includes anything that would impact on the way that we wanted to establish the operation at Hail Creek and at the end of the day we looked at a range of opportunities and saw the certified agreement with employees as the best way forward.
PN621
Perhaps just answer my question. That reference to, "provides a fire wall to protect our arrangements from external intervention," includes the CFMEU as a source of external intervention, doesn't it?---Yes.
PN622
In includes the Australian Industrial Relations Commission, doesn't it?---That is too broad because the agreement - the process that we put in place specifically has as a fundamental tenet the Australian Industrial Relations Commission playing a role.
PN623
It excludes wanting the Australian Industrial Relations Commission involved in disputes, does it?---No, it doesn't.
PN624
Well, who else apart from the CFMEU is specifically intended to be meant by the external intervention?---It's not only bodies, Mr Docking. It was meant to cover a range of things that would impact on the way we wanted to do work and that may well be award provisions that didn't suit the type of rosters or arrangements we wanted to put in as an example.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN625
What other body or organisation does it refer to apart from the CFMEU?---It doesn't specifically refer to anybody. Any - - -
PN626
Meant to include. What other body or organisation apart from the CFMEU?---Any body, any organisation that would impact the arrangements and working arrangements that we had with our employees.
PN627
Do you see there's the reference on that page to fire wall. Can you just explain that? That's your expression, is it?---Yes, it's my - I can take the credit or otherwise for it.
PN628
What, at that place, did you mean by a fire wall? What's a fire wall?---What I was trying to do was look for something that could explain the approach that we wanted to adopt, and it seemed to me that looking at fire walls in computers was a suitability analogy, in that what you weren't doing was saying, "We wanted to close out everything on the outside." There were certainly things that you were more than happy in the outside world to come into Hail Creek. What we wanted to do was to be selective as to what came in and what didn't.
PN629
And you want to be selective to exclude the CFMEU, don't you?---We want to have a direct relationship with our employees. We would prefer to do that without union interference.
PN630
So is the answer yes?---Yes.
PN631
And do you see you then have the reference to CEA, meaning certified agreement also acts as a safety net for employees?---Yes, I do.
PN632
Do you see what I'm referring to?---Mm.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN633
Is this not the similar or same exercise you were involved in back in 1997; develop model certified agreement and new minimalist award. Isn't this a continuation of that work?---No, it's not. It's very different to the work we were doing in 1997.
PN634
Is it the case that it's proposed to have the certified agreement, but on top of that or in addition there would be staff contracts offering further pay and conditions?---Correct.
PN635
In other words, like at Blair Athol, where higher pay was paid to people who signed the AWA in, for example, performance pay for doing their PERs. It was paid on top of or in addition to the certified agreement?---Sorry, Mr Docking, you'll have to repeat your question. I lost what you were asking me halfway through.
PN636
I'll rephrase it. Can you tell us the types of pay and conditions which it is intended will be paid or met on top of a safety net certified agreement?---There could be a variety of situations. At Hail Creek we have a common salary system applying to all of our employees. That gives them a base salary. We also have or are also putting in place a re-earnable bonus.
PN637
A what bonus?---A re-earnable bonus.
PN638
And the things on top of base pay including the re-earnable bonus, are they to be subject to the staff contract but not the certified agreement?---The only thing which is outside of the certified agreement in terms of structure is the re-earnable bonus.
PN639
And the amounts of money there will be in a range of what?---The arrangement for the next salary review is an amount of five per cent - up to five per cent. That sets the pool.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN640
In dollar terms? For an individual what would that mean?---Well, that - - -
PN641
In a range. I appreciate it could vary?---That would depend how they perform. The base rate is $50,000. And is it 5 per cent of 50,000?---Correct.
PN642
And you say base rate. What's the higher rate to which 5 per cent could be applied?---5 per cent will be applied to that rate. There are other things in the salary package that go on top of their base salary. For example, a roster allowance.
PN643
You know, don't you, at Blair Athol back in 1997 and 1998 those persons who chose to sign an AWA were paid extra pay by way of performance pay for doing performance effectiveness reviews?---My understanding was that that eventuated, but that offer was made to all employees.
PN644
You're not suggesting that these 16 former employees were ever offered in 1997 and 1998 under the certified agreement performance pay if they did their PERs, are you?---No, and I'm not suggesting that happened to people who accepted an AWA. What I'm saying is that the AWA included performance based increases. There was also in a certified agreement that was offered to employees outside of AWAs at Blair Athol at the same time performance based increases.
PN645
Members of the Commission, the four folders which have been provided; it's just not been possible for Mr Passfield or myself to responsibly consume those. I've finished the cross-examination subject to looking at those folders. It is going to take some time to go through them, so I may need to cross-examine further.
PN646
VICE PRESIDENT ROSS: Yes. Do you want to cross-examine the other three witnesses?
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN647
MR DOCKING: That's certainly what I've suggested to Mr Parry. I'm not - - -
PN648
VICE PRESIDENT ROSS: No, no, no. I appreciate you want to interpose it, but do you have any idea as to how long you're likely to take with the other three?
PN649
MR DOCKING: I think Mr Coughlan - - -
PN650
VICE PRESIDENT ROSS: I know this is always a dangerous questions, but nevertheless - - -
PN651
MR DOCKING: It is. Not as long as Mr Davies for Mr Coughlan, and the other two then a smaller time. So it might mean I could do all the cross-examination of the others but not fully take up today until I've read the document.
PN652
VICE PRESIDENT ROSS: Yes. Mr Parry, what would you prefer to do? Re-examine on what's been so far and if it's necessary recall Mr Davies?
PN653
MR PARRY: I would prefer - Mr Davies; I've spoken to him about this. He'll be here tomorrow. So - Mr Coughlan has rather more onerous - that's a bit unfair to Mr Davies, perhaps - responsibilities. I'd prefer to get on to Mr Coughlan, if that were suitable to the Commission.
PN654
VICE PRESIDENT ROSS: All right. So you don't want to do any re-examination at this stage or wait until the cross is finished and then you can re-examine tomorrow.
PN655
MR PARRY: If that's satisfactory to the Commission.
**** PAUL MICHAEL DAVIES XXN MR DOCKING
PN656
VICE PRESIDENT ROSS: All right. Thank you. Mr Davies, you can stand down for the moment.
PN657
COMMISSIONER BACON: Mr Docking, can I just ask a question about some of the questions you asked Mr Davies? Your constant reference to a certified agreement; is that a reference to the document that can be found at tab 1 of exhibit CFMEU17?
PN658
MR DOCKING: So far as what applied at Blair Athol, yes.
PN659
COMMISSIONER BACON: Yes.
PN660
MR DOCKING: The last questions I was asking him about were the PowerPoint presentation where it's suggested - - -
PN661
COMMISSIONER BACON: Yes, I understand that, but you referred to the certified agreement at Blair Athol.
PN662
MR DOCKING: It is. And also included - - -
PN663
COMMISSIONER BACON: But it wasn't a certified agreement. Is that correct?
PN664
MR DOCKING: It was done under Clause 20 of the General Industry Award and when - as I understand it, the Coal Industry Tribunal under transitional provisions became part of the Commission, it became an award of the Commission from that time.
PN665
COMMISSIONER BACON: And do you say that it continued in operation, what, indefinitely?
PN666
MR DOCKING: Yes, and no one has suggested otherwise, until, as Mr Barnes in his more recent statement, has included an extract for the replacement certified agreement. But it certainly - once it became an award of the Commission it went beyond its two year term, and as I understand it, it's never been suggested that it was simplified or, as the union might say, stripped of what was in it.
PN667
COMMISSIONER BACON: I'm just not sure I agree with that. I think there are decisions of the Federal Court that might come against you on the point.
PN668
MR DOCKING: It certainly hasn't been raised by if I can call it the employer's side previously, and I'm not immediately sure I know which Federal Court judgment, Commissioner, you're referring to.
PN669
COMMISSIONER BACON: I'm not sure I do off the top of my head either at the moment. I do recall there were two matters I referred to the Federal Court where I was asked to set aside such a document and I asked the parties whether it was necessary to do that because they were to be for a specific term and that date had passed and therefore by the fluxion of time the agreement had come to an end even though the parties had continued to treat the agreement as though it continued in force. And I was requested, and did, refer the matter to the Court and it's my recollection that they found that there was no instrument to set aside.
PN670
MR DOCKING: I'm not being unhelpful. I'm just not sure what case that is.
PN671
COMMISSIONER BACON: No, I'm not either, but I - - -
PN672
VICE PRESIDENT ROSS: Mr Docking, on a related issue, you mentioned that the Clause 20 agreements became awards as a consequence of the WROLA Act provisions, and that they hadn't been simplified. I don't know whether they've been simplified or not, but at the end of the interim period, any provision that wasn't allowable would have ceased to have effect.
PN673
MR DOCKING: Yes.
PN674
VICE PRESIDENT ROSS: Yes. So they've been altered, perhaps not on their face, but their legal effect. Would that be fair enough?
PN675
MR DOCKING: My recollection is a bit dim for when those provisions came into place. I'm not being deliberately unhelpful because - - -
PN676
VICE PRESIDENT ROSS: No, no, no. I'm trying to put award simplification out of my mind too, but - - -
PN677
MR DOCKING: Fortunately I in my role didn't have to deal with it much or if at all.
PN678
VICE PRESIDENT ROSS: Well, it may be something that this issue of the - I appreciate that it's not been raised by the respondent, but it seems to relate at least in part to your argument about the information of some of its terms into the individual employment contract of these employees may be - I know there are a number of limbs to that argument, but to consider that it may require us to form a view about the legal status of that document - of the instrument, rather.
PN679
MR DOCKING: I'm not suggesting what's behind flag one was incorporated. The argument is that it was 1982 and, for example, 1988 awards of the Coal Industry Tribunal, the example of which I will tender when I flag - there's a miscellaneous group. It's never been suggested that incorporated in the relevant contracts of employment was the agreement behind flag one. That's not the argument. But certainly, Commissioner Bacon, if we can assist by looking at that Federal Court judgment it's something that obviously would be taken up.
PN680
COMMISSIONER BACON: I will see if I can get a reference for you at some stage, Mr Docking.
PN681
VICE PRESIDENT ROSS: Next witness?
PN682
MR DOCKING: I will let Mr Parry - - -
PN683
MR PARRY: A judgment of Branson J in New South Wales.
PN684
COMMISSIONER BACON: I think there was two. There was one involving the CFMEU in the Hunter Valley. I just can't remember which mine which was referred to me and referred on to the Court, from memory. And then there was, I think, one in Queensland involving the ACSA and BHP, but that's again a bit hazy in my memory.
PN685
MR PARRY: I'm not going to assist your haziness. Subject to the Commission, I will call the next witness. I call John Coughlan.
PN686
MR PARRY: Mr Coughlan, what is your full name and address?---My full name is John Fawkes Coughlan and my address is 11 Steinberg Court, Mackay.
PN687
Have you prepared a witness statement to these proceedings, Mr Coughlan?---Yes, I have.
PN688
Do you have a copy of that before you?---No, I don't.
PN689
No, you don't. Perhaps I will just provide a document. Now, you've been handed a document, Mr Coughlan. Is that a copy of your witness statement?---Yes, that's a copy.
PN690
Now, in paragraph 3 there's a reference to the period you were general - subject to the leave of the Commission there's a correction, I'm sorry.
PN691
VICE PRESIDENT ROSS: No, no, that's fine.
PN692
MR PARRY: If the Commission pleases.
PN693
There's a reference to time you spent as - in respect to General Manager, Hong Kong for Brandrill Pty Ltd. Are those dates there correct?---No, they're not. They should read 1994 to 1995.
PN694
Now, subject to that correction are the contents of that witness statement true and correct?---Yes, that's right. Correct.
PN695
Yes, I tender that statement.
**** JOHN FAWKES COUGHLAN XN MR PARRY
PN696
PN697
MR PARRY: That's the evidence of Mr Coughlan, if the Commission pleases.
PN698
VICE PRESIDENT ROSS: Thank you, Mr Parry. Yes, Mr Docking.
PN699
MR DOCKING: Do you still have a copy in front of you of the statement which is exhibit PC2?---I do.
PN700
Could you look at paragraph 19, the last sentence. It says:
PN701
I cannot now specifically recall the assessment of the above applications.
PN702
Do you see what I'm referring to?---Yes, I can see what you're referring to.
PN703
That means you, at the time of making your statement, couldn't specifically recall the assessment of any of the people listed as dot points in paragraph 16?---That's right. Not specifically, no.
PN704
Well, since you haven't been able to recall specifically, "I had this application in front of me. This is what was discussed and these were the comments made at the time"?---I've - I've seen the applications again since.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN705
Are you saying you now have a specific recollection of dealing with any, and if so name them, of the people listed in paragraph 16?---No, what I'm saying is I've seen the applications since the time I first saw them.
PN706
I'm talking about you remembering specifically going through this exercise of assessing them. Do you have an independent recollection?---Correct.
PN707
For any of the named people in your paragraph 16 and tell me which ones? At the time you were going through the applications can you now specifically recall doing that?---At the time - having seen them again I would recall Mr Barnes'.
PN708
Anybody else apart from Mr Barnes?---No.
PN709
Now, you recall Mr Barnes - who was present when you were assessing it?---I would have to check that.
PN710
What are you checking to work that out?---There was a - when we did the assessing we initialled some of the assessment forms with both myself and the person who was there while I was assessing, who was making the notes while we were doing the assessment.
PN711
Are you talking about the one page sheet with some boxes "yes" and "no"? It's got initials "JFC" and "16/10", is that you?---That would be the sheet I'm talking about.
PN712
"ND 16/10"; who is that?---Can I just find the - - -
PN713
Well, I can't give you a number because they are not paginated?--- - - - sheet that we're talking about. No, that's okay. I'll just - won't be a second.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN714
I can assist you to say it's part of JC1?---I'm just trying to find the specific sheet that we're talking about here.
PN715
I don't know if this helps, it's that far into my JC1. I'm holding up vertically how many pages?---Okay, yes. I've found it.
PN716
See, I had suggested to you it was "ND 16/10", who is that?---Yes, "ND". I'd - I believe that would be Neville Duncan.
PN717
And the writing on Gary Barnes while you're looking at it, there's - someone has written "No drill". And I'm not sure of the next - - - ?---Yes, that would - that would be Neville Duncan's writing. That's not my writing.
PN718
All that writing apart from "JFC" and "16/10" below your initials - is the rest the other person's?---No, no, it would all be the other person's. None of that is my writing.
PN719
I think you're saying by looking at this document it helps you remember - is it Neville Duncan was there when Mr Barnes was assessed? Is that what you're saying?---Well, no, I'm saying that the initials "ND" would stand for Neville Duncan, who was in the process while we were doing the assessing.
PN720
Well, you said you could remember now doing Mr Barnes' application. Who was present when it was being assessed?---According to the initials on the sheet Neville Duncan was present while it was being assessed.
PN721
Without looking at the initials on the sheet you haven't got a clue who was there when Mr Barnes' application was discussed, have you?---At the time of discussion it could have been one of three people. When you say specifically remember the application I can specifically remember the application as it was one of only a couple that had been typed. There weren't - we didn't - when we were going through the whole process not a lot of applications had been typed.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN722
So it showed some care and desire for the job by being typed, did it?---Well, it showed that he had had access to an electronic copy of the application form, which could have been obtained from the - from the consultants or where the source of the application forms were coming from. Applications could have been submitted either handwritten or they could have been downloaded electronically from the web-site and then submitted in typed form.
PN723
In any event, now, just turn your mind to - I want you to tell the Commission and Mr Parry and myself and the others who was present when Mr Barnes' application was discussed? Yourself as one party to the discussions? Or you don't have a clue. Is that the position?---I would have - no, I can't, specifically remember who was present at that - at that time. Mr Barnes had applied for - - -
PN724
I think three of the four options. Everything apart from the maintainer. That's what he'd applied for to help you?---Yes. That's right. He'd applied for three roles and he'd applied - - -
PN725
You're just taking a long time. What else are you looking or - - - ?---Yes. I was just - - -
PN726
- - - thinking about?---Well, the sheet indicates two initials on there. The - it's likely that the Neville Duncan assessment took place at a different time.
PN727
So how many assessments - I appreciate - you're saying you don't specifically recall any assessment for Mr Barnes; that's right?---I don't specifically recall the - the people there with the assessment, and I recall that - no. As I said, I recall the application form, having seen it again.
PN728
Looking at the assessment form which is headed "Proceed to Next Stage" - just so we're looking at the same form - you're saying you can tell this has been subject to more than one assessment, aren't you?---Yes. I believe that would be the case. Yes.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN729
And I appreciate you're looking at a form to reconstruct that, so to speak. How many assessments, by looking at the form, are you saying this has been subject to?---I would suggest it's been subject to two assessments.
PN730
Why is that?---Because the assessments for the drill and blast roles and the assessment for the mining operator roles were being done by a different group than the assessments for the CHPP roles because they - - -
PN731
Who do you say for that first group, was it drill and blast mine operators, did those assessment? Who did those?---I did those.
PN732
And who did the coal handling preparing plant assessments?---That would have been Neville Duncan and - - -
PN733
Can you help? You must have been present for the first assessment you just talked about. Can you tell us what was said by whom when this application was looked at?---No. I can't - I can't remember that.
PN734
But the applications were discussed in that way, weren't they, with the people you were doing the assessments with?---No, not necessarily. They - there were - there were 200 applicants for mining roles and we were making an appraisal that was taking a couple of minutes at the time because if we'd - to do the 200 and spend an extended amount of time on them, we'd have been in the session for a couple - for a number of days to get that done. So we had - I was assessing and I had a scribe who was making the notes as I was making that appraisal.
PN735
What, a scribe making notes on that single page headed "Proceed to Next Stage"?---Yes.
PN736
But you, apart from your initials, don't have any notes on that page. Isn't that right, and - your initials and your date?---The initials and the date.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN737
So you didn't have any scribe in relation to Mr Barnes noting anything, did you, for the assessment you performed for drill and blast and the machine operators?---Well, the scribe hasn't - the scribe hasn't noted, after items 1 and 2.
PN738
I thought you said all the writing is that of - is it Neville Duncan - apart from your initials JFC and your date, 16/10?---That's what I would have first thought. However, now that - well, now that we've discerned that there are - that there have been two assessments on this application form, the - I can't say that all the writing on that sheet is Neville Duncan's.
PN739
Well, if you had a scribe was it the same person who did all the writing for you?---No. There were a couple of scribes.
PN740
But you saw a lot of their handwriting if they made notes, each of those people, didn't you?---I would have seen a lot of their handwriting.
PN741
And none of that handwriting is theirs. What you said first is right. It's Neville Duncan's?---I think if you have a look, you could find that the JFC and the 16/10 and the ND and the 16/10 are written by different styles of handwriting.
PN742
But I thought JFC 16/10, that's you, you're writing that?---No. That's not my writing.
PN743
I see. So are you saying JFC 16/10 is your scribe's writing, if I can call that person as a scribe?---A scribe. Yes. For lack of a better word, that would be the scribe's writing.
PN744
But isn't it the position what you first said, apart from JFC 16/10, all the rest of the writing is Neville Duncan's?---Well, I can't say that for sure.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN745
You can't say one way or the other now?---I can't say that that is all Neville Duncan's writing.
PN746
In any event, you say the system is about two minutes per application in the process you said you were part of; that's right?---I - it would have been two to three minutes, to get through the number we did in the timeframe we had.
PN747
Didn't Neville Duncan start at the same time as Ian Thomson?---I don't know the answer to that.
PN748
Ian Thomson, you know, is the mining superintendent at Hail Creek Coal?---That's right. I know who Ian Thomson is.
PN749
You know Ian Thomson came from Blair Athol?---I know that Ian Thomson came from Blair Athol.
PN750
Well, why wasn't Ian Thomson involved in this assessment involving somebody like Mr Barnes who even listed Ian Thomson as his first referee?---I'd suggest Mr Thomson wasn't available on that day.
PN751
What day do you say Mr Barnes's application was assessment for two or three minutes?---I can't tell. I haven't got - I haven't got that information here.
PN752
In any event, you knew Mr Barnes was a CFMEU lodge official from Blair Athol at the time you looked at the application?---No. I knew that Mr Barnes had been a CFMEU lodge official - CFMEU lodge official in 1997.
PN753
And you knew that at the time that you looked at his application, didn't you?---Yes. I knew that at the time.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN754
Who told you that?---I knew - - -
PN755
It's not on his application?---I knew Mr Barnes as the CFMEU representative when I worked at - did some work for Blair Athol Coal in 1997.
PN756
You say at near the beginning of your statement, paragraph 2, you've worked on various mining projects and, relevantly, included Blair Athol in Clermont. That's what you refer to?---That's correct.
PN757
What years did you work there?---I worked at Blair Athol in 1997.
PN758
For how long?---From late in February to the end of August.
PN759
Of 1997?---1997.
PN760
Did you work there against at all?---No.
PN761
So you already knew that Mr Barnes was a very active CFMEU Lodge official at Blair Athol as a result of your work at Blair Athol, didn't you?---I knew that Mr Barnes was an active union official at that time, that is correct.
PN762
What position were you holding, for the months you described in 1997, at Blair Athol?---I was a project manager for Henry Walker Contracting.
PN763
And did you also deal with, at all, Mr Mannion, who was a shift delegate in the coal handling preparation plant at that time?---No, I have no recollection of dealing with Mr Mannion. I - I don't recall that, no.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN764
In the project manager role you said you performed, what area of the mine were you working in?---We were on a section called the north-east expansion, so it wasn't in the mine, it was on the north-eastern perimeter of the mining lease.
PN765
Who else, apart from Mr Barnes, for the 16 former employees at Blair Athol, did you meet during that time, at Blair Athol?---I didn't - I haven't met any of them.
PN766
Just clarifying; you have still got that procedure next stage sheet dealing with Mr Barnes, do you see someone has ticked no open-cut experience for Mr Barnes?---Correct.
PN767
That is just simply incorrect, is it not, given he had worked as a production employee, including open-cut examiner, shot-firer, and production worker?---Yes, yes, that would be incorrect.
PN768
Are you responsible for putting something that is so blatantly untrue, a tick in no for no open-cut experience?---There is a - yes, there is a tick in the no open-cut experience.
PN769
I am sorry?---There is a tick there, but I haven't placed that tick.
PN770
You accept it took me about 10 seconds looking at the form to realise it was untrue. A reasonable person coming in would pick that up in about 10 seconds, wouldn't they? I only had to get to the second page to read production employee, open-cut examiner, shot-firer, coal plant operator, and production worker; that is right?---Yes, that information is in the application form.
PN771
So it would take about 10 seconds, wouldn't it, for a reasonable person to go to page 2 and realise the tick-sheet is incorrect, wouldn't it?---It would not take long.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN772
About 10 seconds?---It wouldn't take a very long period of time.
PN773
You are not disagreeing with 10 seconds, are you?---It would be a period of time of that quantum, I would imagine.
PN774
And the same applies; it would be able 10 seconds to realise the handwritten tick in the no box for coal handling preparation plant was wrong, wouldn't it, given he wrote on page 2 "coal plant operator" by way of having it typed in?---Yes, he has included coal plant operator in there.
PN775
When is it the first time that you had realised that both on the tick-sheet, those answers were false? Is it just when I have asked you in the witness-box; was that the first time?
PN776
MR PARRY: I don't think that is his evidence. I think the evidence was about the tick in the CHPP box, the box above that, he has just been given evidence.
PN777
MR DOCKING: Well, I will clarify it.
PN778
Do you see someone has written a handwritten box with no at the end of the line "open-cut experience"; do you see what I am referring to?---Correct.
PN779
And do you see someone has then drawn, at about a 45 degree angle going from right to left, an arrow pointing to the circled CHPP box?---Yes, there is an arrow there, yes.
PN780
And the way you understand these forms are read is that someone has answered no for coal handling preparation plant experience; is that right?---Well, there is a no and a "Y" there, or a - no, sorry, there is an "N" above a "Y".
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN781
Isn't it a tick in the handwritten rectangle with an "N" which means no. I am just trying to understand your form?---Yes, okay. Yes, well, it could be a tick, but it could be a partially drawn square with a "Y" in it, an the "N" above the comment.
PN782
How do you read it?---That is what I - yes, well, I first read it as a partially drawn box with a "Y" in it, but looking again at it, it can be a fully drawn box with a tick in it.
PN783
In any event let's limit it then - it will serve the same purpose - is it the first time, when I have asked you in the witness-box, that you realise the tick for no for open-cut experience was incorrect in relation to Mr Barnes?---Yes, it is.
PN784
And you spent some time, I imagine, being quite careful in the answers - I should say - the evidence you gave in your statement about these application forms; is that right?---I had some time available to me while we did this exercise. I wouldn't say it was some time; I would say maybe an hour.
PN785
To do your statement that is tendered as the last exhibit, you had an hour to do it; that is what I am presently asking you about, so you are not confused?---That is correct.
PN786
And you know, don't you, by looking at Mr Barnes' application form he indicated for shot-firing, page 4 of the application, that he had 15 years experience in shot-firing?---On page 4, yes, that is - - -
PN787
Can you go back to the tick-sheet and can you see opposite typed words and number 3 Relevance of Experience, someone has ticked no, and then written "no shot-firing"?---No, that is incorrect, they have written no drilling.
PN788
I am sorry, I have been trying to skim the forms; I have ended up on Mr Betteridge?---No, sure, we all find ourselves with pressing time.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN789
And in any event, have you ever worked as a shot-firer yourself?---I have had limited exposure to shot-firing, yes.
PN790
What is limited exposure?---I had to do a period of six months for - to qualify for my manager's certificate.
PN791
Is it not your experience that shot-firing and drilling go hand in hand?---No, I - - -
PN792
In terms of skills?---No, it is not - not my experience. I haven't - I haven't drilled a hole myself, yet I have done six months of shot-firing, and I have tended to find that highly competent drillers may not always be shot-firers, and the best shot-firers may not be good drillers. I don't see that they go hand in hand as skills.
PN793
But in terms of Mr Barnes' experience, did you go to Mr Thomson, the mining superintendent now at Hail Creek, from Blair Athol and check - look for his shot-firing; did you have any drilling experience?---No, I didn't, not at that time.
PN794
At any time did you make inquiries with Mr Thomson in relation to Mr Barnes?---No, I didn't. I proceeded through the - through the assessment process with the applications, and - and moved forward from there. So I never went to Mr Thomson about Mr Barnes.
PN795
Did you make any inquiries with any previous or existing Pacific Coal supervisors, superintendents, or managers about any of these 16 former employees, when you were going through this assessment process?---Well, no, I didn't. I went through the process, I - if I had had made a gross error with anybody, I imagine somebody would have pointed that out, but - - -
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN796
Well, who else was going to look at the forms for that purpose, given you looked at them, you think, based upon your system's knowledge that it was two- or three minutes; who else would pick it up?---Well, nobody else would pick it up from this.
PN797
And you use the expression a gross error, it was a gross error, was it not, to put no opposite Mr Barnes in relation to open-cut experience?---That is an error, yes.
PN798
A gross error; you agree, don't you, using your own expression?---I agree that is an error.
PN799
Is the answer yes, you agree it is a gross error?---All right, yes, that is a gross error.
PN800
Let's pick up another gross error. Paragraph 38, you say that Mr Barnes' application illustrates a person with truck-driving and dozing skills; do you recall that is what you put in paragraph 38?---That's correct.
PN801
That ignores, by gross admission and error, does it not, his 15 years as a shot firer?---Yes, it does.
PN802
You certainly didn't yourself, or cause anybody else to go and check with Mr Barnes what drilling experience he might or might not have had?---No, I didn't.
PN803
I appreciate your pages aren't marked. Have you still got that ticked sheet from Mr Barnes? I want to ask you about something in his application. It's the page numbered 5 where he typed in under the second rectangle dealing with qualification, trade certificate, he lists a series of TAFE or mine site courses from 1987 to 1998, 1988 and 2000. Do you see what I'm referring to?---Yes, I can see that.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN804
And in terms of interest in health and safety, obtaining things like your OHS certificate from TAFE in 1998 shows a particular interest in safety that goes beyond many production and engineering employees, doesn't it?---Yes, it shows he's put some time into obtaining that qualification.
PN805
And you see in 2000 he's even gone and got training and assessment certificates in office administration. It certainly shows someone developing their skills, doesn't it?---It shows he's obtained these skills, yes.
PN806
How many other applicants had the advantage of those sort of extra certificates and qualifications when you looked at the application forms, have you got any idea?---I can't answer that now.
PN807
I'll just have to ask you some questions about all the applications. If you look at Todd Rodgers, and he's dealt with in paragraph 22 of your statement, and then in paragraph 23 you suggest there's a page missing. Now, if you go to - if we deal with them in order this time - JC1, you'll see Mr Rodgers is the first application form behind JC1?---That's right, Todd Rodgers.
PN808
There's only six pages in the application, is there not? Because the point I'm making, it's another gross error, is it not, to suggest he has a missing page because all six pages are there?---I think what that statement would refer to is that page 5 has nothing filled out on it.
PN809
Well, that's another gross error, where for year 9 or below there's a cross in the very first box in the left-hand corner. It's a gross error for you to suggest nothing is filled out on that page, isn't it?---Yes, there's a cross on that box.
PN810
And let's go back to what you purported to tell this Commission, paragraph 23, second sentence, you said:
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN811
There is a page missing of the application.
PN812
Any reasonable person would read that as one of the six pages was missing, wouldn't they?---Yes, when it says there's a page missing.
PN813
And that's another gross error, is it not, in your statement, to suggest there's a page missing when you yourself attached as the first application in JC1 all six pages?---I guess you're referring to the physical compiling of this document as it was submitted?
PN814
It was a gross error, wasn't it, on your behalf to make that suggestion that there's a page missing when you yourself attached all six pages in JC1?---Well, it would appear that page 6, that there isn't a page missing.
PN815
So it was a gross error for you to say a page was missing, wasn't it?---It would be an error to say there was a page missing.
PN816
Is the answer yes to my question?---To say that there was a page missing and the page is there, yes, that would be an error.
PN817
If I can then move to Mr Cusack, I think is he one of two people you say who got put on a marginal sticker?---Yes, I've indicated that in paragraph 20.
PN818
And reading his application, it indicates, does it not, that he worked - and this is page 2 - at South Blackwater from 1972 to 1988, some 16 years, as an operator?---Yes, that's what it says.
PN819
And if you look - whilst you're looking at part of JC1, do you see page 4 he wrote, top right-hand corner:
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN820
Have operated all these machines from 1972 till current.
PN821
Do you see that's what was written?---That's right. Yes, he's written that.
PN822
And do you see it then even goes and helps you from hydraulic excavators down he indicates yes to a number of items and two noes, doesn't he, for details of experience?---That's right. No on drills, no on shot firer.
PN823
And yes on loaders, hydraulic excavators, haul trucks, scrapers, dozers, graders, forklifts. That's right?---That's right.
PN824
Well, it was another gross error in paragraph 26 for you to suggest:
PN825
Insofar as the applicant's experience is concerned he has not listed any particular items of equipment. The response given simply reads dragline, dozer etcetera.
PN826
It's a gross error, because you just have to turn from page 2 to page 4 to see that he's operated all the things I asked you about from 1972 till current?---Well, no, that's not a gross error because he hasn't listed any of the makes or the models of the equipment that most of - that he had spent time on.
PN827
I'm not as familiar as you with the information documents. Where was that requested, to put the makes and models in?---Well, it asks you for details of experience.
PN828
No, answer my question. Does it say put the makes and models in?---No, it doesn't say put the makes and models in but it says details of experience.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN829
Now, somebody indicating to you that they've operated all the machines to which a yes answer appears from 1972 until current does give 30 years' experience, it certainly gives you an idea of what coalmining work they've been performing for 30 years, doesn't it?---Well, it doesn't list any of the equipment types, makes or models that he's been on. At the time we were assessing these, the other applicants that we were assessing against had listed, for example, an ONK RH200 excavator or a Terex 4400 dump truck which enabled us to see whether the experience that they were proffering was relevant to the experience we were looking at - were looking for.
PN830
But someone working in the mining industry - if you said, "I've driven all these items of equipment for the last 30 years" you'd obviously understand they've gone through whatever technological changes and new types of equipment that existed over that period. That would be your understanding?---No, it wouldn't necessarily be my understanding.
PN831
In any event, what inquiries did you make with Blair Athol to get the computer list of skills that Blair Athol retained for each of these 16 employees?---At the time, I made no inquiry to do that.
PN832
But you knew it was available if you wanted it - that sort of information, didn't you?---If I'd asked for it, I believe they'd have made that information available.
PN833
If I can then go to Mr Smith - he is dealt with in your statement next. Can you just go to - it's page number 5. And can you confirm that opposite Year 10, he's put a cross, indicating the highest level of secondary education attained?---Yes, he's put a cross in that.
PN834
It was incorrect for you to suggest in paragraph 31 that he failed to fill in the last page of the application and left it blank, wasn't it? I'm assuming page 5 is - - -?---Well, the - - -
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN835
- - - what you mean by the last page?---The copy I'm looking at here has half the page missing.
PN836
Well, now that you've seen the tick, it was incorrect to suggest he hadn't filled in the last page - or I should say it's a cross for Year 10; that's right?---Given that there's a cross in the Year 10.
PN837
That's the last page to which you referred in your statement, wasn't it - because all page 6 required was a signature and date?---That's correct.
PN838
All right. Turning to Mr Lindley, you suggest he didn't provide any indication of the years of experience in which he had been operating heavy machinery as required by page 4. What he did indicate to you, was it not, was his years of experience on page 2 at three different coal mines for different facets of mining?---Yes. Mr Lindley's filled out page 2 with information about where he's worked and a general description of the work that he undertook while he was working there.
PN839
Did you have many people like Mr Lindley applying from Rio - that his experience went all the way back to 1972 in an underground mine. He was involved even then raising and lowering mine workers and then he's progressed to South Blackwater operating drag line and other equipment and then went to Blair Athol and did production and overburden work. Were there many applicants with that breadth of experience at three mine sites, both underground and open cut?---I've - I - I've - given that breadth of experience - I can't recall which of the other 200 applicants would have - would have had that experience or more or less.
PN840
Pretty exceptional to have that breadth of experience across both open cut and underground in so many different areas, wasn't it, for Mr Lindley?---Mr Lindley's worked in three places in a - in a career - in his mining.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN841
So it was pretty exceptional, was it not?---You're asking me if it's exceptional that Mr Lindley's worked in three mines?
PN842
With the breadth of experience shown both in open cut and underground that he recorded in the page I just asked you about?---That he's worked underground and open cut? Well, I think without a review of the other applicants, I'd - to use the word "exceptional" I'd - I wouldn't use the word "exceptional".
PN843
You haven't got a clue, have you, because you can't tell us if anyone else had that breadth of experience at so many mines across that range of equipment?---I can't tell you whether it's exceptional that Mr Lindley's got that breadth of experience.
PN844
Going to Mr Appleton, because we've dealt - I'm sorry. I should do Mr Betteridge. Paragraph 35 of your statement - you say:
PN845
His application is not as extensive as some of the other applications.
PN846
Can you tell us how many other applications are you saying you refer to as "some" of the other - - -?---No. I can't tell you how many that is.
PN847
And I take it that Mr Betteridge's application was more extensive than some of the employees of Rio Tinto who actually were offered jobs in this first recruitment of about 44; is that right?---I couldn't tell you that at this time.
PN848
How many people with mines rescue experience were recruited in the first intake, given Mr Betteridge had mines rescue experience and training?---I couldn't tell you that at this time.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN849
That's highly valued, is it not, as a skill - to have somebody who's active in mines rescue?---It's a - it's a skill that can - that people can be trained in to perform mines rescue work in a mine.
PN850
Can you just then go to Mr Appleton? You suggested in paragraph 42 he failed to complete the back page of the application. Consistent with what you said before, that's page 5. Have a look at page 5 and confirm that Mr Appleton did, in fact, complete page 5 by ticking Year 10 as his highest level of secondary education?---I think it's interesting to note - yes, Mr Appleton has ticked Year 10.
PN851
So it was a gross error for you to suggest in paragraph 42 he failed to complete the back page of the application, wasn't it?---No. He's failed to complete fully, I guess, the - - -
PN852
So what you said was - - -?---The gross error - - -
PN853
- - - incorrect, wasn't it?--- - - - and fully isn't incorrect.
PN854
But, in any event, I'm not being derisive in any way of the optional questions, but the traditional owner and the next question were optional, were they not - on what's the last page, as you call it, number 5?---Yes. They were - they were optional. That's what it says there.
PN855
And working up, I suppose, if you haven't completed any recent work related professional courses, there's nothing to insert, is there? That's the predicament you faced?---Based on - well, I guess that's how you determine recent.
PN856
So if you've done none, you don't have to complete it because you can't have anything. Is that right?---If you haven't done any recently.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN857
You wouldn't expect them to put an answer in; that's correct, is it not?---I would have been looking for answers, yes.
PN858
In any event, were you told at the time that these 16 employees had not been working at Blair Athol since about July 1998, and therefore Blair Athol had not offered them any work related professional, technical or occupational courses?---No, I wasn't aware that they were not working at the mine at that time.
PN859
And you were not aware that therefore they had not been offered any courses by Pacific Coal since that time?---No, I wasn't aware that they hadn't been offered any courses if they weren't working at the mine.
PN860
And it would be a great advantage, would it not, if you were employed at a Rio Tinto mine recently and you were being offered through work; professional, technical or occupational courses so far as completing this application is concerned?---Well, if "recent" was - meant two years then there's an advantage. If "recent" meant five years then - if "recent" meant 10 years - - -
PN861
Well, your - - -?---We're dealing with the word "recent".
PN862
You don't know what "recent" meant and you assessed the applications; is that what you're saying?---I would have regarded "recent" in a two or three year time frame when I was assessing these applications.
PN863
What was the guideline? Was there any?---I don't - there wasn't a specific guideline for "recent".
PN864
If you can look at Mr Appleton's tick or cross sheet or the "proceed to next stage", was it your scribe who has completed this sheet?---Sorry, I've just lost Mr Appleton's - - -
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN865
I don't know if you've got a post-it or something, and it might be worthwhile placing it as you go?---Okay. Thanks. Mr E. Appleton, is that who are we looking at?
PN866
Yes. I'm just wanting to check was it your scribe who completed that sheet?---That's - yes, that's not my writing.
PN867
Sorry?---Yes. It would have been the scribe; it's not my writing.
PN868
And do you see that "yes" had been ticked and then it got changed to "no"? Well, I assume that's the logic?---Yes, it has been.
PN869
So someone at one stage - was it you - had said, "Yes, proceed to the next stage" for Mr Appleton and then changed his mind?---Not necessarily. The scribe may have put a mark in the wrong box.
PN870
But there's only one "no" cross, so I thought that meant Mr Appleton should have gone to the next stage, isn't that right?---There's only one "no" crossed but there isn't further - there's only one "no" crossed.
PN871
So that means the general system that was intended to apply should have meant Mr Appleton went to the next stage, doesn't it?---The general guideline. Well, we've got a "no" there but we've got no - as far as item 7, the safety, as far as the others, there's no indication of whether they are a "yes" or "no" on this form.
PN872
Well, you've got no recollection now of dealing with Mr Appleton's form, have you? Like all the others, you just haven't got a clue?---No, I don't - I don't recall dealing with Mr Appleton's application at that time.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN873
And appreciating we're now having to read a form that somebody else filled in, the absence of any markings other than "no", one reads it that he met all of the other selection criteria apart from number 5, Qualifications Beyond Trade Base, don't you?---Oh, in the absence of a "yes" or "no" now and all those others, I don't remember what was discussed at the time.
PN874
But one option is because only the "no" box was ticked, under the general system that was intended to apply, Mr Appleton should have gone to the next stage?---Because with only one "no" under the general system.
PN875
He should have gone to the next stage?---He might have gone to the next stage.
PN876
And you're not suggesting that for all 44 or so Rio Tinto persons taken up in this intake that they all needed to have trade qualifications or qualifications beyond a trade base, are you?---No, I'm not suggesting that.
PN877
Because some people were employed in this intake who had - this is the 44 from Rio - who had no trade qualification?---No, these people were being - that's right - there were being employed to be equipment operators so there wasn't a requirement for a trade qualification there.
PN878
And it applied even more so, didn't it, to the Mackay intake that a successful applicant to be in the 52, did not need to have a trade qualification or qualifications beyond the trade base?---Yes, that's correct, but this form was put together doing the - yes - maintainer roles and doing the CHPP roles in the one session. So that's why it's - - -
PN879
Then turning to Mr - - - ?--- - - - I included it on there.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN880
- - - Albert you say he provided no detail on the back page of his application. You can assume that Mr Barnes attached as part of GB26, Mr Albert's six pages of the application, and you can further assume that Mr Albert ticked year 10 and wrote "1980" opposite "year completed". Is it the case that you just have not included by omission page 5 for Mr Albert unless my photocopying - - - ?---Can you repeat the question? Can you repeat that question? Sorry.
PN881
Yes, it's page 5 there in your version of JC1 for Mr Albert. It could just be a photocopying error in what has been given to me?---Yes, page 5 is there again.
PN882
I see. So even in your copy, he's put a cross for year 10 and written "1980" for education and qualifications, hasn't he?---He's put a cross on 19 - he's put a cross in year 10 and he has, he's put 1980.
PN883
Another gross error, is it not, for you to suggest, "No detail provided on the back page to the application in paragraph 45 of your statement"?---I don't believe it is a gross error. I believe it's - there's - what we're looking at is that some detail has been provided.
PN884
Let us look at the different expressions you use in paragraph 47. You talk about, "Mr Finger provided minimum details on the back sheet", don't you?---Yes, that's what I've said. "Minimum detail on the back sheet".
PN885
So within your own statement a number of times you've asserted, "No detail provided on the back page to the application" as opposed to "Minimum detail". So when you referred to "No detail", you mean to convey that nothing had been filled at all, didn't you?---No, because Mr Finger has indicated that he's got a trade certificate as a panel beater.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN886
No. I'm saying - put aside Mr Finger - we're going to deal with him in a little detail now. But before doing so, where you previously have referred to somebody had no detail on the back page, you were intending to say they hadn't provided any information whatsoever on that back page, didn't you?---When I've said no detail - when I've said no detail, I've used the term more loosely than - in my statement than I would have intended. What I was - what I was looking for here - -
PN887
No details means - I'm sorry?---What I was looking for here when I was going through these was some indication of courses and some indication of training that people might have been through.
PN888
SENIOR DEPUTY PRESIDENT DUNCAN: But if they hadn't had any, how could they anything there?---Well, at the time I didn't - I had no idea that these people were not - were not employed. They were applications. We'd put out an advertisement from within Rio Tinto to - from people currently employed for an internal transfer and these applications were part of that lot.
PN889
But how can their employment or otherwise have anything to do with qualifications, or the absence thereof?---Because what we were looking for was - what we were looking for was where people had - there's a number of ways now you can formalise your skills as a plant operator in terms of mining certificates, either through the West Australian - the Mines Department have a process over there, all part of the national competency framework, which is a training - is a recognition of training for operators in the mining industry.
PN890
That's as may be, but if people don't have them, they can't put them in It seems to me that many of these documents are fully completed on the back page, in the sense that the only thing they could say was the year they finished school and the number of - the year at school they attained. If they weren't a traditional owner, etcetera, they couldn't put anything there. If they hadn't done any recent works, completed work related professional, technical or occupational courses, you couldn't put anything there. And if you had no other education, which was qualifications, including trade qualifications or certificates, you couldn't put anything there to complete page 5?---If you didn't have those - - -
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN891
If you didn't have those?---If you didn't have that information, you couldn't put it there.
PN892
MR DOCKING: The expression "no more detail" means nothing was written at all, doesn't it, in the way you used it in your statement?---Yes. The way I've used it in the statement indicates no detail.
PN893
Let's then deal with Mr Finger. You recall that paragraph 49, you assert Mr Finger does not list his previous qualification. That's another gross error, is it not, because Mr Finger, on page 5, includes, "Panel beater, Trade Cert, Dept of Education, Qld, 1979"?---Yes, he does. He lists that.
PN894
And it's further emphasised what a gross error it is. If you look at page 2, it confirms it's a gross error because he's recorded for previous employment, "March 1997 to 11.8.1985, GR Motors, Panelbeater". It confirms that's a gross error, doesn't it?---Yes. He wouldn't need a trade to be a panelbeater.
PN895
And probably - I'll just finish with Mr McGuiness. Paragraph 56, you talk about Mr McGuiness's experiences not as comprehensive and diverse as some of the other applications that have - had been received. Your reference to "as some", how many are you talking about there?---Well, in the first intake, "some" would be a lot.
PN896
Well, how many are you talking about?---Well, I can't answer that at this stage.
PN897
And let's see, for Mr McGuiness's sheet, do you see opposite 5, is it your scribe who's written "No quals" - q-u-a-l-s - "provided"? Is it your scribe who finished that entry?---Yes. It is.
PN898
That means no qualifications provided is what Mr McGuiness was assessed on for qualifications beyond trade base?---Well, it could have been qualifications beyond trade base. It could have been other mining type qualifications that would have been available to him while he was working.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN899
Well, you can see Mr McGuiness's form makes it clear that he was a tradesman boilermaker from doing his apprenticeship in 1971, got his certificate in 1995 and worked in his trade till 1979. You understand that's the case from reading his completed answers?---No. All I'd read - - -
PN900
I'll deal with it in parts to help?---Yes.
PN901
I was trying to wrap it all up. Page 2, do you see he has written, "Apprentice tradesman with Crighton" - C-r-i-g-h-t-o-n - "Fabrications". He's then written "welding" - - - ?---Yes, from '71 to '79. Correct.
PN902
What was intended to be conveyed that Mr McGuiness required when it wrote, "No quals provided" meaning no qualifications provided, given he's clearly set out, both on page 2 and page 5, his qualifications as a tradesman boilermaker?---Well, it does ask to specify, including trade qualifications.
PN903
But it was another gross - - - ?---Certificates successfully attained, so that could mean mining qualifications that he would have attained during his time in mining, in addition to his previous qualification as a boilermaker.
PN904
So it was a gross error for anyone to write "No quals provided" given twice he referred to the fact he was a boilermaker, both as an apprentice and tradesman, wasn't it?---In the context of trade qualifications.
PN905
It was a gross error, wasn't it?---Well, the question asked for qualifications beyond trade based.
PN906
Nobody bothered ticking "yes" or "no". They put "No quals provided" so it means that was a gross representation, wasn't it?---Well, Mr McGuiness provided a trade as a qualification.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN907
So is the answer "yes"?---Item 5 on the "Proceed to Next Stage" refers to qualifications beyond trade base. "No quals provided" is probably incorrect, because he has provided a qualification there, but beyond that there are no - there are no further mining type qualifications beyond that.
PN908
And the first time you realised that it was incorrect to suggest "No quals provided" because he was a boilermaker was when I've ask you today, was it?---Yes, it is, in that context.
PN909
Going back to your statement then, none of these 16 were included in the pool of people who were considered for the Mackay intake which ultimately resulted in 52 people getting jobs, were they?---No, they weren't.
PN910
In fact, none of the internals - the internal transfers that we looked at were proceeded any further unless there had been a case - a case put for them.
PN911
I will deal with it in parts. Did any of the internal applicants in the Rio Tinto applications proceed further in the Mackay intake?---Yes, there are - there was. There's a couple in the last intake.
PN912
And did they get jobs?---They were made - they were put through to the next stage in the process and there's been - some of them have been successful.
PN913
How many? I don't want their names for the moment. We're just dealing with the number?---Just - - -
PN914
And if you could say which mine they came from?---Just off the top of my head I think there's two. And I think they would have come from Argyle - Argyle diamond mine in WA.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN915
Just going back to paragraph 13 of your statement, about the third line, you talk about:
PN916
I considered that it did not meet the criteria and in most cases it was set aside.
PN917
The reference to "most cases", does that allow that some people that you considered that didn't meet the criteria still went on to be considered?---No. There were not - no, there weren't any from this assessment who - who were - when we came away from this assessment there weren't any that were subsequently reintroduced, I don't believe.
PN918
I'm trying to understand. You're suggesting it's in most cases it was set aside and not considered further. You didn't say in all cases. Doesn't that mean some were considered further and went to the next step of the process; your choice of most?---All it means is that it wasn't considered further. That doesn't mean it was progressed.
PN919
You talk about then in the last sentence:
PN920
In some instances where the application, my own knowledge of the person or a recommendation of the applicant suggested that the applicant otherwise appeared to be of a higher calibre further information was sought.
PN921
Are you meaning to suggest that even if an application was incomplete in the circumstances I just referred to in your statement follow-up information was obtained for some people?---Yes, that may have been the case. I'm just trying to think of a particular instance that might apply to.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN922
Is it the position you can't remember now how many you referred to in that part of your statement?---Yes, I can't remember how many there were but - I mean, everybody on their applications listed a reference and if - I would have thought it quite likely that in the event that somebody hadn't been included to go forward from this process then their reference, particularly where it was an internal person, an internal - Pacific Coal or internal, then would have made some noise about why the person wasn't progressed, on the basis that they were going to be the reference for that person. And, of course, having discussed that the applicant was going for a job and was dead keen to get a job at Hail Creek then I wouldn't have thought those references, particularly internal, would have let it rest.
PN923
So that's consistent - I think you've said things like "to be taken further in the Rio Tinto intake and also to be taken further in the Mackay intake you needed someone to take your case up for you and suggest you should be further progressed". That is what you've been saying?---I mean - I mean - well, we had to - we had to have a series of names. We were - we were filling a process. We were - and given that we had to assess all the applications and we didn't have all the time in the world to do it then - then internally I wouldn't have thought it unreasonable that somebody had been missed and that someone else who was the reference or was - had been listed in one of these boxes on the front, the likes of - particularly the likes of Ian Thomson or - who subsequently ended up working for us - wouldn't have said, "Hey, what are you doing? Why haven't you included this person?"
PN924
And I think you've already accepted you never went to Ian Thomson and checked for any of these former employees at Blair Athol even though, I think, it's eight listed Ian Thomson as a referee. You never bothered checking with him, did you?---I - no, I didn't check with Ian. I - I - quite reasonably I thought if they had listed him as a reference then he would have made it known to me that he was a bit unhappy that somebody who really might have wanted to be part of his team hadn't been included. So I never went to any of the references and I wasn't - and none of the references came back to me and said - - -
PN925
And you never checked with Ian Thomson to go through all the Blair Athol applications to see if he wanted to take their case up, did you?---No, I didn't check with Ian to do that.
**** JOHN FAWKES COUGHLAN XXN MR DOCKING
PN926
And you knew, didn't you, on 12 December 2002 that the Full Bench had quashed the reinstatement orders for the Blair Athol employees? You heard about that at Hail Creek, didn't you?---On 12 December?
PN927
On that day or soon after?---Well, if it was that day or if it was around that time then there was knowledge of that - of the result of that hearing was around, yes.
PN928
And you knew Mr Barnes was involved in that hearing as one of the applicants, didn't you?---No, not specifically. I didn't.
PN929
And you took no step, did you, after that hearing was handed down or Pacific Coal took no step to reconsider any of the 16 in the Mackay intake?---No, we didn't take any consideration to - no, we didn't.
PN930
I have no further questions. There may be some of the documents that we rely upon but they will probably speak for themselves. I will deal with it through Mr Davies. I appreciate the witness, I think, wants to get away.
PN931
VICE PRESIDENT ROSS: Mr Parry?
PN932
PN933
MR PARRY: Mr Coughlan, you've been taken through a number of forms and you've been taken to one, a couple of pages of them, and you've been asked questions about the comments that you've included in here in paragraphs 22 to 57, I think. We've gone back and looked at these forms again. You've said the process of the assessment of each took two to three minutes. Could you describe to the Commission that process? What occurred in that two to three minutes?---Okay. We'd take the application form and really just spend two or
**** JOHN FAWKES COUGHLAN RXN MR PARRY
three minutes looking at it and assessing the content of the application in terms of knowledge that it gave us about the individual, how they were applying for the job. We'd look at the answers they gave to questions and the intention of a number of the questions was to try and get specific examples from the candidates, so we'd be looking for that.
PN934
Why specific examples? Why were they important?---Well, with regard to the question about safety it's where a person can give a specific example of a - I guess of an initiative or a - or a project or something a bit extra that they might have done as opposed to the norm of - or as opposed to the minimum standard really, which is to just adhere to procedures, which is pretty much everybody's obligation when working in a mining operation as part of the duty of care.
PN935
And in answer to a question about listing equipment models, you spoke of particular types of excavators and other equipment. Why was specific experience important to you in making this assessment?---We had ordered a specific fleet of equipment. It consisted of two O and K RH170 backhoe excavators and eight Terex MT4400 dump trucks, some Caterpillar D11 dozers and grader and some drills. The issue with skills was trying to get people that had been familiar on that specific type of equipment, particularly the excavators and the trucks, because to start the job, to start the mine, we were looking to be able to acquire those skills as readily as we could in order to minimise the competency assessment process that needs to be undergone for somebody to be competent in working in a coal operation.
PN936
SENIOR DEPUTY PRESIDENT DUNCAN: These weren't the equipment that in other places it was said that no experience was necessary?---Yes, this was the first intake we're talking about here.
PN937
Who might be trainers?---And specifically the first intake was looking for skill because as subsequently intakes were going to be less skilled, we had to have a core of knowledge. I mean, we had a look at different ways of doing this and due to the fact that the initial work is also part of the project critical path, it did mean that we didn't have an extended period to get the mine ramped up to an acceptable level of production. So the specific requirement with the first intake was to get us a skilled intake of about a quarter of the total intake from within
**** JOHN FAWKES COUGHLAN RXN MR PARRY
the Rio Tinto Australia mines so that we could expedite the competency assessment process. I'm not sure if you're familiar with that. There are three stages. You either have the skill on that specific type of equipment and then you can go to a new mine and you undergo a process called recognition of prior learning and that might involve a challenge test on that equipment and then you can be passed out and assessed as competent. If you have been on a similar category of machinery but you haven't had experience on that specific make and model, then you would need to undergo some, what we would call OEM, original equipment manufacture familiarisation and you'd spend a period of familiarising, do a theory exam, and then subject to a challenge test or a test to pass you out. So that takes a longer period for a person to become competent in that respect. If you don't have experience on that category of equipment or that specific model then it becomes a full training exercise to get the person equipped with the skill. The thing we were looking at in that first intake was to minimise the time that we could get a core of people up and operating.
PN938
MR PARRY: Why was the time important, as you said in answer to one of the questions. You said time was limited or words to that effect?---Time for the recruitment process or time for the carrying out of the work?
PN939
Time for the recruitment process?---Well, the recruitment process had - again, we had to have the selections made as part of the project program so that we could have people available when the equipment started arriving. So to go through the process of receiving the applicants and the assessment centres and the interview processes and the medicals and the psychometric testing and all the other components that went into the recruitment program, we needed time to be able to carry out all that work prior to a start date in April for the mining operation.
PN940
Now, you were asked a number of questions about that part of the form on page 5 which had a place for further training courses or other qualifications. Do you recall that?---Yes, on page 5?
PN941
Yes?---I seem to have looked at page 5 today.
PN942
And his Honour Senior Deputy President Duncan put the proposition that some people might not have any such courses. Would that have excluded them in your mind?---Well, it may not have excluded them but in the context of the first intake, and in view of the fact that from an application form we're trying to gauge a level of - also a level of enthusiasm for the role that if an application is fully completed, it lists equipment, it enables us to look at that skill and look at what people are going to bring into the job. People have taken care to list as much as possible to give themselves as good a shot as possible to get the job, then no, if there was an absence of material in that area alone then it may not. It would raise a few questions. I think I would have gone back and looked hard at what else had been there, had been included.
PN943
And you were taken to I think Mr Barnes's form and you were asked about the comment on the front page "with no drilling" and the form in experience has on page 4 - do you have that in front of you?---Mr Barnes?
PN944
Yes?---Yes, I've got that in front of me.
PN945
It has on page 4, type of heavy equipment, and the fourth box down is drills. Is that where one would indicate drilling experience?---Yes, that's where one would indicate drilling experience.
PN946
I have nothing further, if the Commission pleases.
PN947
PN948
MR PARRY: The next witness, if the Commission pleases.
PN949
VICE PRESIDENT ROSS: Yes.
PN950
MR DOCKING: Whilst the witness is being obtained, can I confirm the request that the CFMEU or its representatives uplift - there is four folders, or documents spread over four folders that have now been produced in response to the summons. It is requested that we uplift them overnight. I think the arrangement is that if we want to copy anything, we'll communicate first and get permission from the respondent's legal representatives.
PN951
The second point was, can we delete Mr Bukarica from the list and in lieu thereof put Mr Ray Barker of the CFMEU. For that class of documents which involved Mr Barnes instead of Mr Bukarica, it would be Mr Ray Barker. And I understand that last aspect at least is agreed to.
PN952
VICE PRESIDENT ROSS: What was the first aspect?
PN953
MR DOCKING: The uplifting so we can photocopy.
PN954
VICE PRESIDENT ROSS: I'm not sure what you mean by uplifting.
PN955
MR DOCKING: Oh, I might be being a bit officious. To take away with us the documents that have been produced under the summons for production.
PN956
VICE PRESIDENT ROSS: Oh, I see. Right.
PN957
MR TUCK: Your Honour, I keep making the same point. It might just be useful to clarify that we have agreed that they can be taken from the Commission, and taken back to the offices of Slater of Gordon, I think. And if there is a copy to be made, it be one copy, and that copy will be returned at the conclusion of these proceedings. And otherwise a copy may be - if documents are sought to be tendered we will ask at that time that they be kept as commercial-in-confidence documents and marked confidential in the file of the Commission.
PN958
The documents which we've agreed to allow to be shown to a representative of the CFMEU and Mr Barnes, are simply those documents at a spreadsheet, and 11 and 12. There is no agreement in relation to any of the commercial documents that they be shown to those people.
PN959
VICE PRESIDENT ROSS: Well, that was my understanding.
PN960
MR DOCKING: Nothing has changed other than I can make it clear that the documents will be taken back to the apartment I'm staying in, in which they will be locked, because it is going to take some time to look at them.
PN961
VICE PRESIDENT ROSS: Oh I don't think Mr Tuck has an issue about whether they are in your apartment or in the Slater & Gordon offices.
PN962
MR TUCK: Not under the bed.
PN963
PN964
MR DOCKING: There is a spare bedroom. They can go in there.
PN965
MR TUCK: I'll take your word for it.
PN966
VICE PRESIDENT ROSS: Oh good. I'm glad no inspection will be required. So we can call the next witness.
PN967
MR PARRY: He is coming up in the lift. It's Mr Sandon.
PN968
MR DOCKING: Oh, I just haven't got through - I can deal with Mr Duncan. Mr Sandon was the one my side only received today.
PN969
VICE PRESIDENT ROSS: Is Mr Duncan there?
PN970
MR PARRY: Mr Duncan is five minutes away. Mr Sandon is in the lift. I suppose - I don't care either way.
PN971
VICE PRESIDENT ROSS: Yes. It's just that in relation to Mr Sandon, Mr Docking has indicated that he has not had an opportunity to read his statement, so he is not - well, perhaps - - -
PN972
COMMISSIONER BACON: I might be able to usefully use some of the time to fill the void. I can hand down to counsel a copy each of one of the decisions I referred to earlier. It deals with the Australian Colliery staff association, and a agreement they had made pursuant to clause 32 of that award. I can say that that clause was, in all relevant terms, the equivalent of clause 20 of the Production and Engineering Award, and a decision of the Federal Court about its operation beyond the time - the specific time for which it was intended to operate. And the Court found that it did not operate beyond its specified time.
PN973
VICE PRESIDENT ROSS: We can come back to that in due course.
PN974
MR PARRY: Well, if it is to be Mr Duncan, we will need to just stand the matter down for five minutes until he comes.
PN975
VICE PRESIDENT ROSS: That's fine. Well, we will adopt that course. We will probably then adjourn on completion of Mr Duncan's evidence, and we would deal with Mr Sandon and complete the witness' evidence.
PN976
MR PARRY: Well, your Honour, I don't know how long we are going to be with Mr Duncan, but it is ten past four. Is it - as I understand it - - -
PN977
VICE PRESIDENT ROSS: I can't imagine there would be much - it is quite a short statement.
PN978
MR PARRY: Oh, if the Commission pleases. I think people are trying to get in now, so if we could stand it down for a few minutes.
PN979
VICE PRESIDENT ROSS: Certainly. We'll adjourn for five minutes.
SHORT ADJOURNMENT [4.10pm]
RESUMED [4.20pm]
PN980
PN981
MR PARRY: Mr Duncan, what is your full name and address?---My full name and address is Neville James Duncan, 10, 3 Megan Place, Mackay Harbour.
PN982
Have you prepared a witness statement for these proceedings?---I have.
PN983
Do you have a copy of that before you, Mr Duncan?---I do.
PN984
Now, if I could take you to paragraph 8 which talks about conducting assessments for people: Mr Rodgers, Mr Betteridge, Mr Barnes and Mr Albert. And in the next paragraph, you say you do not specifically recall reviewing these applications. Do you have any recollection at all of any of them? Reviewing any of those applications at the time?---Yes. Look, since writing this I just have a slight recollection of looking at Mr Barnes'. He's the only name that I recognise out of that list.
PN985
And what recollection do you have of that?---I think it's just the name, just a name thing more than anything. I knew Mr Barnes' name from some issues that were involved at Kestrel Coal, and I think when I saw his name that it just prompted me to - just prompted my memory I guess.
PN986
And do you have any recollection as to why Mr Barnes did not go into the next group; the next category of applications?---
PN987
MR DOCKING: Look, can I just object to the way it's phrased, "Any idea". Could it be made clear if he's reconstructing or does he have a specific recollection?
PN988
MR PARRY: Yes. That's - right.
**** NEVILLE JAMES DUNCAN XN MR PARRY
PN989
Do you have any recollection at the time of reviewing the application as to why Mr Barnes did not go or you did not put Mr Barnes in the next group?---At that particular time of the first review, no, I don't have any recollection of that.
PN990
Now, save for that, is the contents of your statement true and correct?---Yes. There's only one thing I probably need to clarify.
PN991
Yes?---And just down the bottom where I said that I knew of the unfair dismissal case taken by former Blair Athol employees, but did not know the parties involved in it.
PN992
Yes?---And I do not know the parties involved in it, but I do know Mr Barnes' name as probably being part of that, sir.
PN993
Yes. When did you become aware of Mr Barnes being part of that?---I'm not too sure exactly when. I just - my initial belief of Mr Barnes - his name when he first came up was that he was just a union representative at Blair Athol. And I quite honestly believe that that's what I thought he was for the whole period, and I'm sure in my own mind that Mr Barnes' participation in the dismissal case has only come to me very recently, sir.
PN994
When you say "very recently", are you meaning after the assessments in October last year?---I would say in about the last - yes, the last month.
PN995
All right. Subject to that; are the contents of the statement true and correct, Mr Duncan?---I believe so, yes.
PN996
Yes. I tender that statement.
**** NEVILLE JAMES DUNCAN XN MR PARRY
PN997
PN998
MR PARRY: If the Commission pleases, that's the evidence of Mr Duncan.
PN999
VICE PRESIDENT ROSS: Mr Docking?
PN1000
PN1001
MR DOCKING: Which mine did you come from to go to Hail Creek?---From Kestrel Coal.
PN1002
For how long were you at Kestrel Coal?---I was at Kestrel in its earlier formative stages as Gordonstone and then restarted employment with Kestrel Coal when the mine restarted.
PN1003
And you made a reference to you knew Mr Barnes' name from some issues at Kestrel Coal. You knew that Mr Barnes was very active in the CFMEU, didn't you?---Yes. My understanding was that he was either the secretary or the president of the CFMEU at Blair Athol.
PN1004
And did that capacity - did you become aware that he took up issues on behalf of the Gordonstone coal miners, as the mine was then called?---No. I wasn't aware of that.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1005
Well, what are the "some issues" at Kestrel Coal to which you refer - not in chapter and verse, just - - -?---Yes. No, no.
PN1006
- - - very briefly?---Look, just - I remember somebody making a comment on the bus as we passed through the picket line at some stage that - that Mr Barnes was present on the picket line.
PN1007
In other words, there in support of the sacked Gordonstone coal miners who were members of the CFMEU?---Oh, I'm not too sure of why, but - - -
PN1008
Well, who did you think he was there to support if it wasn't the CFMEU?---I didn't have any thoughts at the time on that.
PN1009
It wasn't Mr Paul McCrae who made that comment on the bus, was it?---Oh, it could have been. I mean, it was a crowded bus so I'm not too sure - - -
PN1010
You know - - -?--- - - - who, sir - who actually said it, sir.
PN1011
You know Paul McCrae went from being the Manager, Employee Relations at Blair Athol to working at Kestrel, or Gordonstone as it used to be known?---Yes. Yes. I know that.
PN1012
Can you try to assist - there's two intakes. How many people from the Rio Tinto intake were engaged to work in the coal handling preparation plant? I'm talking about - it's about 44, apparently - the first intake?---Okay. Out of the first intake, there was none for the preparation plant. None for the - oh, sorry. Out of the Rio Tinto group - sorry. I'm thinking of the first intake that came to site. Let me rephrase that. Out of the first lot of people that we interviewed, I've - I had one, two, three, four people - three people went through the process and - that were offered positions.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1013
What mines - - -?---One person pulled out.
PN1014
- - - did they come from?---Sorry? From - - -
PN1015
What mines did they come from?---Sorry. Let me get my facts together. Out of the whole Rio Tinto group in the first input, we had one from Hammersley Iron; one, two, three - three from Kestrel; and one other one from Kestrel who subsequently knocked back the position.
PN1016
And each of those people - without identifying their name, can you say how much experience each had in coal handling preparation plant work, starting with the person from Hammersley Iron?---Yes. The person from Hammersley Iron subsequently was offered a supervisory job, so he's not one of the operators now.
PN1017
But he was offered a job - - -?---He was offered a job - - -
PN1018
- - - as an operator in the coal handling preparation plant. Do I take it - came from Hammersley - had none in terms of experience of the coal handling work?---Not as coal, no, but he had material handling work and trade skills that I required for the positions.
PN1019
The three from Kestrel - do you know how much experience each of those had - - -?---Yes. One of those - - -
PN1020
- - - in terms of number of years?---One from Kestrel had approximately 13 years' experience in the coal handling plant as a tradesperson and then subsequently as an operator-maintainer. The other one has had some three to four years' experience in the preparation plant as an operator and the third one had some experience in the wash plant during his employment at Kestrel as well.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1021
Does that mean less than a year when you say plant experience?---Possibly less than a year, yes. But he was picked because of his trade skills.
PN1022
Now, I think you then said there was one other from Kestrel apart from the three others. The one other; how many years or months experience did that person - - -?---This is the one who subsequently knocked back the position?
PN1023
Yes?---Yes. He had probably 13 to 14 years in the preparation plant as well.
PN1024
Turning to what's the Mackay intake of 52 people, how many people from that intake were employed to work in the coal handling preparation plant?---I don't think I picked up any out of the Mackay input - out of the Mackay team, sorry.
PN1025
So does your team consist of - is it three or four people; that's it, are you saying?---No, I've got 10 people all up. I can run through them if you like.
PN1026
I think at the moment - - -?---Yes. Yes, sorry.
PN1027
- - - I'm not being allowed to get the names, so I don't want you to name anyone?---Okay. No, that's fine. I might be confusing you, too, so - can I just run through the positions that I've got?
PN1028
Certainly?---Yes. I've got - - -
PN1029
It would even be easier. Probably a position chart would have been good?---I've got one person from Lahir - Lahir Gold in New Guinea. I've got two people from Hammersley Iron in West Australia, one from Boyne Smelter, one from Weipa, two from Kestrel - sorry, three from Kestrel and - how many am I up to now? I've lost count myself.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1030
I make it as - two, one, one, three - is eight?---Okay. I should have 10.
PN1031
No, actually - yes eight. Or is it seven?
PN1032
COMMISSIONER BACON: I make it eight, but maths was never my strong point.
PN1033
MR DOCKING: That's the problem when calculators were invented.
PN1034
THE WITNESS: I can't even put them all together myself now, so - we'll go through them again one by one. I can't get past eight myself at the moment.
PN1035
MR DOCKING: Well, how many all up in numbers are there in the coal handling preparation - - -?---I've got 10.
PN1036
So do I take it all eight - were they all part of the Rio Tinto intake or are some from the Mackay intake?---They'd all be part of the Rio Tinto intake - Rio Tinto workers.
PN1037
And I think it was suggested there were not as many applicants for the coal handling preparation plants as opposed to general mining work. Can you tell us how many applicants there were for the coal handling preparation work?---Look, I can't recollect exactly, but I think around about 90 something.
PN1038
I'll show you opened on this page Mr Garry Barnes' sheet, part of Mr Coughlan's statement. Have you read Mr Coughlan's statement, I gather?---Mr Coughlan's? No. No, I don't believe so.
PN1039
I'm just trying to get a bit of assistance to understand - do you see open cut experience, someone right to the right of the page has drawn a box with a marking in it; an "N"?---Yes, I see that.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1040
Is that an "N" for "No"?---Look, I can't say.
PN1041
Is that your writing?---That's more than I could tell you. I can do some Ns for you if you like, but - - -
PN1042
Doesn't it - - -?--- - - - I couldn't guarantee that it's mine at this stage.
PN1043
Doesn't it indicate that somebody assessed Mr Barnes as having no open - I should withdraw that - no coal handling preparation plant experience; the hand-written square with a marking and an "N" above it?---The hand-written square? No, I can't honestly say whether it does or it doesn't.
PN1044
Well, did you assess Mr Barnes - I'm just asking you to look at this sheet in front of you - as a person who had no coal handling preparation plant experience? I'm not asking you to turn the page over, as you just did?---Mm.
PN1045
Do you understand?---No. Can you just put the question again, please?
PN1046
The page I'm asking you about - - -?---Yes.
PN1047
- - - it indicates, does it, that somebody assessed Mr Barnes as having no coal handling preparation experience?---I can't see that. The only thing I can see there is a possibility that we didn't get a progression through to the next stage.
PN1048
Well, what does the hand-written marking mean that then has the arrow at 45 degrees from right to left up to CHPP with the tip. What does that marking mean?---I can't tell you that. I mean, I might be able to help you if I could see the colour of these dots because it was the dots that we went by.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1049
I haven't seen - I've only got black and white. I haven't got colour?---Have you? Okay. Sorry.
PN1050
I'm happy if Mr Parry has got access to something with the coloured dots.
PN1051
MR PARRY: The last thing I want is to go through another case with debate about the colour of dots, lines and charts. There are coloured - I think it's referred to in Mr Davies' statement, that there is a coloured system. And - red, white and yellow. And I had assumed that that had been - we've got them and they're quite open to look at. And I can - - -
PN1052
MR DOCKING: Well, perhaps I can do it this way - - -
PN1053
MR PARRY: They're red on the form I've seen.
PN1054
MR DOCKING: How will we know? What colour will tell us that Mr Barnes was assessed as having no coal handling preparation plant experience?---We didn't put any dots on for people having no experience. The only dots we put on paper was for people who didn't get through to the next stage. It didn't relate to their experience exactly.
PN1055
All right. You can now turn over to the pages of his application. Page 2. I'm using numbering - - -?---Page 2 of the application itself, is it?
PN1056
Yes?---Okay.
PN1057
Do you see the brief description of work includes that he's had coal plant operator experience?---Yes, it says that there: coal plant operator.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1058
Was it because Mr Barnes was somebody you knew was a CFMEU official at Blair Athol? That was the reason he didn't go any further?---No.
PN1059
Well, it wasn't - - -?---I can't imagine so.
PN1060
Well, you - - -?---Can I look further than this or can I just - - -
PN1061
We'll do it in stages?---Okay.
PN1062
First you've got no recollection of what you considered. You're not in a position to deny that was part of the reason that he went no further, namely, because he was, as you knew it at the time, an official of the CFMEU at Blair Athol?---But I have reviewed these documents since, and - - -
PN1063
You have no specific recollection to deny that was part of the reason Mr Barnes got knocked back on this application?---Sorry, what was - - -
PN1064
Because you don't remember, you're not able to say Mr Barnes didn't go any further for the coal handling preparation plant because part of the reason was you knew he was active in the CFMEU?---No, I didn't say that at all. I reviewed these documents yesterday, and, going by the criteria that I had set for my positions, Mr Barnes wouldn't have got through because he wasn't an electrical or mechanical tradesperson and he didn't have complex coal preparation plant experience. They were the two criteria that I set for my people that I selected.
PN1065
So are you saying nobody went through for the coal handling preparation plant unless they had trade qualifications as the first aspect?---No, I'm not saying that at all.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1066
Some of the eight or 10 don't have trade qualifications, do they, that work in the coal handling preparation plant?---That's correct, but two of them were very experienced complex plant operators.
PN1067
You use the expression "complex plant operators." Did you take any steps to go and talk to Ian Thomson, listed as referee 1 for Mr Barnes, to find out the complexity or otherwise of Mr Barnes' coal-handling prep experience?---I don't remember doing so.
PN1068
And did you go and speak to Mike Schauble, S-c-h-a-u-b-l-e, listed as CCPH supervisor at Blair Athol Coal to check on the complexity or otherwise of Mr Barnes' coal-handling prep experience?---No, I don't believe so.
PN1069
You didn't make any inquiries with anybody about Mr Barnes, did you?---If he got a red dot on the front I probably would not have. I also knew the Blair Athol plant, and - sort of know the Blair Athol plant, and I know that - - -
PN1070
Have you ever worked at the Blair Athol plant?---I haven't worked in the Blair Athol plant, but I have visited the Blair Athol plant, and my general impressions of Blair Athol plant is just a screening and crushing plant. It doesn't deal with any of the more technical aspects of washing coal.
PN1071
Can you look at Mr Rodgers' application? You will have to go - - -?---Mr Rodgers, sorry?
PN1072
Yes. You will have to work towards the front of the folder in this bundle. If you would keep going through the applications, they are behind JC1. It is in the bundle about 15 or so pages ahead of Mr Barnes?---Okay. So what was his name again, sorry?
PN1073
Mr Rodgers?---Yes, I have got the front page of it.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1074
Again, I am just trying to get somebody to explain what these markings mean? Do you see he has got the same handwritten box with a tick, "N" above it; do you see what I am referring to? That means - - -?---The one on the right-hand side?
PN1075
Yes?---Yes.
PN1076
That meant no; it was assessed that he didn't have any coal handling preparation experience?---No, I can't answer you that because I really don't know what it is there for.
PN1077
Well, is it your writing?---Once again, I am unsure. I mean, if I look at - - -
PN1078
Your initials appear, "ND", don't they, 16.10, down the bottom of this page?---Yes, if I look at that N down there and that N up there, they are substantially different, so - - -
PN1079
You don't know who wrote that or who did the assessment involving the handwritten box with N and the marking tick in it; is that right?---I can't recollect exactly whether I actually marked them off or not; I am sorry.
PN1080
And looking at other markings like that on these tick-sheets aren't going to help you remember?---No, not off-hand, no.
PN1081
It is just a complete blank concerning what was taken into account for any of the four people you talk about in paragraph 8; namely, Mr Rodgers, Betteridge, Barnes, and Albert, apart from what you said to Mr Parry today about Mr Barnes; it is a complete blank?---Yes.
PN1082
COMMISSIONER BACON: Mr Duncan, you reviewed this, didn't you? That is what the document says on its face; reviewer: ND 16th of the 10th?---Yes, that is correct.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1083
And do you recall if that marking was on the document when you reviewed it?---I can't remember at the time whether it was there or not, no. I mean, this is a long time ago now, so - - -
PN1084
But whether it was or it wasn't, you don't know what it means?---No.
PN1085
MR DOCKING: In terms of your coal handling preparation plant, as production steps up more employees will be required, or not?---I believe there are going to be some more people put on. And that would be up to management to decide that. I mean, I am not in that position to make that decision, so - - -
PN1086
But based on what they have told you about how many are going to be employed as additional employees - - -?---Yes, there is talk of putting another four- to five people on.
PN1087
When?---Later this year some time; around about September, I believe.
PN1088
As operators in the coal handling prep plant?---As operator/maintainers in the coal handling plant. I am the only - - -
PN1089
So are you saying when they are an operator/maintainer, does that mean they have to have a trade skill, or they can be operators or are taught the relevant maintenance work?---For those particular four it will depend on the gaps that we need to fill at the time.
PN1090
So - - -?---I mean, initially, my first people I needed to have a number of trades people. Certainly need to have four electricians to cover each of the four shifts that are available, so that took four. I needed to have three- to four fitters that could do the fitting work on the shift, and I needed a couple of very experienced operators who could hit the floor running, basically, so that we could mix those skills with it.
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1091
So it is quite likely that some of the employees to be employed later this year will not have a trade-based qualification, but they will just be experienced coal plant operators?---I can't say that now, I need to see what sort of gaps I have to fill come the time.
PN1092
Well, it is certainly not the case that there has been a set of criteria that they must have a trade to get any of those positions?---There is no criteria set as such, no.
PN1093
You didn't forget that Mr Barnes was not only a CFMEU official, but that he was also one of the applicants in the Blair Athol case when you looked at his assessment, did you?---I don't actually remember Mr Barnes being one of the applicants. My memories of Mr Barnes were purely that he was a CFMEU official at Blair Athol.
PN1094
But at the time you looked at his application you might have known he was one of the applicants in the Blair Athol case, but with the passing of time now and you keeping no detailed record, you have just forgotten; that is right?---More than I could tell you, I don't - - -
PN1095
Could be either way, couldn't it? Could be that you did know at the time he was an applicant in the Blair Athol case, or it might be you didn't know; that is right?---No, look, I have struggled with this a bit myself, and my firm belief is that the only thing I knew about Garry Barnes was that he was an official at the CFMEU at Blair Athol. I have had this argument over and over.
PN1096
What argument?---Within my own head - sorry. So - - -
PN1097
I have no further questions.
PN1098
VICE PRESIDENT ROSS: Any re-examination, Mr Parry?
**** NEVILLE JAMES DUNCAN XXN MR DOCKING
PN1099
PN1100
MR PARRY: If the Commission pleases, perhaps before starting that, the attachments to Mr Coughlan's statement are obviously photocopies, and I think this is it; I have got the originals, and I think they all should be handed up. The originals have red dots on them and some of those dots are written, for example, CHPP or MEO. Obviously, the CHPP is there, but I think - that is the bundle of originals. So if I could tender those documents.
PN1101
VICE PRESIDENT ROSS: Sure.
PN1102
MR DOCKING: I have no objection, but it is left with no one can interpret them.
PN1103
MR PARRY: Well, you can make submissions.
PN1104
VICE PRESIDENT ROSS: Do I need to mark them separately? Presumably, because they are the originals it might be the safer course. I will mark - - -
PN1105
MR PARRY: I don't mind either way. Obviously, they are photocopies that are attached to Mr Coughlan's statement.
PN1106
VICE PRESIDENT ROSS: Yes, I understand they are already before us, but they are, I suppose, they might be regarded as different because - well, they are a little bit easier to read, and there are also notations on the red dots, so I will mark it as exhibit PC4.
**** NEVILLE JAMES DUNCAN RXN MR PARRY
PN1107
PN1108
MR PARRY: Now, Mr Duncan, you were asked about the people you recruited and their experience, and you said - you were asked about Mr Rodgers and Mr Barnes and their references to coal handling experience, and you gave an answer about your experience of the Blair Athol plant was a screening and crushing plant; what did you mean by that?---Basically, that is my concept of the plant; is that the coal comes out of the ground, it gets crushed and screened, and then it is delivered to the stockpile.
PN1109
Right. What is at Hail Creek?---Hail Creek is a - what we call a dense-medium plant, it uses two processors to wash the coal. The first one is that we cyclones for separation of the larger particles; those particles are then taken down through some - sorry, after the cyclones, down through centrifuges and a - to dry the coal. It is in the secondary stage where the intermediate particles, I suppose, if you want to call them that, are separated using specific gravity to do the separation. That is done in what we call seeded-bed separators, and from the seeded-bed separators that product is down - dropped onto centrifugors and once again out to the product coal. Then there is a third stage of fines recovery from the coal, and the fines recovery is done by means of Jemison flotation cells, and the product from the Jemison cells goes down to some horizontal belt-filters, and from there down onto the product coal-belt as well. So there is three stages to the plant. It just makes it somewhat more complex than the Blair Athol plant, mostly being the fact that we need to keep the specific gravity in the plant on spec so there is a reasonable amount of instrumentation involved in the plant to do that, and a reasonable knowledge of complex process control.
**** NEVILLE JAMES DUNCAN RXN MR PARRY
PN1110
Well, what did you mean when you referred to you were looking for complex plant operators?---Well, I was looking for complex plant - people who had more experience than crushing and screening plants, I needed people who had at least been into cyclones or into flotation of some sort, which is why I ended up going to somebody from the Goldfields who had that feel for my operator, to fill in the gap that I had left for the one specialist-operator, I suppose, if you want to call him that.
PN1111
And you referred to material handling and trade skills. What are material handling skills?---Material handling is really just - I was just basically talking about conveyors and crushers, just the equipment that sizes the material and conveys it to and from the plant.
PN1112
Now, I've just handed up to the Commission, Mr Duncan, the form which you were asked some questions about by my learned friend as to whether there was handwriting on it, and on the document that's been handed up, in the red - there's a red sticker attached with CHPP written in the red sticker. What was the practice adopted by you with respect to who wrote in that sticker? Was it you or somebody else?---I think from memory it was a combined effort. I think I wrote in some and I had some assistance from Mr Taylor I think at the time. So if I - - -
PN1113
And what - sorry?---If I made a decision as to whether the person went any further, I believe Mr Taylor had the box of red dots basically and I passed it to him, whether he had red, yellow or green, and he either put the sticker on and wrote on it or I put the sticker on and wrote on it. It just depended who had a free hand and a free pen at the time.
PN1114
And what did the red dot mean?---The red dot was basically that you just did not progress through to the next stage. It was a no.
PN1115
I have nothing further of Mr Duncan, if the Commission pleases.
**** NEVILLE JAMES DUNCAN RXN MR PARRY
PN1116
MR DOCKING: With leave, there was one question I wanted to ask which I should have asked.
PN1117
MR DOCKING: In terms of complex coal plant, washing plant, the South Blackwater plant meets your description?---I have not been to the South Blackwater plant so I can't verify that for you.
PN1118
Washing for an open cut and underground coal mine as it then was would meet your description?---Not on its own, not without seeing the plant and seeing what's involved in the process, no. I mean, Blair Athol works washes for an open cut as well.
PN1119
VICE PRESIDENT ROSS: Anything arising.
PN1120
MR PARRY: Nothing arising, if the Commission pleases.
PN1121
PN1122
MR PARRY: Thank you to the Commission for sitting on and allowing Mr Duncan to get back to the mine.
PN1123
VICE PRESIDENT ROSS: No problem. So we have Mr Davies' evidence to complete and Mr Sandon's. Can I ask the parties, if you haven't already done so, if you can provide the witness statements and submissions in electronic form to my associate if you have them available in that form and I appreciate you won't know at this stage, Mr Docking, how long you're going to be, because you haven't reviewed the material, but do the parties have any feeling for how long they're likely to be in short oral argument?
PN1124
MR DOCKING: It would be more the factual matters. Our attempt was to make sure we finished so all the principles and cases as we want to rely upon them are already extracted.
PN1125
VICE PRESIDENT ROSS: Quite.
PN1126
MR DOCKING: So it would really just be references to any additional evidence and taking the Full Bench - unless they say it's not necessary - to that folder that was tendered which has the underpinning evidence for the majority Full Bench's findings. That's a long way of saying I haven't worked out a time but unless the Commission wanted me to, I wasn't going to go to any cases. The attempt was to put it all in the submissions.
PN1127
VICE PRESIDENT ROSS: Yes, well, certainly that was our intention, that you'd be making a short oral argument and you'd be relying on the written material. Are you in the same position, Mr Parry?
PN1128
MR PARRY: Yes.
PN1129
VICE PRESIDENT ROSS: Do you have any idea as to how long you're likely to be?
PN1130
MR PARRY: An hour, not much more.
PN1131
VICE PRESIDENT ROSS: Okay, all right. We'll adjourn until 10.00am.
ADJOURNED UNTIL FRIDAY, 11 APRIL 2003 [4.57pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
GARRY WILLIAM BARNES, SWORN PN127
EXAMINATION-IN-CHIEF BY MR DOCKING PN127
EXHIBIT #CFMEU1 STATEMENT OF GARRY WILLIAM BARNES WITH ANNEXURES PN147
EXHIBIT #CFMEU2 STATEMENT OF GARY WILLIAM BARNES DATED 09/04/2003 PN151
CROSS-EXAMINATION BY MR PARRY PN154
RE-EXAMINATION BY MR DOCKING PN194
WITNESS WITHDREW PN202
EXHIBIT #CFMEU3 STATEMENT OF IRENE MARGARET LING DATED 09/04/2003 PN204
EXHIBIT #CFMEU4 STATEMENT OF GARY WAYNE MANNION DATED 07/03/2003 PN214
EXHIBIT #CFMEU5 STATEMENT OF GARY WAYNE MANNION DATED 09/04/2003 PN214
EXHIBIT #CFMEU6 STATEMENT OF TREVOR MURRAY KELLY DATED 07/03/2003 PN216
EXHIBIT #CFMEU7 STATEMENT OF TREVOR MURRAY KELLY DATED 09/04/2003 PN216
EXHIBIT #CFMEU8 STATEMENT OF ATHOL ERNEST FINGER DATED 07/03/2003 PN218
EXHIBIT #CFMEU9 STATEMENT OF ATHOL ERNEST FINGER DATED 09/04/2003 PN218
EXHIBIT #CFMEU10 STATEMENT OF ROBERT DAVID SMITH DATED 07/03/03 PN220
EXHIBIT #CFMEU11 STATEMENT OF ROBERT DAVID SMITH DATED 09/04/03 PN220
EXHIBIT #CFMEU12 STATEMENT OF EDWARD HUGH APPLETON DATED 07/03/03 PN222
EXHIBIT #CFMEU13 SUPPLEMENTARY STATEMENT OF EDWARD HUGH APPLETON DATED 09/04/03 PN222
EXHIBIT #CFMEU14 STATEMENT OF TONY MAHER, EXCLUDING PARAGRAPHS 2 TO 9 INCLUSIVE, DATED 27/03/2003 PN294
EXHIBIT #CFMEU15 SUPPLEMENTARY STATEMENT OF TONY MAHER DATED 05/04/2003 PN296
EXHIBIT #CFMEU16 VOLUME OF INDIVIDUAL SUBMISSIONS ON APPEAL PN315
PAUL MICHAEL DAVIES, SWORN PN320
EXAMINATION-IN-CHIEF BY MR PARRY PN320
EXHIBIT #PC1 STATEMENT OF PAUL MICHAEL DAVIES PN367
CROSS-EXAMINATION BY MR DOCKING PN371
EXHIBIT #CFMEU17 FOLDER RELATING TO EVIDENCE OF PRIOR CONDUCT OF PACIFIC COAL PN507
WITNESS WITHDREW PN657
JOHN FAWKES COUGHLAN, SWORN PN686
EXAMINATION-IN-CHIEF BY MR PARRY PN686
EXHIBIT #PC2 STATEMENT OF JOHN FAWKES COUGHLAN PN697
CROSS-EXAMINATION BY MR DOCKING PN699
RE-EXAMINATION BY MR PARRY PN933
WITNESS WITHDREW PN948
NEVILLE JAMES DUNCAN, SWORN PN981
EXAMINATION-IN-CHIEF BY MR PARRY PN981
EXHIBIT #PC3 STATEMENT OF NEVILLE JAMES DUNCAN PN998
CROSS-EXAMINATION BY MR DOCKING PN1001
RE-EXAMINATION BY MR PARRY PN1100
EXHIBIT #PC4 ATTACHMENTS TO MR COUGHLAN'S STATEMENT PN1108
FURTHER CROSS-EXAMINATION BY MR DOCKING PN1117
WITNESS WITHDREW PN1122
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