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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER ROBERTS
C No 2002/5408
CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION - MINING AND ENERGY
DIVISION
and
ROCHE MINING PTY LIMITED and OTHERS
Notification pursuant to Section 99 of the Act
of a dispute re wages and working conditions
SYDNEY
9.40 AM, WEDNESDAY, 16 APRIL 2003
Continued from 5.3.03
PN148
THE COMMISSIONER: Are there changes to appearances?
PN149
MS J.GRAY: No, Commissioner.
PN150
MR LEAHY: No, Commissioner.
PN151
THE COMMISSIONER: Ms Gray?
PN152
MS GRAY: Mr Commissioner, we will be relying on our outline of submissions lodged and served in this matter rather than making an opening today other than to say that essentially the issue is whether or not employees at Mainstream fall within the constitution rule of the union. That, of course, is a matter of fact to be established on the evidence and in accordance with the precedence and we will be calling Mr Endacott whose statement has been lodged and served. We understand the company will be calling Mr Rose for Mainstream and we will then be making submissions immediately at the conclusion of the evidence and hopefully be able to include the presentation of the case today.
PN153
THE COMMISSIONER: It sounds pretty good.
PN154
MS GRAY: Also, Mr Commissioner, in terms of the programming of the matter, the company was required to put its evidence in first, the union to reply to that and we would think that it would be convenient that the case continued along that pattern with the company calling Mr Rose first and then the union calling Mr Endacott.
PN155
The company's representative has raised with me this morning a request that Mr Endacott be out of the room while Mr Rose is being examined. The union has a difficulty with that, Mr Commissioner, in that Mr Endacott's instructing me, and the common practice of the Commission when a witness is instructing a representative is that they be allowed to remain in the room for that purpose. So that is our position Mr Commissioner but I am sure that my friend has something to add to that.
PN156
THE COMMISSIONER: Do you wish to argue that point, Mr Leahy?
PN157
MR LEAHY: Commissioner, if I may. I think the progress of today has been accurately recorded by Ms Gray in the sense that we're proposing that Mr Rose be called to give evidence and then Mr Endacott. I did request that for the purpose of evidence, it would certainly be our preference that Mr Endacott wait outside whilst Mr Rose is giving evidence. I would have thought it allows Mr Rose to then focus on the issues and it is not something that is unusual when a witness is giving evidence that another witness in the proceedings waits outside.
PN158
THE COMMISSIONER: It is unusual when the other witness is instructing the representative isn't it?
PN159
MR LEAHY: If that's your decision, Commissioner, I entirely accept that, I don't argue with it.
PN160
THE COMMISSIONER: Well, let's cut to the charge, Mr Endacott can stay. So we will move into Mr Rose's evidence.
PN161
MR LEAHY: I was just going to make a very brief outline of submissions if I may, Commissioner?
PN162
THE COMMISSIONER: You may.
PN163
MR LEAHY: Again I don't know whether there is much issue between ourselves and the CFMEU in that we see the issue is quite clear. It is whether the employees of my client, Mainstream Industries Proprietary Limited fall within the eligibility rule of the CFMEU. The CFMEU is relying on a particular subsection of its rule and the question is whether Mainstream's employees are engaged in or in connection with the coal and shale industries.
PN164
Quite simply we say that they do not and a dispute cannot be found. We rely on the outline of submissions that we filed in the proceedings today and we say that quite clearly based upon those submissions and the evidence which will be adduced that the business of Mainstream Industries Proprietary Limited is that of contract cleaning. The industry is not that of the coal and shale industry and as such a dispute cannot be found.
PN165
THE COMMISSIONER: That is the nub, isn't it. I have read all the materials prior to this hearing. You say firstly the question is whether the employees are employed in the coal and shale industry but I thought that you were really relying on your second point, aren't you, that Mainstream is not involved in the coal and shale industry.
PN166
MR LEAHY: Precisely because - - -
PN167
THE COMMISSIONER: You say focus on the company - - -
PN168
MR LEAHY: - - - the industry of the employee, that is correct.
PN169
THE COMMISSIONER: - - - the industry fo the employee and the applicant says focus on the employees and the work they do for the company in allegedly the coal and shale industry.
PN170
MR LEAHY: Presumably they say that, I wouldn't wish to speak on their behalf but certainly - - -
PN171
THE COMMISSIONER: They will certainly tell me if I'm wrong.
PN172
MR LEAHY: We will be left in no doubt but certainly we say that based on case law, looking particularly at this section of the CFMEU rules, the case law takes the view that it is a question of fact as to whether or not - whether employees are engaged or in connection with the coal and shale industries, the fact of fact is what is the industry the employer is engaged in. So you say is the industry the employer and in order to make a dispute point to date you would need to as a matter of fact find that Mainstream operates in the coal and shale industries.
PN173
MS GRAY: Mr Commissioner, only just to address that one point very briefly and we will be going into it in some substantial detail when we go to the precedence in final submissions but the union agrees with the precedence state that one in determining whether the eligibility rule covers it is to look at the business of the employer, the industry that the employer is engaged in. We also so that the precedence to a large extent determine that the chorology of that is also the case that what is the work that the employees do for that employer and also that an employer can be in more than one industry. So all of those issues we will address but we are saying that Mainstream is in the coal or shale industry in or in connection with.
PN174
THE COMMISSIONER: Well, I'll save my further points and questions for later. Have you finished your opening submission, Mr Leahy?
PN175
MR LEAHY: Yes, I have, Commissioner.
PN176
THE COMMISSIONER: Do you wish to call Mr Rose?
PN177
PN178
THE COMMISSIONER: Mr Rose I might just tell you initially that microphone doesn't actually amplify your voice it is purely for the benefit of the recorder.
PN179
MR LEAHY: Mr Rose could you would please state your position with Mainstream Industries Pty Limited?---I'm the Managing Director.
PN180
Mr Rose have you signed a statement in these proceedings today?---Yes, I have.
PN181
Commissioner if I may, could I please hand Mr Rose a document. Mr Rose have you seen that document before?---Yes, I have.
PN182
Is that a statement that you have signed in these proceedings?---It is.
PN183
Commissioner, if I may could I please have Mr Rose's statement which was filed with the Commission on 20 January this year marked as an exhibit?
PN184
THE COMMISSIONER: Was it filed on 20 January was it?
PN185
MR LEAHY: It's interesting because the mark hasn't actually come out on the statement I have but it was filed with the written submissions.
PN186
**** MR TROY JOHN ROSE XN MR LEAHY
PN187
MR LEAHY: Mr Rose for the convenience of the Commission could you please read your statement?---
PN188
I Troy John Rose of ...(reads)... since 1992 - - -
PN189
THE COMMISSIONER: Could you just pause there Mr Rose. Is there any need for him to read the entire statement?
PN190
MR LEAHY: The only reason I was going to ask him to read it was for your convenience, Commissioner.
PN191
THE COMMISSIONER: I've read it.
PN192
MR LEAHY: We can take it as read.
PN193
THE COMMISSIONER: It is on the record, I don't think the applicant requires it to be read do you?
PN194
MS GRAY: Certainly not Commissioner.
PN195
THE COMMISSIONER: So we will take it as read if you don't mind.
PN196
MR LEAHY: Thank you, Commissioner. There are only a few matters which I'd like to raise with Mr Rose.
PN197
Mr Rose could I take you to paragraph 3 of your statement?---Yes.
**** MR TROY JOHN ROSE XN MR LEAHY
PN198
In that statement it refers to a date 21 October 2002. Could I take you to annexure A of your statement. Hopefully annexure A is the very first attached document after page 3 of your statement?---It is the CFMEU.
PN199
Mining and energy. There is a received stamp on that letter dated 21 October 2002?---Yes.
PN200
Is it fair to say that the date in paragraph 3 of your statement should actually read 21 October 2002?---Yes, that's correct.
PN201
So you wish to amend your statement?---Yes.
PN202
Further Mr Rose do you wish to add anything or to change anything in relation to paragraph 7 of your statement?---Since I made that statement we have reduced a number of employees. We now have still the same four full time administration people. We have two leading hands and we have three part time permanents and four casuals. I think that's about 13 people now.
PN203
THE COMMISSIONER: So what is the amendment to paragraph 7? He wishes to amend paragraph?---We have lesser employee in the sense there Commissioner.
PN204
Do you wish to change the number or what?---Yes, the number is now 13.
PN205
Thank you. Yes, Mr Leahy?
PN206
MR LEAHY: So there are 13 employees, there continue to be two full time leading hands?---Yes.
**** MR TROY JOHN ROSE XN MR LEAHY
PN207
There continue to be four full time employees within the administration of the business?---Yes.
PN208
There are three permanent part time employees?---That's right.
PN209
And four casuals?---That's right.
PN210
In paragraph 8 of your statement you say:
PN211
The company secures contracts to perform cleaning services with its clients many of whom are other businesses.
PN212
When you say other business what do you mean?---I mean other contractors.
PN213
What types of business?---They are various, there would be road working equipment or heavy earth movement equipment companies like Valley Earthmoving or something like that or we do work for Port Jackson Newcastle which is a ship repairing firm. There are other companies like Pasminco, we do work there as well. We contract to other contractors as like Imaco from the Central Coast.
PN214
Are you aware that Mr Keenan Jason Endacott has filed a statement in these proceedings?---Yes, I am.
PN215
Have you had the opportunity to read that statement?---I have.
PN216
Commissioner, if I may pass this document to Mr Rose. Mr Rose if you could, could you please identify that document?---It is a statement from Keenan Jason Endacott in respect to Mainstream Industries Pty Limited in the matter of Roche Mining and others.
**** MR TROY JOHN ROSE XN MR LEAHY
PN217
Could you turn to the last page, does the document have a date on it?---It is 27 February 2003.
PN218
Is the document signed?---No.
PN219
Can I take you to paragraph 6 of that document?
PN220
THE COMMISSIONER: Will anything turn on the lack of signature on the document Mr Leahy?
PN221
MR LEAHY: My understanding is that there is not any information in that statement that will change the reason I say that is because when the document was handed to me at the time of it being handed to me it was explained to me by the CFMEU that Mr Endacott would swear to the statement when he attended the witness box. There is no information that I've been given that leads me to believe that the material will change.
PN222
MS GRAY: There are a couple of minor amendments to it Commissioner but the point that I anticipate is about to be raised by Mr Leahy was one of the areas that Mr Endacott intends to change which is a reference to in paragraph 6 he says:
PN223
I am aware that Mainstream Industries has employees that work on the following mine sites -
PN224
the amendment as I'm advised, it will make that sentence then read:
PN225
I am aware that Mainstream Industries has employees that work or have worked on the following mine sites ...
**** MR TROY JOHN ROSE XN MR LEAHY
PN226
THE COMMISSIONER: Well he can do that at the appropriate time. I was just intrigued about the questioners signature. Yes, Mr Leahy?
PN227
MR LEAHY: Mr Rose, having heard that amendment to Mr Endacott's statement at paragraph 6, do you have anything to say in terms of the mine sites that are listed in paragraph 6, from letters (a) through to (o)?---The Hunter Valley operations, Lamington Washery and Howey Washery are all under one banner of Hunter Valley Operations nowadays. We have done one job at Lamington in the past. In the last 10 years we've done one job there. Nardell Washery we've never worked there before. We done one job at Kyugal. We do maintenance work at Mt Thorley. We rarely work at Bradenswork. We've worked four companies at Mt Arthur, Liddell and Westside and they're all Hunter Valley Earthmoving. We haven't actually worked for those mines. We've worked at Mt Allen for Thiess and South Bolga and New Wallsend are closed.
PN228
In relation to the first sentence in paragraph 6 it says that Mainstream Industries work almost exclusively on or about coal mines. Would you agree to reference almost exclusively?---I wouldn't agree that we work almost exclusively on or about coal mines, no.
PN229
If you say it's not almost exclusively then can you describe to what extent? You do say 50 per cent, 70 per cent, 90 per cent?---I'd say the major part of mining is through - we do probably in fact around about 80 per cent would be the - that's not working for the actual coal mines. That's 80 per cent working with people that entailed actual contractors to the coal mines as well.
PN230
What is the other 20 per cent then?---That's made up of other industrial areas, domestic and commercial jobs. We do perform contracts to clean shopping centres and then we have our day to day drain cleaning and domestic house cleaning jobs.
PN231
Moving to paragraph 8 of Mr Endacott's statement, a similar issue, but it talks about:
**** MR TROY JOHN ROSE XN MR LEAHY
PN232
The company does perform some work outside the coal mining industry but in comparison to its coal mining industry work it is insignificant.
PN233
?---Well I don't think 20 per cent of our business would be insignificant.
PN234
No further questions, Commissioner.
PN235
PN236
MS GRAY: Mr Rose, your company has been in operation for 11 years?---Yes, actually it started in '93.
PN237
Started in '93, if we say 10 years then. How many employees did the company have when it commenced operations approximately?---Three.
PN238
They were?---Myself, my wife and one casual operator.
PN239
Was your wife a hands-on worker?---She done packing work, wages and things.
PN240
Administration. You were the managing director and you also did hands-on work?---Yes, I was on the tools all the time.
PN241
And one casual who also did hands-on work?---Yes. That's when we first started, yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN242
When did you first obtain a contract to perform any work on any coal mine in the Northern District?---It would have been late '93.
PN243
Who was that with?---That was with Novacol and we had one day's work in there a week.
PN244
One day per week?---Yes.
PN245
Who performed that work, yourself and your casual?---That's right.
PN246
Both of you went out to the job for that day?---Yes.
PN247
That took the whole day?---Generally.
PN248
What was the work that you did at that stage for Novocol?---We were maintaining lighting plants and pumps.
PN249
By maintaining - - -?---We were clamping down, making sure that there right to be operated safely so there's no oil leaks or fire hazards. This place they were getting a once over and clean them up so they are safe.
PN250
You checked for leaks but somebody else fixed them if they were found?---That's correct, that was the main reason why we cleaned them.
PN251
If there were leaks who did you bring that to the attention of?---To whoever was the co-ordinator on that ship.
PN252
That would have been an employee of Novocol?---That would be right, yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN253
A maintenance person?---Maintenance planner.
PN254
How long did that contract last for?---It was never actually a contract it was just a rang up thing and they got us to do that. Various times through to when, may be 12 months but it wasn't every week. It was just whenever they wanted it done.
PN255
What was the next contract or work that you obtained on any coal mine in the northern district?---Cleaning up the drag lines and the shovels on maintenance days.
PN256
The drag lines and shovels on maintenance day was that also done for Novocol?---That's right.
PN257
That was at Howick?---That's it.
PN258
How often was that work performed?---Back then it was done on a fortnightly basis.
PN259
Just yourself and the casual performed that work?---When we picked up that work we had to put on another casual.
PN260
So did the three of you do that work or did the two casuals go out and do it?---No, I done the work meself with the other two guys.
PN261
With the other two. So the three of you attended fortnightly for that. You continued to do over that period of time the other maintenance work for Novocol?---After a while we didn't do it no more, someone else got the job. We just basically just kept on just doing the down days here and there.
**** MR TROY JOHN ROSE XXN MS GRAY
PN262
You having actually done the work can you briefly describe what was involved in doing the cleaning of the drag line and the shovels?---Actually just cleaning up oil spills, degreasing, just make the place tidier and so people could, there no rags and things lying around, it was just basically housekeeping.
PN263
So you didn't use any equipment to do that housekeeping work?---Rags and degreaser.
PN264
Rags and degreaser, no high pressure cleaning for the shovels?---On the outside on occasions.
PN265
When you did that on the outside on occasions what equipment did you use then, a high pressure cleaner?---A high pressure cleaner, yes.
PN266
And that was to remove what, caked on mud and coal dust - - -?---Yes, a build up of whatever if up there, grease and things.
PN267
Are you aware of the purpose that those machines were cleaned by your company?---Again just to add to eliminate the fire hazards and to enable maintenance work.
PN268
And to remove any safety hazards so they could be safely operated in terms, you mentioned fire hazards?---Generally, it was for just housekeeping work, it was the main reason.
PN269
That was immediately prior to maintenance being conducted on those - - -?---That was generally ..... what was happening in there.
PN270
So on those occasions you would have had fitters employed by the company working alongside you, you were assisting them at that stage?---No, we just cleaned.
**** MR TROY JOHN ROSE XXN MS GRAY
PN271
So you did the cleaning and there were no other employees around the drag line or the shovels at that stage?---No.
PN272
When you finished the cleaning that's when maintenance employees from the mine site came and worked on the machines?---That's right.
PN273
There was never any time that you were actually there when they?---With the nature of the industry, when you are cleaning things, it's going to be messy so they had their guys doing one thing while we were doing another so we're not in each other's pockets.
PN274
I understand what you're saying. After they'd done maintenance work was there any clean up required by yourselves?---On occasion, yes.
PN275
Mainly before but sometimes after and also inbetween?---Yes, wherever it needs cleaning we clean, we just go to whatever they ask us to do.
PN276
Now, you mentioned draglines which is, as we know, this enormous piece of equipment. So what parts of the dragline were you cleaning, cabin?---We do do cabins, anywhere from the boon point down to the walking shoes, really.
PN277
Never anything to do with the bucket?---No.
PN278
So right down to the walking shoes?---Yes.
PN279
Shovels?---Yep.
PN280
All over the equipment?---From the top down to the track running shoes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN281
Now, you'd agree that those pieces of equipment at those operations are used for coal mining?---They're used to shift dirt, yeah.
PN282
It's part of the process of getting the coal out of the ground. You nodded your head then, would you mind just - - -?---Yes, they're for moving earth, the earth moving equipment to enable them to mine, yes.
PN283
Thank you, Mr Rose, it's just that transcript doesn't show affirmative nodding?---Sorry.
PN284
How long did you continue to do that work at Howick, your company, I mean, not necessarily you personally?---Well from that point on we worked on a method they called the .....
PN285
And that would be once a fortnight basically for the - - -?---Yeah, it changes on their plan but basically once a fortnight, yeah.
PN286
How long did that last for? When did you cease doing that work?---All Novacol men all got changed over to Rio Tinto but we still provide cleaners to this day.
PN287
So even though there was a change of ownership of the mine site, you continued to do that work?---That's right.
PN288
That was at the stage that your company had your wife doing the administration, yourself doing hands on work and being the managing director and you having two casuals?---No, I had - in that time, we're talking a time frame of probably six or seven years.
PN289
Yes, I'm sorry, at the time that you first did that work, that's when you had the two casuals and yourself doing the work?---Yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN290
Do you recall what the next work you got in the industry was?---I won a contract to clean a dragline for a shut down purpose for Brevege Newing from Queensland.
PN291
So you travelled up to do that?---No, we worked out how we were going to do that.
PN292
The dragline was what being taken up to Queensland afterwards?---No, no this was a contracting company that won the contract from Novacol.
PN293
So you've agreed essentially with Mr Endacott's statement that those mines that are listed are mines that your company and its employees have performed work at and you've nominated ones which were a one off, only one job, and others that are regular, some which are rare, three being Mt Arthur, North Riddell and Westside where the coal owner is not the person who you contracted with but rather the company contracting to do earthmoving work as part of the coalmining industry being Hunter Valley Earthmoving?---That's right.
PN294
A similar situation with Theiss which is the operator at Mt Owen, it does all of the production engineering work there and you contracted with them at Mt Owen to do work?---Yes, on occasions, it's not regular work at all.
PN295
You said that South Bulga has closed. To be fair, Mr Endacott advises me that that's not the case, that they're not closed. Are you still - - -?---No, South Bulga has closed, as South Bulga, yes.
PN296
Has it continued operations under another name or anything of that sort to your knowledge?---It's not operating as a coalmine at this moment, yeah.
PN297
New Wallsend only very recently closed, that's the case, isn't it?---We only had very sparse work there.
**** MR TROY JOHN ROSE XXN MS GRAY
PN298
So out of those mines listed whether or not the mining work is conducted by the owner or whether it's done by a contracting company, could you nominate the sites where the bulk of your work has and is being done?---It would be B, Hunter Valley Operations which takes in C and D as well and Mt Thorley, that would be two places where we had very little work.
PN299
At the time that you did your statement and you've now corrected these figures, you had 12 casual cleaners?---Sure.
PN300
That's now been reduced to four?---Yes.
PN301
What's changed in your business that required you to reduce the number of casuals?---Our turnover has reduced 45 percent.
PN302
Is that due to any particular loss of contract?---It's the loss of work from Hunter Valley Operations.
PN303
So turnover as in gross revenue and the loss of which part of Hunter Valley Operations?---It's Hunter Valley Operations in general.
PN304
There's been a reduction in the amount of work you were contracted to do?---Yeah, we lost our major contract where we looked after three various wash pads on that site, we lost that job and as a result that took away basically six jobs straight off the bat and we also lost other work to other companies and that's reduced the work right across the board.
PN305
So the reduction of 45 percent in terms of gross revenue and the necessity to no longer engage six casual employees arose, you say, from the reduction of the Hunter Valley Operations work insofar as your contract to do cleaning of the equipment at that mine site on three pads?---That's right. When Hunter Valley Operations took over the whole three mines, we got the three wash pads and then we had to put on extra employees which was a real fast growing period for us and probably didn't keep up to it that well and then when we lost that job again, we had to reduce our staff.
**** MR TROY JOHN ROSE XXN MS GRAY
PN306
And around about when did you lose that work?---End of July 2002.
PN307
Now, you've also in addition to the six casuals that were dropped because of the loss of that work, there's been two other casuals that you've dropped to make up the difference between the four and the 12?---I haven't dropped anyone. That's just natural attrition, they've just gone and got other jobs.
PN308
So that's really the only major loss of work that you've had in the industry in the last year?---That was our major work, so we lost that, it sort of ripped a plank out from under us.
PN309
And that's no doubt why you, because of the nature of your work being contractor, that you engaged a large proportion of your cleaners as casuals?---We don't engage a large proportion of our cleaners as casuals nowadays. We did to keep up with our work.
PN310
Because it grew so quickly, you say?---That's right.
PN311
And that's the nature of contracting?---That's the nature of contracting. We're contract cleaners and we've got to focus on our business in general and we can't put all our eggs in one basket.
PN312
So, 80 percent of your eggs as such are in the basket of the contracts performed at coal mine sites?---We don't actually have any contracts with the mines. We just work on a day-to-day basis. They ring up and say can you supply this and that on that day. We don't have anything to say that we are going to be there tomorrow or that we are going to be there in 12 months.
PN313
But, nonetheless, with some of those contracts they have lasted, on your evidence, for 10 years or thereabouts?---It varies, yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN314
In August of last year you advised Mr Endacott by letter that you had lost work as a result of the loss of a significant cleaning contract with Hunter Valley No 1 Mine. That is the work, the 45 per cent reduction in gross revenue, that you have referred to?---That is part of it, yes.
PN315
That is part of it? And there were also two other sites, were there?---Just in general we just lost work across the board.
PN316
And you are aware that it went to other contractors or?---It did go to other contractors, yes.
PN317
The Mt Thorley work is the other regular and sizeable amount of work that you have referred to?---Yes, it would be one day a week. Some weeks we mightn't be there. Two to three days with that. That is about it. We are not there every day of the week or anything like that.
PN318
No, you are there when maintenance is being performed on the coal mining equipment?---Yes, that's right.
PN319
Now, when your employees go out and perform work on coal mines sites who advises them of the work that they are to perform that day? On which pieces of equipment and so on?---We take our phone order or whatever. We liaise with whoever is speaking to us. We ask who the co-ordinator is. Every job has a co-ordinator. They tell us what they want done. We fill out a job sheet which says what is the work. We allocate who is going to be the actual permit holder or the guy who looks after that work and they contact the co-ordinator and they go from there.
PN320
And the co-ordinator is a mine site employee?---They can be contractors as well.
**** MR TROY JOHN ROSE XXN MS GRAY
PN321
Yes, as in Hunter Valley Earthmoving or Theiss?---Or there are various companies up there that supply OCEs or mining expertise.
PN322
Like Peter Eason and so on?---Yes, yes. They will supply people to look after those jobs.
PN323
So, do you send out a Leading Hand, you say that you've got two full-time Leading Hands, does a Leading Hand go along with your casual employees to these jobs?---Depending what's on, in most cases it's the Leading Hand who is the first person on the job.
PN324
So, in most cases of your work that you conduct on coal mines, the Leading Hand is on site with the casuals?---In any area where we work there's generally a Leading Hand if we can put one there or a part-time permanent.
PN325
But you have how many part-time permanents?---Three.
PN326
So does the combination of the three part-time permanents and the two Leading Hands, the five employees give you enough coverage for all of the work done within a week at the different mine sites?---No, that's why we have casuals.
PN327
Yes but you said generally the first person on that site will be the Leading Hand or a part-time permanent, so on each day that your employees are working on a mine site, I take your answer to mean that they will be accompanied by a Leading Hand or a part-time permanent to perform the work?---On any site, yes.
PN328
With fie employees you have enough Leading Hands and part-time permanents to attend each of those sites, to be on site whenever mainstream work is being done?---At this current stage, yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN329
At this current stage and that's before you lost somewhere in the vicinity of 45 per cent of you work?---That's right.
PN330
So, during that big growth period when you had 12 casuals, was it also the case that you could have part-time permanents or Leading hands on the site on each occasion?---No because we had three wash pads going and they were generally going 24 hours a day, three shifts per wash pad, we needed nine people, so it was various on who was available, we had casuals that you trained up and showed them how to operate the or what was expected of them on these jobs and when we were satisfied with them they would go by themselves to do it and that was at the request of our customer that we have one person there doing it. So that necessitated us having casuals going there by themselves.
PN331
But certainly the two Leading Hands wouldn't cover all of the work?---No.
PN332
In terms of attending and directing?---No, back then.
PN333
You said you needed nine people to cover the three wash pads, so that was fairly full on, that would be for a period of time while maintenance was being done?---We supplied between us just to wash their equipment, just to clean their equipment on every shift.
PN334
On every shift, that's seven days a week?---On the week-ends we had one day shift on the Saturday and I think the day shift on Sunday, I just can't remember now. It wasn't around the clock on the week-ends, no.
PN335
But Monday to Friday three shifts and week-ends perhaps one shift?---That's right but we no longer do that in contract though.
PN336
Well, you say you don't actually have written contracts with these companies to perform the work but you've developed a reputation in the area amongst the mine site operators and contractors, that's how you would get your work?---We did most of our work by word of mouth heavy equipment, yes because that's what our - - -
**** MR TROY JOHN ROSE XXN MS GRAY
PN337
So, are you hopeful that in the foreseeable future you will be able to get that type of work back again?---I've go no idea, we have no - we work on a day-to-day basis that they are going to go to one contractor and we're only one of many that would be asked to tender, so we don't know.
PN338
At what stage in the history of your company did you cease to do the hands on work at the mine sites?---I still occasionally go when it's required.
PN339
At mine sites?---Very rarely on mine sites, I do their commercial and domestic areas.
PN340
You do that, work a 5-day week?---Myself?
PN341
Yes, I mean in terms of the hands on work?---On hands on work I only do it as required, with the limited number of employees we've got now, occasionally the guys in the office have got to go and do some work, hands on work.
PN342
When it's necessary for you to do that, then essentially you are doing commercial and domestic work?---That's right.
PN343
Are there other employees of your company who predominantly do the commercial and domestic work?---Everyone does a wide variety, I'd say that no one exclusively works anywhere, we are a contract cleaner, we just go and do the job wherever the job is at and if it happens to be cleaning the ship at forward gaps we go there. If it happens to be cleaning up some crane rails at ComSteel or some equipment at ComSteel we go there, if it happens to be doing a roof or a shopping centre, it just depends on what is on in the day and everyone goes everywhere.
**** MR TROY JOHN ROSE XXN MS GRAY
PN344
But as you say, that's really 20 per cent of your business approximately, all of those types of areas that you've just referred, whereas roughly 80 per cent is the work done on coal mines. Now, you've said that you rarely go on and do the coal mine site work any more, is there anyone else in your employ who also rarely goes on the coal mines?---Only our administration, obviously my wife,she doesn't go on coal mines.
PN345
No but she doesn't do hands on cleaning work, does she?---No.
PN346
She does the administration, looks after the books for you, the pays?---And yes but other than that, the storeman, if he is required, he would just go wherever he's required to go whether it be a house job or on to an construction site or cleaning heavy equipment.
PN347
So, that's the storeman?---He's a permanent guy with us and he's done all the training, he's just like that we can call upon them if we need extra labour.
PN348
So his principal work wold be maintaining all of your cleaning materials and having your own equipment serviced and so on?---Yes, he's programs all that stuff.
PN349
So, he does that but if you are short he will go out and do some of the commercial or domestic cleaning?---That's right and he will go and do heavy equipment, whatever is required.
PN350
When you say, heavy equipment because it can get a little bit confusing, of course, heavy equipment is used outside the coal mining industry but it's also used in coal mining, so would he go on to coal mines to do cleaning, your storeman?---Yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN351
How often would he do that?---Maybe once or twice a month, if that. Some months he mightn't go there at all.
PN352
So, he has inductions?---That's right.
PN353
Now, obviously one of the costs to your company of doing coal mine work is the site inductions, do you have your employees get the generic open cut induction and then site specific or just sites specific?---No, we've got to go through the generic, depending on the site but, yes, generic, then site specific.
PN354
How much does it cost to have an employee get the generic open cut induction?---Generic open cut last time I saw a bill was about $250 per man, plus wages.
PN355
So, you are paying them while they are doing that training and it costs you to have them trained, in addition to their wages, $250 per person?---That's just for the training, then they've got to have a drug test which there's an additional cost of $55 or whatever it is now and then you go for your site specifics.
PN356
The generic open cut induction, then drug test, that is something that is required before they can do their mine site induction?---That's right.
PN357
Because at most of the mine sites there are drug and alcohol policies and there is testing for employees who enter the mine site?---Yes.
PN358
That doesn't cost you $55 every time they are tested at the mine site, does it?---I have never had any of my guys tested for drugs up there. As a matter of just course it happens on a weekly basis, or every day that guys are being breath-tested, but we haven't had anyone go up there yet.
**** MR TROY JOHN ROSE XXN MS GRAY
PN359
The mine site induction, is that a cost to your company?---It never used to be and I don't organise any inductions myself, now, so I am a little bit naive on their cost in regard to their site specific. I can't answer that, I really can't, I can't tell you that I do know exactly what that cost is. But we have to also do other training for working at heights and things like that and that costs us about $88 per person.
PN360
And confined spaces?---Yes we do confined spaces.
PN361
And how much does that cost?---Generally about $1100 per person. It can come down to about $600 per person but it depends on who supplies that service. We're asking now that any new employees come with those certificates or those inductions because of the cost involved to the company. And without having any work coming through it is hard for us to justify getting any guys inducted because of the cost factor.
PN362
Indeed, I mean if you are spending up to $1500 on an employee such that they can actually go onto a mine site and work then that is a large investment, isn't it?---Yes, it is probably the biggest gamble that you do when you try and put and do that because you are hoping that you are going to get the work but there is no guarantee that there is.
PN363
Your leading hands and your permanent part-timers have all got all of those qualifications?---That's right.
PN364
Now there are also additional qualifications in terms of your employees might be required to move the heavy earth-moving equipment from the pad to the workshop. Some of your employees have had training in the driving or operating of that plant or equipment?---Yes. They don't operate the equipment. They were trained-up as part of the wash pads procedure to move the machine onto the pad and then to the workshop. By saying that, that was generally leading hands or regular guys who just don't want to have anyone jump in.
**** MR TROY JOHN ROSE XXN MS GRAY
PN365
And of course they have to be assessed as competent before they operate any of that machinery even for that purpose on a mine site, don't they?---You have got to be assessed to be competent to do anything on a mine site.
PN366
It is a very regulated area?---That's right.
PN367
So now that you are looking for employees to come to work at Mainstream bringing with them already their generic inductions, mine site inductions and so on, where would you be sourcing those employees?---In the past we've generally used an employment company, Mission Australia. We ask them to, we give them the criteria and see what they come up with and if they can't find anyone themselves, they will generally get some trained up.
PN368
And realistically you are looking at people who have had experience working on mine sites who would actually come with those qualifications?---Not necessarily, no. We would be looking for someone who knows how to operate a high pressure water blaster or backing truck - - -
PN369
No, I'm sorry I was actually asking about the area of trying to have people come with their generic open cut induction, confined spaces, heights, mine site inductions. You did give evidence that you want people to come to you with that which you have also given evidence, could be in the vicinity of $1500 to your cost if they don't. Now my question was, realistically, people who have those qualifications are likely by their nature to have worked at mine sites?---None.
PN370
Sorry I don't understand. It is my understanding that the generic open cut induction and the site specific mine site inductions are essential to work on a mine site and useless in terms of qualifying people anywhere else. I mean they are irrelevant?---They're generic, are you saying?
PN371
In the mine inductions?---yes. What we're saying is that we want those people to be coming to us with those tickets and in general or in every case that any employees that have come that way they've never worked in a coal mine.
**** MR TROY JOHN ROSE XXN MS GRAY
PN372
I see, so you basically just want to pass the cost of that to the employee pre employment?---No, I'm not passing to the employee at all. The agency that they are registered with they pay it, what the arrangement is there with any reimbursement through government schemes whatever I don't know.
PN373
Then that cost, wouldn't that be built into the charge that the employment agency passes on to you for providing the employee?---We don't get charged. There is an incentive scheme to get people off the dole into work.
PN374
Now Brad Rose, is that your son, brother?---Brother.
PN375
And he's a permanent employee of the company as well?---He's a storeman.
PN376
Now the mine site inductions, how long do they last for?---12 months.
PN377
Then they have to be renewed?---That's right.
PN378
At the cost of a couple of hundred dollars or so?---Or whatever it costs initially has to go through again.
PN379
I see, you're paying the employee while they're training rather than performing the cleaning work?
PN380
You've mentioned in your statement or listed in your statement in paragraph 9 work other than - the last dot point is really the work that covers the work that your employees do on mine sites and have done on mine sites that have done on mine sites isn't it?---Yes, that's correct, yes.
PN381
So when you're on mine sites other than, that's the work that mainstream does, it doesn't do internal cleaning of the offices for example, the administration offices?---We do internal cleaning of lunch rooms - - -
**** MR TROY JOHN ROSE XXN MS GRAY
PN382
Crib rooms?---Crib rooms.
PN383
Well, it would be fair to say that they're being out on site crib rooms require industrial level cleaning?---No, not really. Tresellers another cleaning contracting company up there they do it from time to time. In other areas and they're not what you'd call an industrial cleaner, they're more commercial.
PN384
So how often would you do that work, cleaning crib rooms and whereabouts?---Generally whenever we were going to do some maintenance work we'd get in there a couple of hours early maybe once a week or once a fortnight and do the crib rooms.
PN385
So it wouldn't be a separate and discrete job it would just be tagged on to - - - ?---It is a separate job.
PN386
So different employees doing it?---Same employees just divide your labour the best way you can.
PN387
You mentioned cleaning at the Pasminco Lead and Zinc Refinery. How often does that occur?---We were doing the shut down work on a regular basis which was on a fortnight basis there for a while and then they went into, they'd been in administration for a long time but they made a decision that they were going to close the company and then initially it was going to be the next four years or so, then they brought that forward to the end of this year. So we again lost another job there.
PN388
Do you currently have any mine site inductions that are current?---I have one, that got done the other day so I could go and have a look at a job, that was a quick one for Hunter Valley Earth Moving.
PN389
You're current leading hands, permanent part time employees and the four casuals, putting aside the storemen, have mine site inductions that are current?---Yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN390
For all of the work which you are still performing?---That's right.
PN391
They say that with the coal mining work that you don't have written contracts with the company that you're doing the work for. Do you have written contracts in your domestic or industrial cleaning, particularly the industrial and the supermarkets or - - -?---Yes, we do.
PN392
You do. Having that security of a legal document if you like an agreement a guarantee for the work over the time that the contract you can utilise permanent employees to perform that work?---Yes. Just depends on what is happening on a particular date on those jobs.
PN393
But it would be fair to say that performance of that work would be done fairly regularly by your permanent part time employees?---Yes, they could do that job, yes.
PN394
Which of your employees would generally do that work?---All the guys do whatever is required - - -
PN395
No, but I'm saying - I know that they're required to do whatever you ask them to when you send them to different sites but which of your employees regularly do the cleaning of supermarkets and so on?---Like I say, it depends on what time of the day. Brad, he would go and do them sometimes, he's done it a few times - - -
PN396
That's Brad Rose?---That's right.
PN397
You do that work yourself?---I've done it myself, yes.
PN398
But not regularly?---Well it's not that huge a contract - - -
**** MR TROY JOHN ROSE XXN MS GRAY
PN399
So how many days a week would it require work being performed?---Well it's just whenever they ask us in there so we make out that it is all in the shopping centre for maybe two months then they'll say we want to get certain job done. There is no program.
PN400
So the contract is really just whenever they need that type of work done, they will utilise you?---Yes.
PN401
But it's irregular?---It's regular on three shopping centres.
PN402
So three shopping centres and each one might only be once every couple of months you said?---That's right.
PN403
How long would it take when people go out to do that work?---Generally, three days.
PN404
So collectively, with the three shopping centres, three days every couple of months?---Yes, around that.
PN405
THE COMMISSIONER: If I can just ask you Ms Gray, given that's it uncontested that 80 per cent of the work is in or about coal mines, does this matter?
PN406
MS GRAY: On that issue no, Commissioner. On the issue of whether or not certain employees do particular work was really the issue that I was investigating but I think I've probably gone far enough on that with Mr Rose.
PN407
THE COMMISSIONER: I'm also interested in that particular point, if that's where you're going, you seem to be wandering a bit around it at the moment.
**** MR TROY JOHN ROSE XXN MS GRAY
PN408
MS GRAY: I tend to do that on odd occasions, Commissioner.
PN409
Now Mr Rose you've said that all of your employees are required to work wherever you ask them to work but you've also said that there is essentially a large investment in having people qualified to go an do the coal mining work and essentially those qualifications aren't transferable, aren't necessary to go and do the shopping centres, aren't necessary to do somebody barby, aren't necessary to clean out somebody's speedboat at home, so would it be fair to say that you have the employees with those qualifications generally do the work on the coal mines?---They can't work on the coal mine without those qualifications, ..... catch 22. If we don't have people inducted we can't do the work. If we do get people inducted it costs us a bundle for that and that's what we are looking at, having those things come with us and after 12 months or so, people actually work through that long then we would get their stuff renewed, we don't expect them to pay.
PN410
THE COMMISSIONER: Could I just ask Mr Rose a question before I forget it.
PN411
MS GRAY: Certainly, Commissioner.
PN412
THE COMMISSIONER: Are there any of your employees who never go near a coal mine?---No.
PN413
So does that mean that all of your employees have the requisite qualifications to go into coal mines?---That's right except for acting - - -
PN414
Thank you.
PN415
MS GRAY: Of course if you have to renew those mine site inductions every 12 months which is an additional cost to the company then you would want to get as much use out of those mine site inductions as possible. In other words people are inducted to a particular site, you would utilise them for all the work that comes up at that site?---Yes.
**** MR TROY JOHN ROSE XXN MS GRAY
PN416
THE COMMISSIONER: So I have one more question for you Mr Rose. When you say that 80 per cent of your company's business is in or about the coal mines doing cleaning, would that be the same percentage roughly that each employee that you have doing contract cleaning, hands on people, it's been roughly 80 per cent of each employees time would be spent at a coal mine?---That would be right, yes.
PN417
Thank you. I won't interrupt you again Ms Gray.
PN418
MS GRAY: Thank you, Commissioner.
PN419
Mr Rose, you have made reference in paragraph 17 to a statement of Mr Wynn, Daniel Wynn, which you annexed to your statement. Now, have you had an opportunity to look at Mr Endacott's material that is annexed to his statement?---No, I haven't.
PN420
If I could show you Mr Endacott's statement and attachments for a moment. Now, I presume that you have read Mr Endacott's statement?---Yes.
PN421
If you could have a look at the folder behind it and I don't expect you to read the contents of that but if you could have a quick look at it would you be able to confirm that that's a complete copy, contains a complete copy of Mr Wynn's statement and attachments together with the other evidence in that New South Wales case that you were referring to in your evidence?---I think that's - that's Daniel's.
PN422
THE COMMISSIONER: I think we'll take a short adjournment while Mr Rose examines this documentation. How long do you think you would need to examine this, Mr Rose?---I don't know what the - what am I supposed to be - - -
**** MR TROY JOHN ROSE XXN MS GRAY
PN423
MS GRAY: All I'm going to ask you is whether that in fact is the complete copy of Mr Wynn's statement and attachments and the statement and attachments of Mr Robson and Mr Hyall.
PN424
THE COMMISSIONER: We'll adjourn for 10 minutes to give Mr Rose an opportunity to examine the documents.
SHORT ADJOURNMENT [10.54am]
RESUMES [11.14am]
PN425
THE COMMISSIONER: Mr Rose, you have had time now to go through the documents?---That's right.
PN426
We will proceed, Ms Gray.
PN427
MS GRAY: Thank you, Commissioner.
PN428
So, Mr Rose, you would agree that that contains the full statement of Daniel Wynn, Ian Robson and Christopher Hyall?---Ian Robson, yes, yes.
PN429
Good, and that includes the attachments which form part of those statements?---That's right.
PN430
Now, you have said in paragraph 17 that Mr Wynn described the business as:
PN431
A high pressure cleaning company in which on a contract basis it provides high pressure cleaning services to domestic, commercial and industrial premises.
**** MR TROY JOHN ROSE XXN MS GRAY
PN432
That's correct?---That's right.
PN433
You would agree that Mr Robson and Mr Hyall make no such statement in their statements?---I didn't see it in there, no.
PN434
Were you being selective in terms of picking Mr Wynn's statement and that part of it?---No, it's just he said it as it is so I just - straight from his mouth so that's why I wrote that.
PN435
And because the same statement wasn't made in Mr Robson's or Mr Hyall's statement then you didn't see the necessity for putting those into your affidavit?---I didn't consider those two. I only went by what Mr Wynn said.
PN436
You would agree having looked at the full statement of Mr Wynn that what you annexed to your document referred to in paragraph 17 was only part of what Mr Wynn's statement was?---I - - -
PN437
I think if you compare even the thickness of it to your attachments you would agree it was only partial?---Yes, I was only referring to what I said in paragraph 17 there. That's the only part of the thing I was concerned with.
PN438
Perhaps it's just the wording of it, Mr Rose, but you did say, an example is:
PN439
The statement of Daniel Wynn annexed hereto and marked F.
PN440
So you would agree now that in fact it was part of Mr Wynn's statement that you annexed and marked F?---That's right.
**** MR TROY JOHN ROSE XXN MS GRAY
PN441
I don't want to go into the New South Wales matters in any detail, Mr Rose, but I would put it to you that in a meeting with Mr Endacott in relation to those issues raised by the union on behalf of members employed by Mainstream on 20 August 2002 that you said to Mr Endacott words to the effect of, your employees were probably award free; do you recall that?---I said - that was the initial time that I met Mr Endacott - no grievances were brought to me through the proper processes. Mr Endacott come there and said, now, what award are they supposed to be working under, I said, I don't know what the award is, I don't even know if there is an award that would cover us properly. After that I had a meeting with Australian Business Lawyers the next day and their advice to me was that we were on the Building Contractors Cleaners Award.
PN442
That was some 10 years after you'd been operating that you - - -?---I've never had a problem with any of my employees until last year once we lost that job.
PN443
So essentially you just people on contracts of employment at rates of pay that were agreed and terms and conditions that were agreed. You didn't know of the award until it was brought to your attention by Australian Business Lawyers?---That's right.
PN444
Have you started since you got that advice from Australian Business Lawyers to apply the terms and conditions of the Cleaning and Building Services Contractors State Award to your employees?---Any new employees, yes.
PN445
Existing employees?---No, because, like, I tried to - Mr Endacott said that under the terms of the contract of employment I couldn't change it back to what the award was because we were overpaid.
PN446
So those existing ones stayed on their contracts of employment?---Yes, that's true.
**** MR TROY JOHN ROSE XXN MS GRAY
PN447
Have any of those employees gone on to Australian Workplace Agreements?---There are some Australian Workplace Agreement that's currently lodged with the office employment advocate. They haven't been certified or anything yet so we're still waiting for that. Most of our employees have chose to enter an AWA. Two decided that they didn't want to and that's fine.
PN448
What classification are your people engaged in under the Cleaning and Building Services Contractors State Award? You say in paragraph 15 that the classification structure in the award accurately describes the work performed; what classification - - -?---We come under - my advice is our people come under the cleaners. The majority of their work is in cleaning premises or equipment and my legal advice is that they are cleaners under that award.
PN449
You used to have a process, sign in there, scan themselves in, have an alcohol test, I think, and then proceed to the minesite. That was the process that you had last year?---For a number of months that was true and that was brought about by guys turning up for work and not passing the breath test. So from a period from the middle of April through to November we did request the guys come to the yard and have a breath test before setting to work. They were not required to attend the yard after that unless they were dropping off - - -
PN450
But aside from that brief period of time your employees who do work on minesites commence and finish work at the minesites?---That's right. That was the agreement from day one. Everything was done on this is what the rates are, this is what the hours are and the only thing we didn't do was get them to sign pieces of paper to say that.
PN451
MR LEAHY: Excuse me, Commissioner, could I just ask what the relevance of this line of questioning is?
PN452
MS GRAY: One of the factors in terms of looking at an employer, Mr Commissioner, to determine whether or not they are engaged in the coal mining industry has been held to be the location and the organisation of that business compared to the coal mine, so that's the point of that question.
**** MR TROY JOHN ROSE XXN MS GRAY
PN453
THE COMMISSIONER: I'm certainly aware what the intention of the question is and I think it is quite proper.
PN454
MS GRAY: That's the questions I have for Mr Rose. Thank you,
PN455
PN456
MR LEAHY: If I had have known that, Commissioner, I would never have objected.
PN457
MS GRAY: Yes, you would have.
PN458
MR LEAHY: Mr Rose, in your evidence you have said that Mainstream's business has decreased by 45 per cent through the loss of work at Hunter Valley Operations, that's correct?---Yes.
PN459
Are you or is anyone else in the business taking steps to find new business?---Yes, we've been endeavouring since losing that job - we didn't even get any notice when we lost that job. We just lost it and two days later we're no longer doing that work and since then we've put in a real effort in advertising and commitment to advertising in the domestic and commercial areas to the effect of probably all our advertising including Yellow Pages and things. It would be about 70 per cent aimed at the domestic, commercial, industrial - - -
PN460
When you say 70 per cent do you mean 70 per cent of ads or 70 per cent of the cost of advertising?---70 per cent of costs of advertising.
**** MR TROY JOHN ROSE RXN MR LEAHY
PN461
What has been the response to those ads?---The response has been really well. It's been good. When the Yellow Pages comes out at the end of May we expect to be in a better position to see how that worked but we've made a real commitment in ways of advertising dollars to focus on that area because of the ongoing burden to the business in regard to expenses to operate around the mining areas.
PN462
Have you picked up any new work to date?---On ship cleaning and stuff for other companies like Fooks, All Blast, Metzo Mineral to drill rigs, we work on their equipment at their premises which are not coal mines. We do a bit for ComSteel and a fair bit for Fooks and that as well but the main area we've picked up our work is in the domestic market.
PN463
While Mr Leahy pauses there, does the overall proportion remain 80 per cent in coal mines?---At this time it's - the nature of the work in the mining industry it is very - it's either feast or famine sort of thing, so we want to try and get the line to go nice and straight instead of up and down all the time, so in fact we don't know where we're at.
PN464
MR LEAHY: You said you didn't receive any notice from Hunter Valley Operations as to Mainstream no longer being required to provide services?---Yes.
PN465
How did that happen, was it a phone call?---I got an e-mail.
PN466
And that e-mail presumably said that Mainstream is no longer required to provide work tomorrow?---Yes, it said that. Thanks for your services, you'll no longer be required after, I think, 27 July. It was around that time anyway. Then I found out that they'd already approached my employees to do that work through another company.
PN467
So if the work wasn't going to be required after 27 July do you remember the date of the e-mail?---It was only about a day or two before that.
**** MR TROY JOHN ROSE RXN MR LEAHY
PN468
You've said you don't have written contracts with any of the coal mines. You have written contracts with supermarkets. How would you describe the certainty of your business? Do you know tomorrow whether you'll be getting work from a coal mine?---I don't know whether I'm getting work from anywhere tomorrow except for a couple of those little jobs for supermarket chains.
PN469
You gave evidence that employees are trained in relation to working at heights and also confined spaces?---Yes.
PN470
Is that training only relevant to work performed by Mainstream's employees at coal mine sites?---No, we need to use cherry pickers or elevated work platforms on various jobs. We do some work for strata management companies and they require high rise cleaning. We need to use that access equipment. Other areas as in Fooks or All Blast or Bio Diesel where you need to get into tanks. Hunter Water Board where you need to get into sewer manholes, you have to have confined space.
PN471
I'll just ask you what do Fooks do?---They supply lubricants to industry.
PN472
Is there also a chemical company where your employees are required to undertake confined spaces training?---There's a mob in Gateshead, and the name escapes me at the moment, but we do do a little bit of confined space work for them.
PN473
MS GRAY: Mr Commissioner, just in view of that last question, without objecting to it, I'd just wish through the Commission to caution my friend about both leading and raising issues in re-examination which weren't raised in evidence-in-chief or weren't arising from cross-examination.
PN474
THE COMMISSIONER: The wording is bad but this is a free ranging search for the truth, so I'll be fairly liberal about the rest of it. Proceed without leading, Mr Leahy.
**** MR TROY JOHN ROSE RXN MR LEAHY
PN475
MR LEAHY: Yes, Commissioner.
PN476
You said in response to a question raised in cross-examination that you get most of your work by word of mouth?---That's right.
PN477
The work that you do get by word of mouth where is that work? Where is it performed?---Generally that's the work that we do pick up in the coal mines.
PN478
PN479
MS GRAY: We'd seek to call Mr Keenon Endacott, Mr Commissioner.
PN480
PN481
MS GRAY: Mr Endacott you've given your name and address, did you prepare a statement for these proceedings?---Yes, I did.
PN482
Do you have a copy of that statement with you?---Yes, I do.
PN483
Are there any amendments, changes or additions that you need to make to that?---Yes, I wish to make a number of changes. Firstly in paragraph 6, the last sentence of all the alphabetical dot points that reads
PN484
I am aware that Mainstream industries has employees that work on the following mine sites.
PN485
I wish to change that to say I am aware that Mainstream industries has employees that work or have worked on the following mine sites. So that is the words "or have worked" inserted after the words "that work." A further change in paragraph 11 where it says at the second sentence:
PN486
This is contrary to the position put to the union by Mr Rose at meetings held with the company.
PN487
Full stop. Between the word company and full stop I wish to put the words "on 20 August 2002" inserted.
PN488
Mr Endacott, do you wish to change meetings to singular in that case or were there more than one meeting that occurred on August 20 2002?---Well, it would be meeting, yes.
PN489
THE COMMISSIONER: You wish to amend it to read in a meeting, do you?---Yes.
**** KEENON JASON ENDACOTT XN MS GRAY
PN490
MS GRAY: Any other changes, Mr Endacott?---Yes, the inclusion of the new sentence at the end of paragraph 13, that is a new sentence in the bottom of the paragraph, not a new paragraph, I wish to insert a sentence that reads "I was supplied with a copy of this agreement by a member" Full stop. Then an additional sentenced it continues "the enterprise bargaining agreement to members referred to."
PN491
THE COMMISSIONER: This is member singular is it?---No, this is plural.
PN492
The enterprise bargaining agreement?---The members referred to were in fact in Australian work place agreement.
PN493
Was or were?---Well, I've used the word "were" ..... because it is probably the correct terminology. Yes, was in fact in Australian work place agreement.
PN494
Is that the end of the change?---Delete the date ..... statement today.
PN495
MS GRAY: Now, with those amendments that you've just made to the statement, Mr Endacott, do you adopt as true and correct that statement in all respects?---To the best of my knowledge and belief, yes, I do.
PN496
THE COMMISSIONER: You wish this statement marked?
PN497
MS GRAY: Yes, I do, thank you, Mr Commissioner.
PN498
**** KEENON JASON ENDACOTT XN MS GRAY
PN499
MS GRAY: Mr Endacott, you've given your background and the basis upon which you have industry knowledge in your statement, can you outline to the Commission how if at all the use of contractors in the coal mining industry in the northern district has changed in recent years?---Well, I think it's reasonably widely accepted in recent years ..... increase in the number of contractors that work in the industry. Many functions that were historically performed by production engineering employees ..... have been moved to contractors and the contractor performs the production ..... the work that was historically performed by employees there appears to be a general move on ..... to regulate the .....
PN500
Now, you have said that Mainstream works almost exclusively in the coalmining industry, what do you mean by that?---Well, I mean by that that the vast majority of people ..... but not all of it is work that is on or about a coalmine and is related to coalmine work. I mean by that ..... the genesis of that statement is discussions I've had with the members that the union that work for the company ..... in the company. To explain that I think in the case of Daniel ..... I believe he indicated - my recollection is his indication is that he worked almost exclusively on coalmines except for about one occasion.
PN501
MR LEAHY: Commissioner, that's hearsay.
PN502
THE COMMISSIONER: It is.
PN503
MS GRAY: Mr Commissioner, firstly we say of course the Commission isn't bound by rules of evidence and in any case it is an issue of how much weight would be placed on evidence but I think that it is quite clear from the attachments to Mr Endacott's statement referring to the New South Wales proceedings that the issues raised by the union was not only enforcement of contracts of employment, terms and conditions, contractors of employment, was also victimisation of union members.
PN504
Now, of course, that was denied by the company but it was nonetheless one of the bases upon which the union notified the New South Wales Commission of a dispute in respect to our members engaged in - - -
**** KEENON JASON ENDACOTT XN MS GRAY
PN505
THE COMMISSIONER: Which would have what relevance to these proceedings?
PN506
MS GRAY: Relevance to these proceedings, Mr Commissioner, is that even though it has been general practice for officials and officers of the union, just as it has been for managing directors and corporate representatives to give evidence on behalf of their former case members and the latter case operations and we say it is quite appropriate for Mr Endacott to give evidence in respect to work performed by our members both generally and in the industry and specifically by Mainstream that it is also appropriate in this case that Mr Endacott who is not an employee of Mainstream and cannot be subject to any reduction in hours or other victimisation, for having taking a lead role in the case of the union being opposed by Mainstream to give evidence on behalf of our members, rather than to have them placed in a position where the union has an apprehension that the company could further victimise these people.
PN507
THE COMMISSIONER: Further victimise is a value statement.
PN508
MS GRAY: Well, two of the members are no longer employed by Mainstream, Mr Commissioner, after having had their hours massively reduced by the company subsequent to these issues in New South Wales. Now, I am recognising that the company has had a contrary view on all of these issues and has never accepted the allegation made by the union. Nonetheless in preparing this case we have still - - -
PN509
THE COMMISSIONER: Well, you waved half a dozen red flags at Mr Leahy bouncing around in his seat there and I don't blame him. How can people be prejudiced or not prejudiced by Mr Endacott speaking on their behalf when they're being named. What would be the difference between him saying it and then turning up and saying it themselves? It says a prejudice to them. They're not exactly Mr X wearing a hood are they?
**** KEENON JASON ENDACOTT XN MS GRAY
PN510
MS GRAY: No, they're not Mr X wearing a hood, Mr Commissioner, and I take that point but in the circumstances of this case with the background that the union chose not to call its members directly for evidence which we believe can be given effectively and conclusively by Mr Endacott and not only evidence in relation to Mainstream but evidence in relation to the employees on the mine sites of which Mainstream is engaged, which would be outside the scope of those employees to give.
PN511
THE COMMISSIONER: The latter I agree with. The first part of it I think you're turning the rules of evidence around. It would be more convenient, I would think, it would be more proper to bring the available persons to give evidence themselves rather than rely on Mr Endacott to give a summary of what he believes their evidence would be.
PN512
I will allow it to go on for a while but I am telling you that I am certainly not sure how much weight I will put on.
PN513
MS GRAY: I understand that, thank you, Mr Commissioner.
PN514
THE COMMISSIONER: Well, these persons aren't dead or in prison or out of the country, are they?
PN515
MS GRAY: No, they're not, Mr Commissioner.
PN516
THE COMMISSIONER: We will proceed.
PN517
MS GRAY: So Mr Endacott you were referring to the members working for mainstream and portion of the work which they did on coal mines as opposed to other work for Mainstream?---Yes, I was.
**** KEENON JASON ENDACOTT XN MS GRAY
PN518
If you could be very brief in further elaboration?---Well, only to say I'm familiar with the work performed by our members on the mine site because of the involvement I have with our members about the work they perform. I am giving evidence based upon that and that has led me to that conclusion that you refer to, that they work almost exclusively on coal mines.
PN519
MS GRAY: Are you aware of - we've heard from Mr Rose that the company's work on mine sites, there's the cleaning of plant and equipment in connection with maintenance of that equipment. Could you describe for us the work and how it was done prior to mainstream doing that work at the mine site that you've been involved with?---Well, historically there was a classification on mine sites that is generally known as the serviceman position and servicemen would work in with the fitters, the maintenance employees, and perform the cleaning function and high pressure cleaning function on maintenance days and other times so that fitters would be capable of finishing the maintenance work. That's where the job historically occurred. There's a point of explanation when you're maintaining equipment you need to access it - d so there used to be and it still are some operations where an employee will get paid to do that work without that the maintenance can't conclude. There is also that work is required, there's a breakdown for example in the operation and the maintenance person has to go and do that in the mine site, I would imagine, someone would need to go down, high pressure clean the machine - depending on the breakdown of course - if the contractor is unable to do the job.
PN520
So that's done currently in some places by the mining company's employees, direct employees and at other places by contractors?
PN521
MR LEAHY: Sorry to interrupt the CFMEU in its examination in chief but the statement of Mr Endacott is something which has been prepared and the statement was prepared in accordance with directions issued by the commission. What I am fearful of is additional evidence being introduced today which could have been relevantly put in the statement so that it would have given my client the opportunity to respond to it and would have advised us more appropriately of this case.
**** KEENON JASON ENDACOTT XN MS GRAY
PN522
THE COMMISSIONER: I think you would accept, wouldn't you, if Mr Rose's evidence strayed further, fairly far from the statement in terms of additional material.
PN523
MR LEAHY: I disagree, Commissioner. Every question I asked is a question which arose out of the questioning by the CFMEU in the sense of one question arose relating to chemical training, to confined spaces, and the only reason I aske d that question was because there was an issue raised as to qualifications on mine sites and the training involved. That was the only reason I raised that question. It actually flowed out of the cross examination and it is the purpose for re-examination. Here it's quite different.
PN524
THE COMMISSIONER: I fear that I might have emboldened you with my remarks about hearsay evidence before. The question being asked of Mr Endacott in my view, a logical extension to this is his witness statement I am happy with in proceedings. Ms Gray.
PN525
MS GRAY: Thank you Commissioner. Now whether that work is done by full time employees at mine sites or by Mainstream employees at mine sites, Mr Endacott, is it or is it not part of the process of coal mining and why?---Well I mean, it's a function that has to be done or you can't maintain the equipment.
PN526
And if you can't maintain the equipment what would happen?---Well then you can't obviously remove the dirt and the coal. Also remove the mine overburden and mine the coal.
PN527
THE COMMISSIONER: Can I take it Mr Endacott that you are saying that prior to recent years this work was performed in house by mine employees?---And still is done at some operations that way. It was a function that had to be done.
**** KEENON JASON ENDACOTT XN MS GRAY
PN528
MS GRAY: Now, in terms of the mine sites that you've referred to in paragraph 6, what if anything do you have to say about South Bulga?---Well, South Bulga is an underground mining operation on the Saxonvale mining reef and it is still operational. The Commission quite recently certified a new South Bulga underground operation. The operation is due to close in March or April this year but we reached agreement with the company for some 30 or 40 people to be retained because we can show a cross benefit analysis in doing some ..... extraction and we are hoping that that will be ongoing for a reasonable period of time so that the mine certainly will be operational with employees.
PN529
Are you aware of how the plant or equipment to be maintained in the continuation of that operation is to be performed?---Not specifically that operation, no.
PN530
I would finally ask you to look at DW03 in the attachments to your statement which are the attachments to Mr Wynn's statement in the New South Wales Commission matter. Now, that is headed Mainstream Industries Induction Register. Could you just explain to the Commissioner what those names at the top of each column represent?---Well, I believe that they would be as follows. Camberwell, reference to Camberwell Coal Mine; C&A at SGS - SGS is a company that regularly performs inductions and has established itself reasonably well as a company that does generic reduction in the industry. C&A is a reference to Coal and Allied operations that owns Hunter Valley operations north and also owns Mt Thorley operations which is the owner of Mt Thorley coalmine. C&A restrictive isolator. There are requirements under the Coalmine Regulation Act for certain isolation procedures equipment and people need to be instructed in those procedures. HVO stands for Hunter Valley Operations north and quarriontation - I again suspect what that means but I think it's something to do with orientation. HVA CHBP would be a similar reference to induction at the Hunter Valley operations, coal handling preparation plant. In saying that there are now a number of coal preparation plants, it incorporates a whole series of what were separate operations and so I assume that's a reference to what was the old Hunter Valley No.1 preparation plant. The next one is the Lemmington Washery which is a washery also on the Hunter Valley operations. That was incorporated when Coal and Allied brought men into that coal mine. Eudell Washery is a washery that I recall was
**** KEENON JASON ENDACOTT XN MS GRAY
on the Harrick, the one before it. There's the Harrick Washery which is, they wash the coalmines, the coal on the Harrick operation and how it stopped we had mines getting two washeries, one we referred to as the Harrick washery, the other one we referred to as the Eudell Washery. So I suppose both those washeries were washeries on the Howard side, on my recollection. Dartbrook Kyanga is an underground coalmine and Kyanga is the lease that's being developed next door to Dartbrook. Dartbrook has, I think some heating or gas problems also they have been developing into a new area. The Walkwork is a reference to the walk work open cut coal mine. It is also owned by Coal and Allied now. Walkwork level 1 - - -
PN531
If I could interrupt you for a moment there, Mr Endacott, below each of those site references it says one year?---Yes. All contractors are not permitted to enter the mine site unless they have been inducted. There are specific requirements under the Coalmines Regulation Act that provide stringent rules and requirements for mines and their operators and there has to be certain mine managers rules in respect of certain areas and a contractor must have those rules that are relevant to the performance of their functions explained to them and understood and the mine requires that employees have to go through that formal process at least once a year and that's virtually all mines. I am aware in the quite recent issue that arose that one of the mine sites said I think you work for more than a thousand hours on the site in a year then they require - - -
PN532
Renewal?---But that's only one operation.
PN533
Now, the next one which has got the heading "Driver" underneath it at Walkwork Level 1?---Yes, as part of the mine manager's rules and the requirement of the Act that applies to mines is everyone that drives on a mine site has to be appointed and competent and there are specific mine managers rules that need to be made aware to the person who drives. I assume that would mean the person who has been specifically made aware and signed off on those rules and appointed to drive. Eudell Colliery is an underground coalmine that was simply closed and the reduction - certainly, the other point is the confined spaces ticket. I don't know if that's a requirement on a mine site or not. There's the new isolator restricted. I don't know what that's reference to other than employees that go on to coal mines have to be aware of isolation procedures and BWP I am not aware of. Authorised, I don't know what that
**** KEENON JASON ENDACOTT XN MS GRAY
means other than it must relate to some sort of isolator process. BWP, I don't know what that means and then obviously the next two points are Mt Thorley Level 1 and Hunter Valley Level 1 that would deal with the transport rules and whether the person is permitted to drive the plant equipment on the site.
PN534
And just to summarise then, the next page, are all of those sites referred to there coal mine sites?---No, they're not, there is Pasminco.
PN535
So Pasminco is the only one on the third page which is not a coal mining site?---That's correct, yes.
PN536
Thank you Mr Endacott. Finally Mr Endacott when Mainstream employees go onto the mine sites, who do they receive instructions from in terms of the work to be done?---Well, they need to report to the person who is co-ordinating the maintenance job so that they can ensure that whatever is to be maintained is cleaned. Also there is just the requirements of Coal Mine Regulation Act is that there must be someone who holds the mine manager's statutory functions and then also in the Coal Mine Regulation Act there is a position called the Open Cut Examiner and that person must be aware of every person that's on site and they would have a district under the Act, they are required to have a district appointed to them which they can control. Certainly the Open Cut Examiner would need to be aware of the persons on site but they would report to the person described, I would assume if the maintenance work, the ones that were co-ordinating the maintenance that they thought they were certainly in the ..... which is described I think is the job co-ordinator.
PN537
MS GRAY: No further questions, thank you Commissioner.
PN538
PN539
MR LEAHY: Mr Endacott in your statement, I will take your attention to it to paragraph 6, you say:
**** KEENON JASON ENDACOTT XXN MR LEAHY
PN540
Mainstream Industries work almost exclusively in or about district coalmines.
PN541
In response to a question from Ms Gray you referred to almost exclusively as being the vast majority of work?---Yes.
PN542
Would you take issue or do you agree or disagree that 80 per cent is about the figure of the amount of work performed on coal sites the remaining work could be performed elsewhere?---Well, based on conversations I've had with my membership about the work I've performed on and off coal mine sites, I disagree.
PN543
Do you work for the company, do you work for Mainstream Industries?---No, I do not work for Mainstream Industries.
PN544
Do you have information from Mainstream Industries as to how it allocates its work that it receives?---No.
PN545
You would agree though that Mainstream performs work at locations other than coal mine sites?---Yes, I would agree.
PN546
You understand that by taking issue with the 80 per cent you are disagreeing with evidence that the managing director of Mainstream Industries?---Well, that's correct, in what I'm saying in response to your question, I indicate that my members have formed that they had worked at mine sites as compared to other operations and basically on that they had not described 80 per cent of the work, going on other operations.
**** KEENON JASON ENDACOTT XXN MR LEAHY
PN547
What figure have they put?---Well in the case of Mr Wynn I think you recall he informed me that he again called out once in working on a coal mine site. In the case of Mr Ronson, his statements are attached, I think he'd said that he had always worked on a coal mine site. Mr Hyall, his statement is also attached I think he informed me that he actually couldn't specifically recall not working on a coal mining site but may have not worked on a coal mining site between the period he'd worked there. So in his case he either had not only worked on a coal mining site and had worked on a coal mining at ..... and he couldn't recall not doing it and it is based on that that I have said that well I can't take this and you said technology almost exclusively and that's how it's been described to me by my members.
PN548
After the coal mining after in paragraph 6, the third line of paragraph 6, you say:
PN549
High pressure cleaning, mining, plant and equipment.
PN550
?---Yes.
PN551
I take that to be a description of the work performed by and instrument?---That's correct, yes.
PN552
That's how you would describe that work, no other way?---Well that's how I have describe that work, yes.
PN553
That's accurate, obviously?---Well that's how I described it in my statement and hopefully I described it accurately.
PN554
THE COMMISSIONER: So I take Mr Endacott has already adopted his statement.
**** KEENON JASON ENDACOTT XXN MR LEAHY
PN555
MR LEAHY: No further questions, Commissioner.
PN556
MS GRAY: Nothing arising thank you.
PN557
PN558
THE COMMISSIONER: I take it this brings us to the happy moment of submissions?
PN559
MS GRAY: It does indeed, Commissioner.
PN560
THE COMMISSIONER: I don't want to cut you off in mid stride to have lunch. Would you like to break for lunch now and come back and then just continue straight through?
PN561
MR LEAHY: That would be convenient.
PN562
THE COMMISSIONER: Give you a bit of preparation time both sides. We'll break till 1pm.
LUNCHEON ADJOURNMENT [12.05pm]
RESUMES [1.10pm]
PN563
THE COMMISSIONER: Ms Gray?
PN564
MS GRAY: I think actually my friend is going to do his submissions first, Commissioner.
PN565
MR LEAHY: Thank you.
PN566
THE COMMISSIONER: My mistake Mr Leahy, sorry.
PN567
MR LEAHY: If I may then start Commissioner, I have my written submissions filed on behalf of Mainstream marked as an exhibit?
PN568
THE COMMISSIONER: Yes.
PN569
MR LEAHY: I think that may be R2.
PN570
PN571
MR LEAHY: As said in the outline of submissions Commissioner, the case as we put it is quite simple. A dispute cannot be found within the meaning of the Act between Mainstream Industries Pty Limited and CFMEU. The reason is because Mainstream's employees do not fall within the eligibility rule of the CFMEU. It really is, at its nub, that simple. To be considering any other issues wouldn't assist the Commission. In terms of cases that we rely on as the first point of reference to say that a dispute cannot be found if employee and the employer do not fall within the unions eligibility rule. We have referred to two cases in what is now marked as R2. If I may Commissioner I would like to pass both of those cases to you.
PN572
THE COMMISSIONER: I you were going to pass any more up, the others ones you refer to, can you do it all at one time please?
PN573
MR LEAHY: Certainly, I will do it now. Commissioner if I could take you firstly take you to the Crown v Neil ex parte Cinema International Corp Pty Limited (1976) 134 CLR 27. The purpose of relying upon this case is the position of the High Court in 1974 is purely to take you to page 30 of that decision. Hopefully, that particular reference has been flagged to your attention. It has also been highlighted.
PN574
THE COMMISSIONER: That's helpful, thank you.
PN575
MR LEAHY: It is a judgment of Gibbs J and it states:
PN576
The question whether an industrial dispute has arisen between the association -
PN577
it is quite a different association to the CFMEU present today:
PN578
- - - and the prosecutor depends on whether an employee ...(reads)... between the association and the prosecutors.
PN579
THE COMMISSIONER: Well I certainly accept that as good law.
PN580
MR LEAHY: I don't think that is contested. Now if I may take you to another decision of the High Court, it is re Federated Liquor v Allied Industries Employees Union of Australia ex parte the Australia Workers' Union.
PN581
THE COMMISSIONER: Is this helpfully highlighted as well somewhere?
PN582
MR LEAHY: Unfortunately, this is the only case which is not highlighted. If it were, there are substantial parts of the text which I will actually be taking you through, not right now but later on and that was one reason why it is not highlighted. For the purpose of the point that I'm dealing with and that is that there must be, the union must have the right to cover the employees of the employer in order for industrial dispute to be found. I would like to take you to page 268 of the decision and if you turn to page 268, towards the top of the left hand column, it is the very first full paragraph and I will read it:
PN583
- - - to represent those employees.
PN584
That really goes to the point in question today and I will be taking you through that case a little bit later.
PN585
Now, the CFMEU contends that it does have coverage of Mainstream's employees and it is relying upon a particular subrule and that subrule alone. It is relying upon subrule 2(d) of its constitution and the particular words within that subrule upon which the union relies reads:
PN586
Employees engaged in or in connection with the coal and shale industries.
PN587
So that there is no doubt that that is the only subrule that the union is relying upon you would note, Commissioner, I refer to exhibit R1 and in particular annexure D of exhibit R1 in which there is correspondence from the CFMEU to Australian business lawyers in which the union indicates that that part of the constitution on which it relies and also that subrule is referred to within the CFMEU's outline of submissions.
PN588
The next question which arises is what do those words within subrule 2(d) of the union's rules actually mean on a proper construction? Looking at the union's submissions, the written submissions which have been filed, the union says a number of things and in particular I am referring to paragraphs 4 through to 8 of the union's outline of submissions.
PN589
The union says a couple of things. One, it says that union rules are not to be constrictively construed, should be given a little construction. I don't really take any issue with that. Later on in paragraph 7 it says:
PN590
Mainstream's employees are upon a proper construction of the union's rule 2(d) and upon proper consideration ...(reads)... in connection with the coal industry.
PN591
So the issue we are looking at is what is the construction of that rule. We submit and our submission is contained in short in exhibit R2 that if you have a look at the proper construction of the union's rules then you will find that the coal and shale industry means the industry of extracting coal and shale from the earth.
PN592
We say that based upon a decision of the High Court, a decision which was handed to you, which is The King v Hebel and Others, ex parte Broken Hill Proprietary Company Limited (1921) 29CLR 290. Again, we have marked the relevant part of the case and we have flagged that.
PN593
THE COMMISSIONER: You're returning later, are you, to re Federated Liquor and Allied Industries Union?
PN594
MR LEAHY: Yes, I am.
PN595
THE COMMISSIONER: As there are bits in there I would like to discuss. So what page are you on now?
PN596
MR LEAHY: Well, the relevant part of The King v Hebel is at page 302 but just before I go to page 302 I say this. The question before the High Court was whether in certain employees of BHP and BHP carried on the business of iron and steel manufacture, it engaged workmen who were engaged in converting coal purchased by it into coke for use in connection with the production of iron and steel. The question was whether those employees who were engaged in the process of converting the coal into coke fell within the rules. When I say the rules I mean the rule of employees engaged in or in connection with the coal and shale industry. So we are dealing with, almost the identical words, the only difference I think there is that in that decision it refers to industry, now it is in the rules, industries.
PN597
THE COMMISSIONER: So the CFMEU mining ante division is a successor to the Australasian Coal and Shale Employees Federation is it?
PN598
MS GRAY: Yes, it is amongst other coalmining unions, Mr Commissioner, there was also the mine mechanics which amalgamated which you might have noted, mine workers, and the FEDFA amalgamated with the CFMEU and the FEDFA also had wide spread coverage through the open-cut coal mining. The mine mechanics had wide spread coverage predominantly in undergrounds.
PN599
THE COMMISSIONER: It has all moved on since the time of these long dead judges and The King.
PN600
MS GRAY: It has indeed, your Honour.
PN601
MR LEAHY: If I could now take you to page 302, a decision of the Commission. Page 302, it is a judgment of Higgins J. I will take you to the first real paragraph on that page. It says:
PN602
It appears that there is an organisation registered under the Commonwealth ...(reads)... in connection with the coal and shale industry.
PN603
The words used in or in connection with coal and/or in connection with coal industries and when one speaks of the coal and shale industry as a single industry the meaning is surely the ...(reads)... cannot be members of this registered federation of employees in or in connection with the coal and shale industry.
PN604
So that is actually a decision which seeks to if not define, at least in part define, what is the coal and shale industry.
PN605
The next issue is - if that's the coal and shale industry, on a proper construction of the CFMEU's rules whether the rule actually refers to the work performed by the employees or the work performed by the employer, or the trade or business of the employer. In that regard referring to the same decision, that is The King v Hebel, I would like to turn your attention to some comments on page 297 of that decision. I can't be assured that these references are either flagged or highlighted.
PN606
THE COMMISSIONER: They're not but press on.
PN607
MR LEAHY: What I would like to draw your attention to is the sentence beginning at the very bottom of page 296 it says:
PN608
The Australasian Coal and Shale Employees Federation is an organisation registered under the Commonwealth Conciliation and Arbitration Act and its rules provide that ...(reads)... and admitted as members.
PN609
Now, I will keep reading.
PN610
The Broken Hill Proprietary Company Limited carries on the business of iron and steel ...(reads)... persons employed in that business are properly said to be employed in or in connection with that industry.
PN611
And:
PN612
A person, however, who carry on the trade or business ...(reads)... in connection with that industry - - -
PN613
But that particular part of the argument is not being adduced by the CFMEU is it? That these persons are not somewhere down the line from the industry. No, I agree, I mean what good judges said there is common sense?
PN614
MS GRAY: We're not, Mr Commissioner.
PN615
MR LEAHY: I have handed a copy of another decision, which goes to the same points, so I will move along pretty quickly from them, but it is Turner v Australasian Coal and Shale Employees Federation, and Alcon Collieries Pty Ltd. Again it is flagged and the relevant flag should be at page 186 of that decision. Again, all I rely on in terms of this decision is hopefully what is highlighted which says:
PN616
It is clear that in rule 2 - the reference to the coal and shale industry is a reference to the trade or business of employers and not a reference to the occupation of employees.
PN617
CFMEU rule 2.
PN618
THE COMMISSIONER: So how in your view is that rule applied in the case of a conglomerate company that runs many different types of businesses?
PN619
MR LEAHY: I suppose what I would say is it is an interesting question but in the case before us we have a small business which from all accounts I will get to the evidence in more detail but I have not heard any evidence to go against what is contained within Mr Rose's statement that it is a contract between the company.
PN620
THE COMMISSIONER: I suppose that is the nub of it, isn't it?
PN621
MR LEAHY: And further, the CFMEU has taken some objection to the reference that we have made in our submissions to the reference to a particular state award, the Cleaning and Building Services Contractors State Award. I can't speak for the CFMEU but I suspect that it has taken issue with the reference to that award because it is almost like it says, look there's an award that applies to these persons, is that any basis upon which the Commission can rely to say that it does not have the power to make a finding of an industrial dispute.
PN622
The answer to that is plainly no. We agree with the CFMEU to the extent if that is the basis on which it objects to the reference of the Cleaning and Building Services Contractors State Award that - - -
PN623
THE COMMISSIONER: Do you say that award applies?
PN624
MR LEAHY: Yes.
PN625
THE COMMISSIONER: I note from Mr Rose's evidence it seems to be applied in a selective way, that is business.
PN626
MR LEAHY: Well, that is pretty simply answered, Commissioner. As to whether or not or how Mr Rose applies the award, the question of application is not one that is determined by Mr Rose, it's a matter determined, set out in a legal document and which as a question of fact would it be decided by a court or a commission?
PN627
THE COMMISSIONER: I suppose it goes to a question of Mr Rose's understanding of these matters. It appeared to me and I hope I am paraphrasing him fairly that employees who walked in the door after he found out that he was covered by an award, got paid under the award and the ones who were there at or before the time he found out, don't. Isn't that what he said?
PN628
MR LEAHY: My understanding was that he didn't appreciate that an award applied and certainly from a particular point in time when I think he had a meeting with the CFMEU about 20 August he admits that he was unaware of whether or not it did apply, that some time later - I think some time fairly quickly later - he sought advice from Australian business lawyers and the advice was that that award does apply. My understanding is that since that time he has applied the award.
PN629
THE COMMISSIONER: To new employees. He's sitting right behind you, you can ask him.
PN630
MR LEAHY: The issue is that it would have been applied to existing employees and in part it was applied to existing employees except in relation to certain provisions. One for example is a rate that applies for Saturday and Sunday work and also overtime.
PN631
THE COMMISSIONER: I understood that point from - - -
PN632
MR LEAHY: In actual fact the amount of moneys paid there were over and above the award and therefore because they had an entitlement under the contract of employment that part of the award was not applied to the existing employees.
PN633
THE COMMISSIONER: I am not sure how much turns on, I was just intrigued.
PN634
MR LEAHY: The issue with the award is that if there is any doubt as to whether there is an industry applying - an industry for contract cleaners, the Industrial Relations Commission of New South Wales has consistent I would have thought by the making of the award an award called the Cleaning and Building Services Contractors State Award and as I say I will take you to it later. That deals specifically with employers who supply contract labour for cleaning purposes.
PN635
THE COMMISSIONER: We can come to that. So are we finished with Turner?
PN636
MR LEAHY: Finished with Turner. Now, we move to the case which I think has a substantial amount of work to do in this matter and that is what's been known as the Poon Bros case. It is one I have taken you to before and the one I think you've got in your hands right now. Re Federated Liquor and Allied Industries Employees Union of Australia.
PN637
THE COMMISSIONER: Yes, I do.
PN638
MR LEAHY: That case concerned - I will try and obviously be as accurate as I can but won't seek to leave out facts that I consider material that - that case concerned as I understand it the service of a log of claims by the AWU on certain company in particular two companies and on page 266, towards the middle of the page, you will see that it talks about two companies, SHRM Australia Pty ltd and Poon Bros WA Pty Ltd.
PN639
Those two companies had contracts with certain iron or mining companies operating in the north-west of Western Australia to supply and perform catering, cleaning, laundry, housekeeping and garbage services for and in respect of the buildings of and housing accommodation provided by the mining companies and for and in respect of the employees of those companies and their dependents.
PN640
Very briefly, my understanding of the facts are that the AWU served a log of claims upon those two companies. A dispute finding was made, an award was made at first instance. The matter was then appealed by the then Federated Liquor and Allied Industries Employees Union of Australia to a Full Bench of the Commission. The Full Bench then revoked the determination that a dispute existed and set aside the award that was made in the first instance. The matter then proceeded to the High Court by reason that the AWU obviously took issue with that and considered the dispute finding and the making of the award were within jurisdiction of the Commission.
PN641
THE COMMISSIONER: It certainly was an all star cast, wasn't it.
PN642
MR LEAHY: Yes. That's one of the benefits of reading some of these cases, it is interesting to see who they are.
PN643
Now, moving through the decision. If I could take you to page 267 and approximately two-thirds the way down the left-hand column, it just gives some more facts which I think are appropriate here. Hopefully you can find it but it says - - -
PN644
THE COMMISSIONER: It has got numbers.
PN645
MR LEAHY: Letter (e). It talks about:
PN646
The meals are cooked and prepared by staff employed by SHRM. Besides providing food SHRM at the cost of Numan Mining launders sheets, pillow cases and towels used by the single men employed ...(reads)... for the purposes of fulfilling its obligations under its contract with Numan Mining.
PN647
And it moves on. I just refer to those by way of background.
PN648
If I can then take you through to some more relevant parts of this standard decision. If we move to page 268, the left-hand column and it is roughly equivalent to the letter C and it reads:
PN649
It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer.
PN650
Just at that point, Commissioner, I will do my best to find the eligibility rule. If you turn to the very first page of the decision, the left-hand column in between paragraph (c) and (d) so it is the first page of the decision, left-hand column, in between paragraphs (c) and (d). It talks about the eligibility rule.
PN651
The eligibility rules of the applicant union, a duly registered organisation provided the following persons among other should be eligible ...(reads)... all work in laundries.
PN652
So there are those words "in or connection with the following industries" and in particular metalliferous mining. So they're different rules obviously from the rules before you today but there is some similarity I would have thought, a strong similarity in the sense in which the words are actually set out and the interpretation to be placed upon them.
PN653
Moving back to page 268. The lefthand corner, roughly about paragraph C. So it says:
PN654
Should be construed as related to the industry of the employer.
PN655
Then it says:
PN656
That is to say that persons to be eligible to be members of the organisation must be employed in an ...(reads).... one or more of the descriptions in the eligibility clause.
PN657
Then it refers to Hibel's case. In relation to the present circumstances that means that to be eligible for membership of the applicant the employees of the respondent companies must be employed by the respondent companies in or in connection with the industry of metalliferous mining. Whether or not they are so employed is a question of fact.
PN658
The question, therefore, which would assign the validity of the consent award is whether the respondent companies do in fact carry on an industry of or in connection with metalliferous. Or, put another way, whether the employees of the respondent companies are employed by those companies in or connection with the industry of metalliferous mining carried out by those companies. So that seems to be a test.
PN659
Moving along, if I may, in the righthand column just below paragraph B, again quoting Barwick CJ in the decision:
PN660
The Full Court of the Commission answering such submissions said, we are of the view that ...(reads)... of the mining industry whatever it may have been before.
PN661
Also note the sexist language there, Commissioner:
PN662
In my opinion this was a correct view the business of the respondent companies was quite distinct and ...(reads)... to as an integral part of the metalliferous mining operation.
PN663
It then refers to Sir Owen Dixon in R v Central Reference Board; Ex parte Thiess Repairs Pty Ltd, [1948] HCA 9; (1948) 77 CLR 123 at 141. Going on, Sir Owen Dixon thought that:
PN664
Separateness of establishments in point of control, organisation, place, interest, personnel and equipment might ...(reads)... in deciding the question of fact.
PN665
Sir John Latham, in the same case at 135, thought that:
PN666
The substantial character of the industrial enterprise in which the employer and employee were concerned was ...(reads)... employee was engaged in an industry of given description.
PN667
So, what I have just read seems to be the test. When I say, seems to be, I am actually inaccurate. I would submit that that is the test. Reading on it says:
PN668
Here the substantial character of the industrial enterprise in which the respondent companies are engaged is ...(reads)... are employed in or in connection with such an industry.
PN669
I would submit that that test itself - apart from the issues of going through the evidence which I will do - but that test itself raises some matters which I would say are significant, if not hurdles, that simply bar a finding that a dispute may be made as to contract cleaners falling within the industry of the coal and shale industries. I say that for these reasons. In that decision and just looking back to what I quoted, in the righthand column towards paragraph D, it talks about the provision of services which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations.
PN670
So, we are not talking about peripheral activities. We can be, but here we are talking about "desirable, if not indeed necessary". I would have thought that certainly the cleaning services provided cleaning services. And the cleaning services fall within that category of being if not desirable then indeed necessary. I would have thought that is right on point.
PN671
The next thing I'd like to turn to is just near paragraph F, on the same page, in the righthand corner. It makes a distinction, which is critical in this case. It makes a distinction between employees at mining companies performing the work, versus such work done by independent contractors. It has a different nature or quality. Now, Mr Endacott in his evidence - hopefully I repeat it correctly - but my understanding was that he said that cleaning work currently performed by Mainstream Industries' employees has in the past, may even now, be performed by employees of mining companies.
PN672
THE COMMISSIONER: That is as I remember it.
PN673
MR LEAHY: To be quite honest, no disregard to that statement, but I would say, "So what?" because it is contract work. That is what contractors do.
PN674
THE COMMISSIONER: I think one of the good Judges said, "So what?" a little earlier, didn't they?
PN675
MS GRAY: I get lost in that sort of legalese, Mr Commissioner.
PN676
THE COMMISSIONER: I try not to but I sometimes join you. Wasn't that exact point made in one of these judgments? It might be the one that you are referring to now. Anyway, I will no doubt come back to it. But I think there was something exactly on that point.
PN677
MR LEAHY: Just as an aside, I note that Stevens Js decision there, "I agree", which I think goes down as must be the shortest decision. I have actually tendered another decision in which Stevens J says, "I agree". So, he seems to have been a man of few words.
PN678
THE COMMISSIONER: I like men of few words, Mr Leahy.
PN679
MR LEAHY: Commissioner, I found a decision on point and I thought I would run with it.
PN680
THE COMMISSIONER: This decision is very important and certainly needs some replying to by the CFMEU. I am referring to the Liquor Trades decision. Could you just bear with me for a moment while I just read this again?
PN681
MR LEAHY: Certainly.
PN682
THE COMMISSIONER: There is a point I wish to raise with you. No, I can't find the point I was looking for at this time but I will come back to it.
PN683
MR LEAHY: Certainly, no doubt you will, but if you do find it interrupt me. One other point I wish to note is this. Towards the bottom of 268 and then following on to page 269 which is part of what I read, this case, the Poon Bros' case, actually deals with contractors that provided work exclusively to particular mining industry - this particular mine.
PN684
Obviously in the evidence today there is no issue that Mainstream does not provide work exclusively to the coal and shale industries. In the evidence as I understood it there seems to be some alternatives put forward. One by Mr Troy Rose that the amount of work performed for, I think the coal and shale industry, by Mainstream is in the range of about 80 per cent. Mr Endacott, I don't think he placed a percentage on it, but I got the impression his would have been higher as he stuck to words "almost exclusively", "vast majority" and then referred to the foundation for that view as to his discussions with other employees.
PN685
What I say on that is what is the weight to be given to both of those alternative views? I would submit that the weight of the person actually present today - subject to cross-examination, having filed a witness statement, who is the Managing Director of the company and hopefully should know about the company - should be preferred to that of a person who having had, hopefully, genuine discussions with others that weren't here today. I would have though and would submit that the Managing Director's evidence is to be preferred in that regard. To the extent that it is even relevant because whether or not the work is performed exclusively or not doesn't seem to be an issue.
PN686
THE COMMISSIONER: I might say in Mr Endacott's defence, if any aspersions are being cast upon him, that I accept his evidence as being truthful to the extent of truthfully relaying what people have said to him. I don't believe that he has coloured that evidence in any way, but as to its value that is another question.
PN687
MR LEAHY: I certainly did not mean to give that impression, Commissioner.
PN688
THE COMMISSIONER: Just in case.
PN689
MS GRAY: He is not overly thin-skinned in any case, Mr Commissioner.
PN690
MR LEAHY: Having spoken to him I don't think so either. Having said that the question then is, I would have thought, we need to look at the substantial character of the industrial enterprise. That is a part of the test, as I said, the substantial character. If we have a look at the work performed by Mainstream we submit 80 per cent is in the coal and shale industry. There is no dispute on the evidence that the character of Mainstream's business is contract cleaning. I say that given that if we turn to Mr Rose's statement. He says on at least one occasion or he says in paragraph 6 of his statement which is exhibit R1:
PN691
The company operates a contract cleaning business.
PN692
Then he says in paragraph 10:
PN693
The company is contracted to provide cleaning services to mining companies.
PN694
I don't think it's in issue that it's a contract cleaner.
PN695
THE COMMISSIONER: In fairness to both sides I just want to take you back to Federated Liquor and Allied Industries again. The bit that I see as being core to this which I want to flag to the CFMEU for their submissions. It is a bit that you did advert to earlier. It's page 268 just after B or actually C it is and I'll just read it:
PN696
The Full Court of the Commission answering such submissions said ...(reads)... whatever it may have been before.
PN697
Then the good judge says:
PN698
In my opinion this was a correct view.
PN699
And goes on to say a bit more about it. I just flag to both sides I see this as an important piece which has to be answered. You've already put your view about it. I'm not inviting you to have another go, Mr Leahy. Now, you can go on, but there is where I see as being core.
PN700
MR LEAHY: I agree. In terms of the character of Mainstream's business I was submitting that the character of the business is that of the contract cleaner. In case there was any doubt or dispute and as I said I don't think there is but I rely upon exhibit R1 and in particular paragraphs 6 and 10. As I say in particular the whole of exhibit R1 in general and also I rely on annexure F; in particular just paragraph 6 of annexure F and annexure F is a statement of Daniel Wynn. It's a statement of Daniel Wynn in other proceedings but Daniel Wynn is a former employee of Mainstream. He describes the company as being:
PN701
The company is essentially a high pressure cleaning company in which on a contract basis it provides high pressure cleaning services to domestic, commercial and industrial enterprises.
PN702
Furthermore, I won't take you to the specific references, but in Mr Endacott's statement he referred to the fact of a loss of work and loss of contract from the Hunter Valley Operations obviously indicates that the work our client performs as employees of the Hunter Valley Operations but as contractors and you'll remember the point that unfortunately I seem to labour as to what is the work that Mainstream performs but I wish to - I didn't mean to labour the point but I just wanted to be clear that they just perform cleaning work. They don't perform any other work. There's no issue that they perform maintenance work. Nothing to that effect. They perform cleaning work and they perform that cleaning work on mining sites and elsewhere.
PN703
THE COMMISSIONER: I think Mr Rose actually said they performed cleaning work and to some small degree alert other - well, not other employees but employees of the mine as to possible faults or leakages etcetera.
PN704
MR LEAHY: I understand that to be the case too, Commissioner. I accept that.
PN705
THE COMMISSIONER: But I also remember that Mr Rose agreed with - well, in answer to my question about the decline of work and the change of contracts and the rest of it that the proportion had remained at around 80 per cent in his estimate.
PN706
MR LEAHY: I understood that too, Commissioner. That's a good point because another issue which arose to the point is relevant. It became apparent from Mr Rose's evidence that the basis upon which work is performed in the mining industry is not subject to any written contracts. Those contracts come and go and one at least clearly did go. That's the Hunter Valley Operations contract that went and it went in such a manner it went via the notice to the employer - sorry, to Mainstream - - -
PN707
THE COMMISSIONER: I think Mr Rose's point actually was that there were no contracts in the coal industry. The only contracts his company possessed were with a couple of shopping centres.
PN708
MR LEAHY: That's correct.
PN709
THE COMMISSIONER: I thought that was the distinction drawn.
PN710
MR LEAHY: I agree. I suppose I was even drawing a further distinction between a written and potentially an unwritten contract.
PN711
THE COMMISSIONER: The unwritten contract didn't seem to be worth the paper it wasn't written on, does it, if they could be got rid of the next day?
PN712
MR LEAHY: Not if you get a termination notice via e-mail and you're given two days notice.
PN713
THE COMMISSIONER: I think they're done by SMS now if I read my newspaper cuttings correctly.
PN714
MR LEAHY: I've heard that too.
PN715
MS GRAY: Arrogant bunch these coal mining companies, Mr Commissioner.
PN716
MR LEAHY: Perhaps we can pass it onto them, they might be able to save some costs. But I think it's worthwhile, unfortunately I have a chuckle, but that actually resulted in employees losing income let alone Mainstream obviously losing income, employees losing income. There's a significant fallout from that.
PN717
THE COMMISSIONER: I don't take offence, we just grasp at any chance of levity in these sort of cases. We don't get much of it.
PN718
MR LEAHY: Especially in my submissions. Given that the only written contracts seem to be with supermarkets raises the issue that there is no guarantee of continued work in the mining industry. The expectation may well be there but the guarantee I don't think is there.
PN719
THE COMMISSIONER: All things being equal and all things going well Mr Rose's company would like to do the majority of its work in the coal industry or in - I'd better be careful of the words I use - around or in coal mines or washeries or whatever.
PN720
MR LEAHY: Actually that's an interesting point because that wasn't raised with Mr Rose.
PN721
THE COMMISSIONER: No.
PN722
MR LEAHY: I would have thought it's also possible that whether or not the work is performed at coal mine sites it's a matter of volume and revenue.
PN723
THE COMMISSIONER: It seems to me that the other contracts are sought out when work in coal mines declines.
PN724
MR LEAHY: I suppose that goes to an acceptance that to date roughly about 80 per cent of work is performed for coal mines. Given the relatively recent loss of the Hunter Valley Operation contract there is evidence of Mr Rose that he has currently sought to increase business through advertising and the evidence was that the weight of that advertising, a figure of about 70 per cent was actually put on advertising in areas outside of the mining industry. So maybe if we look at it that way - - -
PN725
THE COMMISSIONER: But this advertising had been undertaken because the work in coal mines has declined.
PN726
MR LEAHY: True, I accept that. The other issue is that then 30 per cent of advertising was in relation to mining work.
PN727
THE COMMISSIONER: I suppose that follows.
PN728
MR LEAHY: As I've said, Commissioner, I've pointed to the evidence to say that, undisputed evidence that my client is a cleaning contractor and operates in that industry. What I'd seek to do now is to table - - -
PN729
THE COMMISSIONER: Given that this is not a Commission document we'll mark it as exhibit R3. Could you just describe for the record what the document is?
PN730
MR LEAHY: The document, the covering page is an application for a new award filed by the Australian, Liquor, Hospitality, Miscellaneous Workers Union, New South Wales Branch. It is an application for a new award to be known as The Cleaning and Building Services Contractors State Award. It has a stamp on it which says "filed 28 Feb. 2000" - I understand that's 2003 - "Office of the Industrial Registrar".
PN731
PN732
MR LEAHY: This award has been made. Unfortunately I can't confirm the date but my understanding is it was made in March this year and when I say it's made in March this year there have been awards of the Commission which have previously been in the same - at least one award of the Commission with the same title. As I understand it this is an update of the previous award. The relevant part I'd like to take you to, Commissioner, or two parts - unfortunately the document isn't numbered but it's clause 40, area incidence and duration. Just read the first couple of paragraphs there but it says:
PN733
This award rescinds and replaces the Cleaning and Building Services Contractors State Award published 8 June 2001 ...(reads)... contracted to provide luggage trolley collecting in New South Wales.
PN734
Then it goes on to state:
PN735
This award shall not apply to employees under the following awards.
PN736
As I say the purpose of relying upon this document is in no way to rely upon section 111AAA. The purpose is simply to say that that's the area incidence and duration of the award. It applies to employees of any employer contracted to provide cleaning services. There's no dispute that that's what Mainstream does. The title of the award is The Cleaning and Building Services Contractors State Award.
PN737
There has been no dispute that the classification structure which is found in clause 4 of the award and in particular clause 4(1) which deals with the cleaning services is the classification structure which applies to Mainstream's employees. So the employer is caught, the employees are caught. There's a fair chance that the award applies and that's the basis on which, of course along with very well considered other things, advice was given to Mr Rose that this award applies. Not only do we submit it applies but the CFMEU has also acknowledged that this award applies. In that regard annexure E to exhibit R1, Mr Rose's statement - - -
PN738
THE COMMISSIONER: I think this is also part of the - - -
PN739
MR LEAHY: No, it's not.
PN740
THE COMMISSIONER: Okay, I've found annexure E so press on.
PN741
MR LEAHY: The right hand column alongside number 5 has Award; it says:
PN742
Cleaning and Services Building Contractors State Award.
PN743
Now, that document, just alongside number 5 in the left hand column:
PN744
- filed by Construction, Forestry, Mining and Energy Union, New South Wales branch.
PN745
It is signed by Mr K. Endacott. Now, Mr Endacott presumably saw this document. When I say saw this document what I mean is there has been no issue that that's not Mr Endacott's signature. Mr Endacott in his statement says this at paragraph 4, exhibit A11:
PN746
I have been provided with and read a copy of the statement of Troy John Rose, the managing director of Mainstream Industries Pty Limited ...(reads)... I never heard those words.
PN747
It wasn't put to him simply because the document speaks on its own. So I think it's interesting that not only does the evidence of Troy Rose and the attachment to the statement of Daniel Wynn deal with the issue of cleaning and contracting, it's not disputed by Mr Endacott, Mr Rose has received legal advice that that's the award that applies, Mr Endacott has on at least that date, 23 August 2002, signed his name to a document prepared by whoever but signed by him saying that the Cleaning and Building Services Contractors State Award applies. So the issue is that's the industry of Mainstream; that's where it starts and finishes. The Commission must find as a matter of fact that Mainstream operates in the coal and shale industries. That finding must be made first before the Commission may then move on and say that there is in fact a dispute within the meaning of the legislation because that fact, again I don't think it's contested, but it was raised in some of the cases that I've referred to. I suppose to conclude, Commissioner, and conclude subject to a response to the CFMEUs submissions but we say that the cases that we have put forward, in particular the Poon Brothers case, clearly - - -
PN748
THE COMMISSIONER: The Poon Brothers case being the Liquor & Allied Industries case?
PN749
MR LEAHY: Yes, that's right and in particular the decision of Barwick CJ which was agreed to by the other judges so that's got the weight of the Full Court of the High Court behind it. Dealing with a very similar rule but different, looked at a service company and found that that service company was not part of a particular industry.
PN750
It's completely appropriate in this case and I just cannot see how an alternative finding could be made in this case. I have also referred to, hopefully to assist the Commission, particular cases which deal with the rule in question and which actually look at the coal and shale industry and they certainly clearly put what are the tests that are involved and when you look at those again I submit that looking at the tests and looking at the fact that there's no dispute as to Mainstream being a contract cleaner and there being recognition that there is a contract cleaning industry there is no basis upon which a dispute finding may be made. Thank you, Commissioner.
PN751
THE COMMISSIONER: Thank you, Mr Leahy. I'll grant you a few minutes, Ms Gray.
PN752
MS GRAY: Five minutes would be good, thank you, Mr Commissioner.
PN753
THE COMMISSIONER: I tend to grant myself 10 minutes.
SHORT ADJOURNMENT [2.11pm]
RESUMES [2.22pm]
PN754
THE COMMISSIONER: Ms Gray?
PN755
MS GRAY: Thank you, Mr Commissioner. In the main the precedents on coal mining industry have, to a large extent, determined what is not in the coal mining industry. It is also clear that what falls within the industry and what falls outside it is a matter of degree in fact. The fact that a number of the High Court decisions dealing with the union's constitution rule or the predecessor of the union eligibility rule were split often on a 3/2 majority shows just how fine the line can often be. Another issue in terms of the High Court decisions in this area is that on my research the latest High Court of Australia decision looking at the issue was determined in 1948. It's of interest that in 1951 70 per cent of all coal won in New South Wales was produced by contract miners with their pick and shovels. Mechanisation advanced at such a rate from that stage on that by 1963 the unmechanised pits accounted for only 10 per cent of production in New South Wales.
PN756
I mention that to give some demonstration of the historical environment in which the High Court was addressing the union's eligibility rule because what we say in terms of Mainstream is that, yes, it performs cleaning work but the cleaning work which it performs which is the vast majority of its work on coal mine sites it does so as a maintenance function and insofar as the cleaning done by Mainstream employees in contracts to be done by Mainstream on coal mine sites it is an intrinsic part of the production process and the company is engaged in or in connection with that industry.
PN757
Another point I would make in passing is that the union's eligibility rule does not refer to the coal mining industry but the coal industry. To a large extend the High Court decisions have tended to use those expressions interchangeably although it's quite clear that in or in connection with the coal industry is considerably broader than in or in connection with the coal mining industry although for all intents and purposes that isn't of great relevance today because what - - -
PN758
THE COMMISSIONER: That distinction was covered in one of these judgments wasn't it?
PN759
MS GRAY: It was and I am going to try to keep some structure to my submissions when I go through the precedents, Mr Commissioner, but I will certainly raise that point but essentially the High Court judges have referred to the two expressions interchangeably. There was a decision which I will go to by the Coal Industry Tribunal which probably demonstrates more clearly the distinction between the coal mining industry and the coal industry and that's the Staff Head Office case which was also interesting insofar as it determined that not all work done by coal mining companies was necessarily in the coal mining industry, that, for example, marketing and head office functions locationally distant from the coal mine might not be regarded as being in the coal mining industry but, of course, could be well regarded as being in the coal industry.
PN760
I think the reality is that we say although we only need to prove that Mainstream's employees fall within the union's eligibility rule in terms of the coal industry, we are content to demonstrate to the Commission that in fact Mainstream's employees and Mainstream's working in the coalmining industry. So for all intents and purposes that distinction becomes irrelevant for this case.
PN761
I start with a quick examination of the cases relied on by Mr Leahy and the first being re Federated Liquor and Allied Industries Employees Union of Australia v the AWU. Mr Commissioner, this case, of course, concerned with metalliferous mining, iron ore, it was two iron or mining companies that set up their own townships to house and service the employees and families of the employees of their mining operations.
PN762
Now, although it was said in that case that employees of those coalmining companies doing catering work might fall within the definition of that industry we think that that comment, although obiter, was not necessarily accurate. These companies were doing cleaning, laundering and feeding of employees and their families. Houses, accommodation and the union would say that the cleaning of employees and the keeping of those employees sheets clean and so on is easily distinct from iron ore mining or if those circumstances existed in the coalmining industry distinct from the coalmining industry, whether they were being done by contract companies or not. These predominantly did their work in the township. There was some work on the mine site but it was minor. It was running the crib rooms, the mess facilities for employees both in towns or on the mine site as referred to by my friend the catering companies leased the bakery and fruit and veg shops from these iron ore mining companies.
PN763
We wouldn't be so brave as to say that those sort of activities fell within the mining industry and in that respect it was a unanimous decision of the High Court that they fell outside the industry and we think that that was entirely correct but as I said what falls within or outside an industry is always a question of fact.
PN764
It is interesting to note in passing that in the more remote towns in Queensland which have been set up by coalmining companies in the past that the catering facilities for those coalmining company employees and their families in town and on the sites have not been claimed by this union when being conducted by catering companies to fall within our constitution rule. In fact the employees of the catering companies performing similar sorts of functions of those of Poon and SHRM in the High Court case in Queensland coalmining towns have been appropriately and indisputably covered by the Miscellaneous Workers Union and/or the AWU. So, the union does not take issue with the decision in the Poon case.
PN765
One thing we would mention is that my friend said that these companies worked exclusively for Hammersley Iron and for Mt Numan Mining Company. I would like to clarify that by saying that in fact the company's operations which were under examination by the High Court were those operations of the two catering companies for those two iron ore mining companies. At nowhere in the decision does it say that that is the only work that those companies conducted. In fact it was likely that such companies conducted catering work in other remote townships and in Perth and other cities of Western Australia but - - -
PN766
THE COMMISSIONER: That doesn't help your case, does it?
PN767
MS GRAY: It doesn't help our case, we are just saying that the point being made that these companies were working exclusively for the iron ore mining companies isn't necessarily accurate and that all that was being examined was that part of the catering company's operations which were conducted at Tom Price and Numan.
PN768
THE COMMISSIONER: The point I make is that brings the case closer on point to the circumstances applying here isn't it?
PN769
MS GRAY: It does insofar as we're saying that the Commission only need look at the 80 per cent of work that Mainstream is performing in the coalmining industry but the great distinction between the facts of the Poon case and the facts before the Commission today is that the work we are asking the Commission to acknowledge as falling within our constitution rule is conducted on the mine site and is part of the continuous process of the production of coal as a maintenance function.
PN770
I think in saying as I did that the union agrees with the decision in this case was correct on its facts and also has to be seen in the circumstance that we have addressed the issue that was raised by the Commission on page 268 because what we say is that if a coalmining company was engaged in catering employees this case says well they might fall within the coalmining industry. What we say is that coalmining companies engaging employees does not necessarily mean - I will start again. It isn't necessarily so that in the coalmining industry every employee of a coalmining company is engaged in the industry and some of the questions I will go to demonstrate that the Coal Institute Tribunal has held otherwise.
PN771
So, it isn't a determinant fact whether or not it is a contractor doing the work or an employee of the mining industry employer and it isn't entirely determinative whether it's being done or off site although generally employees of coalmining companies have been held to all be performing coalmining industry work. There are exceptions to that and generally work on site has more readily been regarded as falling within the industry although once again there are exceptions. Work being performed off site has generally been regarded as falling outside the industry although there is exceptions there as well.
PN772
The part of the case that I would make reference to, Mr Commissioner, is on page 268 - it's already been referred to by Mr Leahy but earlier in the case when it was asked of the union whether we agreed that the question was what is the business of the company, we said yes that's the case and also whether or not the work of the employees is being done in that industry that one is the corollary of the other and we think in this case that's demonstrated by the first column on page 268 at the beginning of the last paragraph which commences:
PN773
The question therefore which will decide the validity of the consent award is whether the respondent companies do in fact carry on an industry of or in connection with metalliferous mining.
PN774
Or put another way.
PN775
Whether the employees of the respondent companies are employed by those companies in or in connection with the industry of metalliferous mining carried out by those companies.
PN776
That's a demonstration of the corollary that we raised earlier.
PN777
The next case we would go to that's been relied on by Mainstream's representative is The King v Hebel. We note, of course, that it was a decision in 1921. Again we would say that this decision we don't take contest with its accuracy. What it did was say in effect that a coalmining company can make coke prior to selling to its customers and that's part of the coalmining industry. An iron and steel company which buys coke from a coalmining industry employer and then turns that coal into coke as part of the beginning of the process of iron and steel is in another industry.
PN778
This was a little bit of a grey area but nonetheless two distinct industries and on that basis we say that again it is easily distinguishable from the current circumstances of Mainstream.
PN779
THE COMMISSIONER: As far as Hibble goes?
PN780
MS GRAY: Yes, very much a matter of degree and it is in every case we'd say, Mr Commissioner. The reference from this case which is utilised over and over in later precedents on coalmining industry on page 297 at the beginning:
PN781
After having conceded that the words of the eligibility rule of the union were broad and wide but that they don't cover every person who uses coal or works in connection with it.
PN782
The last paragraph on that page says:
PN783
The question whether a particular trade or business is or is not part of the coal and shale industry must in all cases be a question of fact.
PN784
I leave the quote there.
PN785
THE COMMISSIONER: Do you agree or disagree that it's the trade or business of the employer to quote Hibble which is determinative rather than the work of the employees?
PN786
MS GRAY: We say it is the trade or business of the employer that we must have regard to, Mr Commissioner, but the corollary of that is that the work being done by the employees is in the industry. We say that the work being done by the employees of Mainstream is in the coalmining industry and that Mainstream, at least for 80 percent of its work on Mr Rose's evidence, we say is in the coalmining industry, that there is a residual 20 percent that might be regarded as general contract cleaning.
PN787
THE COMMISSIONER: Now, you raised a point earlier that in recent years up to 70 percent of coal extraction is performed by contract labour. Am I quoting you correctly?
PN788
MS GRAY: Yes, in 1951, 70 percent of all coal won in New South Wales was by pick and shovel as in the old contract miners.
PN789
THE COMMISSIONER: But persons who extract coal now as contractors, they are contracted to the coal mines by, say, a labour hire company, but they do nothing but dig out coal, do they? They are effectively employees of the coal company in terms of being told what to do.
PN790
MS GRAY: Mr Commissioner, there's a whole screed of different circumstances in the industry now, predominantly in the past a coalmining company and owner operator did all of the functions on the coalmining site.
PN791
THE COMMISSIONER: But contractors are just mixed into crews now, aren't they?
PN792
MS GRAY: It depends on the contractors. Contractors such as Theiss can operate entire coalmining industry processes on and behalf of the owner of the mine. At other places - and may subcontract part of those processes to other contractors.
PN793
THE COMMISSIONER: That I understand.
PN794
MS GRAY: And then there is the recent change in the industry that Mr Endacott referred to which was essentially an explosion of contracting out in the coalmining industry over the last ten years or so whereby a multitude of contractors can be operating on a coalmine site, doing functions which historically had been done by the coalmining company and engaging their own employees being separate entities but still being part of that coalmining process.
PN795
THE COMMISSIONER: Let me give you an example and if you're not familiar with it, tell me. A recently handed down decision in Wombo Coal about the replacement of a washery technician and I know there that while the dispute was waiting to be resolved by me that the disputed position was filled by a contractor and accepted by the union that that's a normal practice.
PN796
MS GRAY: That would have been no doubt pursuant to the certified agreement at site in terms of filling casual vacancies and in that respect, yes, there are labour hire companies that supply employees who are under the day to day control and direction of the coalmining company to cover long term sick leave, annual leave, things of that sort because another issue that's apparent in our industry over the last ten years or so has been a desire by the coalmining companies to keep their permanent employees to a minimum. So manning levels as such are reduced to the essential and even things such as annual leave or long service leave can't necessarily be covered by the existing employees.
PN797
THE COMMISSIONER: So unexpected long term sick leave for example, they bring in a contractor.
PN798
MS GRAY: Yes.
PN799
THE COMMISSIONER: Okay, I understand that.
PN800
MS GRAY: The next case referred to by Mainstream's representative is Turner v the Australian Coal and Shale Employees Federation and Elcom Collieries. I won't take the Commission to any part of this other than to say that one of the parts referred to by Mr Leahy was simply an endorsement by this Federal Court bench of Hibble and as such doesn't take us any further.
PN801
THE COMMISSIONER: Well, it does in terms of your point that Hibble dates back to 1921, whereas the Federal Court decision was made in 1984.
PN802
MS GRAY: Yes and we think that the - - -
PN803
THE COMMISSIONER: And it's a brilliantly simple exposition of the point, isn't it?
PN804
MS GRAY: Yes, reference to the trade or business of the employer we're conceding is still a valid criteria to be looked at in determining eligibility rules which essentially go to industry rather than trade. I have no difficulty with that, Mr Commissioner, but an interesting aspect of this case, of course, is that with dealing with Elcom Collieries, Elcom of course was not just a coalmining company although it ran numerous collieries up and around the Newcastle area and the Hunter Valley and so on, but it was also essentially a power industry company.
PN805
Elcom ran, as we all know, the power industry in New South Wales and that was the generation and distribution of power. So once again it's clear that a company can be engaged in more than one industry. In this case it had a minority of its work being done in the coalmining industry, a majority in the power industry, power generation and distribution industry. But nonetheless insofar as its coalmining operations it was regarded as being in the coalmining industry and clearly an employer as such.
PN806
The last case referred to by the company's representative was Neil v Lover. As with other examinations of eligibility rules it turned on its own facts which were held by a majority to essentially distinguish distribution from production of films holding that the former did not fall into the latter. We say it's of no help to Mainstream. In saying that, it's once more a matter of fact and degree. It was also a majority of three to two, so two justices of the High Court on that bench thought that in fact the work being contested fell within the industry rather than outside it.
PN807
But it is interesting in terms of its discussion of distinction between "in" and "in connection with" and that's at page 3 by his Honour Gibbs J. Gibbs J suggested that had the rule not been in the more restrictive "in" the distribution may well have been regarded as "in connection with" production.
PN808
THE COMMISSIONER: It's interesting that it only matters what's there, doesn't it, not what could have been.
PN809
MS GRAY: What could have been. Our rule of course says "in" or "in connection with" and that's the only point I make about that case, Mr Commissioner. So as I say most decisions go to what is in or out of the coalmining industry, more likely out. Usually because, in terms of the High Court decisions, because the jurisdiction issue has been questioned in respect to various specialist Tribunals set up under post war time regulation and set up to regulate the coalmining industry. In one issue the shale mining industry was regarded as being part of the coalmining industry more for convenience than anything else one would suggest.
PN810
Industries change over time. How work in or in connection with the industry is conducted and by whom changes and we've just had a discussion on that point. My analysis of the precedents will be done therefore chronologically which is about the best way, I feel, that it can be given some structure. I would start with - I've handed up the copies of decisions to which I'll be referring, Mr Commissioner, through your associate. The first one is the Drake Brockman case, 1943, that is the King v Drake Brockman and others ex parte National Oil Pty Limited.
PN811
Again I would note that it was a three two majority decision. It was similar to Hibble and others insofar as in Hibble the BHP coke workers were seen to be part of the iron and steel manufacturing industry but in this case the processing of oil from shale was seen to be outside the process of mining.
PN812
THE COMMISSIONER: Could I just ask you to pause there? We'll just go off the record, just for a moment.
OFF THE RECORD
RESUMES
PN813
THE COMMISSIONER: Yes, Ms Gray, is there any particular part of Drake Brockman that you want to refer me to?
PN814
MS GRAY: Yes, Mr Commissioner. I won't go to the facts which are fairly basic. These are statements of general application. On page 59 about half way down the page, his Honour Stark J says:
PN815
Expressions such as the mining industry, the goldmining industry, the coalmining industry, the shale mining industry, the shale oil industry, the iron industry and the iron and steel industry and so forth ...(reads)... by which those metals are recovered.
PN816
I'll leave the quote there. So we say that Mainstream is engaged in the coalmining industry in that very clear area on the mine site as part of the production process of extracting coal from the ground and placing it into a saleable form all conducted across the mine site.
PN817
Also, his Honour Starke J continues at the bottom of page 59 and onto page 60:
PN818
The shale mining industry, it is suggested, is on the same footing as the coal mining industry. ...(reads)... connected or continuous processes.
PN819
I will leave the quote there. Although his Honour was disagreeing with the decision of the majority in that respect it is a helpful comment in terms of demonstrating that an examination of an industry rule should take into account whether or not a function falls within a continuous process known to be part of that industry.
PN820
I think that is probably about all that is of help in that case, Mr Commissioner. I will move onto the King v Hickman and others, ex parte Fox and another, the King v Hickman and others, ex parte Clinton and others. This was a case of a decision of the High Court in 1945. Essentially it involved transport companies which carted coal from mine sites to rail or other distribution centres and also to some customers in the metropolitan region. It is interesting to note that the High Court commented several times in the decision that they were given very little guidance as to what the expression "coal mining industry" meant and how it was applied, its common understanding. So in some respects they doing their very best on against limited background.
PN821
What they determined was that these transport companies were in the general carting or transport industry and not in the coal mining industry. They did that by examining the amount of work being done by those transport companies for coal companies and neither of those companies carted coal exclusively. They had a general mixed business and carted many other products essentially none of their employees were exclusively engaged in that work either.
PN822
His Honour Latham CJ on page 608 identifies the issue to be determined it is whether or not the lorry drivers engaged by these companies were persons engaged in the coal mining industry and says at the beginning of the last paragraph on page 608:
PN823
The term "industry" is not a precise technical term ...(reads)... that operation itself.
PN824
On page 610, his Honour Rich J said about two-thirds of the way down the first paragraph with respect to the coal mining industry:
PN825
This industry is well known but no evidence was forth ...(reads)... engaged in the coal mining industry.
PN826
So they were working at something of a disadvantage but nonetheless held that neither company was engaged in the industry even though it carted coal. What I note in respect Commissioner is that both of those companies were carting coal from the mine site to distribution or customers in fact Clintons gave very strict instructions to their employees, that they were to leave their vehicles at the boundary of the coal mine. Other employees who were engaged on the coal mine came and collected those vehicles, took them, loaded them, and returned them to the employees of Clinton's obviously to ensure that that boundary between the transport industry and the coal mining industry wasn't blurred in the case of Clintons when they came to argue their case.
PN827
This does not mean of course, that any company carting coal would not be in the coal mining industry and one of the cases which I will take the Commission to shortly in fact told certain carters of coal, companies doing that work as well as others to be in the coal mining industry. The next case, Commissioner is The King v Central reference board and others ex parte Tease Repairs Pty Limited. I think this is a particularly important decision in respect to the Mainstream case Commissioner because it does deal with maintenance work and whether or not maintenance work under question was to be regarded within or outside the coal mining industry.
PN828
Again, it is a majority of three to two which shows the level of degree in whether or not the facts fall one side or the other. It was also a decision in respect to the jurisdiction of the central reference board which was constituted under the National Security Coal Mining Industry Employment Regulations so it is referring to coal mining industry rather than coal industry. Tease Brothers Pty Limited was the contract mining company for an owner of an Open Cut at Muswellbrook.
PN829
It had an on site workshop where all running and minor repairs of its equipment were performed and all of its employees on site were regarded as being in the coal mining industry.
PN830
THE COMMISSIONER: They were employed by the contractor you say?
PN831
MS GRAY: A contractor, Tease Brothers Pty Limited was a contract miner if you like for the Muswellbrook Coal Company which was the owner of the lease.
PN832
THE COMMISSIONER: So in this case Tease set up a repair shop at the mine?
PN833
MS GRAY: To service its equipment used in overburden removal and coal carting.
PN834
THE COMMISSIONER: And those workers do nothing else but work at that mine?
PN835
MS GRAY: That's correct. It used to sent it's equipment essentially down to Sydney and to other engineering shops for major overhauls. It did all of its minor repairs, they say on site but it is only employees who were regarded as being in the coal mining industry. When it sent its equipment off site, there were delays and extra costs involved. So a related corporation was set up with a workshop off the coal mining lease but still on the property owned by the Muswellbrook Coal Company. So it was a separate company but clearly related and that separate company was Tease Repairs Pty Limited.
PN836
Tease Repairs Pty Limited conducted all of the work of major repairs for Tease Brothers Pty Limited but Tease Brothers Pty Limited still continued to do its minor maintenance and ongoing maintenance on site it was only for the major overhauls. Tease Repairs also did work for other earth moving companies in the region and picked up whatever work it possibly could in the engineering area. So it was whether or not Tease Repairs was in the coal mining industry, whether its employees fell within the eligibility rule of the union in effect but mainly whether it was operating in the coal mining industry which was under consideration by the High Court in this case, Commissioner.
PN837
It is interesting to see that at page 126 about seven lines from the top of the page that the prosecutor, in other words the representative of Tease Repairs which was alleging that it is not in the industry said the following:
PN838
It is true that that industry does or may including ...(reads)... employed in the coal mining industry.
PN839
So in that case Commissioner the prosecutor itself said that basically if it was on site rather than off site it might be held to be in the industry. No doubt a relevant decision in its relevant factor in its decision to set up adjacent to rather than on the coal mining site.
PN840
On page 130, his Honour, Latham CJ, again refers to Drake Brockman with authority:
PN841
Coal mining industry is not a technical term, it is a question of fact depending upon all the circumstances ...(reads)... The line between industries is in many cases not clear.
PN842
THE COMMISSIONER: It goes on to talk about the laundry industry. If I can I ask you this question? If a company was solely engaged in laundering linen from hotels, would that laundry company be in the laundry industry or in the hotel industry, in your view?
PN843
MS GRAY: In my view, Mr Commissioner, if it was the same company that ran the hotels.
PN844
THE COMMISSIONER: You may not answer, if you don't wish to answer.
PN845
MS GRAY: If it was the same company that ran the hotels then it would be.
PN846
THE COMMISSIONER: Separate companies.
PN847
MS GRAY: If it was a separate company then it may be. It could either be in the laundry industry or in the hotel industry. And I think that that was referred to in the Hibble case as well, which in part was relying on the AWUs rule covering laundry employees.
PN848
THE COMMISSIONER: You see where I have tended to diverge from you is that I would say, on an unconsidered view, that if a hotel chain set-up a separate subsidiary company to do laundering for its hotels then that company, in my view, would be within the hotel industry. But if an independent company contracted with a number of hotels, at arms length, to do their laundry then in my view logically they would be in the laundry industry.
PN849
MS GRAY: I would be inclined to agree with you, Mr Commissioner, and certainly - - -
PN850
THE COMMISSIONER: It really comes down to my view as to whether it is a dodge or not.
PN851
MS GRAY: And that is the sort of thing that this Commission in modern times has looked at, Mr Commissioner. We see in some of the older cases they are saying, well if it is done by a contractor it is not in the industry. And if it is done by the mining employer it is in the industry. It is just not that simple anymore.
PN852
THE COMMISSIONER: Except Hibble has been sanctified also, don't forget, as late as 1984.
PN853
MS GRAY: Certainly, but in cases such as the Air New Zealand v Ansett Airlines case this Commission has demonstrated an increase in willingness to lift the corporate veil and to see that related corporations may well be involved in a common dispute and in a common industry.
PN854
THE COMMISSIONER: I think one of the decisions you have quoted to me goes to that point. In the Theiss decision it talks at the end of it about there being two separate entities but one control.
PN855
MS GRAY: Yes, and certainly in Dixon Js dissenting decision.
PN856
THE COMMISSIONER: So far I haven't seen that applying here, but I will have another look.
PN857
MS GRAY: Yes, well in that reference - and that is the one I was going to next in this case but clearly you have appraised yourself of it, Mr Commissioner - is that his Honour, Dixon J, was in the minority in this case but was probably ahead of his time, we would suggest, by regarding the separateness of employers as not determinative as the majority had. And in fact on page 139, his Honour, Dixon J, says in the second paragraph:
PN858
If Theiss Bros Pty Ltd had set-up a workshop at the open cut wherein its workmen effected major and minor ...(reads)... ancillary and part of the mining operations.
PN859
I am sorry, that was, his Honour, Starke J. His Honour, Dixon J, who said it was:
PN860
Very much a borderline case but on the whole he regarded the decision by the Central Reference Board to hold that Theiss Repairs ...
PN861
Rather than Theiss Bros only:
PN862
... was in the industry as being correct.
PN863
He says on page 140, in the second last paragraph:
PN864
The meaning of coal mining industry is unfortunately indefinite and inflexible it affords no ...(reads)... an accepted conception of that branch of the coal mining industry.
PN865
He says on page 141, in the first paragraph:
PN866
The difference must depend upon circumstances the chief of which must be separateness of establishments in ...(reads)... organisation, place, interest, personnel and equipment.
PN867
And in that respect, Mr Commissioner, those particular issues have been applied many times by the Coal Industry Tribunal in determining what falls in or outside the Coal Mining Industry.
PN868
THE COMMISSIONER: But those tests applied to the operations of Mainstream do they help you?
PN869
MS GRAY: They do, Mr Commissioner. We have the evidence of Mr Rose that except for a short period of time where it was necessary to have alcohol testing done at Mainstream sites so that employees had to turn up at the Mainstream depot and be breath-tested and then go out to sites; that was for a period of a few months. Aside from that all work done by the Mainstream employees on coal mines, commenced at the coal mine, finished at the coal mine. They were not required to come into the establishment. The control of those employees was - from the time that Mr Rose himself was doing work in the industry early on - under the direction of the co-ordinator of the job and also subject to the rules and conditions of the coal mines regulations and statutory officials.
PN870
The employees, although Mr Rose said that where possible he would send one of the permanent part-time or a leading hand to the mine site with other casual employees to do the work, that that often wasn't possible. And certainly when the company was doing its operation at Hunter Valley Operations where he said nine employees were engaged on a three-shift operation, Monday to Friday, and a one-shift operation Saturday and Sunday, that it was impossible to have the leading hands attending to that work.
PN871
So essentially the employees of Mainstream turned up at the mine site, took their instructions in terms of what work was to be done, what plant was to be moved, what plant was to be cleaned, what plant was to be delivered to the workshop from the job co-ordinator. If there was a breakdown on the mine site then a mine site employee would be directing the Mainstream employees to go down and clean that equipment so as it could be worked on by the maintenance crews.
PN872
THE COMMISSIONER: But the Mainstream employees would have no certainty if they would be back at the mine the next day or any particular day, would they?
PN873
MS GRAY: I think that is probably one of the natures of casual employment, Mr Commissioner, that although these ones were ones which were a great investment to the employer in terms of training to enable them to do the work that there was no guarantee of ongoing employment. But, quite frankly, Mr Commissioner, with the history of the coal mining industry and the cattling out - decrease and increase in hands which has been a live issue over the century - is very much determinative on the price of coal from year-to year. Some operations close overnight, or downscale massively, depending on the loss of a contract. It is also a volatile one in terms of employment which is why we have industry long service leave whereby an employee could essentially - the same as the building industry - could only get long service leave by being able to accrue time with a number of employers engaged in the industry.
PN874
THE COMMISSIONER: Yes, thank you.
PN875
MS GRAY: Of course the scales are different, but otherwise the principles are the same. Now his Honour Dixon J says that at the bottom of page 141:
PN876
The major repair and overhaul...(reads)...proximity.
PN877
The point there I am making Mr Commissioner in that statement is that major repair and overhaul of machinery is essential to the coalmining operation.
PN878
THE COMMISSIONER: But if you go further down, his Honour still again is drawing the point about an artificial distinction between legal entities doing the employing is what he is aiming at there I think.
PN879
MS GRAY: Yes and as I say, he is well and truly 30 years or so before his time in terms of that approach. You can certainly say that a similar case is heard in current circumstances that the High Court, the Federal Court of this Commission would not be concerned with a distinction from industry based on whether or not somebody was an employee of one company or another. It is simply whether or not they were engaged in the industry and doing that work.
PN880
THE COMMISSIONER: I suppose my point is that I don't see them as similar circumstances.
PN881
MS GRAY: Well as our discussion on contracting in the industry went, Mr Commissioner, yes there is there contractors such as Theiss Bros. who took over virtually the entire operations but the current situation today and it really is the current situation in the industry against which an interpretation of the rules must be made, is that a multitude of contracting companies are now doing functions which are essential continuous parts of the coalmining process and one of those we say is Mainstream Industries.
PN882
I didn't give you a copy of the Kamira Tunnel Arbitration Act's case did I Mr Commissioner? It would be the next one in the bundle if I have.
PN883
THE COMMISSIONER: No, I have the Westcliff Colliery.
PN884
MS GRAY: Yes, Westcliff Colliery is the next one I will go to, Commissioner. I only mention it because I had thought to refer to the Kamira tunnel but it really wasn't essentially helpful, just so that you don't suspect that I am being collective in my examination. It was essentially that whether or not the AWU or the Mining Union should cover the work of the construction of the tunnel in the southern district which was to take the toll from one of the BHP sites from the inside of an underground mine to the port and it was held that, even though the tunnel was being constructed through a couple of seams of coal in part, that the vast majority was hard rock mining work and appropriately covered by the AWU. I might note that I think that decision which was in 1949 was a somewhat political one as well in terms of a great deal of criticism being levelled at the Miners Union's refusal to comply with orders of various authorities and so on, so it was a desire to have a major iron and steel producer get their coal without interruption, which they didn't believe the Miners Union could deliver for some strange reason.
PN885
The Westcliff colliery case, Mr Commission, was a decision of the Coal Industry Tribunal. It applied the High Court of Australia precedents and set some guidelines to determining on the facts of the case before it that the employees weren't in the coalmining industry. These facts are mainly contrary to the Mainstream facts. Essentially, Mr Commissioner, this was whether or not the work being done by contractors prior to a coalmine operation commencing was to be regarded as being in the industry or outside of it.
PN886
The Coal Industry Tribunal looked at the work that the contractors did. There was a great deal of interchange between those who on the Westcliff site and those who were off. It was a minor part of the contractors work and it was prior to any production, prior to becoming a coal-producing colliery. The unions tried to rely on the fact that it was regarded as a mine under the regulations for safety purposes but the Coal Industry Tribunal wasn't going to agree that whether or not a location was regarded as a mine, was determinative of the issue.
PN887
The fact that all the work was occurring within a broader contracting industry was a minor part of that contractors work and was prior to any production occurring, was enough for the Coal Industry Tribunal to reject that the employees of those contractors should be regarded as being in the coalmining industry and I think that in terms of guidance that the coal industry gives, that is on the last page of the decision, having referred to the High Court decisions and extracted various aspects of them. The Coal Industry Tribunal said:
PN888
I therefore hold that...(reads)...taken into account.
PN889
In this connection, his Honour, Dixon J as he then was, said at page 141 of the Theiss repairs case:
PN890
The difference must depend...(reads)...a matter of degree.
PN891
The Coal Industry Tribunal then lists five matters - - -
PN892
HIS HONOUR: It was Dixon dissenting wasn't it?
PN893
MS GRAY: Yes it was, Commissioner. I won't make any comment about that. The Coal Industry Tribunal then says:
PN894
To determine the question...(reads)...on the site.
PN895
And I interpolate there that the distinction with Mainstream is that in the Westcliff case, it was prior to production but in Mainstream's case it is covered by Coalmines Regulation Act because it is a producing mine.
PN896
HIS HONOUR: There is no dispute here is there that the work is going on at a coal mine?
PN897
MS GRAY: No, it isn't disputed Mr Commissioner. I think that what is disputed is that the work, whether the work is contract cleaning or whether it is an intrinsic part of the continuous process of the production of coal.
PN898
HIS HONOUR: I think Mr Leahy wants to comment.
PN899
MR LEAHY: My understanding is that coalmining isn't actually taking place when Mainstream's employees are doing cleaning work.
PN900
HIS HONOUR: I didn't say that. I said "occurs at a coal mine".
PN901
MR LEAHY: No.
PN902
HIS HONOUR: I didn't think there was. I thought you were going some fine point for me.
PN903
MS GRAY: Mr Leahy's comment there illustrates the different approach between the applicant and the respondent in this case, Mr Commissioner. He says there is no coalmining taking place. What we say is that the repair of equipment on a coalmining site of coalmining equipment is part of the process of coalmining. Coalmining as in digging out overburden or digging out coal or transporting that coal to the washery, it is all coalmining work.
PN904
HIS HONOUR: Let your mind be at peace about this. All I want to know is whether it was disputed by the respondents as to whether work was actually going on at a coal mine. They don't dispute it so there is no problem, not in terms of - - -
PN905
MS GRAY: The second point that the Coal Industry Tribunal looks at is that the majority of the employees effected are based off the site. In respect of that we say, Mr Commissioner, that the majority of the employees of necessity with Mainstream on its own acknowledgment is doing 80 per cent coalmining industry work on the site and we have just clarified that there is no point taken on that being the case that the work is done on the coalmining site.
PN906
Point 3 - - -
PN907
MR LEAHY: Sorry, Commissioner, just on that point. Apparently the overall majority of the 80 per cent does occur on the coal mine site but there is some work that is performed on site for a coalmining company.
PN908
HIS HONOUR: Right. I won't ask you what that is.
PN909
MS GRAY: We would assume that it would be 80 per cent or slightly higher Mr Commissioner.
PN910
MR LEAHY: No it takes down to 70 per cent, Commissioner.
PN911
HIS HONOUR: I think we have all agreed on 80 being a reasonable figure. That's the working figure. I'm sorry, Ms Gray.
PN912
MS GRAY: Now, point 3, that the Coal Industry Tribunal looked at was the work being done by the employees has apart from the site, no special connection with coalmining. We say that is quite distinct from the Mainstream work, Mr Commissioner, for the reasons that we have said. Point 4, that the contractors and the work they were doing at Westcliff, is not in any sense representative of the substantial part of their activities. So in other words, the Westcliff work for these contractors was a minority part of their work, not 80 per cent of their work and on that basis, we distinguish it as well.
PN913
Point 5 is that no coal is currently being produced. Contrary to what my friend says, we say that whilst Mainstream is on site, coal is being produced, that it is produced on these mine sites 24 hours and on 7 day operations.
PN914
HIS HONOUR: I see absolutely nothing turning on that. You are turning it to what has been put by the respondent.
PN915
MS GRAY: Mr Commissioner, the next case we go to is another decision of the Coal Industry Tribunal. It is 1978 and again we are looking at some coal carters and whether or not they are in the coalmining industry, as distinct from the Fox Clinton case of 1945.
PN916
It shows a willingness in modern times to accept employers other than the company mine mining coal, that is a contractor or part of the business of coalmining is in the industry.
PN917
As contest, of course, the TWU was granted leave to intervene in this case arguing that it was part of the transport industry, that they have historically covered the employees but the Coal Industry Tribunal examined the work of the company, the number of employees of that company were engaged on coal carting and the proportion of their time engaged in that work.
PN918
On page 2 of the decision we are looking at the Johnson and Company firm. The Coal Industry Tribunal said it is a firm comprised of the number of proprietary companies of which Mr Johnson is managing director.
PN919
The firm has two contracts which constitute all of its business. One is with the proprietor of New Hope Colliery under which the firm supplies trucks and ...(reads)... all 14 depend on the two contracts for their livelihood.
PN920
Now, in this case, Mr Commissioner, the Coal Industry Tribunal found that that company was engaged in the coalmining industry. In respect to its contract to cart coal the New Hope Colliery from various parts of the surface to the washery, it found that the company was not in the coalmining industry in respect of that part it's contract at Swan - to take the washed coal to Swanback power station which was more appropriately power industry rather than coalmining industry.
PN921
He examined each of those employers and I am not sure if the Commission wants me to go to it but I'm aware of the time and I still have a few more cases to go but the Coal Industry Tribunal did examine each of the circumstances and held on an examination of the facts and degree of involvement which employers were regarded to as falling in the industry and those that were regarded as being outside the industry.
PN922
We think that this is a helpful case to demonstrate a number of things, Mr Commissioner. One is the change in attitude if you like over a period of time, a willingness of industrial tribunals to recognise a change in the industry against which they apply the definition of the industry and that where coal carting was done by companies it could fall into two industries and where carting was done by companies with mixed transportation, other goods being transported, that the balance, the degree, was really what was to be looked at to see whether or not it was coalmining industry work or general carting.
PN923
On page 4 the Coal Industry Tribunal sets out the facts which were relevant to the issue that emerged in relation to the four organisations on which individual rulings were possible. So those 12 points there summarise the Tribunal's determination. He also adopts, if you like, the Hebel statement immediately following point 12 where the Coal Industry Tribunal says:
PN924
The industrial characterisation of the employers is crucial to this issue. All parties except that in their submissions either explicitly or implicitly.
PN925
I leave that quote there. What I say about that, Mr Commissioner, is that that principle when applied to the facts and degree of involvement does not we say and we submit, have the result that Mainstream is seeking in this case to exclude it from that industry in which 80 per cent of its work is conducted.
PN926
THE COMMISSIONER: Now can I ask you to pause there. You drew my attention to the time. I don't want the parties to rush through this matter just to get it concluded today. I'm sure Mr Leahy will have some submissions to put to me after you've finished. What I was going to suggest to you was this: that you continue to draw my attention to the various authorities that you wish but as Mr Leahy will have plenty of time to prepare his response if we adjourned at the end of yours, I'd be happy to hear your final summing up on the next occasion.
PN927
MS GRAY: Yes, Commissioner.
PN928
THE COMMISSIONER: What do you think Mr Leahy?
PN929
MR LEAHY: I don't oppose that Commissioner.
PN930
THE COMMISSIONER: So I think we will go through to the end of the case law and then we will adjourn and we will discuss an actual adjournment date later. I think everybody flagging a little bit now.
PN931
MS GRAY: Commissioner, the next case is the staff head office case, it is the Australian Colliery Staff Association v New South Wales Combined Colliery Proprietors' Association, Queensland Coal Owners Association and Others, CR 2997 a decision of the Coal Industry Tribunal (1982). This was a case in which the Staff Association in the coal mining industry which has an eligibility rule which combines both industry and occupations. It covers work in or in connection with the coal mining industry. Work done by employees whose principal business is the production and marketing of coal and it specifies a multitude of classifications which it is eligible to represent.
PN932
In this case the Staff Association sought to cover and extend award coverage, coal mining industry terms and conditions to employees of coal companies in essentially Brisbane. The long and the short of it was that the Coal Industry Tribunal having regard to the High Court precedence and the types of guidelines which it has set and which I've referred in the Coal Industry Tribunal cases I've taken the Commission to today said that location was determinative in this matter in so far as the claim went to carter employees in Brisbane. That is was simply too far away from the coal mines, essentially 600 kilometres to be regarded as being in the coal mining industry.
PN933
In coming to that conclusion the Coal Industry Tribunal did look at the work performed by the employees, how many employees were exclusively engaged on work in or in connection with the coal mining industry, in most cases it was a vast minority of the employees and interchange between those employees and mine site employees interchange between head office and mine site functions and also he addressed, and the evidence was obviously extensive, addressed the issue of how often employees went out to the coal mines.
PN934
So the long and the short of was after having examined the facts and the degree, the Coal Industry Tribunal held that even though these employees were engaged by companies which were coal companies, that they weren't engaged in the coal mining industry with one exception and that exception was in respect to Dampier Mining Company Limited which had an office in Emerald. Emerald being 61 kilometres from the closest of that company's coal mines and it effected the pays and so on for coal mining industry employees and did banking and so on.
PN935
In that respect on page 21, the Coal Industry Tribunal listed its reasons for determining that number of employees engaged at the Emerald office of Dampier Mining Company Limited, although off site, were geographically close enough and intrinsically involved enough with the production of mining to fall within the coal mining industry. He also noted that a certain amount of the work is traditionally colliery clerks work and on the balance that the employer was in the coal mining industry for the purpose of part 5 of the Coal Industry Act.
PN936
The last case I have to refer to Commissioner is one which doesn't go to the union's constitution rule but is a Full Bench decision of this Commission in Print Q2179. Amdale Australia Pty Limited and others and APESMA. The point which I would seek to take the Commission today to - this one doesn't have any page numbering, Mr Commissioner, that makes it a little more difficult.
PN937
THE COMMISSIONER: Just count them forwards or back and we'll sort it out.
PN938
MS GRAY: The sixth page, I think.
PN939
THE COMMISSIONER: This page begins at the top what?
PN940
MS GRAY: The page which has at the top "Relevant qualifications were eligible to be members of the Association.
PN941
THE COMMISSIONER: Yes, I have it.
PN942
MS GRAY: Right down towards the bottom of the page, the end of the second last paragraph, the Full Bench says:
PN943
We consider that in this context the term industry of engineering in APESMAs rules should be given a contemporary meaning and that it does extend to cover a variety of work undertaken in the IT industry.
PN944
We only refer to that case, Mr Commissioner, insofar as we have said several times in our submissions that the restrictive definition of coal mining industry on High Court application in the cases referred to. The artificial divisions between who is the employer as being determinative of whether or not employers are in the industry should not, we say, be - allow the Commission at this stage in 2003 to disregard the fact that in contemporary times in the coal mining industry a multitude of small contractors have collectively been engaged by coal mining companies to perform coal mining industry work and their employees are rightly to be regarded as working in the coal mining industry.
PN945
That that's the most fundamental change in the industry from time of the earlier precedents which we say should be taken into consideration by this Commission in determining that Mainstream is engaged in the coal mining industry. Mr Commissioner, I would probably only have five minutes to conclude my submissions if that would be convenient unless the Commission was thinking of adjourning this for a period of time long enough to have transcript available in which case then I would want to analyse that transcript and make submissions on that, so I'm really - - -
PN946
THE COMMISSIONER: I was going to offer you that opportunity or offer both of you that opportunity.
PN947
MS GRAY: That would probably be good, Mr Commissioner, so I won't conclude my submissions there.
PN948
THE COMMISSIONER: It's an offer I wouldn't have knocked back in my advocacy days. We'll just go off the record for the moment.
SHORT ADJOURNMENT [3.42pm]
RESUMES [3.45pm]
PN949
THE COMMISSIONER: It's common ground between the parties and myself that this matter should now be adjourned for final submissions and those final submissions will be heard on Tuesday, 13 May, 2003 in Sydney at 10.00 am. That being said we're adjourned.
ADJOURNED UNTIL TUESDAY, 13 MAY 2003 [3.46pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
MR TROY JOHN ROSE, SWORN PN178
EXAMINATION-IN-CHIEF BY MR LEAHY PN178
EXHIBIT #R1 STATEMENT OF TROY JOHN ROSE PN187
CROSS-EXAMINATION BY MS GRAY PN236
RE-EXAMINATION BY MR LEAHY PN456
WITNESS WITHDREW PN479
KEENON JASON ENDACOTT, SWORN PN481
EXAMINATION-IN-CHIEF BY MS GRAY PN481
EXHIBIT #A11 STATEMENT PN499
CROSS-EXAMINATION BY MR LEAHY PN539
WITNESS WITHDREW PN558
EXHIBIT #R2 SUBMISSIONS OF MAINSTREAM INDUSTRIES PN571
EXHIBIT #R3 APPLICATION BY ALHMWU FILED 28/02/2003 PN732
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