C2002/5408, Transcript of Proceedings [2003] AIRCTrans 2037 (28 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/5408

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

10.34 AM, TUESDAY, 13 MAY 2003

Continued from 16.4.03

Hearing continuing

PN950

THE COMMISSIONER: Good morning. Appearances remain the same. Are we still with you, Ms Gray?

PN951

MS GRAY: We are, Commissioner. Thank you very much for the delayed start this morning. As it was I did manage to get in just after 10.00 o'clock and I saw Mr Leahy downstairs so I was able to give him a copy of the written submission which I emailed to your associate this morning. Mr Commissioner, having had a look at the transcript from the last occasion it seems that someone at Auscript had a poor day. They're generally extremely good and certainly it wasn't the monitor's doing because all of the spelling and so on was checked with the advocates after the last hearing, but there were so many omissions and errors in it that the union felt it prudent to put its submissions in writing, both in respect to the case law which was covered on the last occasion and in respect to our summary of the evidence and the application of the principles from the case law to the facts in the case of Mainstream.

PN952

THE COMMISSIONER: I take it you would like me to rely on your written submissions.

PN953

MS GRAY: We would, thank you, Mr Commissioner, and we would like to have that and the case file containing the cases referred to by the union, which has been highlighted and marked at the appropriate places, we would like those two documents marked as exhibits if we may.

PN954

THE COMMISSIONER: Written submissions from the CFMEU, final submissions, will become exhibit A12 in these proceedings. The case law file, which I won't enumerate exactly what's in it, will become exhibit A13.

EXHIBIT #A12 FINAL WRITTEN SUBMISSIONS FROM CFMEU

EXHIBIT #A13 CFMEU CASE LAW FILE

PN955

MS GRAY: Thank you, Mr Commissioner.

PN956

MR LEAHY: Excuse me, Commissioner, I would certainly like to make some comments in relation that being marked as an exhibit. I can lease my comments until when I respond to Ms Gray.

PN957

THE COMMISSIONER: No, tell me now.

PN958

MR LEAHY: What I say is this. To the extent that there are comments in those submissions that supplant the transcript, and I don't say that they necessarily do - - -

PN959

THE COMMISSIONER: You're referring now to the tendering of A12 are you?

PN960

MR LEAHY: Yes, I am. The reason I raise this issue is I only had the opportunity since just after 10.00 o'clock this morning to see those submissions. Obviously I would say that given it's now 10.35 I haven't had sufficient time to actually consider those submissions and see whether there are things that I need to be properly respond to.

PN961

THE COMMISSIONER: You're just ahead of me in the queue to say something about that.

PN962

MR LEAHY: The only other thing I was going to say was that there were written directions issued on 14 December 2002 which went to a direction that the parties file written submissions. To the extent that the submissions deal with evidence, obviously written submissions could not have dealt with that prior to the evidence being led, but what I do say is this; the CFMEU did file written submissions. Unfortunately I cannot recall what exhibit number they are but in terms of the case law the union was relying upon at that stage, the case law, as I understand it, was really set out in paragraphs 4 to 8 of the union's written submissions which were filed. To that extent I just say that we should have been given the opportunity to be fully appraised of the CFMEU's case when those written submissions were filed.

PN963

THE COMMISSIONER: That being said, what do you think I should do about it?

PN964

MR LEAHY: You have two options, Commissioner. I suspect you will pick the latter option. The first option is that they not be accepted as an exhibit. The latter option is that my client be given a period of time in which to consider the submissions and to respond. In saying that, what I expect is we go through the oral today and if there's anything further which my client wishes to add, we be given a certain time, whether that be seven or 14 days, in which to respond to whatever issues may arise on those written submissions.

PN965

THE COMMISSIONER: You're right. I don't intend to refuse their admission, they will remain submitted and marked as exhibit A12, but your request for time, if required, is perfectly all right with me.

PN966

MR LEAHY: What I would propose is this, Commissioner. I just simply cannot know at this time, having had approximately 25 minutes to read the submissions, as to whether my client will wish to make a further response other than what I say today. What I would propose is that we be given as I say seven to 14 days in which to have the opportunity to file further written submissions. It may be that my client does not take up that opportunity but I would like it open as a matter of fairness.

PN967

THE COMMISSIONER: You're on very safe ground. I certainly grant you at least 14 days to examine the material.

PN968

MR LEAHY: Thank you, Commissioner.

PN969

THE COMMISSIONER: Ms Gray?

PN970

MS GRAY: Mr Commissioner, I would only just like to say in response to that that the directions as I understood them were for witness statements and outlines of submissions to be lodged initially and the union believes that it complied with those at the time. These are now final submissions which of course are a quite different creature. My friend shows me that it says written submissions, but certainly in all of these matters the union has requested that any objectors place an outline of submissions and the union respond in kind.

PN971

The second thing about the case law is that there's only one additional case to that which was referred to on the last occasion and that's number 6 in exhibit A13, which is R v Moore ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; [1978] 140 CLR 470. The last thing I would like to say is that although it's entirely up to the Commission and Mr Leahy, that really I have no comeback from his submissions in reply, as it is. If I was to finish our submissions today then I would certainly think it would be fair and reasonable that Mr Leahy be given a week or two weeks to put in written submissions in reply. I would have no difficulty with that course. It would see fair.

PN972

THE COMMISSIONER: Mr Leahy would have the option of putting in either written submissions or doing it orally before me. Let me make this comment. I see no impropriety or anything else in the way that you have handled this matter in making these written submissions. Also in relation to case law, the additional case law can be the subject of consideration by Mr Leahy at the same time as he considers your written submissions. What you've done is okay by me and what he wants me to do in relation to giving him time is also okay by me, so I suggest we move on.

PN973

MS GRAY: Thank you. Mr Commissioner, I have presented in exhibit A12 the union's final submissions in this case. The only matters additional to the written submissions which I would like to briefly address this morning are firstly that reference was made by Mr Leahy to an award of the New South Wales Commission, being the Contract Cleaning Award. It was marked on the last occasion exhibit R3.

PN974

THE COMMISSIONER: What do you say it was, the material?

PN975

MS GRAY: The Cleaning and Building Services Contractors (State) Award and it's actually an application for a new award which was tendered and became exhibit R3, an application to the New South Wales Industrial Relations Commission by the Australian Liquor, Hospitality and Miscellaneous Workers Union of New South Wales.

PN976

THE COMMISSIONER: I do have that.

PN977

MS GRAY: Mr Commissioner, I think that both sides are agreed that this award is not relevant insofar as certainly the section 111AAA issue has not been raised by Mainstream. However, it was said to be relied upon by Mr Leahy to at least establish that there is such a thing as a contract cleaning industry. The union agrees with that, there is certainly a contract cleaning industry. This award covers it. I have had the advantage, I suppose, of having worked as the national industrial officer for the Australian Liquor Hospitality and Miscellaneous Workers Union for two years before I commenced with the CFMEU so I am somewhat familiar with the contract cleaning industry.

PN978

What I have to say about this award, Mr Commissioner, and I will be very brief is that it is as with all New South Wales awards a common rule award. It applies in the absence of a Federal award applying with specific respondents. Clause 40 of the award has the area, instance and duration in it. It gives an overview of the employees that it would apply to. And specifically excludes employees under a number of awards; one of which is the Metal and Engineering Industry (NSW) Interim Award.

PN979

What we say in respect to that Mr Commissioner is that if a Federal dispute is not found to which Mainstream is a party and if Mainstream in part settlement of that dispute is not made a party to the Federal Coal Mining Industry Award then, in all likelihood, the appropriate award for the type of work being done by Mainstream employees on the coal mines would be covered by the Metal Industry Award just referred to. The State common rule award.

PN980

We say that because, as relied on in our submissions, we say that the work that Mainstream is doing is industrial cleaning and it is an intrinsic part of maintenance. In further support of that, Mr Commissioner, we would take the commission briefly to clause 4, Classification Structure of the Contract Cleaning Award. One can see that the classifications in the award do not cover the type of work which on the undisputed evidence in this case is done by Mainstream on the coal mining sites.

PN981

It covers cleaners in (i)(a) which refers to people doing cleaning work of any description on premises or:

PN982

In bringing into or maintaining premises in a clean condition.

PN983

The building services employee classifications also don't assist Mainstream because they pick up the cleaning duties of the previous classification but also add tasks such as, ordering supplies, carpet cleaning, cleaning windows or the exterior of multi-storeyed buildings from swinging scaffolds, bosun's chairs, hydraulic bucket trucks or similar devices. Operator ride-on powered sweeping machines. Operating steam-cleaning and pressure-washing equipment on the exterior of buildings.

PN984

That is probably as close as it comes to the type of work that we have heard that Mainstream does, Mr Commissioner, which is the use of the high-pressure washing equipment. But that is specifically in the award defined as being on the exterior of buildings. Now we have heard from Mr Rose that this is the type of work that he does at the shopping centres, for example. And it would also cover, we suggest, the other types of mixed cleaning work that his company does which falls within the - on Mr Rose's evidence - 20 per cent of his business. But it does not cover, we say, the work done by Mainstream employees in the 80 per cent of the business being on coal mining sites.

PN985

The property services stream also doesn't assist. It covers table busses, tea attendants, persons dealing with luggage trolleys, moving furniture, gardening, parking attendance, sanitary disposal processing, computer cleaning, commissar duties, security control room operators, and supervisory positions of same. There is also an advanced cleaning stream and that doesn't assist Mainstream which obviously deals with functions such as those conducted at the major sporting grounds and so on. And hospital cleaners. Meaning performing work in public hospitals. None of those classifications, we say, cover the work done by Mainstream in contention in this case.

PN986

We also say, Mr Commissioner, that the fact that Mr Rose was unaware of it for almost 10 years of his operation is not surprising as the vas majority of his work was conducted in an area that clearly from a look at the face of the award simply cannot be relevant.

PN987

Finally, in respect of the award, Mr Commissioner, some reliance was had by Mr Leahy on the fact that in the New South Wales proceedings which are essentially contained in the annexure to exhibit A11. Exhibit A11 is the statement of Ken and Jason Endacott and the large file which is attached to that contains the material in that New South Wales case. Now, Mr Leahy made reference to the union having referred to the New South Wales Contract Cleaning Award in its application in the New South Wales case.

PN988

Nothing was put by Mr Leahy to Mr Endacott as to the reason that was done but some suggestions were made in his submission of the purpose of it. What I would submit in respect of that, Mr Commissioner, is two things. The first is that Mr Endacott's initial application to the New South Wales Commission did not refer to any award. As a result of that staff of the New South Wales registry contacted him to advise that they would not be having the matter allocated or listed until an award was nominated. That is the basis upon which it was done.

PN989

Secondly, on 19 November last year I filled in for Mr Endacott for a conciliation before Commissioner Redman in this matter, in New South Wales, and on that occasion I must say that Mainstream wasn't represented by Mr Leahy there was another representative whose name escapes me. However, the union, via myself as the advocate placed on the record at that stage that the union in the New South Wales case was relying on the contracts of employment and the Act, not on the Award. But the award had been selected because the commission staff had stated that it was a requirement and that the union had served a lot of claims on Mainstream with seeking a Federal dispute finding in this commission and would be seeking - if that was successful in part settlement of that dispute - roping into the Federal award. That was so the New South Wales commission was well aware of these proceedings, Mr Commissioner, and that was my only involvement in the New South Wales matter. The award on that occasion was clarified to that extent to Commissioner Redman.

PN990

I have made several references in exhibit A12 to a document entitled DWO3, Mr Commissioner. It is in respect to the induction training registrar of Mainstream. I would only just bring it to the commission's attention that DWO3 is one of the documents in the attachment to Mr Endacott's statement.

PN991

Finally, Mr Commissioner - subject to any questions from the commission of course - we would say that as very much a secondary and alternate submission that should the commission not find that Mainstream is in the coal mining industry, as submitted by the union in this case, then the commission should with respect at least find that Mainstream is working in or in connection with the coal mining industry. The union's subrule 2(d) upon which it has relied in this case does refer to:

PN992

Employees engaged in or in connection with the coal and shale industries.

PN993

In that respect, Mr Commissioner, we would say that if not in the coal mining industry it is abundantly clear that Mainstream is or in connection with the coal mining industry and as such a dispute can be found by overruling the objection of Mainstream that the union does not have eligibility to cover Mainstream employees. We would seek that that be done only if the Commission is not satisfied in respect of our primary submission contained in exhibit A12. Subject to any questions, Mr Commissioner, that's the CFMEU's case.

PN994

THE COMMISSIONER: Given that I also haven't read the submissions it's a little hard to question you at this time, but we may come back to that. Mr Leahy?

PN995

MR LEAHY: Thank you, Commissioner. If I might just start - - -

PN996

THE COMMISSIONER: What do you wish to do now? Do you wish to part respond?

PN997

MR LEAHY: Yes, I was proposing that because I had prepared oral submissions in response to the cases which I was aware of today and also in response to the transcript which had been received. So to make the time useful, I propose responding to the extent I can and, as I say, if there are further matters which I have not responded to but which are raised in what is now exhibit A12, I propose to do that within 14 days.

PN998

Firstly turning to the issue of the award coverage of Mainstream's employees, I suppose I would say a number of things, one is that I do not see any particular relevance as to whether or not I question Mr Endacott as to why he chose to nominate the Cleaning and Building Services Contractors State Award is the appropriate award when he notified a dispute to the New South Wales Industrial Relations Commission and that notification is contained at annexure E in exhibit R1.

PN999

What I do note is that if what Ms Gray says in relation to the award is correct, then I say this: Mr Endacott certainly at one point in time considered that the Cleaning and Building Services Contractors State Award was the correct award. Secondly, I would say that in relation to the award, presumably and Mr Endacott is not here and I wouldn't intend to ask him anyway because it's a matter for him and the CFMEU to argue their case, but part of deciding whether a New South Wales award is applicable to the employees at Mainstream I would have thought would require a consideration of clause 40 of that award, area instance and duration.

PN1000

At that point it should have crossed the line, I would have thought, as to whether or not the Metal and Engineering Industry New South Wales Interim Award was the correct award. In any event as I said on the last occasion we were before the Commission, Mr Endacott's statement which is exhibit A11 states at paragraph 4:

PN1001

I have been provided with and read a copy of the statement of ...(reads)... dispute finding as follows.

PN1002

For whatever reason he chose not to elaborate on why he thought the award was the correct award or whether he had changed his mind and considered it wasn't. Maybe it adds to confusion that is relevant, maybe it adds to confusion that is not relevant. Luckily enough that's up to you, Commissioner and not up to me, but what I would say is that the evidence that's been preferred in relation to the work that is performed by Mainstream is the evidence of the managing director of Mainstream, Mr Troy Rose. Mr Troy Rose has received legal advice from Australian Business Lawyers and that is also a matter in which Mr Rose gave evidence in transcript and he is satisfied that that is the correct award that applies.

PN1003

Turning to the cases relied upon by the CFMEU, if I may, Commissioner, I would intend to address each case in the order in which it was presented to the Commission. The first case which was presented is that of The King v Drake Brockman and Others. I must admit, I don't really have any comments in relation to this case. The parts of that decision which were relied upon by the CFMEU which I understand were at the bottom of page 59 and also on page 60, I really take no issue with. In terms of the second decision relied on by the CFMEU and that, as I understand it, is The King v Hickman and Others ex parte Fox and others.

PN1004

I might draw your attention, Commissioner, to page 609 of that decision. I think, and as Ms Gray said, this was a matter in which in the facts in that case there was the evidence put to the court as to what the coalmining industry was meant to encompass, but I just note that at the top of page 9 it says, and I quote:

PN1005

In the present case, however, the lorry drivers who carry coal ...(reads)... in not unknown.

PN1006

The only issue that is of any relevance there is just again the importance for the Commission to concentrate and to focus its attention upon the industry of the employer rather than simply the activities of the employees. Certainly, I would expect that confusion arises where the test is misapplied and, as I say, I don't rely on it for any great purpose other than just to simply demonstrate the fact that, and I agree with Ms Gray, as to whether or not work may fall within the coalmining industry may be a matter of degree on occasion. It is essential the Commission focus its attention on the industry of the employer.

PN1007

The next case I would like to refer to is The King v Central Reference Board and Others ex parte Thiess Repairs Pty Ltd. I don't know whether there's any real dispute between the parties. That case has particular factors specific to it which in my view we make reliance upon that decision and say quite simply there seem to be in this case a strong relationship between the company, as I understand it that was actually operating the mining or doing the mining work and a company which was undertaking heavy maintenance where he is.

PN1008

As I say I don't know whether it's particularly in issue but the particular relationship between those companies is referred to or is set out on page 132 of that decision and the first paragraph or the first real paragraph on page 132 of the decision talks about:

PN1009

Leslie Charles Thiess is the governing director of both Thiess Brothers ...(reads)... Thiess Brothers Pty Ltd.

PN1010

Then it goes on in relation to the two companies even elaborates on the relationship more closely there. It is in that light and again I don't know whether there is any particular disagreement but it is in that light I think the comments of Dixon J at page 141 that decision must be considered. When I say I think they must considered and placed more highly than that because at page 141 and its probably about a quarter down the page, Dixon J says:

PN1011

The difference must depend upon circumstances the ...(reads)... down to a matter of degree.

PN1012

In that judgment my recollection is that Dixon J was dissenting. The issue there is the separateness of establishments at point of control. I think the issue in terms of control when looked at in the context as to whether or not work or the industry of the employer falls within the Coal Shale industries is a comment on the control between particular entities, one, the mining company, or the company undertaking the mining work. The other being the company which presumably is on the periphery and may or may not be dragged into the coal mining industry.

PN1013

It is not a reference to control in a sense as to whether or not work performed by particular employees of, in this case, the contractor, Mainstream Industries is controlled by employees who are at the mine site. That certainly can be one matter of control and it is normally the way in which control is considered but for the purposes of the exercise before the commission the issue of control as its raised by Dixon J is really a matter of control in terms of shareholders and management running the company, almost a corporate veil issue. It is not a matter as to how employees do work and how they are supervised. That is my submission, I strongly suggest that that is correct.

PN1014

In the main Commissioner I would just like to find a place in the transcript where Ms Gray refer to this decision. The transcript I received actually didn't have a page number on it. I don't know whether the case, I suspect it may have been the case for all parties here. I didn't mark the covering page of transcript but I marked the first substantive page of transcript and on my copy I've marked it as page 71.

PN1015

THE COMMISSIONER: You wouldn't have a paragraph number would you?

PN1016

MR LEAHY: Paragraph number 827. It is towards the end, probably within the last ten pages.

PN1017

THE COMMISSIONER: Beginning "This does not mean of course..."

PN1018

MR LEAHY: Yes.

PN1019

THE COMMISSIONER: I think paragraph number should allow us all to find it.

PN1020

MR LEAHY: Thank you, Commissioner. Towards the end of that paragraph, Ms Gray says:

PN1021

I think this is particularly important decision in ...(reads)... outside the coal mining industry.

PN1022

I think that that is an important comment in respect of the way in which the parties have approached this case. The CFMEU argues, as I understand it, that cleaning is a maintenance function. Our submission is that cleaning when performed may certainly in time, may well precede the maintenance function but we would not go so far as to say that it is a maintenance function. I suppose I might put it very simply and hopefully I don't prove incorrectly but if I could make some simple statements.

PN1023

If the cleaners were performing maintenance work quite simply they'd be maintenance employees, they wouldn't be cleaners. If the maintenance employees were performing cleaning work they would be called cleaners. In a way it's circular but the fact that they're called cleaners must indicate something. They're performing cleaning work. They're not, as understand, no evidence was adduced from Mr Rose as the employees getting all the tools and doing maintenance work.

PN1024

THE COMMISSIONER: I think there was actually some reference in there.

PN1025

MR LEAHY: There was reference to when cleaning work was being carried out to, I think if there all these or other issues it would have - - -

PN1026

THE COMMISSIONER: It would have turned on the reporting of some faults?

PN1027

MR LEAHY: Yes. That is my recollection as well. What I would also say is this: again it is a very simple analogy, I don't mean to misstate the facts at hand but if we look at cleaning a car, detailing a car, that would not be considered as maintaining a car. It may well be important but I think it is different. It is a very simple example that sometimes these matters need to be dealt with simply to take us to the next step.

PN1028

THE COMMISSIONER: What if the company was contracted at a car plant to do the final detailing of cars before retail sale?

PN1029

MR LEAHY: To the extent that they're cleaning the cars and making sure they're polished correctly?

PN1030

THE COMMISSIONER: Or in your terms detailing them.

PN1031

MR LEAHY: I don't see that as - in what sense - - -

PN1032

THE COMMISSIONER: Would they be employed in the automotive industry then or would they be employed in the cleaning industry?

PN1033

MR LEAHY: I suppose that raises the issue there.

PN1034

THE COMMISSIONER: If they were employed by an outside contractor contact by the automotive company to do the work?

PN1035

MR LEAHY: I think the answer gets back to the issue that your raised Commissioner in terms of laundries in the hotel industry and it is a matter to which I was going to take the Commission to in one the case by the CFMEU that the issue may well be determined by relationship between the contracting company and in that case the automotive employer. If the contracting company - even possibly if it only cleaned in the automotive industry, that may not necessarily bring it within the automotive industry and to that extent in Poon Brothers, the catering and laundering even though exclusively performed by that employer for particular mining companies did not bring that work within either in or in connection with the metalliferous mining industry.

PN1036

So that was a case in which all work was performed in a particular industry. Even if it were put that highly I would not say that 100 per cent of the work necessarily brings my client within the industry. In any event they are not the facts before you. So that is another factor which needs to be taken into account. My recollection is it was Barwick CJ who gave the leading judgment in that decision. I have quoted on this before, Commissioner, in which at page 268 in paragraph F in the right hand corner he distinguished between the work done by an employee and that of an independent contractor:

PN1037

I know that such work done by an independent contractor has a different nature or quality.

PN1038

I don't think that can be underplayed. If I may draw your attention to the next case which is the WestCliff Colliery project. Again, I don't take any real issue with this case other than I do note on the very first page of that decision, approximately two thirds of the way down and distinguished by its small font. Just above the small font it says:

PN1039

It was suggested to the parties, i.e. the AMWU, the members of the MTIA and CDS that as a first step the appropriate course for the Tribunal to follow was to determine -

PN1040

then in small font:

PN1041

- is the work being performed by the employees of Coal Development Services, Hornibrook Group ...(reads)... coal industry acts.

PN1042

What I say is that that question is a question that's actually quite different to the question you have before you because again, looking at the issue to be determined, is the work being performed by the employees of Coal Development Services and other companies? Again, the question is really a matter to focus on the industry of the employer and to the extent that findings are made in that decision I would suggest that that decision must be considered in the light of which the issue to be determined was considered. So the issue to be determined in that case, I say, is different to the issue to be determined here.

PN1043

If I may, Commissioner, I then draw your attention to the next case which I understand is the Australian Coal and Shale Employees Federation v W.A.H. Hughes Pty Limited. Again, I think that in respect of this case I would draw your attention to page 5 of that decision; it's roughly half way down the page and it's really the second main paragraph that starts off "Each of the employers". It says:

PN1044

Each of the employers need to be reviewed separately -

PN1045

This is where the Coal Industry Tribunal is considering or not whether or not different employers operate within the coal industry. It says:

PN1046

Each of the employers need to be reviewed separately although for practical purposes ...(reads)... service to it.

PN1047

There is then a reference to R v Moore & Another and ex parte the Federated Workers' Union of Australia published on 14 December 1978 and especially the decision of Jacobs J. I understand that that's a decision, that is the decision of R v Moore & Ors ex parte the Federated & Miscellaneous Workers' Union of Australia which the CFMEU has added to the list of authorities upon which it relies. My understanding is - well, it's more than my understanding, I know, because I actually had a look at that case this morning and the decision of Jacobs J refers to whether or not particular work is integral to a particular industry then refers back to the Poon Bros case and comments by Barwick J. So that's where that line of authority follows through.

PN1048

I use that quote there simply to show that it's talking about whether or not particular workers are an integral part of the mining operation. As I say I don't consider that, one, the work that my client does is integral or, two, the industry in which it operates can be said to be in or in connection with the coal or shale industries. To the extent that it is relevant the example in which the Coal Industry Tribunal deal with W.A.H. Hughes v Kidd Trucks is different to my client anyway. In that case there were particular vehicles which it seems weren't immediately available to be used for other types of work. As we have heard from the evidence my client carries out a range of cleaning activities and I don't know how far that carries us anyway, as I say.

PN1049

If I may, Commissioner, I now draw your attention to the next case which is the Australian Colliery Staff Association v New South Wales Combined Colliery Proprietors Association, Queensland Coal Owners Association & Ors. In this case I draw your attention to page 17 of that decision and in particular roughly three quarters and maybe a little bit further down the page and the paragraph starts "Another"; page 17 of that decision. I'll just read it, it says:

PN1050

Another general conclusion which should be stated before turning to the facts ...(reads)... e.g. close.

PN1051

The decision goes on. Again, what I would say is that to the extent that that is a conclusion drawn and reached in that case again I think that conclusion clouds the relevance of other findings in that case because, again, it's dealing with a different test, a much broader test, of a relationship of employer and employee must have some connection with the activity of coal mining. I just disagree that that test is appropriate here. Secondly, it's dealing with the specific matter for the purposes of part 5 of the Coal Industry Act and to that extent it may have some part to play but I'm just not sure how relevant it is to the current proceedings.

PN1052

If there is any doubt, I suppose, in the effect of my submissions I might say it very clearly, my submissions are that the relevant test is enunciated in the Poon Brothers case. That case is, in terms of the effect of it, on all fours with our case and that really is the difficulty which the union must overcome.

PN1053

THE COMMISSIONER: I suspect I'll spend quite some time in the company of the Poon Brothers before all this is over.

PN1054

MR LEAHY: What I might do now, Commissioner, is address some matters which from a quick glance I wish to respond to in A12. I think it is worthwhile at page 31 of those submissions just to point this out, Commissioner. It's just in the paragraph towards the top of the page where it says secondly, do you have those submissions before you, Commissioner?

PN1055

THE COMMISSIONER: I do.

PN1056

MR LEAHY: So at page 31 it says:

PN1057

Secondly, Mr Rose's evidence in para 17 of his statement in respect to Daniel Wynn's evidence ...(reads)... both inclusive.

PN1058

This may well be a personal view, but I would take issue with the word misleading. Secondly, I think it's worthwhile also to reconsider the fact that Daniel Wynn was an employee of Mainstream in the way in which he characterised the work which Mainstream carries out. Again there was no indication. There was no support, nothing stronger than that, even in the evidence of Mr Endacott or in his statement. I think that the work is integral and to the extent that it's maintenance work there always seemed to be a recognition that the cleaning work preceded the maintenance work and even to the extent we used those expressions "cleaning work preceding maintenance work" the cleaning work to that extent is different and is distinguishable from the maintenance work. I'd just make the point that in relation to page 41 of the submissions it's noted in bold in the centre of the page that:

PN1059

The qualifying Mainstream employees to work on mine sites is an expensive investment in time and money.

PN1060

All I would say in relation to that is that I think it was agreed that there is certainly some expense involved in making sure that persons who are to perform work on mine sites have the appropriate training and are appropriately qualified to carry out that work. Further, what I would also point out is this. That in terms of the training which is carried out or some of the training, I'd put it as highly as that, some of the training, at page 31 of the transcript, paragraph number 470 you may well recall that a question was asked of Mr Rose whether particular training which was carried out whether it was only relevant to work performed by Mainstream's employees at coal mine sites. The response was:

PN1061

No, we need to use cherry-pickers or elevated work platforms on various jobs. We do some work ...(reads)... where you have to have confined space.

PN1062

That answer seems to be relevant to the question that was asked at paragraph 469 in relation to training in relation to work at heights and also confined spaces. But it demonstrates that some of the training which is carried out is certainly useful for cleaning generally and not simply for coal mining. I think some of these matters which are raised by Ms Gray in the written submissions marked A12 have been really dealt with in terms of submissions I've put previously or today. One matter which is raised at page 44 is that Mainstream's employees are starting and finishing work at the coal mine sites.

PN1063

All I would say there is that that seemed to be a fact. I don't know whether that's disputed. That's a fact for the occasions on which the employees do perform work at coal mine sites and when they're not performing work at other sites. But that's just one factor I would have thought that's taken into account. In any event we return to the industry of the employer. Further, on the next page, 45, it talks of industrial usage and says:

PN1064

Has the work customarily been done by coal mining employees?

PN1065

Again, what I would say there is I'm not entirely sure that that question is entirely relevant. I can certainly see why the CFMEU would raise that issue but to the extent that there is contracting and there is contracting out I would have thought that something almost has to be an inhouse function before it can be contracted if that makes sense. In any event again I would rely on the Poon Brothers decision which dealt with matters that could easily have been performed by employees inhouse but which were performed by a contractor. I should just at that point - Commissioner, that really concludes my submissions - there was one matter which I did wish to draw your attention to but I skipped and it was the issue of the laundry example in one of the cases to which the CFMEU have referred.

PN1066

The case that I'd like to take you back to is The King v Central Reference Board & Others; Ex parte Thiess Repairs Pty Ltd. It was the third case relied upon by the CFMEU. In particular I draw your attention to page 131 of that decision in which Latham CJ - the Chief Justice was in the majority in that decision - talks about:

PN1067

How one industry may be entirely concerned with the service of another industry ...(reads)... to be working in the hotel industry.

PN1068

In conclusion, subject to being given the opportunity of at least 14 days to respond in writing to any other issues which my client would wish to respond what are raised in exhibit A12, I would say this, for the Commission to find that there is an industrial dispute within the meaning of the Act in this case, the Commission must as a matter of fact, find that my client operates in the Coal & Shale Industries. That's the very first thing that must be done. I would say that that is a tall order.

PN1069

Obviously my submissions say that the industry, the employer is not the Coal & Shale Industries. It has probably tried to say that, but it is something which I will reiterate and hopefully finds its way into the written decision. That really concludes, my submissions, Commissioner.

PN1070

THE COMMISSIONER: Did I just hear you correctly, that you've now requested at least 14 days?

PN1071

MR LEAHY: I actually took those words from you, because I think at some point when I said 7 to 14 days, you said words to the effect - at least 14 days. I am happy with 14 days. I won't push it any further.

PN1072

THE COMMISSIONER: All right, we'll just go off the record for a moment.

OFF THE RECORD

RESUMES [11.37am]

PN1073

THE COMMISSIONER: I've now had the opportunity to discuss a further timetable in this matter with the parties and the following is agreed. That on or before close of business on Wednesday 21 May, Mr Leahy will advise Ms Gray and myself as to whether he intends to lodge further written submissions in reply to the material presented by Ms Gray and marked exhibit A12 today. If Mr Leahy does take up the option of doing so, he will have until close of business, Wednesday 28 May 2003.

PN1074

I should say that the option is still there for Mr Leahy, if he wishes, to seek a hearing to make any oral submissions and we can discuss a date for that later.

PN1075

That being said, we are adjourned.

ADJOURNED INDEFINITELY [11.42am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A12 FINAL WRITTEN SUBMISSIONS FROM CFMEU PN955
EXHIBIT #A13 CFMEU CASE LAW FILE PN955