C2003/630, Transcript of Proceedings [2003] AIRCTrans 344 (4 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/630

APPLICATION FOR AN ORDER TO STOP OR
PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the
Act by Endeavour Coal Pty Limited for an
order to stop or prevent industrial action
re 24-hour strike commenced at 7.10am on
6 January 2003 - report back

SYDNEY

2.20 PM, TUESDAY, 21 JANUARY 2003

Continued from 6.1.03

Adjourned sine die

PN125

THE SENIOR DEPUTY PRESIDENT: Good afternoon. Are there any changes in appearances?

PN126

MR A. WARD: If your Honour pleases, I am appearing for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

PN127

MR W. TOMLINS: If the Commission pleases, I appear on behalf of the CEPU.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, this matter was before me last on 6 January and it was adjourned for a report-back today on the basis that the CFMEU at any rate would make recommendations that there be a resumption of work as soon as it was possible or practicable after they told me that they would, at around 4.40 pm on that date. Who wants to provide me with the report-back? Yes, Mr White?

PN129

MR WHITE: If it pleases the Commission, firstly, I understand there was a letter sent to you. I simply didn't write a letter to try to manipulate the statements. We were waiting for today to report back to you in factual terms.

PN130

THE SENIOR DEPUTY PRESIDENT: You will notice, Mr White, I did not mention a letter. There is one on file. If Mr Nubley wants to refer to it he will.

PN131

MR WHITE: All right. On the report back, I am ready to hand up some documents to the Commission. We have put together a step-by-step process of what actually took place. In front of you the first two sheets have the AIRC Report Back heading.

PN132

THE SENIOR DEPUTY PRESIDENT: I'll mark that as an exhibit. That can be CFMEU1.

EXHIBIT #CFMEU1 DOCUMENT HEADED AIRC REPORT BACK

PN133

MR WHITE: I will refer to the other ones as I come to them.

PN134

THE SENIOR DEPUTY PRESIDENT: Do you just want to give me a moment to read it, Mr White? Thank you.

PN135

MR WHITE: As per our statement to yourself, we arrived on the Monday night shift to get those people to work. They changed, ready for work, quite differently from what's been indicated to you, and listened to a report. The reason we were unable to keep them at work for that shift was that information given to them from the company previously to that meeting was definitely different from the information given on that day and we were unable to keep night shift at work. On the day shift, we are right there, they went to work after the lodge president had given them a full report. During the process of that, from the transcript given here, the company indicated that there would be a joint working party meeting there and that never occurred. Our understanding was that one would occur and it did not.

PN136

On day shift, after they had gone underground, another heating occurred. The heating that has been occurring at Appin has been intensifying over a period of time and that has been the concern of the rank and file. As I take you through the steps here, on the 7th, on the first shift back, the heating occurred at approximately 11.00 am into that day shift. The blokes stayed underground, I was called to the site and at the afternoon shift meeting we asked the rank and file to stay at work, not to take any more industrial action and ask for alternative duties until such time as the danger was removed and a complete audit of the belt system had been done by both our local check inspector, district check inspector and Government check inspectors and they were satisfied that the system was safe to run. The rank and file reluctantly complied with the request from the union's executive. The check inspectors report is with you, your Honour.

PN137

THE SENIOR DEPUTY PRESIDENT: Do you want me to read that, Mr White?

PN138

MR WHITE: Yes, please.

PN139

THE SENIOR DEPUTY PRESIDENT: There is more than one report, is there?

PN140

MR WHITE: There are three.

PN141

THE SENIOR DEPUTY PRESIDENT: I will mark the report which starts with the heading Conveyor System Inspection, Appin Colliery, 8.1.2003 as exhibit CFMEU2. The document that is headed Heating on Main Slope Belt 90103 is exhibit CFMEU3. The report headed Heating on Green Belt 40103 is exhibit CFMEU4.

EXHIBIT #CFMEU2 CONVEYOR SYSTEM INSPECTION, APPIN COLLIERY

EXHIBIT #CFMEU3 DOCUMENT HEADED HEATING ON MAIN SLOPE BELT

EXHIBIT #CFMEU4 REPORT HEADED HEATING ON GREEN BELT

PN142

THE SENIOR DEPUTY PRESIDENT: Do you want me to read those to myself, Mr White?

PN143

MR WHITE: Yes, please.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes.

PN145

MR WHITE: The relevant ones for today are CFMEU3 and CFMEU2. With regard to 3, the main slope belt, that occurred while the membership was at work, after the return to work, and then 2 is a complete audit of the whole system of the belt. What it shows is that over a period we were unable to do production at that colliery for close enough to four days. The rank and file were given alternative duties.

PN146

All I want to raise today is the step by step procedure that you obviously have been able to work your way through, also the concerns that we had previously and how those concerns were shown to quantify after we returned to work. The issue there is that Appin has not been fulfilling the full safety requirements because of many issues there and rather than have this as a manning issue discussion I seek to have this held over for one more month and given to Commissioner Roberts and to have the 127 orders rescinded.

PN147

THE SENIOR DEPUTY PRESIDENT: They haven't been made.

PN148

MR WHITE: On the report back I understood that decision was going to happen today, it was because of the report back over the 127 orders that we came here.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, but they haven't been made.

PN150

MR WHITE: I am asking that they be rescinded by the company.

PN151

THE SENIOR DEPUTY PRESIDENT: Or that they not be made or that the company withdraws application.

PN152

MR WHITE: That the company withdraws application is what I am seeking, so that we are able then to put this on file with the safety issues with regard to the health systems at Appin, in front of Commissioner Roberts, and in one month to report back again to keep on line with the safety requirements that we are trying to have for our membership. Your Honour, would you like to go through the whole of the report we have given to you or are you satisfied that being on transcript and that you have read it is sufficient for now?

PN153

THE SENIOR DEPUTY PRESIDENT: Well, I have read it and the documents have been marked exhibits so it's all on the file, unless there is something you want to elaborate or further explain to me.

PN154

MR WHITE: There is one issue that we would like to raise with you at the end of the report to you, CFMEU 1.

PN155

THE SENIOR DEPUTY PRESIDENT: That's a report from you, is it?

PN156

MR WHITE: Yes, this is a chronological report that the lodge executive and myself put together. It is on the bottom arrow point on the first page, it says:

PN157

At this meeting ...(reads)... were issued by the Government inspector.

PN158

We asked at that meeting that we be given a copy of those and we were unable to get them because of the company's so-called Privacy Act. In our view the Commission should have those available to deal with the concerns that the inspector has with those two sections of the Act and we asked that we be given a copy of them, which they refused to give us. If it please the Commission.

PN159

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ward.

PN160

MR WARD: Thank you, your Honour, just a couple of other things. As a result of the industrial stoppage that occurred on the 6th BHP Billiton issued a memorandum dated the 7th to all employees explaining that as a result of the fire incident on the green panel belt, the following actions must be adhered to.

PN161

THE SENIOR DEPUTY PRESIDENT: What must be adhered to?

PN162

MR WARD: I will read them out on transcript, unfortunately I haven't got copies.

PN163

THE SENIOR DEPUTY PRESIDENT: No, I just didn't hear what you said, the following actions, was it?

PN164

MR WARD: Yes, the following actions must be adhered to: no belt system is to have its belt rub a structure, and if a belt is found to be rubbing against a structure by a belt deputy or belt attendant the following actions are to occur. Then it goes into three paragraphs as to what action is to occur.

PN165

That was issued on 7 January. I was present at a meeting with the company on 9 January and there was also a meeting of AMWU and CEPU members on the 16th. We had a further meeting on 17 January. I can say that in relation to exhibit CFMEU 1 where has been highlighted sections 63 and 61, I was present at that meeting where I requested a copy of those particular sections and the response I got I found a little bit amusing, the response was that by law they are supposed to go on a notice board for 28 days after the different sections have been issued. I would have thought that once they go on a notice board they are public property and I would like to be in a position to hand up a copy to you today but the company advised me in no uncertain terms they could not allow me to have copies. Mr White has mentioned their Privacy Act, which I found somewhat amusing.

PN166

The other thing is, there is a further meeting on Friday to discuss a number of issues with the company which arose from the discussions we have already had and hopefully we will be in a position to have a report back meeting of members with something positive about the whole exercise. I will leave my statements at that and I would support what the CFMEU have stated, if your Honour pleases.

PN167

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ward. Yes, Mr Tomlins.

PN168

MR TOMLINS: Thank you, your Honour. I won't go over what has already been stated but I would like to comment on the meeting that was held on Friday the 17th where at least there was some agreement. The parties agreed that there are glaring deficiencies in the belt system from the installation right through to the inspections on the system. It is a major problem that needs to be addressed, it is one that the unions at least believe is the result of many reductions done in the past in an inappropriate manner, in that the company established employee numbers that they wanted and then tried to match that to classifications. It obviously hasn't worked.

PN169

There was at that meeting on the 17th a recognition by the company that they needed to re-establish belt crews. That's been an argument that the workforce has had with management over the last couple of years. As I said, there was something positive that came out of that meeting. How that is to be established will be discussed at the meeting to take place on Friday. I wouldn't give any indication here that I am confident that on Friday we will reach a consensus on how that should be done. However, the fact that we have agreed on the problems is positive and something to go forward on.

PN170

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Tomlins. Yes, Mr Nubley.

PN171

MR NUBLEY: Your Honour, I would just like to touch on a few points that my colleagues have raised. Firstly I would like to give an indication on the events that have occurred since our last appearance. Those events were in some earlier correspondence, those events were that the afternoon shift did not return to work and nor did the night shift, as Mr White has indicated.

PN172

THE SENIOR DEPUTY PRESIDENT: Is that the letter that you wrote to me on 13 January 2003?

PN173

MR NUBLEY: Yes, your Honour.

PN174

THE SENIOR DEPUTY PRESIDENT: Do you want that marked as an exhibit, otherwise I won't have any regard to it?

PN175

MR NUBLEY: Yes, thank you.

PN176

THE SENIOR DEPUTY PRESIDENT: It will be exhibit A1.

EXHIBIT #A1 LETTER FROM MR NUBLEY TO THE COMMISSION DATED 13/01/2003

PN177

MR WARD: I might just indicate, your Honour, that we don't have copies of that.

PN178

THE SENIOR DEPUTY PRESIDENT: Do you have copies for the unions, Mr Nubley?

PN179

MR NUBLEY: I only have the one copy with me.

PN180

THE SENIOR DEPUTY PRESIDENT: I will have my associate make some copies of that for the unions. Yes, go ahead, Mr Nubley.

PN181

MR NUBLEY: Thank you. The day shift on Tuesday met for 30 minutes and the afternoon shift met for 65 minutes to discuss the events of the previous day. Now, unfortunately, on the same day, Tuesday the 7th, we had another heating on the main slop conveyor belt and for that reason we were not able to convene the meeting that Mr White referred to and that we had discussed earlier in the Commission. The events of that heating involved a tracking-off. I don't intend to go through them in great detail as you have received information in the form of the two latter exhibits from the CFMEU which capture the events.

PN182

The company have received a number of notices from the Department of Mineral Resources, issued under the auspices of the Coal Mines Regulation Act. As indicated here today, the union did request that copies be handed up in this form. We declined on the basis of our understanding of the Coal Mines Regulation Act. I would like to hand up an excerpt from that Act to further explain our position.

PN183

THE SENIOR DEPUTY PRESIDENT: I will mark that as an exhibit. It is an excerpt from the Coal Mines Regulation Act 1982 and I will mark that as exhibit A2.

EXHIBIT #A2 EXCERPT FROM THE COAL MINES REGULATION ACT 1982

PN184

MR NUBLEY: The highlighted area indicates our understanding that a person required to make a report in accordance with this section may not fail or refuse to make a report, but it is not admissible evidence in any proceeding except proceedings for the offence under section 62E, and for that reason we declined to submit those reports in this form.

PN185

However, the company can talk about the issues that flow from those notices. Basically the company was required to do four things. The first of those was to comply with the Appin Mines inspection system. The second was to conduct or to have conducted an independent audit of the belt to Australian Standard 1755. The third was to have conducted an independent assessment of compliance against that Australian Standard and fourthly there was to be refresher training for those involved in the belt system. Those actions are under way.

PN186

The following actions also have been taken. There have been six sets of top winder wonder switches installed over the length of the conveyor. Additional pot belt server rolls have been installed to assist with tracking. Towel roller trolley wheel bearings have been replaced to enhance corrector belt tension and the inspection regime for the past week has included constant monitoring with no problems observed. Finally, a start-up procedure that caters for varying start-up conditions has been developed and implemented.

PN187

The company has been in regular contact with the workforce in a number of ways. My union colleagues have made reference to some of those. A memo was issued to those involved in the belt work to the effect that higher standards have been imposed and if the equipment fails to meet those higher standards, action should be taken such as stopping the belt. I hand up a copy of that memo, your Honour.

PN188

THE SENIOR DEPUTY PRESIDENT: I will mark that memo dated 7 January 2003 as exhibit A3.

EXHIBIT #A3 MEMO DATED 07/01/2003

PN189

MR NUBLEY: There have been also presentations to the workforce generally referred to as karaokes and there have been a number of meetings which have been referred to by others at the bar table, so in the company's view the workforce has been briefed on the matters at hand and have been asked to look at a number of issues, including the issue of rosters. The company is keen to clearly define and allocate resources to the belt issue and the company's view is that members of the current team have been at work, as statistics show, for an average of 3.4 days through the week on the belts. We believe that can be improved upon.

PN190

We also believe that the rostering issue will assist and improve the ownership of the individuals with the belt systems available. As has already been said, there is a further meeting on Friday to talk about those issues and other related ones. In conclusion, the company still seeks that the orders be issued as originally laid out. If the Commission pleases.

PN191

THE SENIOR DEPUTY PRESIDENT: Why do you still seek the issue of the order?

PN192

MR NUBLEY: The company is not confident that the action won't be repeated. We have had three strikes in the last six months. We don't have a high degree of confidence that there won't be a fourth and we think the order would assist in focussing the parties' attention on the correct processes and sitting around the table and discussing the issues.

PN193

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nubley. Yes, Mr White.

PN194

MR WHITE: If it please the Commission, I would like to respond with regard to the company still pursuing the 127 order. Many issues were not highlighted verbally today because they were in written form but certainly the document referred to as exhibit A1 by the company has a fair few inaccuracies in there, especially as we were still in front of the Commission when the afternoon shift - the first dot point in his document - we were still here, so he has the ability to make a nice fictional little story go a long way.

PN195

We have been pedantic in that we have not raised the issue that when the inspectors did their inspection on a deputy's report, they found that document to be falsified. We also didn't raise issues such as the belt which was found to have 123 clip joints, which would give a fair bit of inaccuracy as to how a belt would run straight by having clip joints instead of vulcanised joints. We haven't raised any of those issues and I didn't seek to today. I seek that we have another month to work our way through this and report to Commissioner Roberts who has been fully up to spiel with some of those issues with regard to heatings that we have had with Appin.

PN196

I seek today to have the company withdraw their 127 application or for the Commission to not make it available and let us deal with it in another forum. I believe we have shown good faith that when the next heating occurred on the day shift on Monday we sought to have alternative duties rather than a strike and we certainly had ongoing meetings with the rank and file to push home that way of dealing with these particular safety issues.

PN197

It's still a concern at Appin, there will be a need to have further meetings there, we will need to work our way through these, but with the meetings that are due to occur the company still has it that the only way of dealing with it is to change a roster pattern rather than the real issue of manning. They haven't focussed on the issue of the belt and how we are going to continue to keep it safe through manning or other technological changes that will let that occur, rather than focus on more hours per employee to work at that site to have the belt manned properly.

PN198

They are the real issues here and they need to be worked through in a different forum. Today's report back, as I understand, was on the 127 orders. I am asking again that they be withdrawn by the company, held over for one month and we will report back to Commissioner Roberts where we will have dealt with the manning of the belts and obviously some further upgrades that will need to occur and we will be able to deal with it in the cold hard light of day. That's what I am seeking from the Commission.

PN199

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr White. Yes, Mr Ward.

PN200

MR WARD: Your Honour, the current situation is that there is no industrial dispute at the colliery. The unions have entered into a number of consultations not only with their members but also the company to resolve the problem. There's a number of problems that we have been able to identify and a number of problems that the company have been able to identify. I would think that if the company were realistic and would act in a good faith manner they wouldn't need such 127 orders to sit beside the workforce saying, well, you know, we're not going to attempt to fix the problem without having these orders in place. I would also ask the company to withdraw the application. As a union, we certainly haven't seen the 127 orders that they are seeking and - - -

PN201

THE SENIOR DEPUTY PRESIDENT: There are no draft orders that you have provided, are there, Mr Nubley?

PN202

MR NUBLEY: No, there aren't.

PN203

MR WARD: So it's a non-event, I mean the company are at liberty under section 99 to advise the Commission if a dispute occurs. I would say we are in a consultative process at the moment, there's been a number of problems identified and we are prepared to sit down and work with the company to overcome them. By the same token, the company's got to be fair dinkum with the union.

PN204

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Tomlins?

PN205

MR TOMLINS: Your Honour, I indicated earlier that there were some positives out of last Friday's meeting and a further meeting had been set down for this Friday. I purposely didn't refer to the application for section 127 orders because I believed that, in view of what had taken place and the consensus around the problems that existed in the mine with in particular the belt system, the company would not have proceeded with an application for 127 orders.

PN206

It is counter-productive on the one hand to ask the workforce for some agreement to assist the mine out of its current problems, even though I did indicate earlier that I couldn't give any guarantee that there was a likely agreement out of the proposition that is being floated by the company, but it is definitely counter-productive to seek an agreement, go into negotiations and have section 127 orders placed on the workforce. If you wanted to upset the workforce and destroy any possibility of a consensus then what you would do is seek 127 orders.

PN207

Your Honour, I would be asking that you decline to issue those orders. I suspect, on what the company has said so far, that they will decline to withdraw them. So, again, I would ask you to decline their request.

PN208

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, well, I'm going to consider my decision in this matter. I would ask the parties to remain in the precincts of the hearing room. I hope to be able to give you a decision within the next half-hour or so.

SHORT ADJOURNMENT [2.52pm]

RESUMES [3.20pm]

PN209

THE SENIOR DEPUTY PRESIDENT: I've considered what has been put to me by the parties. Section 127(1) provides:

PN210

If it appears to the Commission that industrial action is happening or is threatened, impending or probable in relation to an industrial dispute or the negotiation or proposed negotiation of an agreement under division 2 of part VIB of the Act, or work that is regulated by an award or certified agreement, the Commission may, by order, give directions that the industrial action stop or not occur.

PN211

This matter was notified on 6 January of this year and I first heard of it at 3 o'clock that afternoon. It became apparent, and there doesn't seem to be much disagreement between the parties, that industrial action had taken place apparently because there had been some heating or burning embers at or near the foot of a conveyor belt that seems to have been caused by the conveyor belt rubbing on one of the support structures. Mr White put it that employees were concerned for their safety, the mine being a gaseous mine, and had gone out as a result of that. Mr Nubley has put to me that it was the third time industrial action had been taken in relation to that issue and accordingly 127 orders should issue.

PN212

The matter adjourned into conference on that day and after certain discussions Mr White undertook to recommend that employees return to work and that there be meetings and discussions with the company to see if what appeared to be a problem in relation to that belt and other belts in the mine could be resolved.

PN213

A resumption of work did occur, albeit not quite as quickly as I'd hoped after hearing Mr White on 6 January but nevertheless, after the afternoon shift not going back to work, which it couldn't, and the night shift not going back to work for one reason or another, work did eventually resume. Two stop-work meetings took place of a longer duration than was indicated was sought by the union but after that there has been a resumption of work and work has continued albeit there has been another heating and the conveyor belt has stopped. The men have performed other duties and there has been no further industrial action.

PN214

Various meetings have taken place between not only the CFMEU and the company but involving the AMWU and the CEPU as well as meetings between those unions and their members. A further meeting with the company is scheduled for Friday of this week and steps have been identified to be taken to try to rectify the situation. Inspections by the relevant departmental inspectors have taken place and the unions indicate that they are actively prepared to work with the company to try to resolve the problem of heating caused by the belt or belts.

PN215

In the circumstances - and I again repeat that there does not seem to be any dispute between the company and the unions about the relevant factual situation - it does not appear to me that industrial action is happening, nor is it threatened, nor am I satisfied that the industrial action is impending or probable. Indeed, it seems to me that what the unions are seeking to do at this stage is to try to resolve the matters between them by negotiation. Accordingly, the statutory requirement for me to make a section 127 order has not been demonstrated to my satisfaction and I decline to make the order on that basis.

PN216

To the extent that there is a discretion - and there is a discretion generally - if there is a satisfaction that one of the matters referred to in subsection (1) of 127 is apparent, an order would be made unless there were good reasons not to do so, but I accept particularly what Mr Tomlins has said, that the making of a 127 order in the current situation would probably be counter productive. At the moment talks are scheduled and there is an element of goodwill.

PN217

I don't know how much goodwill there is between the parties but there is at least an element of goodwill - between the parties to seek to resolve these issues. I accept and agree that the making of a 127 order at this stage would be counter-productive even if I were satisfied that industrial action was impending or probable, which, as I've said, I'm not. So, in the exercise of my discretion, I would not make a 127 order.

PN218

I accordingly dismiss the company's application. I observe that if any industrial action does take place or is threatened a 127 application can again be made and it will be listed at short notice, as was this application, and no doubt what has occurred in front of me will be referred to.

PN219

Finally, the union has made an application that the matter be referred to Commissioner Roberts. I've dismissed the matter. If either party wants the Commission to assist in dealing with the issues that resulted in this application being made there are procedures available under the Act under section 99 and, of course, there is a certified agreement that allows the Commission to be involved pursuant to the dispute and grievance procedures in the certified agreement. If any application is made to the Commission it will be assigned to the appropriate member.

ADJOURNED INDEFINITELY [3.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 DOCUMENT HEADED AIRC REPORT BACK PN133
EXHIBIT #CFMEU2 CONVEYOR SYSTEM INSPECTION, APPIN COLLIERY PN142
EXHIBIT #CFMEU3 DOCUMENT HEADED HEATING ON MAIN SLOPE BELT PN142
EXHIBIT #CFMEU4 REPORT HEADED HEATING ON GREEN BELT PN142
EXHIBIT #A1 LETTER FROM MR NUBLEY TO THE COMMISSION DATED 13/01/2003 PN177
EXHIBIT #A2 EXCERPT FROM THE COAL MINES REGULATION ACT 1982 PN184
EXHIBIT #A3 MEMO DATED 07/01/2003 PN189