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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER BACON
BP2003/6166
APPLICATION FOR SUSPENSION OR TERMINATION OF
BARGAINING PERIOD
Application under section 170MW(8A) of the Act
by Anglo Coal (Moranbah North Management)
Pty Limited re suspension or termination of
BP2003/5136
BRISBANE
9.15 AM, THURSDAY, 28 AUGUST 2003
PN1
THE COMMISSIONER: Can I take the appearances, please?
PN2
MR I. HUMPHREYS: If the Commission pleases, I seek the leave of the Commission this morning to appear on behalf of the applicant company.
PN3
THE COMMISSIONER: Very well, thank you, Mr Humphreys.
PN4
MR A. VICKERS: Thank you, Commissioner, Vickers A for the CFMEU. With me I have MR CONROY. Commissioner, I also should indicate that in the Courtroom I have MR STEVEN SMYTHE who is the industry safety and health representative appointed or elected pursuant to the provisions of the Coalmining Safety and Health Act, and also MR TIM WHITE who is both the site safety and health representative at Moranbah North, and a deputy engaged at the mine as well.
PN5
I have no intention at this point in time of calling either of them as witnesses, though it may arise depending upon matters which arise in the course of the examination and cross-examination of any of the witnesses. However, given the nature of the application, and the fact that it relies - it seems to me - entirely on health and safety issues, and given my lack of experience in that particular area, and given the experience of both Mr White and Mr Smythe in that area, I would seek permission of the Commission that they remain in the Courtroom at all times to brief and advise me. Further, I object to Mr Humphreys' application for leave to appear.
PN6
THE COMMISSIONER: Thank you. Well, Mr Humphreys, why should you be granted leave in this matter?
PN7
MR HUMPHREYS: Thank you, Commissioner. Commissioner, applications to suspend bargaining periods are of themselves important matters. They are of themselves matters which, in my submission, are special within the meaning of the term within the relevant section. The grounds upon which this application is made raise, in their own right, matters which are of grave importance. And I invite the Commission to find, on the - for reasons which I will detail - that having regard to the subject matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented.
PN8
The subject matter of the proceedings I have touched on; it is an application to suspend a bargaining period. Moreover, this morning the Commission has before it an application for what I will term an interim order. It is yet to be seen, but there may well be a challenge as to the jurisdiction of the Commission to make orders on an interim basis as sought.
PN9
THE COMMISSIONER: Well, you can expect, at least from me, Mr Humphreys, that you will have to make your case out on that point.
PN10
MR HUMPHREYS: Yes.
PN11
THE COMMISSIONER: And I don't necessarily share Munro Js view about that issue.
PN12
MR HUMPHREYS: Yes, well, thank you, Commissioner, that brings into sharp relief the fact that the subject matter and the character of the application before you today raises issues of a legal character which is of significant importance, not just to this case, but generally in respect to the operation of the relevant section of the Act. The other aspect of the subject matter which is of grave importance is the threat to life safety, health and welfare, which is alleged in the application; they are matters of serious concern which, in my submission, give rise to special circumstances.
PN13
Can I also deal with, in brief, the second limb upon which representation can be - or leave to be legally represented can be granted, and that is if the Commission is satisfied that the party can only be adequately represented by counsel, solicitor or agent, I observe that Mr Smith, who is the corporate human resources manager for Anglo Coal is a witness in these proceedings, and it would be inappropriate, in my submission, for Mr Smith, as a witness, to have conduct of these proceedings, if the Commission was minded to think that he should, given his role within the company.
PN14
Commissioner, there is substantial authority about the issue of leave to appear; if the Commission just bears with me for a moment. The Commission is entitled in determining special circumstances to consider a number of matters, some of which I have referred to. Can I further submit that in circumstances where there will be evidence called, quite likely in relation to matters which will be contested between the parties, then it is appropriate, in my submission, for the Commission to find special circumstances such that counsel appear because counsel can assist in the efficient disposal of the evidence, and submissions in respect to that evidence.
PN15
It is perhaps likely, although not certain at this point in time, that issues arising out of the Coalmine Safety and Health Act, and its proper construction, may be - come into play, and Mr Vickers' earlier comments support at least that prospect, and potentially, the role and circumstances of site safety and health representatives and industry safety and health representatives, and if that is so, then questions regarding interplay of that legislation, state-based legislation, and the federal legislation may also come into play. That of itself is a special circumstance.
PN16
The company will also be making application for evidence to be adduced from Mr Hendry by telephone; we have advised the Commissioner's associate about that. We have submissions as to why that application should be granted. Again, in my submission, an appropriate matter for the company to be able to put those submissions via legal counsel. The character of the application, a 170MW application, is not a matter which is a common occurrence in the Commission. I know the Commission has a particular view about - by way of illustration, 127 applications - I should say the Commission as presently constituted - it is often said in those applications that they are very regular and not unusual and not special.
PN17
I don't concede that point, but if that point is put in those, then certainly that point is not an available point in response to such an application as this. The matter will involve consideration of detailed authorities, and not least of all High Court authorities. It is a matter which stands out, in my respectful submission, as a matter which is - or does give rise to special circumstances within the relevant section of the Act, and I also rely on the second limb to which I have referred. Those are my submissions.
PN18
THE COMMISSIONER: Very well, thank you, Mr Humphreys. Mr Vickers?
PN19
MR VICKERS: Thank you, Commissioner. Commissioner, I continue the objection, and to address the two relevant sections of the Workplace Relations Act that Mr Humphreys seeks leave of, I will do them separately. Firstly, both at the beginning of his submission, and at the end of his submission, he relies upon Section 42(3)(b) on the basis that having regard - I am paraphrasing the paragraph, Commissioner - having regard of the subject matter of the proceedings there are special circumstances that make it desirable.
PN20
Now, as I understand what he is saying about the special circumstances is firstly, that the nature of the application raises issues which are of grave importance. I assume that he means to the company. My response to that, Commissioner, simply is that had the Parliament intended that legal counsel be more easily allowed to represent parties because of the importance of the matter, then they would have incorporated that into the statute. It doesn't. It has to be special. It doesn't have to be important, or of grave importance.
PN21
Indeed, one would assume, given other provisions of the Act which provide the capacity for the Commission to dismiss an application effectively if it is frivolous or vexatious on the basis that it is contrary to the public interest, that the Commission would in fact only deal with matters that are important. The connotation from Mr Humphreys' submission in this respect is that somehow the Commission sits here on matters - not necessarily on this matter - which are of no importance. And frankly, I find that submission offensive.
PN22
He further - under the issue - under the head generally that there was something special about this matter, he raises that it might bring into play issues including issues relating to the powers of site safety and health representatives and industry safety and health representatives. This appears to be something very much made up on the spur of the moment, because Mr Humphreys certainly had no idea that either Mr Smythe or Mr White were going to be present in the Courtroom today, until he actually arrived, and I made the comment that I did in my opening submission. And I can tell the Commission that there is absolutely no intention at all on the part of the CFMEU to in any way raise or deal with the powers of industry safety and health representatives or site safety and health representatives pursuant to the provisions of the Coalmining Act, or the regulations.
PN23
Mr Smyth and Mr White are here, as I explained in my submissions, for the purpose of giving me specific advice and briefings on technical safety matters relating to the operation or relocation specifically of the long wall at Moranbah North. That is the reason they are here. He further says, that it might be special because, or is special because there is a requirement for evidence to be adduced.
PN24
THE COMMISSIONER: You don't need to address that.
PN25
MR VICKERS: Thank you, Commissioner, I won't. In this regard, he raises the issue that he has an intention to adduce evidence from Mr Hendry via telephone and as I understand that part of his submission that there may be a requirement for legal counsel to put that argument. That is the requirement or the necessity for Mr Hendry to give evidence via telephone to the Commission. I can put his mind at rest, given what is in Mr Hendry's evidence, there is no requirement from the CFMEU to cross examine, at all.
PN26
Unless there is further evidence which Mr Humphreys or whomsoever may be running the case for the company seeks to adduce from Mr Hendry, that is a different matter but I would have no difficulty at all in having that any further evidence adduced by telephone. So I am not going to oppose that at all but frankly, it seems to me that given what is contained in Mr Hendry's affidavit, it is more common knowledge to just about everybody in the room. Indeed, there seems to me to be an almost exact repetition of the bulk of Mr Hendry's affidavit in Mr Smith's affidavit.
PN27
Both affidavits tell us almost word for word, that the company has received protected industrial action notices. Mr Smith gives us further evidence in relation to what is generally occurring at other Anglo operations outside of Moranbah North and we will come to that at some state. What that has to do with this application is beyond me but that is another matter I will deal with, as I said, at a more appropriate time. The other matter - the only additional matter covered in Mr Hendry's affidavit and not covered in Mr Smith's affidavit is a conversation that Mr Hendry appeared to have with Mr Baker on 25 August. One confirming what is notorious to all the parties in these proceedings and to the Commission as currently constituted and that is that Moranbah North's position is, it's not going to engage the CFMEU in negotiations about a certified agreement. In fact it is not going to engage the CFMEU about anything. That's its position.
PN28
The Commission as currently constituted, in fact made the comment in a matter that was dealt with by the Commission in print number PR920751, the matter of an application by the CFMEU to vary the Moranbah North award. At paragraph 74, of that decision, it says, and I quote:
PN29
MNC's failure to engage the CFMEU resulted in applications to the Commission. These applications and the conferences that resulted from ...(reads)... injured innocent bystander.
PN30
It is notorious, Commissioner, that MNC doesn't want to engage the CFMEU in agreement negotiations. So there is nothing new under the sun, in the only fundamentally different part of Mr Hendry's affidavit material from that supplied by Mr Smith and that is the conversation with Mr Baker on Monday 25th. Nothing has changed, surprise, surprise. So unless there is new evidence to be adduced, then we are wasting our time and the taxpayers money in phoning Mr Hendry. As a consequence, it doesn't support, in my submission, Mr Humphrey's submission to you that there is some special requirement requiring counsel to appear to assist in putting a case before the Commission that Mr Hendry needs to be put on the telephone for examination.
PN31
The second limb of Mr Humphrey's submission to you deals with the issue of whether or not the parties can be adequately represented. There may well be some logical reason why Mr Hendry can't be here and would prefer to be on the end of the telephone to give his evidence, or additional evidence if that is necessary. But under the same circumstances and given what I have already said about the absolute similarity, sameness of the affidavit material for Mr Smith and Mr Hendry, if Mr Hendry was required to be cross examined, then Mr Smith could examine him and indeed there is no requirement in my submission, not telling Mr Humphreys how to run his case or Moranbah North to run their case, but clearly on the affidavit material, you have got two people saying the same thing.
PN32
That doesn't debar Mr Smith from being the advocate. In fact, it seems to me to be a scratch off a ruse and a sham that both Mr Hendry and Mr Smith provide affidavit material which frankly is totally unnecessary. All it does is provide the basis at least of an argument for Mr Humphreys to be given leave to appear.
PN33
THE COMMISSIONER: It's an argument I don't accept.
PN34
MR VICKERS: I won't push it any further then, Commissioner. That's my submissions, Commissioner.
PN35
THE COMMISSIONER: Thank you. Mr Humphreys?
PN36
MR HUMPHREYS: Thank you, your Honour. Can I deal with Mr Vickers concern about importance and the fact that those words are not in the Act. It is necessary to look at all the circumstances of the case to determine whether special circumstances exist and I refer the Commission to Health Services Union of Australia v State of Victoria print L8814 in that respect. In assessing all the circumstances of a case, as in this case, it is absolutely appropriate and in my respectful submission, the Commission would be duty bound to consider the importance, the safety and so forth of the application which is before it. I made those submissions before. I don't repeat them but I emphasise that they form part of all the circumstances of the case and the Commission in my submission needs to consider those to determine whether the special circumstances exist as I put to the Commission.
PN37
Mr Vickers raises the prospect of Mr Smith having carriage of the matter. I don't in any way seek to take away from Mr Smith's professional capacity either as an industrial and human resources person and manager or as an advocate. However, as I have indicated this matter raises questions of serious law and the Commission would be assisted by having legal counsel appear to deal with those serious issues. Also as Smart J stated in the Commissioner for New South Wales v Leighton Contractors Pty Ltd which is an unreported decision in the New South Wales Supreme Court:
PN38
The nature and extent of the evidence likely to be adduced and the cross examination required are conducive to legal representation. Lawyers are trained and experienced in advocacy.
PN39
While that was obviously a matter before the Supreme Court of New South Wales, the basic principle is the same. This is a case, as I have indicated where it is likely contentious evidence will be called and cross examination will be required.
PN40
THE COMMISSIONER: You can't tell me, Mr Humphreys, that the Parliament never knew that when it passed this legislation.
PN41
MR HUMPHREYS: No, I accept that. That's why the Parliament used words, well travelled words, with special circumstances and also the second limb is relevant in that respect and the authorities of this Commission are that the Commission take into account all of the circumstances to determine whether special circumstances exist and it is well travelled ground that relevantly the Commission considers the character of the evidence or whether any evidence is to be adduced, the character of that evidence, its complexity and whether it will be contentious or not, and whether cross examination will be required, and the assistance that the Commission can gain hopefully from efficient, worthwhile cross examination to elucidate important matters.
PN42
That is one of the overall circumstances which the Commission takes into account when determining special circumstances. That is trite law. As I say in this case, it is absolutely relevant to a consideration as to whether my application for leave should succeed. Obviously, I would, in accordance with my professional obligations seek to do so in as efficient and concise a manner as possible. Also in the Health Services Union of Australia case, the Commission determined that section 98 of the Act requires the Commission to perform its duties as quickly as practicable which is beneficial to granting leave for legal representation.
PN43
I also observe in this case a matter of pressing urgency, that if the Commission was against me on the application, the matter would clearly have to be adjourned. The company would need to reprepare and that is contrary to - - -
PN44
THE COMMISSIONER: Why, Mr Smith is here.
PN45
MR HUMPHREYS: Yes, Mr Smith has not prepared the case.
PN46
THE COMMISSIONER: He instructed you, didn't he?
PN47
MR HUMPHREYS: Mr Smith has turned up to the Commission to provide evidence not to run a case and the principal instructions, I can advise have come from site, not from Mr Smith. Similarly in Queensland Industrial Relations Commission, it was observed in Lapierres v Hirschfeld Proprietary Limited, a decision of the Commission on 11 February 2000, that a lawyer's training and experience will likely hasten the hearing and consequently keep the cost of the hearing at a minimum. Some may have a view about costs, but the underlying essence is that I have an obligation as a lawyer to ensure the swift and efficient disposal of the matter, and that would be of assistance to the Commission.
PN48
It is also right that the impact of the decision is a matter which is part of the overall consideration which the Commission should factor in when determining special circumstances and I refer to the matter of Re Bank Officials Federal Award 1989, which is reported in 37 Industrial Reports 165 at 178. And in this case, where we have - well, the evidence will be the conduct of the longwall move - a very significant matter to this industry being interrupted by industrial action, be it protected or otherwise, that is a matter of serious consequence to the coal mining industry.
PN49
The Commission is well versed in the industry, is well versed in what normally happens with longwall moves, and the fact that it is most unusual for a longwall move to be impacted by industrial action, be it protected or otherwise. This matter has significance for the coal mining industry. That is another aspect which, in my submission, is relevant to the consideration of special circumstances. Unless the Commission has any further questions, those are my submissions. It is, in my respectful submission, a most compelling case for leave to be granted.
PN50
THE COMMISSIONER: Mr Humphreys, I'm going to grant you leave but I'm not granting you leave for any of the reasons you've advanced. I'm granting you leave because I have two issues that I think may well warrant legal representation and I've already canvassed one and that is that nobody in this room should assume that I share Munro Js views about interim suspensions - - -
PN51
MR HUMPHREYS: Yes.
PN52
THE COMMISSIONER: - - - of bargaining periods. And the other is that if the jurisdiction is established, that is that I am satisfied that there is the circumstances of sub-section 170MW(3)(a) present, then I have a discretion as I read the legislation to terminate these bargaining periods. And that might be something I do and everybody is on notice about that.
PN53
MR HUMPHREYS: Thank you, Commissioner.
PN54
THE COMMISSIONER: And so they are the reasons. Obviously what you're suggesting - well, I assume it's likely you will suggest is that there should only be a suspension, but the gate or the door that you open allows for termination.
PN55
MR HUMPHREYS: Yes, I accept that.
PN56
THE COMMISSIONER: And it's those two - they are the two reasons why I'm going to grant you leave.
PN57
MR HUMPHREYS: Thank you.
PN58
THE COMMISSIONER: Because I think they are the special circumstances.
PN59
MR VICKERS: Commissioner, before Mr Humphreys commences, and I apologise; given now that he has leave and one of the reasons that you granted that leave is the issue of whether or not jurisdiction exists - I wasn't going to raise it as an ordinary point in any event, I was going to deal with it in the course of my submission and I'm happy to do that. It's a matter of whether you would prefer me to deal with that matter now or simply leave it within the body - the submission in the case that I intend to deal with.
PN60
THE COMMISSIONER: Can you give me an outline of the point that you contend.
PN61
MR VICKERS: The point, Commissioner, very simply is that the application is one which hinges on a combined reading of 170MW(1) and 170MW(3)(a). 170MW(3)(a) is one of the seven reasons - I'm sorry, one of the six paragraphs, sub-paragraphs, in section 170MW which the Act permits the Commission to do certain things about, suspend or terminate the bargaining period. The wording, in my submission - well, the wording, in my view, in 170MW(3) is fundamentally different from 2 through to 7 respectively apart from 3, in that in the other provisions, the other paragraphs - and this is a brief outline. I will go to it in much more detail if you want me to.
PN62
And specifically in paragraphs 2, 4 and, I think, 5 - I'm sorry, 2 and 4, not 5 - and I will deal with 5, 6 and 7. I mean, they deal with specific other matters. Okay? And I don't think they actually come into the equation. But 2, 3 and 4 talk about industrial action which has a specific effect. And in 2:
PN63
A circumstance for the purpose of sub-section 1 is that the negotiating party, before or during the bargaining period, has organised or taken or is organising to take industrial action.
PN64
That's a preamble to the paragraph, those certain things, and I don't read all those out. So it's an existing prospective and retrospective application provision, if you like. Similarly - slightly similarly, at least, in 170MW(4) the preamble section is:
PN65
A circumstance for the purpose of sub-section 1 is that industrial action is being organised or taken by.
PN66
So it's an existing or a prospective issue that's involved. 170MW(3) deals solely with action which is actually taking place at the time. There is no prospective or retrospective application.
PN67
A circumstance for the purpose -
PN68
And I'm quoting again.
PN69
... for the purpose of sub-section 1 is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening to do certain things.
PN70
So the fundamental difference in the legislation in the three paragraphs is that for the purposes of paragraph (a) and paragraph (b) of sub-section 3 the industrial action has to be occurring at the time and at the time that the Commission then, going back to 170MW(1), has to be satisfied of certain things taking place. So the Commission has to be satisfied under 170MW(1), after giving all the parties an opportunity to be heard, that the circumstances set out in 2 or 7 exists or existed. It can only exist for the purpose of paragraph 3. It's not something that might have occurred in the past and in terms of section MW(2) and MW(4) it can't apply to prospective.
PN71
So the Commission has to be satisfied that what's taking place now, not what might happen or what did happen, but what's happening now has an effect. And the Commission has to be actually satisfied. Frankly, I disagree with Munro Js view as well. In my view pursuant to section 170MW - - -
PN72
THE COMMISSIONER: Well, I didn't say I did.
PN73
MR VICKERS: No.
PN74
THE COMMISSIONER: I just said nobody should assume that I agree with him.
PN75
MR VICKERS: I'm sorry. My submission is that Munro J, with all due respect, is wrong. It's a wrong construction of 170MW(3) that he took into account in the Natra case that the company has sought to rely upon in their outline of submissions; completely wrong.
PN76
THE COMMISSIONER: Maybe the Judge just wanted to fix the problem.
PN77
MR VICKERS: Having read the whole of the decision at about 11.30 last night, Commissioner, I'm certain that's what the good Judge was up to, trying to fix the whole of the problem. But he did it in such a way, and ultimately it wasn't challenged, which I think was outside the jurisdiction that the Act provides him with. The Commission has to be satisfied that the industrial action which is occurring at the time has this effect. That's the net result of properly reading 170MW(1), 170MW(3) and paragraph (a) in particular.
PN78
THE COMMISSIONER: I think to answer the question that got you to your feet, Mr Vickers, is I'm happy for that to be dealt with in the body of the proceedings.
PN79
MR VICKERS: That's fine, Commissioner. It was a procedural matter more than anything else. Thank you.
PN80
THE COMMISSIONER: Unless you have a view about that, Mr Humphreys.
PN81
MR HUMPHREYS: No, I think in the circumstances it's appropriate that it be dealt with as part of the substantive application for interim orders.
PN82
THE COMMISSIONER: Mr Humphreys.
PN83
MR HUMPHREYS: Thank you. Commissioner, an application was filed and served on the 26th. I confirm, in accordance with ground 10, that what is sought today is an interim order. Can I note that it's sought because of the particular circumstances and the particular threats which are in existence at the mine. They are such that the company seeks the intervention of the Commission on an interim basis. The company recognises that a full hearing of this matter to determine a full suspension or indeed, as the Commissioner has identified, the possibility of a termination may require the making of some orders.
PN84
For its part the company would be prepared to act very expeditiously and that - subject to the Commission, of course, that could occur early next week, but in the interim period the company faces a grave circumstance and on that basis seeks the interim order. And I will obviously come in detail to the jurisdiction of the Commission and so forth to do so, but I make plain at the outset the company's reasons for doing what it's doing and the circumstances. Commissioner, the company has 3 witnesses in support of its application. Can I deal first with Mr Freeman, who is with us. I call Randall Patrick Freeman.
PN85
MR HUMPHREYS: Mr Freeman, your full name is Randall Patrick Freeman; you are the mine manager of Moranbah North Coal Mine?---That's correct.
PN86
And, Mr Freeman, have you prepared an affidavit for the purposes of today's proceedings?---I have.
PN87
Do you have a copy of that with you?---Yes.
PN88
Commissioner, an unsworn copy was filed and served. May I hand up a copy sworn by Mr Freeman this morning, an original and one photocopy. I previously supplied a copy to Mr Vickers, and I tender that.
PN89
THE COMMISSIONER: I will mark that as exhibit Anglo 1.
EXHIBIT #ANGLO 1 AFFIDAVIT OF MR R.P. FREEMAN SWORN 28/08/2003
PN90
MR HUMPHREYS: Mr Freeman, at paragraph 3, you set out your background and qualifications. Can I just ask you to advise the Commission as to your history prior to 1998?---I started in the industry in 1982 as a cadet coalmine manager, and that period went from 1982 to 1985, and from 1985, I worked at Box Flat Colliery as a miner.
PN91
And that is an underground mine, is it?---That's an underground mine.
PN92
And do you have any statutory qualifications?---The statutory qualifications at - I contain a First Class Mine Manager's Certificate, a Second Class Mine Manager's Certificate, and a Third Class Certificate of Competency.
**** RANDALL PATRICK FREEMAN XN MR HUMPHREYS
PN93
And do you have any professional qualifications?---My professional qualifications are a Business Degree.
PN94
Thank you. Now has there been any peculiar events which have transpired at Moranbah North over the last 48 hours or so?---We have had one event which started on Tuesday morning, at half past 11. The mine received a bomb threat from an unknown person ringing the mine and leaving a message on voice bank.
PN95
And what resulted from that threat?---That threat resulted in the mine being evacuated. The whole site was evacuated, and the mine did not return to normal operation until 7.15 last night.
PN96
And could you advise the Commission what that has meant in respect to delays to the longwall move?---Yes, it has increased the delays to the wall move itself. On Tuesday morning, the mine was preparing to salvage the longwall face. The bolt-up sequence had been completed that morning, and we just started setting up to dismantle the longwall face, and, consequently, we have had no work being done on it since then.
PN97
And that further delay, what has that - has that impacted on your assessment as to the risks associated with the move of the longwall?---Yes, it has.
PN98
In what way?---The increase time it will now take due to the delay will allow the conditions to deteriorate due to the time taken to get back into the mine.
PN99
And is that relevant to further industrial delays?---It is relevant to all delays, yes.
PN100
And did industrial action occur last night?---It did. It commenced at 12 o'clock last night.
**** RANDALL PATRICK FREEMAN XN MR HUMPHREYS
PN101
And what was the character of that action?---The character was for members employed by Moranbah North that belong to the CFMEU stop work at midnight.
PN102
No further questions, Commissioner.
PN103
PN104
MR VICKERS: Thank you, Commissioner.
PN105
Mr Freeman, firstly, just to clear up one thing. Can I take you to paragraph D of point 3 of your witness statement:
PN106
In 1999 to 2000, I was employed as a production superintendent at the mine.
PN107
Was that North Goonyella?---No, that was actually Moranbah North.
PN108
At Moranbah North?---Yes.
PN109
Now what part of 1999 was that? More specifically, can I just ask you were you actually employed at the mine during the 1999 longwall move which you referred to later in that - - -?---I started in Moranbah North in December of 1999, and the longwall move was in progress at that stage.
PN110
In progress?---Yes.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN111
Can I just ask what stage it was at when you arrived at the mine?---The roof supports had been salvaged down to approximately 30 chock - number 30 chock.
PN112
So two-thirds of the way, approximately, through the chock removal?---Oh, three-quarters, actually.
PN113
Can I also just get you to explain something else to me which I'm slightly confused about, and that is at point 12 of your affidavit, where you say:
PN114
Nevertheless, all employees at the mine have a role in supporting the longwall. Longwall is a central production unit at the mine. Most other tasks undertaken by employees at the mine are primarily to ensure that longwall production continues.
PN115
Could you just explain what you mean by that? You mean everybody, at some stage, works on the longwall?---No, what I mean, that all activities in the mine are associated with the longwall. The longwall is the primary production system at the mine. We produce over 95 per cent of our coal off the longwall, and all other work, including development of roadways, and that, is pertaining to the longwall.
PN116
So is it a more accurate comment on that basis then to say all the work underground? I mean, surely, you don't class the work on the surface in the coal preparation plant, for example, as being primarily associated with the longwall?---That's correct.
PN117
So when you say that, it is part of - the mine is a longwall mine. I mean, these are my words. I just want to be clear what you are saying. The mine is a longwall mine; that is the principal piece of production equipment; even the development work on the continuous miners is really primarily there for the longwall to come through later on?---That's correct.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN118
It's not a matter of people working - physically working on the longwall as a matter of course, but - - -?---That's correct.
PN119
- - - everything that is done underground is part and parcel - aimed at getting longwall coal out of the mine?---Yes. That's correct.
PN120
That's fine. Thank you. Now, at point 16 - I'll take you to that. You specifically raised that for the current longwall salvage production at the mine - has also now mined approximately 1.2 metres into the floor. Now, is that different from other longwall salvage operations?---That's correct.
PN121
This is the first time that it's been done?---At Moranbah North, yes.
PN122
At Moranbah North. So what's the purpose of that?---The purpose of that was to increase the coal beam above the longwall face, and that was in relation to the conditions we had on the last salvage phase where we experienced two roof falls and we're trying to improve the conditions on the face for the salvage conditions.
PN123
So the intention of that process is to make this longwall move safer than the last one- - -?---That was the intention.
PN124
Is that a reasonable assumption?---Yes.
PN125
Now, at point 17, what you appear to be doing there is summarising, if you like, the longwall relocation process. That's accurate enough?---Yes.
PN126
Now, you've already given evidence that on Tuesday morning, I think it was, the bolt-up sequence had completed?---That's correct.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN127
Okay. What part of that salvage - I'm sorry. What part of that relocation procedure, then, did you outline in 17, under six different sub-paragraphs, is the mine at right now?---We're in part B.
PN128
In part B. What specific part of that are you at, Mr Freeman?---We're in the process of removing the shearer or the tailgate drive, and the shearer from the face, and the monorail sections in the main gate.
PN129
How long, given an uninterrupted run by industrial action, would it be before you commence phase C, if I can put it that way, of that process? When will you start pulling chocks?---That part of the salvage was planned for approximately five days.
PN130
Five days' time?---The duration of that work will take five days.
PN131
I'm sorry. So the duration of part B- - -?---That's correct.
PN132
- - - would take five days, and you were - - -?---Approximately five days.
PN133
- - - intending to be ready for that on Wednesday?---We were planning to - well, we were starting that Tuesday. Because of the issues of the last 36 hours, we've only started that again last night.
PN134
Okay. So you've started last night? So was that the commencement of part B last night?---No, the commencement of part B was on Tuesday.
PN135
On Tuesday?---Yes.
PN136
And then interrupted by a period of time?---That's right.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN137
So how much did you get done? I mean, if it was planned to take five days, how much have you done till now?---We've approximately done about nine hours of that work.
PN138
About nine hours. So you've got the better part of four and a half days' program work before you start pulling chocks?---Approximately.
PN139
Now, at part A of the procedure, you talk about roof support being installed for the last 15 metres of the face. Could you just appraise the Commission of precisely what sort of roof support has been put in the last 15 metres of the face-line?---It contains a - a mesh mat that encompasses the work area, so that goes up the face, along the roof, and - and behind the supports. It includes roof bolts and long tendons.
PN140
Cable bolts?---Long tendons are the equivalent to a cable bolt, yes. It's a megabolt.
PN141
Is it reasonable to say that the face-line at Moranbah North now is the most heavily supported part of the mine?---No.
PN142
No?---No.
PN143
What part of the mine would be more heavily supported than the face-line right now?---I would say the installation phase 105 is the most heavily supported at - - -
PN144
That's where it's going to?---That's where it's going to.
PN145
Because it's absolutely critical, isn't it, that - so on that basis, if where it's going to is more heavily supported, do we have the face-line as the second-most heavily supported part of the mine?---That would be a good assumption, yes.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN146
I assume that you're aware of the protected industrial action notices that the CFMEU have filed at Moranbah?---That's correct.
PN147
Now, given - let's assume first off that all of those notices will be put in to effect, that is, the stoppages that have been notified would in fact take place; so let's assume the worst?---Mm.
PN148
And whatever alternative arrangements the company may have put in place, you take those in to account as well? I mean, you have contractors engaged as part of the longwall process - relocation process?---That's correct.
PN149
And you've had notification of this protected industrial action since Friday of last week; is that correct?---That's correct.
PN150
So if you take in to account the stoppages that are programmed, and you've been notified of - you take in to account that you've been notified of them since Friday of last week, and you may or may not have put in additional infrastructure support - labour infrastructure - I don't know what you've done and I frankly don't want to know, but you take that in to account. Where will this longwall relocation process be at on the basis of your summary of the procedure in point 17 of your affidavit at 7.15 pm or thereabouts on Sunday night, that is, when the planned industrial action ceases?---We'll still be in part B.
PN151
You'll still be in part B?---Yes.
PN152
You won't have started pulling chocks?---I don't believe so.
PN153
You say at point 20, and we've talked about the stage of the longwall move that you're at; we've talked about the bolting process and when that was completed and what was involved. You then say that the bolt up process took 17 days against a plan of eight days. So twice as long?---That's correct.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN154
Does that mean that the work that's been performed on the longwall now is inherently more dangerous than what you had planned?---That's - that's debatable, but I believe that the conditions will deteriorate, yes.
PN155
Well, you say all the way through this affidavit and your evidence is that any delay increases the risk to people?---Yes, that's correct.
PN156
There has been a delay - in your own evidence - of the bolt up process taking twice as long as was planned?---Yes.
PN157
Yet you can't be sure whether or not the risk to employees now on the longwall face is worse than what it would have been or greater - my correction - than it would have been had the bolt up taken place in eight days?---Personally I believe it has, the risk has increased.
PN158
Why is that?---Because I have a belief that from the start of the bolt up cycle to when we pulled the chocks off, the last of the chocks, is the critical time frame of concern.
PN159
So that's the critical time frame, from when you start bolting - - - ?---Yes, in my opinion.
PN160
- - - to when the last chock is off? Why isn't it before you start bolting up?---Because the longwall is moving at its normal rate of retreat, and it's only from that point where you pull the mesh on that the longwall itself slows down in its retreat, and that increases the pressure on the face.
PN161
But that's why you bolt, isn't it?---It's part of the reason we bolt, yes.
PN162
What is the other reason then if that's part of the reason?---To form a supported skin to stop loose material falling in to the work area.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN163
It's actually to create the safest possible environment, is it not? That's what you bolt up for?---True. That's correct.
PN164
Because you don't bolt as a matter of course in the longwall extraction process, do you?---No, we don't.
PN165
Only if you have a particular roof problem?---Yes, a special case.
PN166
Is it not really the case, Mr Freeman, that what becomes critical, particularly with roof support, in a longwall relocation is the physical process of removing the chocks? Isn't that what needs to be not interrupted in any way, shape or form?---That is the debatable point, yes.
PN167
You say that's debatable?---The longer it takes to pull the supports or get to that point of pulling the supports, the conditions have deteriorated further.
PN168
So every delay is a potential further risk in your view?---Yes.
PN169
Do you do a risk assessment after every single delay - - - ?---No, we don't.
PN170
- - - before the men go back into the area?---No, we don't.
PN171
You don't?---No.
PN172
You've done a risk assessment following the unfortunate circumstances, as I understand it, with the bomb scare where the longwall obviously would have stood from the end of bolt up for the 24-36 hour period?---We did a risk assessment as part of the process of re-entering the mine, but we have not done a risk assessment on the delay to the wall move, no.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN173
Why not?---Why? At this stage the risk is not seen to be changed to the extent where it requires a risk assessment.
PN174
And that's despite your view that there is an increased risk, if you like, exponentially? With each delay there's an increased risk to people in that - in a longwall relocation job?---That's correct.
PN175
And you're the mine manager?---That's correct.
PN176
Your specific responsibility is for the safety of employees at the mine?---That's right.
PN177
Under the Coal Mining Act?---Yes.
PN178
And in your own view there is an increased risk to safety?---There is a potential increased risk; that's right.
PN179
Is it potential or is it an increased risk? We'd better be clear what we're talking about?---There is a potential. It's a potential - - -
PN180
There is a potential?---Yes.
PN181
Okay. So you're not saying there is, in fact, an increased risk but there is a potential for increased risk?---Yes.
PN182
So is that then applied to the whole of your position, that potentially there is an increased risk each time there is a delay in the longwall relocation process?---That's correct.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN183
So it's potential. It might happen, it might not happen?---That's correct.
PN184
Now in part 23 of your affidavit you deal with threats of the longwall. Can I just ask you to go to paragraph (c)? I just want to be clear about a couple of things there and this is this issue of spontaneous combustion of residue coal in the goaf area. And you'll have to bear with me, I'm an old wash plant operator, Mr Freeman, not an underground miner of any shape or description. However, as I understand it, and given what else is in your affidavit, there would be residue coal in the goaf commencing from the first collapse of the longwall in the extraction process; is that correct?---That's correct.
PN185
So there is always residue coal in the goaf at Moranbah North?---That's correct.
PN186
When did you start taking or extracting the current block approximately?---Easter last year.
PN187
Easter last year?---Just after Easter last year.
PN188
16 months approximately?---Approximately, yes.
PN189
Thereabouts, okay. Somebody told me something once about an incubation period for spontaneous combustion in coal. You're aware of that, I should imagine, as a mine manager?---I've heard of the term.
PN190
Do you know what the incubation period for spontaneous combustion at Moranbah North Coal is?---There is no such thing as an incubation period in a technical sense.
PN191
Okay. But coal has been in the goaf - this particular goaf at Moranbah North for 16 months?---That is correct.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN192
Is there some particular reason that you are concerned about the issue of spontaneous combustion over the planned 28 days or one month of the intended longwall relocation which is different from the concerns you had about spontaneous combustion with residue coal in the goaf for the past 16 months?---There is.
PN193
Can you explain that to me?---As the - in a normal operation where the longwall is retreating there is a zone behind the longwall face that contains oxygen, and at some point behind the longwall face it becomes a zone where it doesn't contain enough oxygen to support combustion of coal. So as the longwall continues its longwall retreat, that zone continues to move and the goaf becomes inert as such. With the face standing during its salvage process, that zone is stable, and consequently that air, or the oxygen that is in that part of the goaf that is in the - not inert and does support combustion has got the ability to combust.
PN194
So how long do you estimate it will take before that coal will spontaneously combust, or may spontaneously combust?---None of our triggers at Moranbah North are based on time.
PN195
None of them are based on time?---Not with respect to spontaneous combustion no.
PN196
So does this fall into the same category as we were just talking about that spontaneous combustion is a potential issue?---That is correct.
PN197
It is not something which is a common occurrence at Moranbah North?---That is correct.
PN198
Nonetheless you would, I assume, regularly take samples of the air to - or you wouldn't regularly take samples of the air to seek to confirm whether any spontaneous combustion was taking place?---We do take regular samples, yes.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN199
And how regular are those samples taken?---As part of the salvage of the face, there is a ceiling management plan that requires continuous monitoring of the tailgate end of the longwall face, which has been set up with a tu-bundle system.
PN200
Okay. Now, at point 24, you say:
PN201
The threat of a roof collapse is significantly heightened the longer it takes to complete the movement of the longwall, because the delay intensifies the risk of the coal seam bed separating as deterioration places more load on the coalface which in turn heightens the risk of a compromise to the overall integrity of the roof.
PN202
But that is the very reason you installed all of this significant roof support, is it not?---Correct.
PN203
So is this again one of those issues which is more properly categorised as a potential which might occur, depending on how long the wall stands, depending on how long it takes to commence chock removal?---It - the roof support that has been put in place is not designed to hold the roadway open for an indefinite period of time because the long term duration of this salvage face you want it to collapse as you retreat the support seam. We have not designed the installation of the support to hold up for an indefinite period of time.
PN204
But you have, have you not, designed it to hold up until you remove the chocks?---In a planned sense, yes.
PN205
Yes. You designed it to hold the roof up while the whole of phase B is completed safely; is that correct?---That is correct.
PN206
And you designed it for the roof to - and correct me if I am wrong - continuously collapse as near as possible behind each chock as you remove it sequentially?---It is designed to collapse behind the E frame.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN207
The E frame?---It travels down the face as you pull supports out.
PN208
So the geotechnical work which has been done, and the roof supports which have been put in have been designed to make it safe for workers to extract the ancillary equipment as part of phase B of the operation, but then for the roof to collapse as the chocks are removed sequentially?---That is correct.
PN209
That is an accurate statement?---Yes.
PN210
And you have already been delayed - you have already taken twice as long to do the roof bolt-up; you have conceded that?---Yes.
PN211
Has there been any problems with the roof as a consequence of that eight-day delay?---We have not suffered any roof falls during that process, but in the process in installing the long tendons or the longer bolts we have encountered partings in the roof.
PN212
But you have had no roof collapse?---No.
PN213
And it is a bit trite, but you are quite comfortable having people work down there, it is not unsafe?---That is correct.
PN214
That is notwithstanding the fact that there has been - taken twice as long to install the roof bolts?---That is correct.
PN215
Now, at point 25, you then deal with the potential of a - and that is my words, I am sorry, not yours, and we will come to that - a compromise on the floor may arise, due to floor heave, and you in fact say that in the last longwall move the mine experienced some floor heave in the order of 600 millimetres. Now, the first point; does this again fall into the category of potentials that we have been talking about; it might occur?---That is a fair comment.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN216
Fair comment. Now, secondly, the second part that I want to ask you about is the actual experience of floor heave in the last longwall move, at what stage of that relocation sequence in point 17 did that floor heave take place?---It was a gradual thing, it wasn't one heave as in one event, and it started at the end of sequence B.
PN217
At the end of sequence B?---Yes. That is when we noticed it.
PN218
That is when you noticed it, okay. Had you started sequence C?---We hadn't, no.
PN219
Hadn't started at all?---No.
PN220
How soon after you noticed the floor heave was sequence C started?---Look, to be honest, I couldn't recall.
PN221
Okay. But the whole of sequence C was completed safely, was it not, notwithstanding the floor heave?---We didn't hurt anyone, if - - -
PN222
And you didn't see fit to cease the operation as a consequence of any risk to the life or health and safety of any of the employees as a consequence of that floor heave that was experienced?---No.
PN223
Now, at the last sentence in 25, you talk about the roof chocks becoming locked on the face and having to be dug out; did that occur in the last longwall move?---Several times we had to stop the roof support salvage and dig the face out to get clearance to pull the chocks down the face.
PN224
And were any employees injured in that process?---No.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN225
They weren't?---No.
PN226
So that emphasises, perhaps, does it, that what we have been discussing; that these are potentials that might occur?---That is correct.
PN227
But you don't have any experience of them occurring in the last longwall move?---No, they did happen in the last longwall - - -
PN228
Yes, having to dig the chocks out occurred?---Yes.
PN229
And the floor heave took effect?---Yes.
PN230
But no one was hurt as a direct consequence of the floor heave or having to dig out the long wall chocks?---That is correct.
PN231
And has any of that occurred to date in the current longwall?---Not to my knowledge.
PN232
Have there in fact been any injuries associated with the current longwall move?---We sustained an injury last night.
PN233
What was the nature of that injury?---One of our operators hurt his knee.
PN234
And is that as a consequence of - I am sorry, what time last night did that occur?---Approximately a quarter past nine.
PN235
Quarter past nine. So prior to the industrial action taking place?---That is correct.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN236
So clearly, it wasn't an injury as a consequence of the protected industrial action because the protected industrial action hadn't started; is that correct?---That is correct.
PN237
Was it a consequence of the delay in the bolting process that you have referred to?---Not to my knowledge.
PN238
So it was unrelated to either the delay in the longwall relocation and unrelated to the protected industrial action?---That is correct.
PN239
So you have said that the 600 millimetre floor heave in the last longwall move commenced at the end of sequence B, so did it continue on?---It did.
PN240
Did it accelerate as a consequence of the chock removal?---We didn't actually take accurate measurements to trend the deterioration of the floor heave, so it is - that subject - - -
PN241
At point 27 you again deal with the issue of spontaneous combustion; does that go back to - or is that consistent with your answer in relation to the earlier questions about spontaneous combustion, and that is that there are parts of the goaf, a moving part of the goaf which is potentially inertised as a consequence of the mining process, but this area in the immediate vicinity of the longwall chocks isn't?---That is correct.
PN242
It has still got fresh air moving over it to support the workers, I would imagine?---That is correct.
PN243
That is correct. Does the risk of spontaneous combustion increase or decrease with the volume of air that is moving over it?---It - the risk of spontaneous combustion, if you have enough air to keep the coal, reduces the risk. The critical aspect is having enough to allow combustion to occur, but not to dissipate the heat.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN244
Where the men are working removing all of this equipment you have to have air flowing over them, obviously?---Yes.
PN245
So it is very different to a goaf area?---That is correct.
PN246
Now, at point 29, which I take it obviously refers back to point 28 about the two roof collapses during the previous longwall moves in '99 and 2002; when did those roof collapses occur, if you go back to the sequence in point 17 again?---The one in 1999, I was not on site at the time; that happened in the previous couple of weeks to my employment starting. My understanding of that was in sequence A, during the bolt-up cycle, and extra bolts were installed, and in the salvage of last year they occurred during sequence C, during the roof support removal - - -
PN247
And the removal of the chocks?---Yes.
PN248
So, in 1999, and it's only your understanding because you weren't there, the roof collapse that took place was addressed by more roof boltings; is that correct?---That's correct.
PN249
And, in 2002, the one of which you are particularly aware of, it occurred during part of the chock removal process?---Yes.
PN250
So, what were the cause of the delays then, and perhaps we should only deal with 2002, as that's the one that you were there for the whole time. You say it was the extra time it took to put bolts in the longwall face and the extra time it took to salvage the longwall face?---That's correct.
PN251
So, was there a delay in 2002, like there was this year, with the bolting up sequence?---No, it wasn't - it wasn't as significant.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN252
Wasn't as significant?---It was approximately three days during the bolt up cycle.
PN253
And you say the extra time that it took to salvage the longwall face, was that the whole of the face, or did the roof collapse, in fact, in 2002 - was that the significant contributing factor, or the factor, which led to the delay in the salvage?---The biggest delay we had on that salvage was the roof collapse, that's correct.
PN254
Which took place at a stage of chock removal process?---That's correct.
PN255
Because you, in fact, say in the next sentence, that time became crucial once the roof supports were moved. That's the real issue, isn't it, about the longwall relocation, the time that there's a real issue about continuous operation is once you start pulling the chocks?---In which - in respect to?
PN256
Well, the stability of the roof, in particular?---With respect to the stability, that's correct.
PN257
Because you, in fact, say at this stage - and was this - I assume this is the 2002 incident you're referring to, given that you weren't there for all of 1999.
PN258
At this stage cracks in the roof and floor were observed leading to a gradual deterioration in the roof that culminated in the partial roof collapse.
PN259
That was the 2002 salvage operation?---That's correct.
PN260
And that was taking place - those incidents occurred once the chocks had started being removed, or at some stage during the chock removal process?---No, those commissions started, basically, once the chocks were in their final position. We noticed cracks appearing in the roof.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN261
But your evidence is - your affidavit says:
PN262
Time became crucial once the roof supports were moved. At this stage cracks in the roof and floor were observed - - -
PN263
?---Those cracks were noticed once the chocks were in their final position.
PN264
So, not once while they were being moved; they were there earlier?---That's correct.
PN265
When they were observed, did - was extra roof support put in?---In some areas, yes.
PN266
One assumes in the vicinity of the cracks?---Yes.
PN267
So you noticed cracking in the roof at the end of sequence B, before you started pulling the chocks, and you put more roof support in; is that correct?---Yes.
PN268
But the roof fall still occurred during the course of sequence C?---That's correct.
PN269
So, did you increase the amount of roof support for this longwall relocation, as well as do this floor cutting?---Yes, we have.
PN270
So you've taken geotechnical or engineering steps to seek to address the risk that you encountered at the last longwall relocation?---Yes.
PN271
So, do you believe that the additional work that you've done, the changes that you've put in place, have decreased the risk of encountering the problems that were encountered in 2002?---Yes, for the planned duration of the longwall move.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN272
Yes. Which has already been blown out by eight days as a consequence of the bolting cycle being delayed?---Yes, plus a little bit longer with the issue over the last couple of days.
PN273
Yes, of course. I'm not quite certain what time you arrived here today, or in Brisbane, Mr Freeman, but have you checked with the mine as to whether there's been any deterioration in the longwall face?---There's been none reported as of this morning when I contacted the mine.
PN274
And what time did you contact the mine?---Half past seven.
PN275
Half past seven. Seven and a half hours after the protected industrial action started?---Yes.
PN276
There had been no increase in risk to the employees - - -?---None - - -
PN277
- - - noted to you?---None recorded to me, that's correct.
PN278
So at point 32, you make the observation that - or you give the evidence that:
PN279
To minimise the risk of a similar incident -
PN280
that's similar to the incident, obviously, I'm assuming, the 2002 incident -
PN281
it's paramount that the move is completed as quickly as possible.
PN282
That's your opinion?---That's my opinion.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN283
But, what was also paramount was that you changed some of the practices, you increased the roof support, you cut into the floor, you increased the coal beam, etcetera?---That's correct.
PN284
You took other steps as well?---Yes.
PN285
At paragraph (d) of point 33, you deal with:
PN286
After a roof fall, the mine installed a passive roof support being essentially a barrier to award workers being hit.
PN287
Could you just explain to me what you mean by "passive roof support"?---Passive roof support does not put any active load into the roof, as such. What I'm referring to is steel beams, linking locks, cogs.
PN288
And that allows workers to go into that area?---Once it's installed, yes.
PN289
Once it's installed. So, it's not as good as active roof support; you acknowledge that?---Yes.
PN290
So, on that basis then, does it impose - or does it increase the risk to workers?---Installation of it does, yes.
PN291
Installation of it does. You say active roof support is more structurally sound than passive roof support. Is passive roof support slightly less safe than active roof support?---That's hard to put a measure of percentage of effectiveness on it.
PN292
I'm not asking any percentage, but - I mean, there's a difference in them?---Yes.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN293
Are they exactly the same, or are they slight different? You say in your affidavit that active roof support is more structurally sound; does that make a fundamental difference, or not?---I believe it does, yes.
PN294
It does. So, active roof support is somewhat safer than passive roof support?---In my opinion.
PN295
Notwithstanding that, you're satisfied as a mine manager, that it's still safe for workers to work under passive roof support?---That's correct.
PN296
So, there is an increased risk, and stop me if you think I'm taking this too far, please - I don't want to put words into your mouth - passive roof support can potentially lead to an increased risk to workers, but it's still okay for them to do the work?---The passive support that I'm referring to is what we installed on the last salvage face where we did have those roof conditions - - -
PN297
Yes?---- - - and they were the result of a risk assessment that was taken out in a consequence of the roof collapsing.
PN298
Yes. You conceded it is potentially not as safe as active roof support - I accept that it's an alternative, you know, you can't bolt broken roof, I know that much, I think. It's second best, it's still good, it's still okay, but it's not as good as active roof support?---That's correct.
PN299
But it doesn't stop you, once you've done a risk assessment, even though it's not as - it's not the preferred way of doing the work - - -?---No.
PN300
- - - the work still has to be done, so it's still done. Is that reasonable?---The installation of the passive support is an issue - I would prefer not to do it if I didn't have to do it.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN301
Exactly; I accept that. But, if you have to do it, and it's done, it's still safe for workers to go in there and work?---It's an acceptable level of risk.
PN302
Acceptable level of risk, exactly. Now, point 34, you talk about the breakdown of Moranbah North employees and the employees of contractors to salvage and explore the longwall. So, that's on each shift, there's 32 people engaged in this work; is that correct?---That's 32 people, total.
PN303
In total?---To operate the longwall.
PN304
Yes. That's to salvage and install the longwall?---No, that's to operate it in a coal production sense.
PN305
Well, point 34, you might just have a look at it then, so you want to correct it on that, because you say:
PN306
Each shift MNM employs 16 employees and engages approximately 16 contractors to salvage and install the longwall.
PN307
?---Yes, that's correct - yes, 32, yes, I'm sorry about that.
PN308
32 to salvage and install a longwall, okay? How many of those 32 people are actually involved in the direct salvage of the longwall, as opposed to the direct installation of the longwall?---At the moment, the majority of those people are on salvage face, and that stays that way until section B of the work is completed and the work force is then separated between the installation and salvage face.
PN309
Roughly half and half?---If you include the chock transport operators, you would say it's roughly half and half.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN310
Because once - as I understand it - once you've got rid of chains and pans and shearers, and so on, you're left with the face - well, not called the face cavity, held up with the chocks still in place and whatever additional roof support you've put in, and then you commence a process of starting at one end and pulling each chock out, leaving the E Frame, or something, behind it, and moving that chock then down along the face line and out to the new area?---That's correct.
PN311
A slight variation to the first two or three ..... at one end. Okay. And it's that time that you actually want the roof to start coming in?---Behind the E frame.
PN312
Behind the E frame?---That's correct.
PN313
Now, you say in 35 then that the contractors, or half of these people, will most likely continue working whether or not the industrial action proceeds?---That's correct.
PN314
So your anticipation is that 16 of the 32 people will continue at work?---That's my expectation.
PN315
Given that you've had notice of this protected industrial action since Friday of last week, what steps, if any, has the company taken to increase the numbers of contractors employed?---We - we've approached the contracting companies to see if that's a possibility.
PN316
Any success?---No.
PN317
They've said, no, they can't supply the labour?---They're having hassles supplying more labour than they're contracted to supply.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN318
In your contact with the mine this morning - sorry, I'll withdraw that and I'll come back to it in a moment. At point 36, you talk about that from your experience, contractors who have been involved in other activities at the mine during industrial action - there'd been examples when the contractors have not arrived for work during the period of the strike. You had contractors engaged in the last longwall relocation?---That's correct.
PN319
And do you know if they were engaged in 1999?---Couldn't - - -
PN320
You couldn't be certain? That's fine?---Couldn't be certain.
PN321
But they were certainly were in 2002?---That's correct.
PN322
Was there any protected industrial action in 2002?---Not that I can recall.
PN323
Okay. So the times when contractors have not appeared for work because - employment contractors - have not appeared for work during periods of protected industrial action or industrial action at the mine, they were engaged on work other than longwall relocation?---That's correct.
PN324
And your assumption is that they might not turn up for the longwall relocation because they haven't turned up for other work that they've done previously?---Yes.
PN325
You contacted the mine this morning. Did you ask whether or not all the contractors turned up for work or stayed at work last night?---I didn't ask the specific question, - - -
PN326
Okay?--- - - - but I was told that they - that some of them continued to work, yes.
**** RANDALL PATRICK FREEMAN XXN MR VICKERS
PN327
Some of them continued to work. You don't know how many?---I didn't ask exactly how many.
PN328
Okay. So then you go to point 37. You'll have to walk me through this because I have to say I'm a bit confused. You say that there is no increased risk to health and safety that arises due to a shortage of hands for those involved in the longwall move; it only affects the time taken to move the wall. So I understand that part of it. So if you've only got four people involved in the longwall relocation, you're not going to do anywhere near as much work as what you'd have if you had 32?---That's correct.
PN329
And that's the basis of those first two sentences, is it?---That's correct.
PN330
Okay. And is then what you say: it's because only four people - and that's my number, not yours - instead of the 32 are doing it, then that delays the total process of the longwall relocation? And your view, which we've dealt with much earlier on, was that that potentially increases the risk to people?---That's correct.
PN331
But there was no increased risk reported to you this morning as a consequence of the industrial action that commenced at midnight last night? I have no further questions, Commissioner.
PN332
PN333
MR HUMPHREYS: Thank you.
PN334
Mr Freeman, you were asked a number of questions about the last longwall move in 2002, and you indicated that as a result of the floor heave and the roof collapses, no one was hurt. Do you recall those questions about that?---Yes.
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN335
Can I ask you to indicate to the Commission your view about the level of risk which arose as a result of those things?---The - because of the roof falls - the - and the work we had to undertake to recover the roof falls, it certainly put people in a more hazardous environment than what they're - would normally operate in, and consequent - consequently, there was certainly concern on my part on - on the work we were doing, which resulted in a risk assessment being undertaken. The floor heave issue does not create a risk in the sense, like a roof fall does, where the material could fall on - on people and bury them, but it creates a - an increase in the duration because, if we can't pull the chocks down the face, then we have to dig the floor out to get enough height to continue the salvage of - of the roof support, so it's the increase - or the increase in duration of the wall move that's the issue.
PN336
I see. Now, you were asked a couple of questions about combustion matters, and you indicated that no criteria in respect of the testing for combustion or the possibility of it is based on time at Moranbah North?---That's correct.
PN337
Do you recall that question?---Yes.
PN338
Could I ask you to indicate to the Commissioner what criteria are applied?---The main criteria are based on gases emitted from spontaneous combustion that the CO or carbon monoxide make from the goaf, and levels of higher hydrocarbons of hydrogen and ethane ethylene.
PN339
And do you have a view as to what might - or how a delay impact upon those criteria?---All delays - because we cannot control the - the goaf environment 100 per cent, we cannot control the level of ventilation in the goaf to - to remove the heat from any oxidation that could be happening in the goaf, so it's why we monitor as diligently as we do, to - to pick up trends of - of what is happening in that area that we can't physically inspect.
PN340
And what - is there any consequence that you can identify which might arise out of the delay?---The - the consequence - we have a series of - - -
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN341
MR VICKERS: Commissioner, I - the witness's evidence is that nothing is based on time. Now, Mr Humphreys is trying to get from the witness that somehow it is based on time, and that there's an increased risk as a consequence of a delay. If it's not based on time, it's not based on time. It's based on results. That's the witness's evidence.
PN342
MR HUMPHREYS: I'm just simply seeking to clarify for the Commission's assistance, if the criteria which have been identified are impacted on times. It's a perfectly legitimate question arising out of cross-examination, in my submission.
PN343
THE COMMISSIONER: I think, to the effect that you're trying to assist me, I'm reasonably sure I understand what Mr Freeman has said. Mr Freeman has said his concern is that you can't do anything but accept that the wall is no longer moving, and therefore the goaf during - while the wall is stopped, is ventilated whilst the wall is removed, and that the longer you ventilate coal without dissipating heat, the chances are that - the increased risk of spontaneous combustion. Is that - and to the extent that the time issue is concerned, I don't think it was contested that if you continue to do that over a longer period, the risk of spontaneous combustion is higher?---That's correct.
PN344
But the characteristics about "over what period of time would this coal spontaneously combust" is not a measurement they have at Moranbah North?---That's correct.
PN345
MR HUMPHREYS: That captures your evidence in summary on the point?---Yes.
PN346
I'm obliged. Thank you, Commissioner.
PN347
During the cross-examination, you conceded that in some respects, as identified by Mr Vickers, your evidence went to potential risk. Do you recall that?---Yes.
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN348
Could I ask you just to indicate what you have in mind by the concept of "potential risk"?---Yes. The issue is of uncontrolled events occurring. The roof fall in the last salvage was certainly not expected, and to me was an unplanned or uncontrolled event, and the risk of those things occurring increase.
PN349
Increase?---As time goes on.
PN350
I see?---Yes.
PN351
I have no further questions, Commissioner.
PN352
THE COMMISSIONER: All right. Thank you.
PN353
Mr Freeman, I just have a couple of questions for you. These contractors we've been discussing, is that a contract that is let to a company, or are we talking about labour hire people?---That is a contract let to a company.
PN354
And can you describe that contract for me?---With respect to?
PN355
Well, for instance, is the contract simply that they supply people to you for the purpose of this longwall move?---The contract has several parts to it. Parts of it are to assist Moranbah North in carrying out certain jobs. Other parts are stand alone jobs where it's a fixed price, full responsibility.
PN356
Right. And the longwall move - the people who are allocated to you for the longwall move are simply labour hire, are they? They come in, they report to the supervisors in the pit, and the supervisors directly tell them what to do?---We don't see it as labour hire, no. They - they report - - -
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN357
Well, you might not see it as labour hire?---Yes, they - they report to their supervisors, who work with our supervisors in - in achieving certain work.
PN358
Okay. And that's for the 16 people on the wall - on the wall removal?---Approximately, yes.
PN359
And so that's a let contract for a fixed price?---Parts of it are fixed price; parts of it are on an hourly rate basis.
PN360
Okay. Can I just hand you a copy of Mr Hendry's affidavit please. Can I take you to paragraph 5. Mr Hendry says in there that there are 87 operational staff. What do those people do generally? Can I give you what I understand that to mean?---Yes.
PN361
Are they in what the old days we might call the staff - the staff people?---No.
PN362
Okay?---No.
PN363
So what do those people do?---The - well - no, that's not correct. The operational staff do support, in this sense, all staff roles in the old sense, yes. Sorry.
PN364
So there is a raft of these people who would be experienced underground workers?---That is correct.
PN365
Okay. And that would also be so for some of the 8 managerial staff, obviously yourself falls into that group?---That is correct.
PN366
And you have explained your experience. Now, it is clear through your affidavit that for the reasons that are contained in the affidavit, you want this wall moved as quickly as possible?---Yes.
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN367
Did you ring the mine last night and establish how many people turned up for work, that is, as I understand from my experiences involving this mine, not all people are members of the CFMEU, and therefore would have been on strike?---Mm.
PN368
That is so?---I did not call the mine last night to see who actually turned up for work.
PN369
But is it so that not all people at the mine are members of the CFMEU, and therefore some of them would have turned up for work last night, one would assume?---That is correct.
PN370
Also in Mr Hendry's affidavit, he says at para 9 that there is all these other functions that contractors are on-site performing, and he describes them in paras B, C and D. I take it that is correct?---Yes.
PN371
Given all of that, the thing that interests me about this is that as I understand it the area that causes you the most angst about this industrial action is the fact that the 16 people who you want to work on 16 employees of Moranbah North, or 100 whatever the employer is called these days, the 16 employees of Moranbah North who would be allocated to the longwall removal might not be there, and as I understand it, it might not be as high as 16, because we are not sure all of them are members of the CFMEU, and that you have got all these other people roaming around the pit doing all these other functions, and yet you have this priority - the reason why we are all here - and my question to you is: why don't you allocate some of this other labour to the longwall move?---The main reason is a skills base, and also experience.
PN372
Skills base and experience. But you have got contractors in doing it?---Yes. The contractors we have got in doing conveyor work at the moment have no experience in longwall operations.
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN373
Right?---Which includes the salvage of the longwall.
PN374
Right. But your staff would?---Some of the staff have, that is correct.
PN375
Did you allocate any of them to that shift last night when you were going to be short because of the strike?---I have got an increased staff on shift due to the wall move, but I did not allocate more due to the industrial stoppage, no.
PN376
Can I ask why not?---The main reason is I haven't got enough people to put back on to a back shift, and maintain the operation.
PN377
But isn't it a matter for you as a matter of setting priorities?---That is correct, but if I haven't got the people, I haven't got the people as such.
PN378
Okay. So you are saying out of 87 operational staff, and 8 managerial staff, you cannot find somewhere between zero and 16 employees to allocate to the longwall move to ensure that your concerns about any delays to the move?---I would not have 16 to do what you are suggesting out of that 87.
PN379
Do you know the number?---Not off the top of my head, no.
PN380
And you don't know how many didn't turn up last night?---Not specifically, no.
PN381
Very well. Thank you. I don't know if anyone has got any questions out of that.
PN382
MR HUMPHREYS: Could I ask you to explain to the Commission why it is that you - sorry. I got to my feet. I should let Mr Vickers go first if there is anything arising out of it from him.
**** RANDALL PATRICK FREEMAN RXN MR HUMPHREYS
PN383
THE COMMISSIONER: I am sorry. Just before you do that, Mr Vickers, there was one further question I wanted to ask you Mr Freeman. You were in the hearing room earlier today when there was the discussion about Mr Hendry's evidence, and the fact that Mr Hendry has indicated to the CFMEU that they won't be engaging in the CFMEU in negotiations about a certified agreement?---I was.
PN384
Do you disagree with Mr Hendry's - Mr Vickers' view about Mr Hendry's evidence on that point?---It is debatable the position that we take. I don't believe that we refuse to recognise the union.
PN385
No, my question is this: are you going to engage them - see Mr - if you turn to paragraph 12 of Mr Hendry's affidavit, he says that - and it is his evidence about what he says, so we assume there is few can quarrel with it, that we will not be doing it, which I take to mean, "We won't be negotiating a certified agreement with the CFMEU at Moranbah North"?---That is correct.
PN386
Do you agree with that?---That Moranbah North will not negotiate?
PN387
Yes?---Yes.
PN388
Very well. Thank you. Does anyone have anything arising from all of that?
PN389
MR VICKERS: No, I won't have, Commissioner, thank you.
PN390
MR HUMPHREYS: You might recall that you indicated to the Commission that you didn't have the people to allocate to the longwall last night, and that was in the context of reference to your, what I call, general staff at the mine?---Yes.
**** RANDALL PATRICK FREEMAN FRXN MR HUMPHREYS
PN391
Can I just ask you to outline why it is that you weren't able to do that?---The majority of those 87 staff include commercial people, support people with no experience - no underground experience - to participate in the work, so the - it is not a large percentage of that group that can actually do the work that we are talking about. The work is specific. It does require experience and certain skills to carry out the work.
PN392
And to your knowledge of those who do have historically the experience and skills, would they have - would that be up to date in a practical sense?---Yes. Some of it would be a little rusty in the sense that it might have been a few yeas since they have done the work, yes.
PN393
Thank you, nothing further.
PN394
PN395
THE COMMISSIONER: We might have a 10 minute break, Mr Humphreys.
PN396
MR HUMPHREYS: Yes, Commissioner.
SHORT ADJOURNMENT [10.59am]
RESUMED [11.16 am]
PN397
THE COMMISSIONER: Yes, Mr Humphreys?
PN398
MR HUMPHREYS: Reference has been made to Mr Hendry's affidavit. I have a facsimile copy of an executed affidavit. We can provide an original in due course. I hand that up. As I understand the position, Mr Hendry is not required for cross-examination so it may well be that we don't enter into the debate as to whether he needs to appear by telephone.
PN399
THE COMMISSIONER: I think - is that true, Mr Vickers, you don't require him? His exhibit will be marked Anglo 2.
PN400
THE COMMISSIONER: I don't know, Mr Humphreys, who made the decision that Mr Hendry wasn't coming to give evidence in the ordinary way and whether or not there is some acceptable reason for that. But I only found out 15 minutes before a hearing that a witness that a witness was going to be required to give evidence, or at least be cross-examined, over the telephone.
PN401
MR HUMPHREYS: Yes.
PN402
THE COMMISSIONER: Now, if that is just a decision of Mr Hendry's and there is no good reason to support it, let me say in the future it's not going to happen.
PN403
MR HUMPHREYS: I understand the Commission's point. Can I, as a courtesy, explain to the Commission that, as has fallen out of the various evidence this morning, the mine has been subject to a very significant threat by way of a bomb threat which has resulted in the mine being locked down as opposed to locked out for well in excess of 24 hours. It has involved an emergency response on behalf of the company, an evacuation of the mine, as I understand it, heavy police involvement in all the circumstances, giving rise to a host of operational, commercial, external affairs and related issues, not least of all a whole range of issues associated with Mr Hendry's conduct and Mr Hendry's affairs. Certainly, there was no disrespect to the Commission by Mr Hendry's not attending in person. It is a function of what are unprecedented circumstances at Moranbah North.
PN404
THE COMMISSIONER: Very well.
PN405
MR HUMPHREYS: That's is by way of a courtesy explanation. I call Glenn James Smith.
PN406
MR HUMPHREYS: Your full name is Glenn James Smith and you are employed by Anglo Coal Australia Pty Limited as the employee relations manager?---I am and yes, that is my full name.
PN407
Mr Smith, you have sworn an affidavit in respect to today's proceedings?---I have.
PN408
A sworn copy has previously been filed and served. Do you have a copy of that affidavit in front of you?---Yes, I do.
PN409
I tender that.
PN410
PN411
MR HUMPHREYS: Mr Smith, you attach a schedule of industrial action. Are you generally aware of any update to that schedule?---Yes, I am.
PN412
Could I ask you just to, in brief terms, outline to the Commission, as best you can, what the update is?---This sort of information is something that I compile from time to time based on information from the sites. There has been further industrial action at what I have termed there Capcoal Southern, so it is the southern colliery, last week, I think it was, unprotected action in relation to a safety matter, I think a 24-hour stoppage. I can't be certain of the times or the exact duration. There has been ongoing action at Central Colliery since the last entry I had on this sheet was 13 August. That's been protected action taken by both members of the CFMEU in the form of work bans and strike action, but also by Capricorn Coal in relation to a lock-out - protected action due to lock-out and, also, standdown in relation to some of those work bans. And there was also a further strike, protected action, on Friday, 22 August, for 24 hours at Moura, again protected action pursuant to the relevant provisions of the Act.
**** GLENN JAMES SMITH XN MR HUMPHREYS
PN413
No further questions, Commissioner.
PN414
PN415
MR VICKERS: Thank you, Commissioner.
PN416
Mr Smith, in relation to the additional evidence and, particularly, your evidence in respect of Central, do I understand you to say that Central Colliery have initiated lock-outs and standdowns which aren't incorporated in the schedule?---Capricorn Coal Management has, yes, that is correct.
PN417
At Central Colliery?---Yes.
PN418
What form has that lock-out taken?---It took the form, as I understand it, of a lock-out of particular shifts on the basis that they weren't prepared to carry out work as directed.
PN419
Might it have been in response to a protected industrial action notice of the employees only working seven-hour shifts?---Yes, I think it was.
PN420
So the company is exercising its legal rights under the Act to lock those employees out?---Yes.
PN421
Do you know if that is all employees at Central, members of the CFMEU?---No, I think it has been members of particular shifts - sorry, employees on particular shifts based on - to be honest, I can't recall.
**** GLENN JAMES SMITH XXN MR VICKERS
PN422
Let me say, my recollection of it, and I only saw it late last night when I got back to my office - this might help you refresh your memory, that's all. My understanding is that it is certainly on a shift-by-shift basis, it nominates the particular shifts, and I understand that coincides with the protected industrial action notices - first point. Second point is that it is all CFMEU members employed at the mine with the exception of deputies. Does that help - assist you in your recollection at all?---Yes, I would say that was correct.
PN423
So the situation there is - and you might just be able to confirm this for the Commissioner, although I am certain he is aware of it - Central Colliery is a longwall operation?---Yes, it is.
PN424
So the principal piece of production equipment at that mine is a longwall?---Yes, it is.
PN425
To the best of your knowledge, is that longwall in a relocation mode at this stage?---I don't know.
PN426
Okay. Do you know that, as a consequence - or do you know that, if, as a consequence of the company's decision to lock employees out, the longwall wouldn't be operated at Central Colliery for the period of the lock-out?---That's correct.
PN427
That's correct. Thank you, Commissioner, no further questions.
PN428
THE COMMISSIONER: Very well, thank you. Mr Humphreys?
PN429
MR HUMPHREYS: Nothing arising.
PN430
PN431
MR HUMPHREYS: Commissioner, in accordance with directions - I should firstly note that the concludes the evidentiary case and I will move to submissions.
PN432
THE COMMISSIONER: Just before you do - - -
PN433
MR VICKERS: Commissioner, I can confirm that nothing that has arisen in the cross-examinations requires me to call either Mr Smythe or Mr White. Thank you.
PN434
THE COMMISSIONER: Mr Humphreys?
PN435
MR HUMPHREYS: Thank you. Commissioner, in accordance with directions that were made, an outline of submissions has been filed and served. Can I hand to the Commission a more detailed submission. It is in similar format to the outline; however, it has been prepared in an effort to assist the Commission and goes to a great deal more detail. I don't propose to read it, Commissioner. I refer to it and rely upon it. I do wish to deal with parts of it, though, so I propose just to generally work my way through it.
PN436
Firstly, in our submission, the Commission has jurisdiction to make interim orders as sought today. We rely on section 111B(2) of the Act to support that submission. We also rely on the fact that the Commission has previously issued interim orders in respect of an application similar to this and the Commission is familiar with the decision of Munro J in Natra.
PN437
In my submission, that establishes, while not a binding precedent on the Commission as currently constituted, it is, in my submission, persuasive authority established by a senior member of this Commission on the point.
PN438
In addition, I draw the Commission's attention to the decision of Drummond J in Thiess Contractors Pty Limited v CFMEU. An extract which is set out at paragraph 3. To assist the Commission in dealing with that, I have made a copy and I hand that up for the Commission's assistance.
PN439
Yes, this is a photocopy of the case which can be found at Volume 87 of the Industrial Reports at page 264. I note, Commissioner, of course, that this was a decision for an interim injunction - it's not a decision at final hearing - but, in my submission, it is persuasive authority in support of the proposition that an order as sought is capable of being granted. His Honour, of course, finds that by a different route than section 111B(2) of the Act.
PN440
His Honour finds that at least it's arguable that a Commissioner has implied power to make an interim order to prevent the harm that is likely to flow from industrial action, before that - what can be termed a final order will terminate the bargaining period and so forth. I refer the Commission to the full text. Now, the facts in that case were slightly different, of course. It's acknowledged that it was an application for an interim injunction only. It is an issue - or is a case that was dealing with termination of a bargaining period, but clearly, his Honour identifies that at least it's arguable that you, Commissioner, have an implied power to make an interim order in circumstances which are analogous to this.
PN441
And, indeed, in the circumstances of this case, in my submission, the imperative to make an interim order of the sort contemplated by his Honour Drummond J are, in fact, heightened, because in this case, on the evidence, we say, the Commission would be satisfied that there is a threat to the life, safety, health or welfare of a part of the population, and in such circumstances where the Commission should be satisfied that that threat is real, the Commission would be minded, in my respectful submission, to move expeditiously to grant an interim order, pending a full agitation of all the issues as to whether a suspension should continue for the full length of the longwall move, or, indeed, as the Commissioner has previously identified, for any issues associated with the possible termination of the bargaining period to be dealt with in full. On that basis, in our submission, the Commission has jurisdiction to make the interim orders.
PN442
I'm reminded, Commissioner, that you, yourself, in an earlier case, involved the Hay Point coal loading facility, assumed that the Commission had the power to make interim orders. That was an assumption that was made - I don't recall there being a determination on the point - but there was an assumption at that point by the Commissioner - - -
PN443
THE COMMISSIONER: That's because I had reservations as to whether I had the power. I, never the less, said that on the merits of the substantive application, I wouldn't have granted it even if the power existed.
PN444
MR HUMPHREYS: Yes. In my submission, based on the submissions made, and for the reasons which I've outlined, and which are detailed in the written submission, the Commission can move from an assumption to a finding of jurisdiction in this case and grant the orders as sought. Of Course, before the Commission does so, the Commission must exercise its discretion.
PN445
Perhaps before moving to that, can I deal with the other jurisdictional prerequisite which underpin the application. Firstly, that the Commission should find that the union is a negotiating party within the meaning of section 170MW(1). The Commission must, under the Act, in my submission, satisfy itself as to the bargaining periods that apply to the application, and can I assist the Commission by noting that to our knowledge, there are at least two. On our research there are two. Mr Vickers may be able to assist, but certainly, two; there may be more, but certainly, we're unaware of any more.
PN446
Can I note that - obviously the Commission has allowed the CFMEU an opportunity to be heard, so that part of the relevant section is satisfied. Can I deal with the point raised by Mr Vickers at the outset, and that is, I've characterised it as the debate over whether the industrial action must exist at the time the application is made, or whether it is sufficient that it existed for the purposes of the subsection which we move under. Mr Vickers has taken the Commission to that, and outlined his submissions in that respect. He has contrasted the wording which is contained within 170MW(1) with the wording which is contained in 170MW(3), and the import of his submission is that for the Commission to have jurisdiction to grant an order - I'll withdraw that - to suspend or terminate the bargaining period under 170MW(3), it is necessary that industrial action be, being taken, or is being taken, at the time the application is made.
PN447
In essence, and foreshadowing, perhaps, what Mr Vickers will say, the suggestion is it follows from that that given employees have returned to work this morning, industrial action is not at this point in time being taken, at this immediate point in time it is not being taken, therefore, the Commission is deprived of jurisdiction to suspend or terminate the bargaining period under 170MW(3), and that is - I've, sort of, tried to capture in a shorthand sense is the debate about whether it has to exist right now, or whether it's sufficient that it has existed, and, of course, there is a tension between the opening words of 170MW and 170MW(1), where it talks about exists or existed, and then the tense which is contained in 170MW(4) which suggests the present tense - 170MW(3), I apologise, if I mentioned 170MW(2).
PN448
Now, this is a matter which has been the subject of consideration by the Federal Court in the Coal and Allied case. It's not a matter which was dealt with by the High Court on appeal from the Federal Court's decision - the Full Federal Court's decision. In essence, as I've said, there are two approaches: one, that the power can only be exercised if the circumstance in (3) exists at the time the power is exercised, right now; or, secondly, that the language in 170MW(1), that is, exists or existed, allows the Commission to be satisfied that the circumstance - that is the threat to endanger the life, personal safety or health, etcetera - either exists now, or existed, and to reach that conclusion that needs to be irrespective of the tense, the word "is", which is contained in MW(3).
PN449
Now, in considering the matter, the Federal Court - the Full Federal Court did not reach a concluded view. A helpful analysis of the point is contained in the Butterworths loose leaf Industrial Law Service at 3195, at about point 5.6 of the page. I won't, perhaps, take the time to read that to the Commission - it is relatively lengthy - but I refer the Commission to it and I rely upon it, and you'll see in that that the Federal Court in the end found it unnecessary in regard to the nature of the proceedings before it to reach a concluded view.
PN450
You'll see, though, that in a practical sense, a number of things flow from the different constructions. If the first construction is right, that is that the power can only be exercised if the circumstance exists at the time the application is made - or the power is exercised, I'm sorry, then that would lead to quite outrageous outcomes. Firstly, of course, in this case, the circumstance exists - existed last night. It now does not exist in that the industrial action is not occurring. It would effectively make the section unworkable and open to - what I might characterise - gross abuse, so that in the event of action which was having the relevant effect occurring, and an application being made, the applicant would be denied by a simple return to work at the time the hearing was occurring, and a game of cat and mouse could ensue over an extended period, in effect, resolving in a race to try and get to the Commission to get the power exercised before the respondent union could communicate to employees to go back to work. That is, in a practical sense, what flows from that construction. It opens it up to clear abuse.
PN451
Now, we're not suggesting that that abuse is occurring in this case. The union has taken action in accordance with a notice, but, of course, there is another notice which the Commission has been told about which is for further industrial action to occur. So, if the construction is right, as contended for as I apprehend it by Mr Vickers, and the Commission doesn't have power now to deal with the matter, we'll have to come back at some point after 12.01 tomorrow morning, so that we can make the application and the Commission will have jurisdiction to hear and determine it then. One only really has to put that proposition to see how unworkable and nonsensical the construction is.
PN452
What falls out of that of course is that the construction is entirely at odds with what I will submit is the clear intention of the section, and that is to allow the Commission to intervene to suspend or terminate bargaining periods so as to protect life, safety, health, welfare, and so forth. To construe it in the way which I apprehend Mr Vickers will contend is to deny that underlying purpose to the Commission.
PN453
Of course, the second option, as contemplated by the Federal Court, resolves all of those dilemmas. It allows the Commission to be satisfied that the circumstance either exists or existed as contemplated in 170MW(1). As I have indicated, that construction immediately resolves the issues which I have referred to which flow from the first construction. It is clearly, in my submission, the construction which should be preferred. It gives, in my submission, full effect to the intention of the Act. To suggest otherwise would be to produce a circumstance where the Commission would have to stand idly by and watch a circumstance develop which could put at serious risk a person's life, and indeed, while the cat and mouse game is occurring, that threat could, in a tragic circumstance, be crystallised.
PN454
It is against, in my respectful submission, basic principles to construe the Act in such as a way so as to deny the Commission its historical role, and clear role under the statute, in my submission, to intervene so as to ensure that such an outcome simply did not occur. Those are my submissions on that particular point. Can I move on to the question of threat? That is dealt with in paragraph 11 and following on page 2. It must be a threat - the Commission is not obliged to assess the level of threat, it does not have to be a significant threat, a substantial threat, the Commission simply has to be satisfied that the circumstance is threatening life and so forth, threatening to endanger the life, the personal safety and so forth.
PN455
In my submission, on the basis of the evidence which is before the Commission, the Commission should conclude, or should satisfy itself that there is such a threat. I don't go to the following paragraphs; they speak for themselves. Can I now deal with the issue of the population or a part of it, because of course, under 170MW(3) the threat to endanger the life and so forth is referable to the population or a part of it. The Commission must be satisfied that the relevant threat is upon the population or a part of it.
PN456
The clear plain English meaning of the phrase "part of it", in my submission, is that an individual, part of the Australian population is a part of the population for the relevant purpose under 170MW(3). There is not, in my submission, a requirement for that part to be of a particular character, or a particular size, or in a particular geographical location. In my submission, if the threat exists or if the Commission is satisfied as to the threat as to one individual, that is sufficient to enliven jurisdiction.
PN457
We deal with that in some detail there. The - can I hand up to assist the Commission an extract from the Macquarie Dictionary on-line service, and I will tender that. I should tender the submissions, written submissions while I am at it, if I may, Commissioner.
PN458
THE COMMISSIONER: I will mark the submissions as Anglo 4.
PN459
THE COMMISSIONER: And the extract from the on-line Macquarie Dictionary as Anglo 5.
PN460
MR HUMPHREYS: You will see there that there is a whole range of different definitions in different contexts, of course, but it is a portion or division of a whole, separate in reality, a piece, a fragment, fraction, or section, or a constituent, constituent part. In my submission, the relevant part of the population for this application is as outlined in our application; that is:
PN461
Employers, employees, contractors, and other persons involved in, or who may be involved in the longwall move at the mine.
PN462
The High Court, of course, in Coal and Allied grappled in part with this, but it did so in the way that we have outlined at paragraph 17, and in my submission, there is nothing there, or indeed in any other authority which suggests that the part has to be in a collective group of some different character to the way in which we contend today. I am reminded that perhaps the only authority which suggests to the contrary is a decision of the Commission as presently constituted, which I should draw to the Commission's attention, and that arose out of the decision in the BHP 170MW case, where you, Commissioner, found that the employees at Crinum Mine were not part of the population.
PN463
MR VICKERS: They are very special.
PN464
MR HUMPHREYS: Yes, well, the interjection is made they are very special; coalminers are perhaps different to the rest of us.
PN465
THE COMMISSIONER: They had better be careful they don't end up on Nauru or somewhere, then.
PN466
MR HUMPHREYS: Yes, well, perhaps we shouldn't explore that; there may be some people who would see that as a benefit. So the submission, in this respect, Commissioner, is that the relevant persons as contended for in our application are part of the population. There are some other authorities which are supportive of the broad contention.
PN467
Can I - by way of one illustration, there is a decision of Senior Deputy President Lacy in PR902183 concerning Group 4 Correction Services Pty Ltd v CPSU - v the Community and Public Sector Union of March of 2001. I won't go to that in detail other than to note that the Senior Deputy President was satisfied that the part of the population relevant to the application was - I apologise, I am just trying to find it, the extract here - with the prisoners at Port Phillip Prison. So again, a small group identified by the particular circumstances arising out of that dispute.
PN468
The other factor which is relevant in that - or in respect to this point, Commissioner, is that the phrase "the life, the personal safety, or health" connotes a consideration of an individual's circumstance. It is the life, the life of an individual or individuals, the personal safety - emphasising the word personal in that sense. We deal with that in our submissions, our written submissions in some further detail, and again, I won't read through it.
PN469
Could I turn now to the evidence. The Commissioner has had the benefit of, in particular, Mr Freeman. Mr Freeman is, of course, a most experienced person in the conduct of underground coal mines. He is, while initially a cadet mine manager, he has worked his way up from the coal face when he worked as an underground miner between 1985 and 1987. He has some 20 years in underground coal mine operations. Most recently, of course, in more senior positions in Queensland.
PN470
His evidence was tested at length by Mr Vickers. The Commission should, in my respectful submission, find that Mr Freeman gave very carefully considered and detailed evidence as to his concerns about the delays which are occurring, and what flowed from those concerns. He agreed in large part with Mr Vickers suggestion that what was being - what he was concerned about were potential risks - potential threats. Now, the Commission needs to look at that in the context as outlined in the evidence. That in the conduct of these operations, things can happen quickly.
PN471
They can happen without warning. Without notice to anyone. And the key, and this was touched upon - the phrase was touched upon by Mr Freeman - is to work within acceptable levels of risk. The Commission should conclude, in my submission, from the evidence of Mr Freeman that the delays which are being caused by the protected industrial action are enhancing the risk levels - the potential risk levels, and as a result of that, the criteria in MW3 is satisfied, that is, that it is threatening to endanger the life, personal safety or welfare of the relevant persons.
PN472
As I have said, the Commission doesn't have to be satisfied that the risk - that the threat is substantial. It must be real. It cannot be fanciful of course, and on the evidence, the Commission should conclude and accept the evidence of Mr Freeman that the risk or the threat is real. And clearly, Mr Freeman is a quiet, carefully spoken, considered person, and under lengthy cross-examination, in my submission, it is clear that his concerns about the threat are well-founded and real, and should be relied on by the Commission in determining the application.
PN473
The history at Moranbah North is one which adds to the levels of concern, and adds to the threat. There have been difficulties in the past. I won't go through it all again. Mr Freeman has dealt it. The company has taken steps with this longwall move to try and learn from those experiences, and put in place enhanced measures, such as more improved or more enhanced roof support structures and so forth, but despite that, Mr Freeman's concerns remained, and in my submission remained validly.
PN474
In essence, the position is to summarise from the evidence, the longer it goes on, the greater the threat. There are circumstances beyond the control of all parties which have impacted on delays. Most extraordinarily, in the last 48 hours, a bomb threat which has caused an evacuation of the mine, and so forth. The Commission has heard about that. That is not a factor which is within anyone's control. The delays associated with the protected action are within the control of the union, and by way of this application, within the control of this Commission.
PN475
The Commission should not, in my respectful submission, allow those delays which can be controlled to continue. The Commission should intervene in the way sought pursuant to this application. The application which is sought today is not some ambit claim. It is a very narrow application, respectful of the union's general rights to take protected industrial action. We are not here seeking the termination of a bargaining period, although we accept the Commission's discretion, nor are we here seeking the final determination of the matter.
PN476
We accept that if the union wished to have longer to prepare, that is fair and reasonable in the circumstances, but we do seek an interim order so that if it is to be opposed going forward, there can be an expedited hearing next week, but that in the mean time, the threat can be dealt with. The company is prepared to deal expeditiously with any directions that might flow, or comply with directions that might flow to ensure an expedited final hearing on the suspension, and of course at that point in time if the Commission was minded to terminate the bargaining period, submissions could be made about that, and whether that was an appropriate course or not.
PN477
THE COMMISSIONER: Well, Mr Humphreys, is there more material that the company has that would be put in some future hearing?
PN478
MR HUMPHREYS: There may be. There may be.
PN479
THE COMMISSIONER: Well, that wasn't my question. My question: do you have any?
PN480
MR HUMPHREYS: Well, at this point in time, Commissioner, my instructions have been to prepare for the application which is before you, and to do so on an urgent basis.
PN481
THE COMMISSIONER: But I mean what else can we say about the longwall?
PN482
MR HUMPHREYS: Well - - -
PN483
THE COMMISSIONER: It is all about this longwall move.
PN484
MR HUMPHREYS: Yes, it is.
PN485
THE COMMISSIONER: So what else can Mr Freeman tell us that he hasn't already told us?
PN486
MR HUMPHREYS: Well, I can't - I would have to get some instructions from Mr Freeman. I can't second-guess what Mr Freeman might say or might not say if he had a greater period of time to reflect on the matter. It may be, and I am not - I am - I don't have instructions on this, but it may well be that some independent expert witness may assist the Commission in making a decision. Now, I am not foreshadowing that in any positive sense, I am trying to just be responsive to the Commission's inquiry. If the Commission was satisfied on the evidence before it that an order should be made suspending the bargaining period for the duration of the longwall, then clearly there would be no need.
PN487
THE COMMISSIONER: That is why you should put whatever it is you want to put now about the discretion the Commission might have now have open to it to terminate the bargaining period.
PN488
MR HUMPHREYS: I am happy to deal with that if the Commission pleases. Prior to doing so, might I just have the opportunity to gain some instructions as to the character of the response?
PN489
THE COMMISSIONER: Certainly.
PN490
MR HUMPHREYS: I have no instructions as to what the company's position would be. I am happy to gain those instructions and put a submission. It may well be that Mr Vickers himself will appreciate some opportunity to reflect on the point.
PN491
THE COMMISSIONER: Mr Vickers?
PN492
MR VICKERS: Not necessarily on that specific point, Commissioner, but prior to me starting my submissions, and this is something you may wish to consider in light of the request that Mr Humphreys has made, I would have been seeking an adjournment - not an extensive adjournment - I mean, I am not going to go away for 3 days, but Mr Humphreys has read to you part of the commentary in the Butterworths service, and he has indicated quite clearly to you in the submission that he relies on the whole of it. He didn't read it all out. He said it was extensive. He was required, I understand, and I actually haven't seen any directions that were issued, I have been travelling, I think as the Commission may well be aware.
PN493
But it would appear that directions were provided that required the company to file and serve an outline of submissions. That outline of submissions I did receive when I returned to my office at about 6.30 p.m. last night. That outline of submissions did not rely upon anything in the Butterworths commentary, and indeed there is nothing in the more - the expanded outline of submissions in the quick time that I have had to have a look at them which does the same thing.
PN494
So whatever is in there, I need to look at, and seek to comprehend. I don't know how long it will take me. I am not seeking to delay this. The other point would make, of course, is that there is currently no protected industrial action taking place, and there is none planned until midnight tonight. So some time between now and midnight tonight, this matter can be determined. Mr Humphreys seeks an adjournment for instructions. I will, at some stage, be seeking an adjournment to allow me to do what I have just outlined to you, and it may be convenient that it is done together. I don't know. I am in the Commission's hands in respect of that.
PN495
THE COMMISSIONER: Very well. Thank you.
PN496
MR HUMPHREYS: Well, for our part, we don't oppose the course suggested by Mr Vickers on the basis that we resume after lunch. I am happy to make my copy of the loose leaf service available if that assists.
PN497
THE COMMISSIONER: Any difficulty you both have is that I am only available until at the latest quarter to 2.
PN498
MR HUMPHREYS: Well, I am happy to work through until then. It will only take me a brief moment to gain instructions on the termination point. The extra to which I referred is no longer than a page. I can make that available immediately to Mr Vickers.
PN499
THE COMMISSIONER: Well, what I will do is let you get your instructions on the point we discussed. Mr Humphreys, I assume that won't take more than 15 minutes.
PN500
MR HUMPHREYS: Yes.
PN501
THE COMMISSIONER: And then I will hear Mr Vickers to the extent that he is able to put his submissions, and the submissions on the Butterworth material can be filed, I assume, in writing by sometime later today. And we will deal with it on that basis. Does anyone think they have been unfairly dealt with?
PN502
MR VICKERS: No, Commissioner, that is fine, and let me say that I will use the adjournment for Mr Humphreys to gain instructions to read through the section. I have a personal abhorrence of written submissions, and if I can avoid them I will, so provided I can encapsulate whatever response I need - digest what is in there, and develop a response, then I will deal with it in verbal submissions. That is my preference.
PN503
THE COMMISSIONER: Very well. Well, the option is open to you.
PN504
MR VICKERS: I understand, Commissioner, and I appreciate that, but I will do what I can to avoid tapping away at a computer.
PN505
THE COMMISSIONER: Can we resume at 20 past?
SHORT ADJOURNMENT [12.04pm]
RESUMED [12.33pm]
PN506
THE COMMISSIONER: Mr Humphreys.
PN507
MR HUMPHREYS: Thank you, Commissioner. Can I apologise for the slight delay? Can I perhaps start by observing that clearly from the application we are here today seeking a suspension. A termination is not something which the company has turned its mind to, and on that basis, my instructions are not final, and subject to the Commission's view, I propose to put what I have got to say and then perhaps have the opportunity to correspond with the Commission early this afternoon to put a definitive view, but at this point in time can I say this: that firstly, the Commission has jurisdiction to terminate, for the reasons which I have referred to in my submissions.
PN508
It thus becomes a question as to whether the Commission should exercise its discretion to terminate the bargaining period. We accept that there are grounds which would properly found the exercise of such a discretion. At this point in time, I am not in a position to put a submission in a positive or a negative sense as to whether the Commission should exercise the discretion in that way, but it is accepted that grounds exist for the exercise of that discretion. If it is possible, Commissioner, I would seek leave to allow the company to further consider it and to provide a positive or a negative view - if such a view develops; it may well be a neutral view - by fax to the Commission, copied to Mr Vickers, shortly after the conclusion of these proceedings. People are considering it further, but we will wish to take advice on it, so it will be some time this afternoon, the time depending upon when we finish, if that is convenient.
PN509
THE COMMISSIONER: I don't have a problem with it. Is there any difficulty for you, Mr Vickers?
PN510
MR VICKERS: Provided that any response that the Commission expects is - is not expected until after I find out what the company's view is.
PN511
THE COMMISSIONER: I know it is late in the year, but even I am not that jaded. No, I would expect that an opportunity will be provided for you to respond to whatever is put by Mr Humphreys.
PN512
MR VICKERS: Thank you, Commissioner.
PN513
THE COMMISSIONER: Does that complete your submissions, Mr Humphreys?
PN514
MR HUMPHREYS: Yes, I am sorry.
PN515
THE COMMISSIONER: Very well, thank you. Mr Vickers?
PN516
MR VICKERS: Thank you, Commissioner. Commissioner, I guess as a consequence of it being at least a part of - or interrelated to the issue of jurisdiction, but also because it is freshest in my mind and I haven't taken comprehensive notes to refer to. I will deal with it firstly, and this is a bit out of order, and as a consequence of submission over the shot, but I will deal with that element of Mr Humphreys' submission dealing with the Act, the construction of the Act, and particularly the reference that he made to the Butterworth's commentary in respect of that particular matter.
PN517
And I say firstly this, that the Butterworth's commentary - and I appreciate Mr Humphreys making his copy available for our consideration - what the Butterworth's commentary tells me at least, quite clearly, is that the Full Court of the Federal Court of Australia, and indeed, the High Court of Australia in dealing with the Coal and Allied matters didn't determine the matter. So in terms of where we go from here, then it appears that there is no greater or binding authority or precedent for the Commission as it is currently constituted to rely upon, if it is so desired, then the other single Commissioner cases that have been referred to by Mr Humphreys. And I say that in no way in a derogatory sense of his Honour, Munro J, or it seems to be Commissioner Lacy, I think, in - - -
PN518
THE COMMISSIONER: Senior Deputy President Lacy.
PN519
MR VICKERS: Senior - sorry. It is also his Honour, I suppose.
PN520
THE COMMISSIONER: Yes, he is his Honour.
PN521
MR VICKERS: And with all due respect to them both, and the positions that they hold, the senior positions they hold within the Commission, they might not necessarily be right in the views that they have arrived at. And in my submission, that is particularly so of the case that I have looked at in the most detail because it is the one which was most heavily relied upon by Mr Humphreys in his outline of submission; that being the Natra case that was determined by his Honour, Munro J.
PN522
And that deals ostensibly with - to a large extent the power to issue an interim order, and it seems to me - and I will stand corrected on this - that the Natra decision, it wasn't agitated before the Commission by either the applicant or the respondent, and didn't appear to weigh on his Honour's mind at all this - the other issue that is involved, and that is does the industrial action have to exist at the time to enliven jurisdiction. It appears to me at least that Munro J was dealing with the capacity to issue an interim order. So if you like, there is two parts to the jurisdictional question.
PN523
The issue of the capacity to - and I know that I have touched on this very briefly - dealing with the capacity to issue an interim order, with all due respect to his Honour, I don't believe does exist, and I don't believe it can be confirmed by a proper reading of the legislation. The legislation - and this also goes to the point of Mr Humphreys' submission of, I think he called it the tension that is created in the whole of the Section 170MW by the existence or the use of the words exists or existed in what is effectively a preamble to the clause - sorry, to the section - in subsection 170MW(1).
PN524
And I think - and I know that I have expressed this view previously in front of the Commission - I don't think it is a fine point of law, I think it is a matter of simple comprehension; that is, what do the words say, and why do they say it? And the words say:
PN525
The Commission may by order suspend or terminate the bargaining period if after giving the negotiating parties an opportunity to be heard.
PN526
So firstly, the Commission may do certain things, either/or, by way of an order, it is compulsory to give the negotiating parties an opportunity to be heard; I don't think there is any controversy so far about any of that. If it is satisfied that any of the circumstances set out in subsections (2) to (7) - they are all numbered for convenience, coming up later - exists or existed. So why the words exist or existed? Simple construction. It is because sub-items or subsections (2) through to (7) rely separately on both the existing - the actual existence, or the pre-existence, or indeed the future existence of one of the matters that is dealt with.
PN527
So for 170MW(1) to enliven the requirements of the later sections, the word have to pick up the requirements of all of the subsequent sections. If it didn't say exists, if it just said existed, then 170MW(3) would be an nonsense. It would have no work to do at all, because 170MW(3) is quite clear. It says that "industrial action that is being taken". Fundamentally different from 170MW(2), which said "has organised or taken, or is organising or taking industrial action."
PN528
The question is why the fundamental difference? Why aren't the words the same? If the Parliament had intended the Commission to exercise the same sort of jurisdiction for the purposes of not genuinely trying to reach an agreement, failed to comply with directions of the Commission as it did about industrial action threatening to endanger the life or the personal safety, then the Parliament would have used the same words. It hasn't.
PN529
There are clear, if you like, simple, straightforward industrial connotations associated with the actions require of a remedy or able to be remedied under 170MW(2), and I will characterise all of those without reading them, and belabouring the point, as industrial-type issues, as they are in 170MW(4). They are industrial-type issues, or organisational-type issues, perhaps more correctly, demarcation disputes, same category, non-compliance with directions or orders of the Commissions, and a further technical issue about employees - but still an industrial issue - employees covered by paid rates award.
PN530
The circumstances that are dealt with in 170MW(3) are entirely different, arguably, far more serious than whether or not you are complying with an order of the Commission, with all due respect to the Commission, whether you have genuinely tried to reach an - sorry, genuinely bargaining, whether it is a consequence of a demarcation dispute, or whether or not employees are covered by a paid rates award.
PN531
170MW(3) is singularly different, and is properly characterised as being singularly different from the collection of provisions in 170MW(2), MW(4), MW(5), MW(6), and MW(7), because what it is all about - and Mr Humphreys is correct to point this out - it is industrial action which is threatening to endanger the life, the personal safety, or welfare of the population or part of it. And I concede, I concede that that doesn't matter whether it is one person or 4000 people, but it has to be proven, and it has to be as a consequence of industrial action which is actually taken place, not which is threatened, not which is probable, not which is likely, or not which occurred last week. And if there was some other intention on the part of the Parliament, then they would have put that in place.
PN532
THE COMMISSIONER: Is not another construction of the paragraph that it is not just industrial action that need be a threat of the type described in ((a) and (b), but that the industrial action must be taken - must be being taken to support or advance claims?
PN533
In other words, the industrial action being taken is describing that it must be industrial action that is being taken to support or advance claims, as opposed to other industrial action in protest at Mines Rescue Station manning, for instance.
PN534
MR VICKERS: Oh, I - - -
PN535
THE COMMISSIONER: Or other unrelated - industrial action that might be taken that's - now, it couldn't be protected, one assumes, in that circumstance.
PN536
MR VICKERS: No, I agree that it couldn't be protected, and the whole general - the whole specific thrust of section 170MW is the suspension of a bargaining period. As a consequence, what flows from that, in my view, is quite clear that what it deals with is protected industrial action that is protected - industrial action which is, by its nature, protected, because it's being taken to support or advance claims in respect of the proposed agreement, which it all says collectively, and that's a proposed agreement to which a bargaining period applies. So I don't think there is an out here, or some alternative. It all is encompassed that it is an integral part of the bargaining process.
PN537
You've got a bargaining period in place, you're seeking to negotiate an agreement - a proposed agreement, and you're taking industrial action; and whilst the term isn't used in 170MW(3), it must, by its nature, be protected industrial action, or intended to be protected industrial action, because it's been taken to support or advance claims in respect of the proposed agreement. It's not about other industrial action. So I concede that. Frankly, there is no issue with me about that.
PN538
The issue with me, however, Commissioner, is that on the first part of the issue of jurisdiction is that, there being this fundamental difference in the words, then Parliament must have had a reason for it. I don't know what the reason is. I'm not a Member of Parliament - fortunately - but there is a fundamental difference, and it can't be read down or read up. You can't read something into the legislation which isn't there. If the Parliament had have intended that it was to be as wide as the provisions of 170MW(2), (4), (5), (6) and (7), then it could be any industrial action - protected industrial action at any time. This is quite specific in 170MW(3). It is "that industrial action that is being taken".
PN539
The second part of the jurisdictional argument is the capacity - general capacity to make an interim order. There is no question but that under 111B(2), I think it is, that the Commission has the general power to make interim awards and orders. I have no truck with that whatsoever. But it seems to me - and it's certainly my submission - that the construction - and the proper construction of 170MW, and in particular 170MW(1), is that an interim order which is proposed by Mr Humphreys, while the company thinks about - with all due respect to his submission - while the company thinks about whether it wants to bring more evidence - is not the purpose of 170MW.
PN540
The purpose of 170MW is to put an argument before the Commission and to - and the requirement is to satisfy the Commission. The jurisdictional hurdle, it seems to me, is that the requirement of 170MW(1) is that the Commission has to be satisfied. And perhaps that's where I depart from the views expressed by his Honour, Munro J. His view was that he didn't need to be satisfied at the immediate time - - -
PN541
THE COMMISSIONER: In Natra?
PN542
MR VICKERS: In Natra. He was prepared to hear more about it.
PN543
THE COMMISSIONER: All right. Yes, but he - I thought, in Natra, he made the observations that he was satisfied that - - -
PN544
MR VICKERS: Just bear with me, Commissioner, because what I've done, stupidly, is - yes. If I could withdraw that, and perhaps if I refer to my notes, we'd both be going along a little better. Mr Humphreys, in fact, in his outline of submissions - at least the earlier ones that were filed - referred, at what was point 9 in those, to two particular paragraphs contained in the Natra decision. He referred, in fact, to paras 14 and 22. We say that he's actually neglected, and as a consequence, makes an error, by not referring to the subsequent and clearly interrelated paragraphs of the Natra decision.
PN545
Specifically by relying on 14 on its own, it misses out on some key points that are raised in paras 15, 16, 17, and 18. And as well, when he refers to paragraph 22, it's important as well for the Commission to read on and consider the impact of that part of the decision in paragraph 23. And there are a couple of reasons for that, because what his Honour, it seems to me, was clearly concerned about, was an element of - or an arm of the matters which are being threatened - or allegedly being threatened - pursuant to the provisions of 170MW(3) and in paragraph 8.
PN546
This case - this particular case - that is the Moranbah North case - relies upon a threat - an alleged threat which endangers the life, personal safety, or health of the population or part of. We heard no evidence about the welfare. And the welfare, which it appears to me, at least, that Munro J relied upon in reaching the conclusions and, indeed, the decision that he did in Natra, is, if you like - welfare is a fiscal one. It's not health and safety. It's the impact of what's going on at Natra on both Natra employees and, indeed, the welfare of a broader group of people - in this case, being the employees at the Ford Motor Company. So much is clear, in fact, from paragraph 10 of that decision.
PN547
Indeed, Munro J, in this decision, appears, in paragraph 23, to make a clear distinction between what he was contemplating in issuing this order and what was the case in a decision by Commissioner Holmes, which is referred to in paragraph 23 as the "Ambulance Service matter". And, in fact, he says - and I quote from about the third sentence in paragraph 23:
PN548
In such circumstances, I would have thought the task of the Commission in exercising ...(reads)... Here the evidence, as I already indicated, in my view, is at least ambivalent.
PN549
That's the evidence in the Natra matter - "is ambivalent".
PN550
In that perspective, I repeat that I do not wish to be taken to be under-emphasising the significance ...(reads)... I would be other than gravely concerned at the consequences.
PN551
It seems to me that he's saying that, in the ambulance case there was a clear threat to the welfare of part of the population, and he's saying in Natra he's a bit ambivalent about it - and they're his words, not mine - as to the issue of the effect of the industrial action.
PN552
Frankly, it seems to me that the Commission, as currently constituted, on the basis of the submission which is put - and, indeed, knowing the Commission, as currently constituted - I would frankly doubt that the Commission is likely to come to a view on the evidence concerning a threat to life, or health, or safety, that you would arrive at that position in any sort of an ambivalent way; it is either real or it is not real. It is his Honour himself who instils, it seems to me, into the decision, that he is uncertain about the effect on the welfare of the broader group. It is, in fact, his Honour himself - reading the decision, and not having read the transcript - who seems to enter into the debate, the issue of the issue of an interim order.
PN553
It is not, as in the matter of this application - or this matter which is before the Commission - part of the application for an interim order. It is, in fact, his Honour who raises the prospect and then canvasses that prospect with the parties, and, at the end of the day, issues an interim order. As such, there was nothing put by the parties - not that it is evidence from reading the decision - as to whether the jurisdiction existed for his Honour to issue, in fact, an interim order. There was no debate about it. It seems that he assumed that he had something in mind, and he did it.
PN554
The other point that concerns the CFMEU about the application, Commissioner, is the very nature of this application. This application, which specifically seeks an interim order, and then says we'll argue the matter further on down the track. And it is quite concerning, because the company says, "we have real issues" - the effect of the company's submissions is that "we have real issues that the industrial action is threatening to endanger life, or threatening the health and safety of our employees and employees of contractors at the mine." But they want to argue that in full, some time further down the track. I accept what Mr Humphreys has said that it would be done expeditiously, but it is inescapable, in my submission, that the cold hard facts of the matter are that what is taking place is either threatening to endanger life, health, or safety, or it isn't.
PN555
With this matter, there aren't any in-betweens; have a wondrous argument from a gaggle of economists - if that is a collective noun for economics - I'm not certain that it is - about whether or not there is damage - - -
PN556
THE COMMISSIONER: They would probably not reach agreement on that themselves.
PN557
MR VICKERS: Yes. Whether or not there is damage to the Australian economy, or a significant part of it. I've heard some of those debates go on in this very room, in fact, at various times. But surely there ought be no long drawn out debate as to whether protected industrial action is endangering someone's life, and, in fact, it is just a bit disappointing - I won't say offensive - but just a bit disappointing that Anglo Coal would effectively accuse the union and its members at Moranbah North from engaging in action, which would threaten the life of its members and other people. We don't really have much of a history of that, you know, at all. And that is really the thrust of this application. The union has never taken protected industrial action or any other form of industrial action when employees lives or health and safety is at risk in an underground coal mine, or anywhere else. The history of the union stands unequivocal.
PN558
If labour is required to be supplied to keep moving longwall chocks, because it would be dangerous to the people engaged on that if it stopped; then that is what occurs. The evidence before the Commission is that the longwall chocks won't be started to be move by the time the current round of protected industrial action notices are given. It is the union's position that that is quite deliberate and intentional, because we know that once you start moving your chocks, you don't stop. We accept that, and we've never done anything different.
PN559
THE COMMISSIONER: Can I just be clear on that, Mr Vickers? Are you saying that if, from the time the first chock is removed from the wall where it is now - - -
PN560
MR VICKERS: Yes.
PN561
THE COMMISSIONER: - - - if there was to be any protected industrial action notified during that period, that the protected industrial action would not be taken if the employer requested - by those employees engaged in the removal of the longwall.
PN562
MR VICKERS: No, I would go one step further, Commissioner. I can tell you that the union's position is that it will not take protected industrial action at Moranbah North in a manner which would interfere with the relocation of the longwall chocks once the process commences. We are not that stupid.
PN563
THE COMMISSIONER: So once the chocks start to come off - and I assume there is 200 of them, is there - of that order?
PN564
MR VICKERS: Plus 150.
PN565
THE COMMISSIONER: 149 chocks. So once that is done, and then relocated and in a position to produce coal at the new block, there will be no industrial action. Is that what you are saying?
PN566
MR VICKERS: That is correct.
PN567
THE COMMISSIONER: Very well. Thank you.
PN568
MR VICKERS: Now, Commissioner, I make that submission, not in a defensive way to avoid this matter being dealt with, but simply to state the facts, and they are the facts. This company will not be able to point - and Mr Freeman was not able to point to any set of circumstances where protected industrial action interfered with the removal of the longwall chocks, because we don't do it. There is not question but that the protected industrial action is interfering and delaying the relocation of the longwall, and we make no apologies for that. We are entitled to take protected industrial action. You don't take protected industrial action to go fishing; you take protected industrial action to support or advance your claims. You do it to damage the employer. That is what it is all about. For exactly the same reason that employers have a right under the legislation to lock out their employees; the same as this company is doing in another place, at another mine. Exercising its rights. Notwithstanding the fact that in the exercise of those rights at that other mine, the longwall will stand. I concede that it is not in a relocation process, but the longwall has stopped.
PN569
You have heard evidence from Mr Freeman about the necessity of avoiding longwall stoppages. It is more critical, he says, during the relocation phase. We say that when it is more critical, is when you start removing the chocks. All this effort has gone into - all the planning, all the engineering, all of the bolt-up sequences, the cutting deeper of the floor to expose a greater coal beam, and hold a greater coal beam for greater competency of the roof, has been done to provide the safest possible environment for employees to go in and pull out the ancillary equipment, the stuff which is summarised in - stuff is not a very good term - the stuff - but I'm going to use it - the stuff which is summarised - or is in point B of Mr Freeman's summary of the longwall movement sequence. You take out the plans, you break the chain, you shift the shearer; you get it all out. You create the cavity to allow the chock movers to go in and start pulling the chocks. All of that is being done at the present time. All of that was being done between midnight and 7.30 this morning, when the first round of protected industrial action was taking place.
PN570
There was no perceived increase in the acceptable level of risk to such an extent that the company stopped the operation. None whatsoever. That is Mr Freeman's evidence. If there was an increase in the level of risk, it still remained within acceptable bounds, because the work continued on, whether or not the CFMEU members were there. There was no threat to endanger the life of the employees at the mine, or their health or safety. If there was, one assumes Mr Freeman would not have exposed himself to the ignominy of a prosecution under the Coal Mines Safety and Health Act for placing people's lives or their health and safety at risk.
PN571
As the Underground Mine Manager, the statutory manager, he is primarily responsible; that is his evidence as well. If you accept that the potential to increase the risk is such that it increases it to the stage where it is actually threatening, bear in mind that they're the words that Mr Freeman was prepared to use - there was a potential to increase the risk, and that's not what the Commission has to determine. The Commission has to be satisfied that the action is threatening to endanger, not has the potential to threaten, is actually threatening, and there is no evidence before the Commission that that's occurring. Therefore, if the Commission arrives at that conclusion, it does so on the basis of something other than the evidence which is before it.
PN572
But if you accept that there's a potential threat to the danger - to the lives of employees or workers in an underground coal mine, or to their health and safety, because you can't be certain what's going to happen tomorrow, that's the effect of part of the evidence and the submission, then it seems to me that every underground coal miner is entitled under the Act to refuse to work underground, and never be the subject of an order from this Commission, that they're taking industrial action, and, as such, would be exposed to an order pursuant to section 127 of the Act.
PN573
What the Commission is being asked to accept, is that anything could happen at any time, so, therefore, there is a potential, so, therefore, there is a threat. If anything can happen at any time during the period of time, the 28 days planned for a longwall move, then clearly anything can happen at any time - at any time - in an underground coal mine. There has, in fact, been an incident at the mine, that's the evidence - there has, in fact, been an injury at the mine, directly associated with the longwall relocation, but none of it associated with, or as a direct consequence of the delay in the installation - sorry, in the longwall relocation brought about by the taking of protected industrial action.
PN574
So, the evidence is that accidents occur - incidents occur, people get hurt in underground coal mines. I don't think that I'm ever going to be able to convince the Commission, let alone get a concession from Mr Humphreys or his clients, that, therefore, paragraph G(2), I think it is, of the definition of industrial action in section 4, always exempts underground coal miners provided they say, I think I might get hurt if I go and do that, so I'm not going to do it. Such, in my submission, Commissioner, would, in fact, be a nonsense.
PN575
THE COMMISSIONER: Mr Vickers, if you're going to move on to one more point, can I just try and be a bit clearer with you, again. The submissions you've made about the CFMEUs policy about not delaying longwalls, particularly, once the chocks start to come off, does that mean that I could take that the current industrial action that has been notified which I understand to be from 12 midnight tonight until 8.30 Saturday; 2 o'clock to 11 o'clock tomorrow afternoon; 12 midnight Saturday to 8.30 am Sunday morning; and 12 noon Sunday to 7.15 pm on Sunday evening - if that industrial action takes place, is that the last before the longwall will be relocated? The employer will be free of industrial action, at least, any industrial action that would slow the relocation of the longwall from that period forward?
PN576
MR VICKERS: Our estimations, as I'm instructed, Commissioner, from people who actually work at the mine, and it was to some extent confirmed by Mr Freeman in his evidence, that probably by Monday the first chocks will commence to be moved, and we have no intention - we have no protected industrial action notices in, beyond Sunday. For Monday of next week we would have to notify in the course of today. We are not doing that. For anything later than that, then it would be as a minimum, at a subsequent period. We have no intention of taking protected industrial action at the mine once the longwall chocks are being removed.
PN577
THE COMMISSIONER: Very well. Thank you.
PN578
MR VICKERS: And, frankly, and we make no apologies for it; that's the reason we're doing what we're doing now. That's why there is no notifications beyond Sunday, because the employees' members of the CFMEU anticipate and expect that chocks will commence to be moved Monday or Tuesday of next week.
PN579
THE COMMISSIONER: Very well. Thank you.
PN580
MR VICKERS: Commissioner, the next point that I want to very briefly make is that in - certainly, in the first outline of submissions, Mr Humphreys appeared to - not appeared to - Mr Humphreys raised on a couple of occasions, and I don't go to them specifically, that it would be contrary - it's in the public interest for the Commission to issue the order, the interim order that's sought, and he seeks to wrap if you like - it seems to me - he seems to wrap public interest up into the issue of a threat to endanger the life, and health or safety, or welfare of the population or a significant part of it.
PN581
I simply say that if Parliament hadn't intended some sort of a public interest test to be applied for the termination or a suspension of a bargaining period, then it would have put those words into the legislation as well. They don't appear there, and it's inappropriate, in my submission, to seek to introduce a further test into this process, which is not stipulated by the legislation itself.
PN582
Commissioner, we say that the evidence which is before the Commission in this matter, the only relevant evidence, in our submission, and I think Mr Humphreys concurs with this, is that which comes from Mr Freeman, notwithstanding Mr Freeman's quiet and considered responses to - under cross-examination. The facts of the matter that his evidence can be summarised as thus: his evidence is that, in his view, there is a potential, by any sort of delay, in the total relocation of the longwall, to increase the level of risk to employees. That's his evidence, in summary.
PN583
The real issues we say commenced to occur, and the dramatic increase in the level of risk, commences with the difficult part of the salvage operation, the removal of the chocks. The company, through its internal processes, and this is part of the evidence, one assumes, has done all that it possibly can to make stages A and B of the longwall relocation process as outlined in Mr Freeman's evidence as safe as it can to bring the whole of the operation within an acceptable level of risk. There has already been a delay, and a doubling by the amount of time that the bolt up sequence was to take place - slightly over double - from eight to 17 days. That was not caused by protected industrial action. That has not led to such a significant, or such an increased level of risk, where it endangers lives or health or safety.
PN584
If it had have, it would have been stopped. There is no evidence that the protected industrial action has or is threatening to endanger life. What the evidence is, is that, in the view of Mr Freeman - and I accept his experience - acknowledge his experience - is that it has the potential to. But it doesn't have such a potential, as I said earlier, that he's going to stop it - stop the relocation process.
PN585
A further issue that arises, Commissioner, is the issue of the whole purpose of the requirement for negotiating parties to give notice to each other about the taking of protected industrial action. And being slightly cynical about it, it seems to me that it is primarily aimed, by the Parliament, at ensuring that employers get a reasonable amount of time, if you like, to get their house in order, so if they can, minimise the impact of the protected industrial action. Three clear days' notice is required as a minimum - three clear days' notice. That's subsequently been interpreted to be three clear days between the day the protected industrial action starts and the day that the notice is given - effectively five days in reality.
PN586
This company was notified on Friday of last week. They got six days' notice. Now, we could have given them more, I suppose, but we actually gave them more than the minimum notice that is required. Yet it appears that they still can't organise things well enough for them to do whatever they want to do, that what the requirement is to take away the one small right that workers have got under this legislation, and that's to take protected industrial action.
PN587
That's raised in the cases, you know - the small element of protection, or ability for unions to take protected industrial action. People talk about balancing that. This is the company who has consistently refused, for five years, to negotiate a certified agreement with its employees, and continues to hold that position - five years - and as an aside, now needs more time to consider whether or not you should terminate the bargaining period. They don't want a certified agreement. That's their position: don't want one now, and haven't for about five years. Yet they don't know - they still need time to think about whether or not the bargaining period ought to be terminated.
PN588
What they want is just suspend it so that the union's protected industrial action doesn't delay its longwall relocation. The basis of the argument is that it might, or could, or potentially - to use the correct term that Mr Freeman used - increase the level of risk. The employees at Moranbah North don't have a lot of options, but they've got one which is enshrined in the legislation, to be able to take protected industrial action. They are not stupid to the extent that they would take protected industrial action that would, in fact, endanger their own lives.
PN589
And, Commissioner, that's one element of this application that shouldn't be lost, and one element of the submission that shouldn't be lost on the Commission. They're the people who will be going back down there to do this work. They're the people who are doing this work right now, as this case proceeds. They'll continue to do it when they're not taking protected industrial action tomorrow and the next day and the next day. And then they'll do it all day Monday, and Tuesday, and Wednesday, and Thursday, until the job is finished.
PN590
And for you to be satisfied that you should suspend or terminate this bargaining period, you really have to be satisfied that those people up there knowingly - knowingly are prepared to endanger their own lives, because that's the substance of the - that's the real substance of the application. If it's not, then it has the capacity, in my submission, to be characterised as a sham application, simply to stop the employees taking protected industrial action, by a company who, for five years, doesn't want to negotiate an agreement with its employees, and after that five years, still needs some time to think about whether it would like the bargaining period terminated.
PN591
We all know. We all know why the company has to consider that. Because if this bargaining period is terminated as opposed to being suspended, then the company is potentially exposed to an arbitration on all the matters. That's the consideration that the company has got to give - wouldn't shy away from it. That's what the law is. One of the few circumstances where employees in any industry can get arbitrational matters that are outside the realms of section 89A is if this Commission terminate the bargaining period on the basis of 170MW(3), then the potential is to proceed to 170MX.
PN592
We all know what the law is; we all know what the rules are; we all know why the company can't answer the question right now. That's what they've got to consider. Do they want to expose themselves to a potential arbitration? They'll answer that question some time later today.
PN593
THE COMMISSIONER: What about the union, Mr Vickers?
PN594
MR VICKERS: Well - - -
PN595
THE COMMISSIONER: I mean, the evidence - - -
PN596
MR VICKERS: Commissioner - sorry.
PN597
THE COMMISSIONER: - - - the evidence leads me to understand that the parties are going to resist each other; it's going to take on all the hallmarks of traditional bargaining between fairly strong negotiating parties. There will be a detriment fall to the employer; there will be a determine befall the employees: that's the scheme of the Act.
PN598
MR VICKERS: Yes.
PN599
THE COMMISSIONER: I don't get excited about that any more.
PN600
MR VICKERS: Yes.
PN601
THE COMMISSIONER: But the issue here is that the application opens a door that was previously closed, and that is if the bargaining period is terminated, whether or not Anglo want an agreement is not all that relevant. They will get one, because a Full Bench will conduct an MX arbitration, or will I say there is a discretion for the Bench not to make one.
PN602
MR VICKERS: Yes.
PN603
THE COMMISSIONER: And I guess I'd be interested to know what the employees think about that. They decry the fact that arbitration has been removed from their rights under this legislation, in these circumstances, and in this case that door has been opened for you, potentially.
PN604
MR VICKERS: Exactly, Commissioner. Exactly. The union has two things to say about that, and I don't need any time to consider it. The first thing is this: is that we would oppose a termination of a bargaining period on other than the genuine circumstances that exist under the legislation, and we say unequivocally that there is no threat to endanger life, health, or safety by our protected industrial action, and there's a whole host of reasons for that, not the least of which is that we don't do that sort of stuff. I made that point before.
PN605
The second thing is, Commissioner - and I don't want to be facetious or overly cynical about it. The CFMEU has had some exposure to arbitration under 170MX of the Workplace Relations Act, and we aren't too keen on going down that road at all. We don't get a lot of joy, it seems to us, out of 170MX arbitration. If we did - if we did, then we would embark or seek to embark upon much bigger campaigns of industrial action which might invoke some of the other elements of 170MW(3), given the precedents that are around the place and the general views about it, we would seek to do that.
PN606
What we would never, ever seek to do, is to end up in an MX arbitration, even if it was the best thing - we thought - our view was that it was the best thing since sliced bread for it, we would never, ever do that on the basis of taking action that would endanger our members' lives or anyone else's life. We aren't that cynical.
PN607
So, in summary, then, Commissioner, let me say that we don't believe that the Commission has the jurisdiction, firstly, to issue an interim order as sought by the company, because we believe that the proper construction of the entire section of the Act requires that the Commission be satisfied and it's that satisfaction which we say has to be absolute and complete.
PN608
The second point in summary is that we say the Commission's jurisdiction isn't enlivened in any event, because notwithstanding, the cat and mouse game, I think, or dog and cat game, one of the two sets of animals, that Mr Humphreys was concerned about in his submission - I mean, if the legislation opens up - opens itself up, or allows itself to be used as a tactical gain, and some of it does, and parties take advantage of it, then that's of no interest, frankly, to the Commission, in determining a matter such as this.
PN609
That's a matter for the parties to decide whether or not they want to play those games, given that enterprise bargaining has been described by the Industrial Relations Commission in a different guise, as the application or law of the jungle - I mean cat and mouse games and the law of the jungle just don't come within a bulls roar of each other, quite frankly, but it's been expressed as being that, so if part of that is a game of cat and mouse, then, so be it - so be it. That's what the Parliament wanted; that's what the Parliament got. Parliament can fix it. They've got the capacity to change the laws, subject to what they can get a deal with the Senate, or any more triggers for double dissolutions, but that's their problem, and it's not something that this Commission, we say, as currently constituted, ought to worry itself about.
PN610
Potentially, there are ways and means to get around it, but I'm not going to alert the company's legal counsel to that. If there's a game that can be played, then let's play the game. It's a three part game that's been played at Moranbah North for five years, so a bit of cat and mouse isn't much of a problem a little bit longer. We say as well, that, on the evidence, you can't be satisfied, or the Commission can't be satisfied that the requirements of 170MW(3) have been met. It's not the evidence that someone's life is threatened. It's not the evidence that someone's health and safety is threatened. It's not the evidence that someone's welfare is threatened and I know that welfare wasn't pushed, or promoted significantly.
PN611
We concede that there is a fundamental difference between para (a) and para (b). Para (b) is not pursued by us as an offence at all, and we concede that if one person's life, or one person's health or safety, is being threatened by the protected industrial action then the Commission's jurisdiction is enlivened. We say it's not a numbers game. It's one or a thousand. I concede that point, that Mr Humphreys makes in his submission, there's no issue with us about that. But what we say is the evidence doesn't show that. The evidence doesn't show that one person's health or safety or life is being threatened or endangered by the protected industrial action that takes place.
PN612
We say the company has had more than the minimum requisite time to seek to get its house in order, and if it is of a mind to do so, to attempt to minimise the impact of any protected industrial action. The fact that they haven't been able to, or can't, or don't have the skills within their not inconsiderable staff work force is a problem for the company, not for the Commission. If they can't engage contractors with the requisite skills, that's a problem for the company not for the Commission. If the legislation wasn't required to be read in such a way as that you can't take protected industrial action, that would damage an employer, then the legislation would say that. That's not what it says.
PN613
There is a delay to the operation and we make no apologies for that; that's the reason for the protected industrial action that's in place. Those are my submissions.
PN614
THE COMMISSIONER: Thank you, Mr Vickers. Mr Humphreys?
PN615
MR HUMPHREYS: Thank you, Commissioner. Can I, firstly, deal with the proposition which has been put by Mr Vickers, perhaps, not in these words, but, in essence, that as a matter of policy, or principle, the CFMEU will not engage in industrial action, which, in their view, amounts to a risk to their members' safety, and consistent with that line of principle, Mr Vickers has given evidence from the bar table that there will be a dramatic increase in the risk at the commencement of the removal of chocks and it's at that point in time that the principle kicks in, and post that time, through the production of coal, there will be no further industrial action.
PN616
While it is open for Mr Vickers, clearly, to articulate such a principle, in determining this matter today, the Commission must pay regard not to submissions about principle from the bar table, but must pay regard to the evidence before the Commission. In my submission, if you do that, then, clearly, Mr Freeman's evidence must be relied upon, and without repeating it all, he clearly has a view that there is a current risk, a current threat because of the delay which has been brought about. I observe, of course, that the CFMEUs site and industry safety representatives have been within the Court - precincts of the Commission today; they've not been called to give evidence. There is nothing to contradict Mr Freeman's evidence, other than, essentially, Mr Vickers' statement of principle from the bar table.
PN617
I don't seek to cast doubt on the sincerity of Mr Vickers' principle, but in this case, on these facts, the Commission should conclude that that principle is not being complied with in all the circumstances of the case, because of Mr Freeman's evidence. As I say, I don't seek to impugn Mr Vickers' principle, but on the facts, on the evidence before the Commission, it's misfounded, and being misapplied in this case.
PN618
Can I perhaps just finally conclude by again dealing with the interim order point. We've made an application for interim orders; if the Commission was satisfied that grounds existed to suspend the bargaining period for the full duration of the longwall move from now through to the production of coal in the new position, then the Commission should do so. If, of course, however, the Commission is of the view that there is insufficient evidence to reach that concluded view, then we invite the Commission to find that sufficient evidence exists to support an interim suspension, pending further hearing of the matter, and issue interim orders accordingly. Those are my submissions in support of the application, Commissioner.
PN619
THE COMMISSIONER: Thank you, Mr Humphreys. How long might you need to put in these written submissions?
PN620
MR HUMPHREYS: I don't contemplate written submissions, just, simply, perhaps, a paragraph or two dealing with the company's response to the termination point. I suppose, in a theoretical sense, there's three options: (a) a positive opposition to termination; (b) no submission on the point, to; (c) positive support. Now, which one they'll be, I'm not sure, but I'm sure the answer will be brief - be able to be briefly communicated. As to timing, I'm instructed that a conference has been organised for 2, and we anticipate that will go for no longer than an hour, so by 3 pm.
PN621
THE COMMISSIONER: Just so that we're not at cross-purposes here.
PN622
MR HUMPHREYS: Yes.
PN623
THE COMMISSIONER: The opportunity that is being given is to express a view about whether or not - for the company to express a view about the possible termination of the bargaining periods.
PN624
MR HUMPHREYS: Yes.
PN625
THE COMMISSIONER: And to put any submissions it wants in support of its view.
PN626
MR HUMPHREYS: Yes, I appreciate the clarification, and we will avail ourselves of that opportunity in the manner outlined.
PN627
THE COMMISSIONER: So we could anticipate those at about by no later than 4 pm, do you think?
PN628
MR HUMPHREYS: I would have thought that, and I would be hopeful significantly before then.
PN629
THE COMMISSIONER: Very well, thank you. Mr Vickers, if there is any submissions you wish to make in reply to that, could that be done - - -
PN630
MR VICKERS: Extraordinarily quickly, Commissioner, 10 minutes; how about that? I think I have actually made mine, irrespective of what submissions - - -
PN631
THE COMMISSIONER: Well, yes, I know, but there has got to be an opportunity provided, given that new material is - - -
PN632
MR VICKERS: I appreciate the opportunity, Commissioner, but it - - -
PN633
THE COMMISSIONER: Say, by 5 o'clock.
PN634
MR VICKERS: At the absolute latest, yes.
PN635
THE COMMISSIONER: Very well, thank you.
PN636
MR VICKERS: I need to be advised where you want that sent?
PN637
THE COMMISSIONER: Yes, just to here.
PN638
MR VICKERS: To here.
PN639
THE COMMISSIONER: Yes, please. Unless there is anything further, I adjourn on that basis.
ADJOURNED INDEFINITELY [1.37pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
RANDALL PATRICK FREEMAN, SWORN PN85
EXAMINATION-IN-CHIEF BY MR HUMPHREYS PN85
EXHIBIT #ANGLO 1 AFFIDAVIT OF MR R.P. FREEMAN SWORN 28/08/2003 PN90
CROSS-EXAMINATION BY MR VICKERS PN104
RE-EXAMINATION BY MR HUMPHREYS PN333
FURTHER RE-EXAMINATION BY MR HUMPHREYS PN390
WITNESS WITHDREW PN395
EXHIBIT #ANGLO 2 STATEMENT OF PAUL REX HENDRY PN400
GLENN JAMES SMITH, SWORN PN406
EXAMINATION-IN-CHIEF BY MR HUMPHREYS PN406
EXHIBIT #ANGLO 3 STATEMENT OF GLENN JAMES SMITH PN411
CROSS-EXAMINATION BY MR VICKERS PN415
WITNESS WITHDREW PN431
EXHIBIT #ANGLO 4 WRITTEN SUBMISSIONS OF PN459
EXHIBIT #ANGLO 5 EXTRACT FROM ON-LINE MACQUARIE DICTIONARY PN460
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