C2002/5962, Transcript of Proceedings [2003] AIRCTrans 423 (7 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/5962

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

and

RAVENSWORTH EAST OPEN CUT COAL MINE

Notification pursuant to Section 99 of the Act
of a dispute re alleged failure of the company
to meet with employees and the union for discussions
and/or negotiations

SYDNEY

10.03 AM, FRIDAY, 24 JANUARY 2003

Continued from 11.12.02

PN87

THE COMMISSIONER: Good morning. I take it there's a change of appearances?

PN88

MR J. WHALE: Yes, Commissioner. May it please the Commission, I appear in place of Mr De Flamingh.

PN89

THE COMMISSIONER: Yes, thank you, Mr Whale.

PN90

MR K. ENDACOTT: If it pleases the Commission, I continue to appear for the Construction, Forestry, Mining and Energy Union. On this occasion I have with me at the bar table MR L. DURHAM, who is a member of the union and an employee of Ravensworth East Coal Management. If the Commission pleases.

PN91

THE COMMISSIONER: Thank you. I take you are seeking leave, Mr Whale? Do you need leave?

PN92

MR WHALE: Yes, Commissioner, I would in fact need leave to appear. I do so on the same basis as Mr De Flamingh was admitted to these proceedings on the last occasion.

PN93

THE COMMISSIONER: Do you oppose leave?

PN94

MR ENDACOTT: I don't oppose leave.

PN95

THE COMMISSIONER: Leave is granted. Mr Endacott?

PN96

MR ENDACOTT: Thank you, Commissioner. I would like to give you a report on what has occurred since the matter was last before you. This matter was before the Commission on 11 December, 2002 at which time the Commission made a recommendation about the meeting that was to occur between the union, its members that worked for the employer and the employer. That meeting subsequently occurred on 20 December, 2002. Unfortunately the meeting did not resolve any of the issues that had arisen between the parties. It is my intention, Commissioner, to take you through the steps that were necessarily involved. I originally would like to tender three letters.

PN97

THE COMMISSIONER: By my account we have had six exhibits from you prior.

PN98

MR ENDACOTT: Yes, Commissioner, that's the same I suppose as I have.

PN99

THE COMMISSIONER: The first document tendered by Mr Endacott is a letter from the union to Mr Farrar, Ravensworth East, becomes exhibit A7 in these proceedings.

EXHIBIT #A7 LETTER FROM THE UNION TO MR FARRAR, RAVENSWORTH EAST

PN100

THE COMMISSIONER: The second document is a copy of a facsimile from Mr Farrar to Mr Endacott dated 18 December 2002 and becomes exhibit A8.

EXHIBIT #A8 COPY OF FACSIMILE FROM MR FARRAR TO MR ENDACOTT DATED 18/12/2002

PN101

THE COMMISSIONER: The third document is a letter from the union dated 19 December 2002 addressed to Mr Farrar which becomes exhibit A9.

EXHIBIT #A9 LETTER FROM UNION TO MR FARRAR DATED 19/12/2002

PN102

MR ENDACOTT: Commissioner, that just shows that in the preliminary correspondence between the parties that is on exhibit A7, I set out the matters to be discussed as required by the recommendation and Mr Farrar responds to that in A8, and I provided a response in A9. As I indicated earlier, Commissioner, a meeting subsequently occurred on 20. At that meeting a discussion occurred. In saying that, the process was generally that we raise the issues and those matters that we wished addressed in the discussions and company did not give a response at that time but took it on board. In essence listed to what we said and said they would provide a response in writing to us. In that regard there wasn't so much discussion except we were telling them what we wanted and saying that there were some issues that they did respond on. They were quite limited and no issue that necessarily were ones that required some sort of resolution between parties.

PN103

At the conclusion of the meeting on 20, the company indicated that they would respond in writing, and we asked for a date to be given on which that response would occur and the company gave a time frame. We also requested that a further meeting occur after we got their response to discuss issues further, so we could take into account what they said and maybe raise additional issues to support our position. The company at the time was reluctant to set another date and indicated that depending on what was said in the correspondence there may not be any need - based on their response, we may not want to talk to them further about certain issues. So we waited for the response.

PN104

I did receive a response from the company and I wish to tender that response.

PN105

THE COMMISSIONER: I am taking it, Mr Whale, that unless you hop up to object, you don't object to the tendering of any of these documents?

PN106

MR WHALE: Yes.

PN107

THE COMMISSIONER: A copy of a facsimile message from Mr Farrar to Mr Endacott of the union, dated 3 January 2003 becomes exhibit A10.

EXHIBIT #10 COPY FACSIMILE MESSAGE FROM MR FARRAR TO MR ENDACOTT DATED 03/01/2003

PN108

MR ENDACOTT: I might read that response to the Commission. It says:

PN109

In relation to issues raised by yourself regarding employment arrangements discussed in a meeting held 20 December 2002, we provide the following response...(reads)... wish to discuss them further.

PN110

I think I spent about an hour outlining all of our issues and that was the response we got. One could say that they didn't have any intention of seriously considering any issue raised. I did write to the company again on 14 January about their response and what I would like to do is tender a copy of that response to their correspondence.

PN111

THE COMMISSIONER: Are there going to be other exhibits after this?

PN112

MR ENDACOTT: Yes, there will be - - -

PN113

THE COMMISSIONER: If you have them give them all to my associate some time and we can refer to them as we come to them.

PN114

MR ENDACOTT: Yes, Commissioner, I will do that.

PN115

THE COMMISSIONER: Yes, Mr Endacott?

PN116

MR ENDACOTT: You might mark them as I refer to them. The first letter I would like to take you to is 14 January one, the one to Grant Farrar. There are actually two 14 January letters. One to Grant Farrar and Mr Hubert which is both of them, and then one to Grant Farrar. It's just the one to Grant Farrar I wish to refer to, Commissioner.

PN117

THE COMMISSIONER: The letter from the union dated 14 January 2003 addressed to Mr Grant Farrar of Ravensworth becomes exhibit 11.

EXHIBIT #A11 LETTER FROM UNION TO GRANT FARRAR, RAVENSWORTH, DATED 14/01/2003

PN118

MR ENDACOTT: You can see in that correspondence that I indicated generally our disappointment about the detail of the response we received, but also went on to a further issue and that is that there was in addition to responding to the issues about the contract, Mr Farrar made a commitment that he would clarify an issue in clause 16 - Severance and retrenchment. That is the wording "company", did that refer to only Ravensworth East Coal Management Proprietary Limited, or was that a reference to Xstrata Coal. The clause actually talks about business units of the company on redundancy and the employees wanted a clarification about that issue. Mr Farrar said he would respond.

PN119

In saying that, this wasn't an issue of which there was some sort of dispute, Commissioner. It was one of which the parties - we just wanted to clarify what the company's understanding was. The company didn't respond to that and I wanted that clarified because it had been raised with the members. To date I haven't had a response to 14 January correspondence.

PN120

THE COMMISSIONER: I am sure Mr Whale has made a note and will clarify the matter for us, hopefully.

PN121

MR ENDACOTT: Now there is a number of further issues and that is, if you go to the second letter of 14 January. In essence what happened - - -

PN122

THE COMMISSIONER: Do you tender this letter, Mr Endacott?

PN123

MR ENDACOTT: Yes, I do.

PN124

THE COMMISSIONER: The exhibit is a letter from the union addressed to Messrs Hubert and Farrar dated 14 January 2003 and becomes exhibit A12 in these proceedings.

EXHIBIT #A12 LETTER FROM UNION TO MESSRS HUBERT AND FARRAR DATED 14/01/2003

PN125

MR ENDACOTT: If I can explain that, Commissioner. In attendance at the meeting dated 20 December representing the employees was a Mr Lantry, a Mr Birtnistle and a Mr Dagg. One of the issues raised were the differences in the contracts between employees. Approximately 8 employees made a reference to working overtime without payment and the others do not and there is some concern about how the company interprets that. It was raised asking that people that had a reference to working additional hours without payment be amended to read as the rest of the employees.

PN126

The company never responded to that issue other than to say it was happy with the contracts, but what did happen was that after the meeting on 20 and some time in January, and it may have been earlier for other employees, but certainly not before 20, Mr Dagg received correspondence from the company about that issue. And that has been tended and it is 13 December 2002 correspondence from Mr Hubert to Mr Dagg.

PN127

THE COMMISSIONER: A letter from Ravensworth operations of 13 December 2002 addressed to Mr John Dagg, becomes exhibit A13.

EXHIBIT #A13 LETTER FROM RAVENSWORTH OPERATIONS TO MR JOHN DAGG DATED 13/12/2002

PN128

MR ENDACOTT: The reason why I've handed this somewhat belatedly was because this wasn't actually in the sequence of events received in January by Mr Dagg. It may have been earlier for other employees, but certainly not before 20 December. You may just read that over, Commissioner, before I explain its relevance.

PN129

THE COMMISSIONER: Yes, thank you.

PN130

MR ENDACOTT: Certainly you will see from A12 that I write on behalf of Mr Dagg and other employees and indicate that there has been no agreed position. In fact you will see from the correspondence A13, that the company purports and this can be read halfway down in the letter to Mr Dagg, it says:

PN131

As per recent discussions in relation to payment of additional time the following arrangements are confirmed in writing.

PN132

Mr Dagg tells me and so do other employees, he's never spoken to the company about it - in fact he's been trying to speak to the company about it since the matter was last before the Commission in which there was a dispute about the matter before the Commission. So I wrote to Mr Hubert, and that's A12, informing him that there is no agreed position in that regard and you will see at my second last paragraph, it says:

PN133

I have been informed by Mr Dagg and other employees I am representing that they have not agreed that their contracts have been altered in the manner you propose.

PN134

And further - this is the last paragraph starting of exhibit A12:

PN135

Further, you say in your correspondence that as per discussion in relation to payment of additional time, the following arrangements are confirmed in writing.

PN136

Mr Dagg and numerous other employees have not held discussions in relation to payment of additional time that would warrant the confirmation. It says:

PN137

Many of your employees are authorising you to represent them in discussions. However, the company has been reluctant to enter into those discussions ...(reads)... Mr Dagg confirmed those arrangements with you.

PN138

Now, this did not happen. It says:

PN139

I look forward to your immediate response and ask for a meeting to occur to discuss this matter.

PN140

I can say, the company hasn't responded, and I can assure you, Commissioner, from Mr Dagg, and if you wish to speak to Mr Durham who is in exactly the same position, those discussions never occurred and in fact the working of overtime without payment is strongly refuted by this union and the employees.

PN141

This takes me to the last two exhibits, which is a copy of the offer of salary employment which is a document dated 11 August 2000.

PN142

THE COMMISSIONER: I have been handed a copy of a document on the letterhead of Peabody Open Cut Mining Proprietary Limited dated 11 August 2000, with the title - Offer of Salary Employment and it becomes exhibit A14.

EXHIBIT #A14 DOCUMENT ENTITLED OFFER OF SALARY EMPLOYMENT ON LETTERHEAD OF PEABODY OPEN CUT MINING PTY LTD DATED 11/08/2000

PN143

MR ENDACOTT: The next document is a single page document which is - - -

PN144

MR WHALE: Commissioner, if I just might ask - we haven't been supplied with a copy of that contract. Perhaps - - -

PN145

MR ENDACOTT: Sorry, I apologise.

PN146

THE COMMISSIONER: I act on the presumption that you do such things, okay.

PN147

MR ENDACOTT: I must apologise, Commissioner. I gave all the documents which I thought I had tendered up, but I obviously hadn't provided that one.

PN148

THE COMMISSIONER: Thank you. Now, the next document you are referring to?

PN149

MR ENDACOTT: Is the single page document which is an untitled document and has got a sort of chart at the top - the columns. And it's got page 14 written at the bottom and it's got 2.1.4.

PN150

THE COMMISSIONER: I have been handed a document untitled and undated. It appears to be page 14 of another document numbered 2.1.4 t o 2.1.8, which becomes exhibit A15 in these proceedings.

EXHIBIT #A15 UNTITLED DOCUMENT NUMBERED 2.1.4 TO 2.1.8

PN151

MR ENDACOTT: If I could just explain that document, Commissioner. The document A14 which is the thicker document, the offer of salary employment is in similar or identical form to the contracts that have been entered into on behalf of almost all employees, except for approximately 8 employees, and they have entered into a contract - and you will see in A15, clause 2.1.4 is different. Instead of tendering the whole contract again, when that is the only difference, I have just referred to that.

PN152

If I take the Commission to Schedule 2 of exhibit A14, page 14 of that exhibit - it's the second schedule - you will see at page 14 that there is a 2.1.4 clause in exhibit A14 and that is different from the 2.1.4 clause in A15. We say they are the difference in the two contracts. You will see that for example Mr Daag's contract to Mr Durham's, which is exhibit A14, it reads:

PN153

Your TEC is in full compensation for your position including the duties, time and attendance necessary to perform your role.

PN154

Then it goes on:

PN155

Where you believe that you are regularly working in excess of those requirements you should consult your manager.

PN156

That's how for example Mr Durham and Mr Daag's contract reads and the vast majority of the employees, except for about eight, who have entered into a different contract with their employer. You will see in that contract it says, which I am referring to A15, it says:

PN157

2.1.4: Your TEC is in full compensation for your position including the duties, time and attendance necessary to perform your role. All employees will be expected to work some additional hours which in normal operating circumstances is expected to average at least one shift per month.

PN158

Certainly there is a dispute amongst a number of our members saying, well there's differences in the contract and certainly they are not required to do that work, only those new employees are. It was raised in the context of the discussions on the 20th, the eight employees, those that we represent, said they want their contracts varied to read as everyone else's contract in that regard. Where this 13 December document came, letter from Mr Hubert to Mr Daag and other employees, we have no idea. Certainly people that instruct me are telling me that there was no meeting or discussions involving them and there was no confirmation involving them. So that's that issue.

PN159

We have a situation, Commissioner, in which there are a whole series of issues that are outstanding and at the moment they were all raised at the meeting of 20 December. The company has responded to those and these are serious issues that we need the assistance of the Commission to resolve. In saying that, Commissioner, the issues that we raised are far more than I have put before the Commission today. There were additional points. I could go through each point raised without any difficulty, but it's going to take me a considerable period.

PN160

I can go to a couple of the major points which I would like to put on the record and specifically discussion that occurred around severance and retrenchment pay. What has happened at Ravensworth East, Commissioner, is the company has called for expressions of interest of contractors to operate the mine, not an additional mine, the mine. They have I believe approached Thiess Contracting and Roach Mining and certainly they are companies that operate a number of mines in the valley and elsewhere in Australia as contract operators. The employees are concerned because it doesn't take much, Commissioner, for someone to work out that if the employer is calling for expressions of interest for a contractor to operate your mine, that at some point if they do operate it your current employer is not going to require you to do your job.

PN161

This issue of what are their severance and redundancy entitlements are of a key importance to the employees and they have asked me to press the issue on their behalf. Next door to Ravensworth East is Ravensworth Narama which is managed by a separate company but Mr Farrar I think holds the head position for both companies. When Ravensworth East opened the company was retrenching employees at Ravensworth Narama and some employees were employed with Ravensworth East and were not paid out any severance in retrenchment pay. In fact what the employer said is, that if you move over your employment will be deemed continuous. If your go to A14, Commissioner, clause 2, it says:

PN162

Provided that you have not been paid out at any time with respect to service with Peabody Coal Limited at Ravensworth Narama Open Cut Mine, the company will for the purposes of severance and retrenchment treat your service with Peabody Coal Limited as service with the company.

PN163

But if you go down to clause 4, "Condition of Employment", and the third paragraphs which starts:

PN164

This is not a fixed term employment agreement. It may be terminated by either you or the company upon giving one month's notice in writing.

PN165

Then it goes on about what happens. We raised two issues at the meeting. One is we raised the fact the company could terminate the contract on one month's notice and we wanted the contract void to remove that term. Secondly we said, look even if you don't agree to that will you agree to vary that contract or amend their contract either by amending this one or some collateral agreement, clause 2, to make it quite clear you can't terminate that commitment for service to be continuous. Some people who had moved across had 20 years service at Peabody and we are not talking 1000/5000, we are talking tens of thousands of dollars. I don't know, I suspect it could be $40,000/$50,000 for people. They are concerned, they've got a contract that can be terminated on one month's notice and therefore reading the contract the commitment to pay that money if they are retrenched, also terminated.

PN166

For many employees there wouldn't be more fundamental issues than that. The company you haven't seen the company's response to that issue. So there are employees now at the operation that have to tell their wives that $50,000 in severance or retrenchment they have in the bank, is in the bank only at the whim of Mr Farrar or any other executive in the company who wishes to terminate that agreement. Then there are other issues surrounding severance and retrenchment, ie there is a concern and if you go now to clause 16, it's page 10. If we go to the first paragraph, the last sentence it says:

PN167

Retrenched employees will be entitled to notification in accordance with the Workplace Relations Act 1997 or as otherwise prescribed by law.

PN168

Certainly the issue is, is that the Workplace Relations Act describes notice less than what the award is and when the company entered into this agreement there was a commitment that the terms were superior to the award and we asked for that to be addressed. If you go down to 16.2 you will see at sub clause (1) it says:

PN169

Where the company offers you employment in another position at the business unit which carries the equivalent notional salary.

PN170

That was where we asked, what was company, was that Xstrata, meaning all their - Xstrata is a multi billion dollar company, was that all their business unit or did that mean Ravensworth East.

PN171

THE COMMISSIONER: What role do the union have in, or if any, in negotiation of the document in A14?

PN172

MR ENDACOTT: None. This was you were offered employment and a requirement that you sign the contract or you don't get the job, in essence. We do now have those authorisations from 38 people authorising us to represent them in these matters. With respect to 16.2.1, Mr Farrar was going to get to us about what, company, meant. Did that only mean Ravensworth East business identities, Ravensworth East Coal Management Pty Limited business identities, or did that mean, all identities of Xstrata, what was meant by, company.

PN173

THE COMMISSIONER: We have traversed that issue.

PN174

MR ENDACOTT: Yes. The next point - - -

PN175

THE COMMISSIONER: I am sure, Mr Whale will enlighten us.

PN176

MR ENDACOTT: The next point is 16.3. You see here it says:

PN177

The amount payable under this clause shall not exceed the amount that you would have received had you remained in the employment of the employer until your normal retirement age, which is 60 years of age under the Coal and Oil Mine Workers Act, or such other maximum period for payment as applies to persons covered by the appropriate Coal Mining Industry Award whichever is the lesser.

PN178

Not the greater, the lesser. If I can just explain the situation. Under the Coal Industry Award you get three weeks. It's broken up into one weeks severance and two weeks redundancy for each year. Severance isn't limited to age 60 but redundancy is, so this clause means that you're entitlement is far less than what the award is with respect to weeks because all of it is limited to 60, not just two-thirds of the component is limited to 60. So that was an issue we sought response on, an issue of paramount importance with respect to the employees in light of the expressions of interest that have been called by companies to operate the mine. Now you've seen the response.

PN179

I won't go into every issue raised, that is the sort of major issues, in that there was a series of subordinate issues that we may be able to discuss in conciliation but to date these issue remain unresolved. They are issues on foot from the unions and the employees' perspective and certainly we would seek the assistance of the commission to resolve those issues. If the commission pleases.

PN180

THE COMMISSIONER: Mr Whale?

PN181

MR WHALE: Thank you Commissioner. Uncharacteristically, Commissioner, I don't propose to take up as much time as Mr Endacott has in relation to the report back. Could I characterise these proceedings if the proceedings of 11 December and these proceedings today, is very much driven by the CFMEU seeking to establish a role for the union at the Ravensworth East operation. The company has been subjected to an amount of correspondence and indeed pressure designed to convince the company or persuade the company that it should change its contracts or indeed move into some other relationship with the union.

PN182

Mr Endacott today is continuing to press the multitude of issues that the union has against the current employment arrangements at Ravensworth East. Now I don't make comment as to what is or what isn't a legitimate role of the union in relation to that. What I do say is that the company is under no obligation to change the contracts that it has with its employees but the union certainly has other rights in relation to what it may do in relation to other employment arrangements.

PN183

THE COMMISSIONER: You will agree that Mr Farrar's facsimile message contained in exhibit A10 is unusual, the final sentence is unusual?

PN184

MR WHALE: Unusual?

PN185

THE COMMISSIONER: Well unhelpful.

PN186

MR WHALE: Well, no, it's factual.

PN187

THE COMMISSIONER: On one side you acknowledge the union may have certain rights but then the company says in any event we don't want to talk to you about it.

PN188

MR WHALE: Yes, the company believes Commissioner, that it doesn't have a problem with its employees on site but that the union is seeking to agitate to create problems. The genuineness of the union position we have grave doubts about and indeed the working time arrangement which was not the subject of the initial notification to the commission, the matter before the commission on 11 December but has developed since then. Commissioner if you recall, the union was asked to provide in detail the issues that it sought to discuss in the meeting on 20 December.

PN189

Mr Endacott provided an agenda and that agenda was the subject matter of the discussion. Mr Endacott didn't include in that agenda working time arrangements for employees. He raises in these proceedings that - he hasn't said as much but it is implied that the company has been somewhat devious in that it has already done something in relation to that issue. We say, Commissioner, that notwithstanding his views of what has occurred on site, the company met with the employees on site from the period from 31 October to 4 November. Presented to the employees a series of options in relation to dealing with the working time issue, which is when does one pay additional moneys over a salary for some additional nominal hours. I can tell you, Commissioner, that those discussions with the employees resulted in a settlement of the issue which is contained in Mr Endacott's exhibit number A13.

PN190

That indeed is what was resolved. The employees agreed to provide flexibility in relation to their contracts, which we say they were obliged to do in any event. Notwithstanding that the company agreed that under certain circumstances it would pay an additional amount of money of $500 per 10.1/2 hour shifts for a full shift's work in non rostered time.

PN191

THE COMMISSIONER: Except for the small problem that Mr Daag, through Mr Endacott, apparently denies discussions occurred with him.

PN192

MR WHALE: Mr Daag was given the letter, the exhibit A13, on 23 December and Mr Hubert who is present in these proceedings, the mine manger of Ravensworth East spoke with Mr Daag on 24 December, the day after, in relation to that.

PN193

THE COMMISSIONER: Let's get the sequence right. There is a letter dated 13 December 2002 which was given to Mr Daag on or about 23 December 2002. But the content or letter dated 13 December 2002 refers to alleged previous discussions with Mr Daag which as I understand it, Mr Daag through Mr Endacott, denies.

PN194

MR WHALE: Mr Daag attended the communication meeting on 11 November in relation to the resolution of this whole issue, Commissioner. There is a sequence of events which goes through the communication with - not with Mr Daag singly, Commissioner, with the entire workforce in relation to resolving this issue.

PN195

THE COMMISSIONER: So the company had site meetings of some kind?

PN196

MR WHALE: Yes, the company had communication meetings with the employees and gave a presentation in relation to how the working time issue may be resolved on the mine site. In addition to that the company dealt with the performance management system at that time indicating how it would be applied.

PN197

THE COMMISSIONER: You say that the workers on site are satisfied with the arrangements allegedly made with the company?

PN198

MR WHALE: Yes.

PN199

THE COMMISSIONER: Mr Endacott says he has, if I don't misquote him, has written authorisations from those same persons saying that they want him to negotiate with you. If he does have such valid authorisation, what do you say then?

PN200

MR WHALE: We say that we are not prepared to negotiate those contracts. They are not prepared to negotiate, Commissioner, any changes to those contracts. What we do say in relation to any specific issues which may arise, is that the company will deal with those issues on their face as they arise. Severance or retrenchment pay, let's take that as an example, Commissioner. Mr Endacott, has raised with you the fact that the company sought expressions of interest in relation to contracting.

PN201

As a consequence of that the company should negotiate the severance and retrenchment pay conditions. Commissioner, the company has not made any decision in relation to contracting out. The company doesn't believe that it need change the current severance or retrenchment pay conditions in the agreement. But as circumstances arise where those provisions are relevant, then indeed, Commissioner, the company is prepared to look at the particular issues as they arise at the time.

PN202

THE COMMISSIONER: So do you say that you have a prior agreement with the employees?

PN203

MR WHALE: We have a contract. There it is.

PN204

THE COMMISSIONER: The year 2000 contract?

PN205

MR WHALE: Yes.

PN206

THE COMMISSIONER: You are seeking to vary that, aren't you?

PN207

MR WHALE: In what respect?

PN208

THE COMMISSIONER: With respect to what Mr Endacott raised in exhibit A15 or do I have it horribly wrong?

PN209

MR WHALE: No, there are two contracts, Commissioner. A15, was issued to a number of employees going back in relation to the question of whether in fact the contract, as drafted, required employees work an additional shift per month without additional payment.

PN210

THE COMMISSIONER: So there are people on two different variations of the contract?

PN211

MR WHALE: In relation to, yes, 2.1.4 is the difference. Mr Endacott is quite right. 2.1.4, we say, was simply inserted to clarify what in fact was the practice. It was in fact the employment arrangement.

PN212

THE COMMISSIONER: Was it inserted for all of them, or some of them?

PN213

MR WHALE: It was inserted for those employees who were employed after that date.

PN214

THE COMMISSIONER: Right.

PN215

MR WHALE: We say in clarification that of in fact what was the requirement to work, Mr Daag you may recall was before this Commission some 15 months ago.

PN216

THE COMMISSIONER: I recall his name.

PN217

MR WHALE: In relation to his view about the contract not requiring that he work any additional unpaid time and the company in those proceedings said, well we are in the process of addressing that issue. Commissioner, exhibit A13, in these proceedings, is indeed the culmination of a very lengthy series of discussions with the employees to address whether in fact the employees would be paid for some additional time.

PN218

THE COMMISSIONER: Yes, I have interrupted you enough, proceed.

PN219

MR WHALE: The company's response to Mr Endacott, albeit it's succinct and brief, clearly does indicate that the company is not prepared to open up the great multitude of issues that Mr Endacott, we believe, wants to pursue. We believe, Commissioner, that we have complied with the Commissions recommendations of 11 December. The company did meet with Mr Endacott and some employee representatives. Has given him an opportunity to raise issues that are of concern and the company's response is that it is not prepared to change the agreements. But one point of clarification is sought and if I could take you, Commissioner, to exhibit A14. The very front page, the very last word on the first paragraph, or two words. Where it defines people of the Open Cut Mining Pty Limited to be, the company.

PN220

Unless my understanding of contract law is wrong, that is adequately defined. Commissioner, where does all of that take us in these proceedings.

PN221

THE COMMISSIONER: My very question.

PN222

MR WHALE: The company truly believes that it doesn't have any disputation with the employees on site. That the issues are resolved on site. We understand that the CFMEU are uncomfortable with those employment relationships. The company has not refused to process a grievance by an employee under the grievance procedure in the contract. Indeed we would say that the lengthy discussions which have taken place on the working time arrangements with the employees at large, including Mr Daag, has resolved that issue. If I could just recap on that. The company's primary position with the contracts was that it is a salary for a position.

PN223

If you are required to work additional time outside of the pre-shift overtime, the post-shift and the communications and if you are required to spend a bit of time moving a shovel here or whatever it is at the end of a shift and if you are required in addition to all of that to work something like an additional rostered shift per month, that's why you get the $86,000 or $84,000 or $81,000 which you get under the roster. There are various roster payments depending upon the shift system you work, Commissioner.

PN224

We say that was part of the bargain that employees entered into when they took up employment with the company. Notwithstanding that view, the company has changed its position to the benefit of employees and said, notwithstanding that we will agree that where you are required to work additional full shifts as per exhibit A13, the company will pay an allowance for full shifts work in non rostered time at the pro rata rate of $500 per week for 10.5 hour shifts. So the company at the end of the day, Commissioner, has accepted in the best interests of resolution to that issue, which was a burning issue for a number of the employees, that the company should retract its position and agree to a compromise.

PN225

But the quid pro quo for that, Commissioner, is that the employees acknowledge that at the top of the page where it refers to events contemplated by the concept of a salary position, where the employees agreed to that flexibility. I am reliably instructed that Mr Durham, present in these proceedings, has availed himself of that flexibility in relation to his own personal arrangements. That's fine. That's what it's about, flexibility, give and take, and the nature of the contracts, Commissioner, is founded upon that principle.

PN226

Our position in these proceedings, Commissioner, is that we thank the Commissioner for being of assistance in relation to these proceedings. We don't believe that the Commission should endeavour to exercise any further conciliation powers in relation to these matters. It is our view that if individual employees have particular problems then there is a process for those problems to be addressed. Our view, Commissioner, is that that's where this matter should rest.

PN227

THE COMMISSIONER: So I take it however elegantly put, you are saying that you don't wish to take part in any further conciliation?

PN228

MR WHALE: We don't believe, Commissioner, that there is any need for any further conciliation on these issues.

PN229

THE COMMISSIONER: So the answer to my question is, yes?

PN230

MR WHALE: Yes, we don't believe we need to participate.

PN231

THE COMMISSIONER: Mr Endacott?

PN232

MR ENDACOTT: I will respond briefly to the issues before we respond to where we believe we go from here. Mr Durham is here, he can tell you whether or not he agreed with the employer to those arrangements.

PN233

MR DURHAM: No, I did not.

PN234

MR ENDACOTT: Mr Daag, didn't agree to those arrangements, I can inform you of that and there is a case that says, when a union appears they prima facie represent the views of the employees. I don't know where the case is but I have read it over the years and if I have got to dig it out, I will probably have to, but I think it is pretty well known. But at this site, it's further than that because if you go to A3 you'll see that on 21 October I wrote to the company informing them that those persons had given us specific authorisation. Now, what I did not do, and I think there are 30 odd people there, what I did not do is provide how those authorisations read because it was a huge document but I did read that to the Commission, I'll read it again. It says, "I", the person's name, of - normally they just put the site:

PN235

Ravensworth East in the State of New South Wales authorise the Construction, Forestry, Mining and Energy Union, Mining and Energy Division ...(reads)... directed to my authorised representative.

PN236

Clear, concise and unambiguous. I stand in the place of those persons that authorised me. Now, with respect to contract of employment I can't sign off on what they agree to, I need to get them to endorse it of course, but that's simple contract of employment. The other thing that is a simple contract of employment issue is if the company wishes individual contracts of employment it can't get up at a meeting and by acclamation think that everyone's individual contract is being varied.

PN237

Now, Mr Dagg and Mr Durham and others have told me they never agreed to any such arrangement and in the light of it you can't say we had a shift meeting, explained what we wanted to do and people agreed. We talk about contracts of employment, we specifically asked to meet with the company to discuss the contracts or any variations thereof. Now, if that letter, that 13 December letter constitutes a collateral agreement it's a contract of employment and it's a variation to it, a simple 106 contract, simple contract law that's readily considered in the New South Wales Commission under 106 all the time.

PN238

Mr Whale says today, yes, we had these discussions on - and if I can find where it's set out, I noted it, 31 October to 4 November. Well, if you look through all those exhibits - - -

PN239

THE COMMISSIONER: I thought it was 11 November.

PN240

MR ENDACOTT: Sorry, it is the 11th, I looked at underneath but 11 November. What you will recall, Commissioner, is on 21 October I provided those authorisations to the company and over the next couple of weeks I was writing to them saying, when are these meetings going to occur?

PN241

THE COMMISSIONER: Where do you take the matter now? As I see it the company says that it doesn't wish to discuss the matters further with you. It has agreement with the employees and it tells me it doesn't agree to undertake further conciliation with the Commission.

PN242

MR ENDACOTT: Yes, I understand, well - - -

PN243

THE COMMISSIONER: I haven't slandered you have I Mr Whale?

PN244

MR WHALE: Indeed not.

PN245

MR ENDACOTT: Well a couple of things, whether or not the employer should be required to take part in conciliation is a decision of this Commission not the decision of the employer. Number two is that there is a requirement we submit under the Act that matters should be conciliated meaningfully prior to any decision being made to arbitrate and I say the Commission has at the first stage made a recommendation that the parties will even discuss which is us raising the issue. That is not conciliation for the purposes of what we would submit is envisaged by the Act.

PN246

Conciliation is the Commission being involved in a process of trying to bring the parties to agree and just because there is a reluctance on one side to being involved in that process, that doesn't mean that that should not be followed because the alternative is that if we don't go through the conciliation process we go to hearing and certainly we would be seeking an interim award to be made against the company in accordance with the roping in award to the production engineering award and then if it had to go to hearing we would be asking for matters to be heard to a pacific award for this site.

PN247

Now that is what I would say preliminary and I would envisage with the 30 odd people who have authorised us to represent them with the resource of the organisation I would probably be of the view that hearing would need to go for a couple of weeks.

PN248

THE COMMISSIONER: Who are you trying to scare? Them or me?

PN249

MR ENDACOTT: Well I am submitting in light of a different approach which would be the Commission we submit should chair a conference in which each issue is raised and there is an attempt made to set it by conciliation because I think some of these issues can readily be resolved, should there be an open mind by either party. Then if that can't happen then as required by the Act the parties reserve their right to arbitrate. That would be a normal process to be followed when a whole series of matters are raised.

PN250

THE COMMISSIONER: When do you say such conciliation should occur Mr Endacott?

PN251

MR ENDACOTT: Well I submit that the Commission should put a day aside. We would put our position, what we required, in writing. The company would give a response to the reasons why they disagree, not just that we are satisfied - I mean if that is the only reason they provide it but and then the Commission would work through those items to try and narrow them down. We would submit a day, it could occur in Sydney or in the Hunter Valley, the Commission's choice. Then at the end of that if it is a situation in which nothing can be approved then we go onto the formal processes of arbitrating.

PN252

We would submit Commissioner that is not an unusual approach in these sorts of matters only to respond to say that this is an employee driven matter, a union driven matter and they are happy with their employees well Mr Durham is here today and Mr Dagg turns up, we had three representatives of the employees at the meeting with the company on 13 December. You have the names of the people that authorised us to represent them.

PN253

Quite often I turn up and resolve these sorts of issues. We haven't gone to the depth of getting pacific authorisations when you are representing the employers because you have a meeting and they say these are the issues you wish to address. So certainly we would say on its face it could not be held out that the employees are of no concern. We would submit further Commissioner it just defies logic. If you had a term of your contract to say your service with an old employer will recognised and you've got 20 years service and it says it will be terminated within a month, of course that is a concern you want people representing you to address. We would submit that type of approach if the Commission pleases.

PN254

THE COMMISSIONER: I understand. Do you wish a little time Mr Whale to discuss with your principles this matter further?

PN255

MR WHALE: Yes, Commissioner, perhaps a short adjournment would be appropriate. Could I just rather than give a submission in relation to the powers of the Commission under the Act, the Commission is driven in relation to an award to have regard to should I say, is required to set a minimum rates award. The minimum rates award Commissioner is the Production and Engineering Consolidated Rule 1997 and that is where that drives the Commission except as the company may agree to some different course of action.

PN256

So I really don't know the utility of going through that exercise. The CFMEU have it within their power to endeavour to rope the company in today. That's a matter that is available to them. I believe a dispute was found with the company some weeks before Christmas. So the union certainly has an ability to attempt to do certain things. The union has raised as an alternative, correct me if I am wrong here, there is an alternative to seeking interim award on the basis of the P&E award, I think Mr Endacott said a specific award from the site - the union has not written to the company to the best of my knowledge at any stage and suggested that they may seek a site specific award.

PN257

So Commissioner, if I could I would certainly like to have a brief adjournment but there are a number of practical issues which arise from the Commission seeking to participate, conciliate.

PN258

MR ENDACOTT: Only on that issue, my friend here said that we haven't written to him and said it because if you recall my submissions Commissioner, it was that that was an option that was open, should we have to go straight into arbitration and there not be a conciliatory process?

PN259

THE COMMISSIONER: What you said was clear. We will adjourn for 15 minutes.

SHORT ADJOURNMENT [11.03am]

RESUMES [11.21am]

PN260

THE COMMISSIONER: Mr Whale?

PN261

MR WHALE: Thank you, Commissioner. Commissioner, in that short adjournment we have had the opportunity to consider what Mr Endacott has put to the Commission and indeed the options that are available to the parties and the Commission.

PN262

Commissioner, could I say initially that the company entered into the Commonwealth contracts in good faith, and the company intends to honour those contracts to their full extent including the continuity of service provision in relation to Peabody service. The company hasn't threatened nor does it intend to terminate those contracts which Mr Endacott has drawn the Commission's attention to his belief that there are some conflicting conclusions, and we would like to put employees at rest, Commissioner, that this is not the company's intention. The company's intention is to honour the spirit and intent of the contracts and it believes that it has done so at all times and will continue to do so.

PN263

Commissioner, that really depicts the company's view about where these proceedings should or should not go. The company does not believe that there is utility in further conciliation conferences chaired by the Commission and for the company to participate in those conferences, Commissioner, would require that the company have a predisposition to some variation to those contracts. Commissioner, we do not entertain lightly the feeling that isolation with one particular clause and then the consequential effects of changing that clause on other aspects of the contract.

PN264

It is our sincere view that the Commission should not be enticed into dealing further with these matters and indeed it is open to the union to make applications in respect of respondency or awards as they see fit. Certainly, Commissioner, it is our view that the company would not be participating in such a series of conferences. May it please the Commission.

PN265

THE COMMISSIONER: I understand. Mr Endacott?

PN266

MR ENDACOTT: Well I just wish to say the words of the company back - the company said to this Commission, it will not meaningfully participate in conciliation conferences. No doubt the employer has the right to decide on what approach it wishes to take in conferences held by this Commission, but the Commission should not be diverted by its function as a result of reluctance of a party. This is a Commission that was set up under the constitution for the conciliation and arbitration of industrial disputes. Just because one party says they won't meaningfully take part in conciliation, doesn't mean that the Commission shouldn't conciliate.

PN267

We have made a notification of a dispute under section 99 of the Act. The Act says, requires that disputes to be dealt with by conciliation where possible. Now the question is what is meant by "where possible". We would submit that it would be a most unusual circumstance if the Commission would just jump the process of conciliation on the reluctance of one party when there is a great deal of stress in the objectives of the Act to either put primacy in many regards with respect to conciliation before arbitration takes place. As an organisation, as a trade union, as an organisation committed to the principles of industrial harmony, we would always enter conciliation, no matter how reluctantly meaningfully, and certainly I think that maybe many things may be said about our organisation, but I don't think it could be said that we don't enter into meaningful conciliation. They are certainly not the instructions I've received.

PN268

We press that the Commission set a day aside to conciliate. We say that the true test of whether conciliation will meaningfully achieve anything, can only occur once an experienced conciliator is involved in that process and we would ask the Commission to make directions that the parties put their position in writing and that the Commission set a day aside or half a day in the first instance and maybe half a day at a later time, to attempt to conciliate the matter. Then, if that fails to resolve it a true decision can be made whether conciliation was practicable and the parties can decide whether or not they wish the matters determined by arbitration.

PN269

I note with respect to my friend's commitment about honour the understanding of the contract. I'm still left with whether or not I can tell my members, does that mean the company has now agreed it will not terminate that commitment that their service will be recognised. They didn't really say that. They said we will honour the commitment of the contract - - -

PN270

THE COMMISSIONER: I will treat that as a question through me to Mr Whale so Mr Whale can respond now.

PN271

MR ENDACOTT: Other than I press the process that there be conciliation.

PN272

THE COMMISSIONER: I've got that message, thank you. Mr Whale?

PN273

MR WHALE: Commissioner, clause 2 of the Commonwealth contract on page 2 says:

PN274

Provided you have not been paid at any time in respect to service ...(reads)... Ravensworth Mine.

PN275

I press that part first. Commissioner, a number of the employees of Ravensworth East terminated their employment at the Narama operation and took up employment with Ravensworth East. The company agreed that when those people had not been paid out in respect to service that the company would recognise their combined service with the Ravensworth-Narama mine and with Ravensworth East for the purposes of severance and retrenchment pay, and that the company would treat the combined service with the two employer entities as service with Ravensworth East Operations, the employer of this case.

PN276

That is what the clause 2 means and what I have said Commissioner, is that where the company makes employees redundant, then the company will honour the contract in its totality and to allay any concerns of employees in relation to retrenchment, that the combined service with the two employing companies will be recognised by the company in those circumstances.

PN277

I have also said, Commissioner, in response to Mr Endacott's concern about the conflict with that clause and clause 4. Clause 4 does not deals with severance and retrenchment pay. Clause 4 deals with the termination of a contract by a notice by the party. What I said, Commissioner, is that the company has not made any threat and indeed will honour the terms of the contract and is not threatening to terminate any person's employment. That, we say, Commissioner, puts an end to those issues.

PN278

THE COMMISSIONER: Does that satisfy you, Mr Endacott?

PN279

MR ENDACOTT: The question is not whether - they are saying they are not threatening to do it now, but the question is, will they do it - - -

PN280

THE COMMISSIONER: I take it they are saying two things. They are saying they don't envisage at this time doing it, but if they were to do it outside what they now envision, service would be treated pursuant to clause 2.

PN281

MR WHALE: In relation to severance and retrenchment basis.

PN282

MR ENDACOTT: That does clarify that issue, thank you, Commissioner.

PN283

THE COMMISSIONER: Mr Endacott, as I take it, the company and to put to fine a point on it - will not take part in further conciliation. In the light of that doesn't it bring the system into some disrepute, forcing them to come to a conference which they have no intention of participating in in any meaningful way. If you want an admission from them as to their position, I've made it pretty clear that they are declining, leaving whatever options open to you that you that you have. If there a point in forcibly dragging the company to a conference that they may well choose not to say a word if they even turn up.

PN284

MR ENDACOTT: Yes there is. In my experience since I left university, I can't remember now, it must be 10 or up to 15 years of industrial relations is I have entered the preview of this Commission of a view on many occasions that the parties are intractable and have walked out with a comprehensive settlement that satisfied the parties and I read the comments that they don't want to take part in the conciliation meaningful as saying we have a position that is genuinely intractable. Well, we say that is the sort of issue that arises every day, bread and butter before this Commission that the Commission quite often resolves.

PN285

THE COMMISSIONER: But do you say that there's anything that you can put to the company in conciliation conference which will be different or more persuasive than what you put today?

PN286

MR ENDACOTT: May well. Today is an issue in which we've put many issues before this Commission. A conciliation process is somewhat different in that the company's approach, and this is in the discussions that were recommended by the Commission and took place, was you sit there you tell us your issues. We are not going to respond and give you feedback about our concerns about them, we will write you a letter and we will tell you our concerns. Now, you saw the letter. The letter is A10:

PN287

We are satisfied with the current employment arrangements and do not wish to discuss them further

PN288

I am sure in a conversation, in a discussion about the issues we raise the employer truly identified their concerns about why they might not want to change other than the dismissive statement that is set out in their correspondence of 3 December.

PN289

THE COMMISSIONER: They have given you further and better particulars today, though.

PN290

MR ENDACOTT: Not much better.

PN291

THE COMMISSIONER: Not much better in that they don't agree with you.

PN292

MR ENDACOTT: Well, they've said they don't agree with our position but conciliation is a far different process than that. If this has got to go to arbitration, Commissioner, it will but I submit that it would be a disappointment as a practitioner that the company that is related to Xstrata that we have had historically a good relationship with is refusing to meaningfully conciliate and we submit that the first process is that the Commission should at least require entering into that process again. It's obviously the Commission's choice but we would not press that process.

PN293

THE COMMISSIONER: You absolutely and definitively tell me, Mr Whale, that there is no point at all in the company's view in further conciliation or any conciliation?

PN294

MR WHALE: Commissioner, there shortly isn't. I think Mr Endacott has let the cat out of the bag in these proceedings. The union seeks an award in the terms of an award or a site specific award.

PN295

MR ENDACOTT: I haven't said that at all.

PN296

THE COMMISSIONER: No, he has put that as an option.

PN297

MR WHALE: Well, whether it's an option Commissioner, it's the first time any correspondence or any discussion with the company that the union through any of its officers has actually said, well, the purpose of the exercise is to create an award. Now, - - -

PN298

MR ENDACOTT: I think this is just a misrepresentation. I have never said that. What we've said is quite clear. We wish to resolve a dispute. The discussion was in context, Commissioner, of if there's not conciliation we don't have any choice to sit down and try and discuss the issues, what do we have to do?

PN299

THE COMMISSIONER: I am quite aware of how you put it.

PN300

MR ENDACOTT: It's constantly being misrepresented.

PN301

THE COMMISSIONER: Perhaps you can allow Mr Whale to finish now please.

PN302

MR WHALE: Commissioner, there is no useful purpose with the company participating in a series of conciliation conferences where the nature of those conference will be to put to the company that it should change its position with its own contracts. The company is not prepared to sever or restructure those contracts, the company does not wish to participate in the process. It would be dishonest, Commissioner, in fact it would be grossly dishonest if the company came to those conferences in light of the current attitude, the company's current attitude, and said, Commissioner, we actually don't have anything to say to you and rather than engage in an exercise in futility and I take note of the powers and indeed the purpose of the Act in relation to conciliation, but the Commission should not engage in an exercise in futility and the union has other lawful options available to it.

PN303

THE COMMISSIONER: I reluctantly agree with you. Can I ask you one question I should have asked earlier. In relation to the contract, has each of the persons who now has instructed or allegedly instructed the CFMEU to act for them, have they all actually signed on the dotted line for these contracts?

PN304

MR WHALE: Yes, Commissioner, all of the employees have signed their contracts and did so at the commencement. Again, I didn't want to traverse all of the previous John Dagg case before the Commission but part of that case, Commissioner, we went to some length to explain to the Commission and provide the Commission with the series of documents that each of the employees were given prior to signing the contract so that they fully understood the concept of a salary for a position and the requirements of the position.

PN305

Now, Mr Endacott on behalf of Mr Dagg at the time, denied that indeed in Mr Dagg's case that he had consented to any of the alleged arrangements with respect to unpaid overtime which is different from our view and, indeed, different we believe - well, is different to what is contained in Exhibit A13, what we say is the settlement of working time relations.

PN306

MR ENDACOTT: I will respond briefly, Commissioner. Firstly, this, the company says their view is intractable. I recall it was 21 October that I wrote to them with the authorisation, so I was actually going to call them in on the Monday to start off discussing their contracts. That was pulled off the table. The company refused to discuss until the recommendation of the Commission after - they didn't was to discuss the contracts or they were putting hurdles up.

PN307

In fact, if you look at the 13 December correspondence they now say that while they weren't discussing a variation of the contract they were actually in fact off discussing it with the employees which obviously Mr Dagg and Mr Durham deny. Now, you talk about a written contract of employment. If this letter is reflective of a confirmation then that is an amendment to a contract of employment so the contract hasn't been written - - -

PN308

THE COMMISSIONER: As I take it from what Mr Whale has put to me, the company doesn't allege that it had individual discussions with each employee but rather that it had in globo discussions with persons affected.

PN309

MR ENDACOTT: They obviously didn't because the authorisation said those discussions were to take place with us so they didn't have discussions with the people affected but I move on from that. In globo discussions can't alter individual contracts of employment, that's a well known tenet. Ryan's case refers to that, but I may be wrong. The other thing is, today, the company turns up with the intractable position and has now given the concession that it won't terminate the - so there has been achievement in that regard and we say a full ventilation of these issues is ultimately the Commission's choice.

PN310

THE COMMISSIONER: It made the concession, well not the concession, it's made the clarification in the light of concerns that you put through me.

PN311

MR ENDACOTT: Yes.

PN312

THE COMMISSIONER: You really can't have much complaint with that can you?

PN313

MR ENDACOTT: No, no, I don;t have a complaint with that. That was an example that the conciliation process will bring an outcome even if the position may be that the parties are intractable. The other point is, the question is where do we go from here. Certainly we will be asking that the matter be determined and heard. We will be making an application at first instance and we seek directions on how this occur, that there be an interim award. We would ask it to be, that a hearing date be set within the next four weeks, where we tie the employer in to the industry award and then we would formulate other awards to give effect to the specific disputes, the specific issues we wish to be addressed.

PN314

THE COMMISSIONER: That's the way if you wish to proceed I think you should. As I have said, I do reluctantly agree with Mr Whale as to the utility of further conciliation. So on that basis we will adjourn these proceedings with your rights reserved to take which action you wish.

PN315

MR ENDACOTT: We would ask that this matter not simply, reserving, we would ask the matter ongoing.

PN316

THE COMMISSIONER: I am not reserving, I am adjourning.

PN317

MR ENDACOTT: Yes, sorry, adjourning, because we wish the matters determined and we would ask the Commission to issue directions on that matter.

PN318

THE COMMISSIONER: What exact directions are you seeking?

PN319

MR ENDACOTT: We would like a hearing date.

PN320

MR WHALE: Commissioner, if I might rise.

PN321

THE COMMISSIONER: You certainly may.

PN322

MR WHALE: I don't wish to suggest that Mr Endacott is acting in any way improperly, but I believe in fact that the union should outline the nature of orders it seeks from the Commission. A proper case be made out in relation to what he is alleging, whether it is alleging as per its application to the Commission that the company has injured employees in their employment. Specifically what are they seeking by way of arbitration. Their application, Commissioner, if I can just find it deals with four points, failure of the company to meet with employees and the union to discuss industrial matters. What they are seeking by way of orders from the Commission in relation to that. What directions they're seeking from the Commission in relation to that.

PN323

I could go on in relation to each of the points A to D, Commissioner. I suggest with respect that the proper course of action is that the union make, if indeed the union is seeking orders in relation to those matters and I have to say that I don't know that they are, it would appear that from the report back today the union has now changed its focus to the particular issues in the Common Law Contracts which they are not happy with. Therefore I think the appropriate course of action, Commissioner, is that the union file the appropriate application with the Commission in relation to those matters that they seek the Commission arbitrate on.

PN324

THE COMMISSIONER: I would think so, Mr Endacott.

PN325

MR ENDACOTT: If this is going to arbitration we expect the normal processes of arbitration to occur and the normal process is we will do that. I am asking for directions from this Commission about the process that is to be followed for the hearing of the matter. My friend gets up and says - - -

PN326

MR WHALE: How can the Commission issue directions before we know what's been sought.

PN327

THE COMMISSIONER: That's my question, yes. His question is my question.

PN328

MR ENDACOTT: How do you issue directions?

PN329

THE COMMISSIONER: Before I know exactly what's being sought?

PN330

MR ENDACOTT: I mean part of the issuing of directions will be that the parties outline their positions. There will be some exchange of correspondence about the issues that need to be determined between the parties. Then there would be a draft outline of orders and material in support of that.

PN331

THE COMMISSIONER: Which you should lodge.

PN332

MR ENDACOTT: That's right and the company should respond to. There should be directions about the lodging and responding of that material. We are not seeking anything exceptional from my friend here. He gets up and says, well we should do that. I mean that's what we do.

PN333

THE COMMISSIONER: Let's go off the record for a moment and we will talk about a suitable timetable.

OFF THE RECORD 11.45am

RESUMES [11.49am]

PN334

THE COMMISSIONER: Having now discussed timetabling with the parties it is understood that Mr Endacott for the CFMEU will supply in writing details for the matters sought to be determined to the company by no lager than close of business on 7 February 2003. The company will respond to the union no later than 14 February 2003 and the matter will come on for further hearing and a possible issuing of directions on 19 February 2003. Copies of both the company and union correspondence to be supplied to me. There being nothing further this matter is now adjourned.

ADJOURNED UNTIL WEDNESDAY, 19 FEBRUARY 2003 [11.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A7 LETTER FROM THE UNION TO MR FARRAR, RAVENSWORTH EAST PN100
EXHIBIT #A8 COPY OF FACSIMILE FROM MR FARRAR TO MR ENDACOTT DATED 18/12/2002 PN101
EXHIBIT #A9 LETTER FROM UNION TO MR FARRAR DATED 19/12/2002 PN102
EXHIBIT #10 COPY FACSIMILE MESSAGE FROM MR FARRAR TO MR ENDACOTT DATED 03/01/2003 PN108
EXHIBIT #A11 LETTER FROM UNION TO GRANT FARRAR, RAVENSWORTH, DATED 14/01/2003 PN118
EXHIBIT #A12 LETTER FROM UNION TO MESSRS HUBERT AND FARRAR DATED 14/01/2003 PN125
EXHIBIT #A13 LETTER FROM RAVENSWORTH OPERATIONS TO MR JOHN DAGG DATED 13/12/2002 PN128
EXHIBIT #A14 DOCUMENT ENTITLED OFFER OF SALARY EMPLOYMENT ON LETTERHEAD OF PEABODY OPEN CUT MINING PTY LTD DATED 11/08/2000 PN143
EXHIBIT #A15 UNTITLED DOCUMENT NUMBERED 2.1.4 TO 2.1.8 PN151