AG2003/6918, Transcript of Proceedings [2003] AIRCTrans 4732 (24 October 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

No AG2003/6918

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MHA of the Act
by Wollemi Services Pty Limited to terminate
the Wollemi Mine Certified Agreement (2001)

SYDNEY

2.08 PM THURSDAY, 9 OCTOBER 2003

Continued from 20.8.03

PN24

THE SENIOR DEPUTY PRESIDENT: May I have appearances, please?

PN25

MR A. LONGLAND: Your Honour, I continue to appear for the applicant in the matter, leave was granted on the last occasion on 20 August 2003. I am with the firm, Freehills.

PN26

MR K. Endicott: Your Honour, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division and I note that the last time this matter was listed, the CFMEU wasn't notified and I do apologise for our non-attendance.

PN27

THE SENIOR DEPUTY PRESIDENT: There is no need, that was an error in the registry. But is this a jinxed file, did you not get a notice again, is that what happened?

PN28

MR ENDICOTT: That is correct. Fortunately Mr Longland provided me with a notice of listing on Tuesday afternoon some time, made obviously attempts to be here. We do - and I notified - well I didn't notify this, an employee of the union wrote in response to a letter that was received at our offices from Mr Longland yesterday and indicated that we would be opposing leave for the employee to be legally represented, certainly simply on the basis this is a termination of an agreement, we say no exceptional or special circumstances exist that would warrant the employer being legally represented. With respect to complexity we would submit that with respect it's a low level issue and certainly we ask that leave to be withdrawn and had we been here on the last occasion we would have raised the objection to leave at that time, if your Honour pleases.

PN29

THE SENIOR DEPUTY PRESIDENT: Mr Longland, you're seeking leave to appear for Wambo?

PN30

MR LONGLAND: Yes, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: And who do you seek to appear with?

PN32

MR LONGLAND: With MR D. FLETCHER, a solicitor from my office, MR A. SUTHERLAND, the underground and environmental manager employed by Wambo Coal Pty Limited.

PN33

THE SENIOR DEPUTY PRESIDENT: I thought Mr Bukarica had this matter. Isn't that who was supposed to be notified for the union. Did Mr Bukarica have this file?

PN34

MR ENDICOTT: It was in the early stages notified to the national office. I think Mr Bukarica was involved in the exchange of letters. I don't know if anyone from the national office specifically had the file but it was ultimately ended up falling into my lap for a better description. Mr Bukarica is on holidays too, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Longland, this is your client's application and you are seeking to make it on your client's behalf and Mr Endicott opposes your having leave to appear. It's a bit difficult to make a decision about such matters when I know almost nothing about the application except that you're making it.

PN36

MR LONGLAND: It's made by the client itself; I'm seeking leave to appear on the client's behalf, yes your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: What do you say about the indication from Mr Endicott that he approaches leave?

PN38

MR LONGLAND: Well, leave has been granted, your Honour, as I indicated. I don't take any issue with that. If your Honour requires me to reapply as it were in view of the opposition I'm happy to do that.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, well on the last occasion there was no appearance by the union so I gave you leave in the absence of the union. They now oppose it so I think at least you should record those matters on which I should continue your leave.

PN40

MR LONGLAND: Yes, thank you, your Honour. The application would be made under subsection (c) of section 42(3) on the basis that the applicant is unable to be adequately represented without the granting of leave as sought. There are three matters which are advanced in support of that proposition. As to the first matter, your Honour, there was a detailed letter that I forwarded to Mr Endicott yesterday and can I tender a copy for the purposes of the record because it's relevant to two of the grounds of plea, two of the grounds advanced I should say. Unfortunately it's a little verbose, your Honour, but put simply the first ground is that Mr Sutherland if required for cross-examination today by the CFMEU, they notified us of that after 4.00pm yesterday.

PN41

You will note that Mr Sutherland is the gentleman who has sworn the statutory declaration, I think the term is "made the statutory declaration" which was filed with the application that was on 8 August, 2003. So clearly it's not appropriate for Mr Sutherland to be an advocate and a witness in the same case. He shouldn't be expected to re-examine himself as it were. The second ground advanced is that there is an element of - I hate to use the word ambush - but I think in truth that's what has occurred. The union was provided with information on 18 August and as the letter records, your Honour, since then on three occasions polite requests have been made to advise us of the grounds of the opposition so that we could do something by way of preparation.

PN42

There has been no response other than the letter I received after 4 o'clock yesterday which said words to the effect that no doubt if Mr Keenan feels it necessary if Mr Endicott, I apologise, feels it necessary he will give you or contact you and tell you about those grounds. He hasn't contacted me and I don't know those grounds. Mr Sutherland in particular, that's another reason why he shouldn't be required to appear for the company. And the third ground which is advanced, your Honour, is simply that notwithstanding Mr Endicott's assertions to the contrary this is as matter which involves interpretation of a clause in an agreement and we do say it's a simple matter but in that respect we say that there's nothing about the appearance of a solicitor on this occasion which unduly prejudices the other side and at the end of the day can do nothing but assist the Commission in performing its functions. Those are our submissions.

PN43

THE SENIOR DEPUTY PRESIDENT: Do you wish to respond, Mr Endicott?

PN44

MR ENDICOTT: Yes, I do, your Honour. Firstly, I'd just like to tender the response to the 8th, I believe my friend tendered the 8 October 2003 correspondence, I'm not sure if I actually have a copy with me but I did read it this morning. I tender a copy of a response from Ms McAllister who is a typist who works in the office and assists me greatly. I was in the Commission yesterday and received at 3.08 as the letter says yesterday in my office a letter saying that they wished our material provided to them I think by close of business.

PN45

The company had written to me earlier, I think it was about 5 September, and indicated that could we provide them with some information in any event by a particular day and in any event prior to the hearing. Certainly I would have made some sort of attempt had I not only known the hearing was scheduled for today on Tuesday, and with respect I ended up working till about 11 o'clock last night so I could actually take tomorrow off work which is my intended annual leave day because I was spending considerable time to be today so certainly we say this allegation of ambush was untrue if it's alleged that there was some sort of deliberate intention on behalf of the union to ambush the company as indicated by Ms McAllister that I would have taken the opportunity to speak to Mr Longland today which Mr Longland only appeared a couple of minutes before the commencement of the proceedings. I didn't see Mr Longland, I only saw him, I was working on this matter.

PN46

Certainly we submit in the generality that these aren't circumstances in which the company couldn't be adequately represented. I do note section, I think it's 110, your Honour, of the Act, with procedures of the Commission and I think this is with respect to the Commission it's a failing of certainly the parties in the Commission is that the Commission tends to be overly legalistic; certainly I don't have any law degree nor any legal qualifications even though I've spent some time in the Commission but I note it was a late jurisdiction, that's why the high hurdle was set in section 42. I also note that with respect to procedures subsection (ii) requires in the hearing and determination of industrial dispute or in any other proceedings before the Commission. (b) says:

PN47

The Commission is not bound to act in a formal manner and is not bound by the rules of evidence but may inform itself of any matter in such manner as it considers just.

PN48

(c):

PN49

The Commission shall act accordingly to equity, good conscienceness of debt whereas merits of the case without regard to technicalities and legal form.

PN50

And certainly we would say that any employer doesn't need to be legally represented in proceedings such as these when there is quite clearly the procedure in the Commission are to accommodate someone not having legal qualifications or a detailed understanding of the processes of this Commission. If your Honour pleases.

PN51

THE SENIOR DEPUTY PRESIDENT: I'm going to grant leave to appear in this matter today.

PN52

MR LONGLAND: Your Honour I haven't, as Mr Endicott indicated, had a chance to have any discussions with him but I assume that the advice received yesterday still holds and he requires Mr Sutherland for cross examination so with your leave I will call Mr Sutherland at this point.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes.

<ANTHONY GORDON SUTHERLAND, SWORN [2.19pm]

<EXAMINATION-IN-CHIEF BY MR LONGLAND

PN54

MR LONGLAND: Thank you your Honour. Your full name is Anthony Gordon Sutherland?--- That's correct.

PN55

And you're currently employed by Wambo Coal Pty Ltd in the role of Underground and Environmental Manager?---That's correct.

PN56

Have you caused a statutory declaration to be made in relation to this matter?---Yes I have.

PN57

Do you have a copy of that with you?---Yes I do.

PN58

Does it have ten numbered paragraphs on two pages?---That's correct.

PN59

And was it made on 8 August 2003?---Yes it was.

PN60

Mr Sutherland, are the contents of that statutory declaration, to the best of your knowledge and belief, true and correct?---Yes they are.

PN61

MR LONGLAND: Your Honour would you like me to have Mr Sutherland identify the original?

PN62

THE SENIOR DEPUTY PRESIDENT: No, I don't think that's necessary.

PN63

MR LONGLAND: Should it be marked as an exhibit?

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #911 STATUTORY DECLARATION BY MR SUTHERLAND MADE 8 AUGUST 2003

<CROSS-EXAMINATION BY MR ENDICOTT [2.20pm]

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN65

MR ENDICOTT: Thank you Mr Sutherland, my name is Mr Endicott and I'll be asking you some questions in cross examination today.

PN66

At paragraph 1 where you say your responsibilities include the managing, the care and maintenance of activities at Wollemi Entry, the underground mine. Are you the appointed mine manager for the purposes of the Coal Mines Regulation Act with respect to that mine?---Yes I am.

PN67

And if I understand this correctly, even though it's in care and maintenance it is a mine for the purposes of the operations of the Coal Mines Regulation Act?---Yes.

PN68

But if I understand it correctly it's not producing coal at the moment?---No, it hasn't produced coal for over 12 months.

PN69

Thank you. In paragraph 6 of your statement you reproduce clause 1.4.2?---That's correct.

PN70

THE SENIOR DEPUTY PRESIDENT: I'm sorry?

PN71

MR ENDICOTT: Paragraph 6, your Honour of the statement, reproduce - - -

PN72

THE SENIOR DEPUTY PRESIDENT: I just have a cold, I can't hear very well, thanks.

PN73

MR ENDICOTT: Paragraph 1.4.2 you reproduced that clause?--- That's correct.

PN74

And certainly that clause was the clause of the certified agreement that reflected what activities and employees were covered by that agreement?---Yes.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN75

And if I understand the Homestead and Wollemi entries, they're the entries obviously into the Wollemi and Homestead Mines, is that right?---No, also in my stat dec I have mentioned that the Homestead entries were sealed were sealed in March of this year.

PN76

Yes, I understand that but I'm talking for the purposes of the certified agreement?---Yes. For the purpose of the certified agreement that's correct.

PN77

And the Homestead entry no longer exists?---That's correct.

PN78

And the entry to the Wollemi, the Wollemi entry still does exist?--- Yes, there are three entries that still exist to the Wollemi entry.

PN79

Okay and where are those entries?---At the bottom of a box cut on the lease. There's actually three entries into the Whybrow Scene off the Wollemi entry.

PN80

Okay. Now if I understand this is the, there are still considerable reserves on the Wambo mining lease?---Yes that is correct.

PN81

And if I tender this document to you. I'll give one to the Commissioner as well?---Thank you.

PN82

That document I've tendered is called the Coal Industry Profile 2003 and that's for the Wambo Lease. You will see in the Resources/Reserve section, I think the bottom Marketable Reserves, indicates on the lease there's some, is that 516,000,000 tonnes of coal reserve?---Whereabouts are you referring to?

PN83

Under the Resources/Reserves MT?---In measured it says 5.1.9.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN84

Yes and then it goes down to the last one is Marketable Reserves, I assume that assumes the reserves you actually sell?---That's correct.

PN85

Which is?---274.6. That does include the resources that are in EL-444 which is only an exploration licence at the moment.

PN86

Okay, but you'll agree there's significant reserves on the - - - ?---Yes.

PN87

Now I understand that Mr Longland and his law firm is making the application for the termination of the agreements made by Wollemi Services. Is that your understanding?---I think on behalf of Wambo Coal.

PN88

Yes I think it's fully owned by Wambo Coal if it's correct?---Yes.

PN89

And Mr Longland appears for you in these proceedings?---Yes.

PN90

And who's instructing Mr Longland in this matter, are you the person that has had responsibility for instructing Mr Longland?---I'm not sure. Yes, on behalf of the company, yes.

PN91

Thank you. I'd like to show you a letter that was sent to Mr Longland on 18 August 2003.

PN92

THE SENIOR DEPUTY PRESIDENT: Where did this document, Coal Industry Profile 2003 come from?

PN93

MR ENDICOTT: It comes from, it's an extract from the book your Honour, The 2003 New South Wales Coal Industry Profile that's produced by the Department of Mineral Resources.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN94

THE SENIOR DEPUTY PRESIDENT: Do you wish to tender that extract?

PN95

MR ENDICOTT: Yes. Just to mark it for your information.

EXHIBIT #CMFEU1 EXTRACT

PN96

MR LONGLAND: Well I object to the tender of it, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, why?

PN98

MR LONGLAND: Because it's not relevant to any matter or issue in these proceedings. The extent to which - - -

PN99

THE SENIOR DEPUTY PRESIDENT: It might become relevant Mr Longland. It might in the end be relevant and you could address me on it.

PN100

MR LONGLAND: Well as long as my objection is noted. I can't see how the amount of reserves in this lease is a matter which the agreement - - -

PN101

THE SENIOR DEPUTY PRESIDENT: I don't see that yet either Mr Longland but it might become apparent.

PN102

MR LONGLAND: Thank you, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: If some question arises you can address me on it. Yes Mr Endicott, please proceed.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN104

MR ENDICOTT: Thank you. You were saying that that letter, have you seen that letter?---Yes I have.

PN105

Do you recall the date you saw that correspondence?---No.

PN106

You'll agree the effect of that letter was inquiry from the union about whether or not there was the intention on behalf of the company to recommence work falling within the scope of the Wollemi Service agreement in the foreseeable future?---Yes.

PN107

Thank you. I wish to tender a copy of that letter, your Honour.

PN108

MR LONGLAND: I'll just record my objection on the same basis, just for the record, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

EXHIBIT #CFMEU2 COPY LETTER

PN110

MR ENDICOTT: Sorry I was just making a note.

PN111

With respect to that letter, Exhibit CFMEU2, could you indicate what your company's position is with respect to that letter?---Our company's - - -

PN112

If you could now give a response to that, your response to that letter?---Well, at the moment it's not the intention of the company to recommence work falling within the scope of the abovementioned agreement in the foreseeable future.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN113

You say that's the position?---Yes.

PN114

You agree that the certified agreement covered persons that were working at the Wollomi entries, the coal extraction at the Wollemi entries?---Yes, that's correct.

PN115

You say there is no intention of the company to commence using those entries to produce coal?---The company has prepared conceptual mine plans that show that we may be using those entries to access one of the seams that is below the seam that was used in the Wollomi entry.

PN116

What do you mean by they are developing conceptual documents?---The company recently, three months ago, submitted a development application that showed conceptual mine plans for possible longwall operations in the next 21 years.

PN117

In fact it made a detailed application to use the Wollomi entry to produce coal?---It shows conceptual plans, yes, using the Wollomi entries to access the Wambo seam.

PN118

But I put to you it's actually made an application, a development application to do that?---Yes, it's lodged a development application with the Department of Infrastructure and Planning and Natural Resources and backing that development application is a detailed environmental impact statement, that's correct.

PN119

So what's the intention of that application?---The intention is that hopefully one day we may be able to go back underground.

PN120

Have you informed the department on what date you would be wanting to go underground and how much coal you would be wanting to produce?---There's a proposed timetable in that EIS that shows possibly going back using those entries in about 2008, I think, 2009.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN121

I wish to show you a letter dated 18 August 2003. That was in response you instructed Mr Longland to inform us of?---That's correct.

PN122

Do you recall what day you informed Mr Longland of that response?---No.

PN123

Now, the company has made a development application - - -

PN124

THE SENIOR DEPUTY PRESIDENT: Have I got that response?

PN125

MR ENDICOTT: Yes, if I could tender that document, your Honour. Contrary to the letter of 18 August from Mr Longland as you instructed, the reality is the company intends to reopen the mine, to extend the Wollomi Mine to extract significant amounts of coal underground. That's their intention?---As I mentioned before the company has only lodged a development application that shows possible future longwall operations in four different underground seams, one of which is the same seam that we mined in the Wollomi entries.

PN126

It's made the application because it intends to do that when permission is granted, doesn't it?---If the development application is approved the company will then go, because it's only done an environmental impact statement. If the consent is approved the company will then look at a more detailed economic analysis of whether or not they can actually invest in those underground operations.

PN127

But it intends to do it, there is not no intention to seek to open up, to use the existing Wollomi entries?---As i said before, we are hoping to get consent but it is a different thing to actually going ahead and actually opening up the underground again. It will be very much dependent on the market conditions at the time. So it may not go ahead at all.

PN128

Yes, I understand but it is your current intention to do so, isn't it?---No, we've only put to the department proposed plans. If the market conditions are right in the 21 year life of that development consent the directors of the company will make the call whether or not to go back underground.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN129

So what is the Wambo development project?---The Wambo development project is in two development applications. One development application is for the construction of a rail loop out to the mine site, the other DA covers over as 21 year period, the expansion of the open cut at the mine plus re-introduction of longwall operations into four different underground seams.

PN130

So that's a project of the company to proposed development?---Yes.

PN131

Because it's proposing to do that, proposing to develop the mine in accordance with the project?---Yes, if market conditions dictate that it can happen.

PN132

So it's intending to do it in accordance with the project? It's proposing to do it, it's intending to do it?---It is proposing to do it.

PN133

So, in fact when you wrote to us and said there was no intention in the foreseeable future that was untrue, wasn't it?

PN134

MR LONGLAND: With respect, that's not what the letter says. My friend should quote from the letter. He tendered it and it has yet to be marked. It doesn't say that there is no intention.

PN135

THE SENIOR DEPUTY PRESIDENT: It says there is no present intention to recommence work.

PN136

MR ENDICOTT: Yes, so when you say there is no present intention to recommence work at the mine, that's untrue, there is a present intention to do that?---No, but it also goes into the foreseeable future. If you look at the EIS there is a proposed timetable and if all things go well the development of the first part of the underground would not happen till the second half of 2005 which is at least two years away and that proposed timetable was put forward some 18 months ago and since 18 months ago the market exchange rate has risen 20 percent, coal prices have dropped, so it is clearly not the company's intention in the foreseeable future to recommence work that falls within the scope of that agreement, it just can't happen.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN137

I would like to show you a document. I note this is an extract from the Wambo Development Project, environmental impact statement. It's a rather voluminous document so I will just take you to some relevant parts.

PN138

THE SENIOR DEPUTY PRESIDENT: Is this the respondent's document, the employer's document?

PN139

MR ENDICOTT: Yes it is. I take you to the third page.

PN140

MR LONGLAND: Perhaps the witness can give evidence whether it's the respondent's document or not, as we have never seen it before.

PN141

MR ENDICOTT: Thank you. I will take him to it. Mr Longland was reading my mind. I take you to the third page which is the one typed on the letterhead which says: Wambo Coal Pty Limited. Are you aware of that company?---Yes.

PN142

Do you work for that company?---Yes.

PN143

Is Mr Allan Davies known to you?---Yes.

PN144

Is he executive director?---Yes.

PN145

Have you seen this letter before?---Yes.

PN146

Can you inform the Commission where the work copy of this letter is displayed?---A copy of this letter is in the environmental impact statement that was prepared by Resource Strategies, a company in Brisbane.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN147

THE SENIOR DEPUTY PRESIDENT: This is a document prepared for the application you have given evidence about?---Yes.

PN148

This is a document that's with the appropriate authority who makes that decision?---Yes, your Honour.

PN149

MR ENDICOTT: I take you to the third paragraph where it says - this is the second paragraph , I apologise - it says:

PN150

Wambo Coal Pty Limited believes the EIS to represent the accurate statement of the company's project development intentions

PN151

?---That's correct.

PN152

So you are saying that they don't have any intention for that project?---Well, the document, the project EIS, that represents an accurate statement of how the company believes that those reserves could be extracted in the 21 year life of DAs.

PN153

You will agree that the EIS, the Environmental Impact Statement, talks in detail about using the Wollemi Entry for the purposes of producing coal?---I wouldn't say it talks in detail of using the Wollemi Entry. It shows a couple of diagrams but certainly there's no detailed report on using the entries.

PN154

Okay but you'll agree the entry is used, the Wollemi Entry is used?---It is planned to use the Wollemi Entries, yes.

PN155

The last point, I'll ask that to be marked into evidence your Honour

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN156

THE SENIOR DEPUTY PRESIDENT: CMFEU4

EXHIBIT #CFMEU4 ENVIRONMENTAL IMPACT STATEMENT

PN157

MR LONGLAND: Sorry your Honour, was CMFEU3 the 18 August letter from Freehills to Mr Bukarica?

PN158

THE SENIOR DEPUTY PRESIDENT: Yes. How do you say that name?

PN159

MR LONGLAND: I say it Bukaria, but I guess it's Bukarica.

PN160

THE SENIOR DEPUTY PRESIDENT: Which is it, Mr Endicott?

PN161

MR ENDICOTT: I call him Mr Bukarica but I wouldn't say that that's the most accurate description of his name

PN162

THE SENIOR DEPUTY PRESIDENT: I think that's where I got my delivery of it from. So we're all going to say Bukarica and we're going to blame you.

PN163

MR ENDICOTT: Yes. You indicate in your statement that the Wollemi Mine Entry has ceased operating?---It has ceased operating but it's currently on care and maintenance.

PN164

But isn't the true characterisation is that it's in a temporary - really what happens is the operation is being suspended until the mine can continue to get the approvals to keep on mining through those entries?---Well under the act it's discontinued but it's been placed on care and maintenance.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN165

You say that the operation has ceased, in fact it hasn't ceased has it, there's the intention if everything goes to plan to continue mining coal via longwall through that Wollemi Entry isn't there?---No it's planned to use the entries to drift down to a lower seam, the Wambo seam.

PN166

Yes to use the Wollemi Entries?---Yes.

PN167

Okay, thank you and the production method used will be longwall?---Will be longwall but we'll have to source a completely new or second hand longwall equipment for the Wambo seam because we currently don't have the equipment to do that.

PN168

So it's fair to say that the underground mine hasn't in fact ceased it's just suspended at the moment pending these other approvals?---The mine closed down October of last year, 12 months ago and has been on care and maintenance for the last 12 months and there are conceptual plans that show us reusing those entries to drift down to the Wambo seam but as I indicated before that is some time away in approximately 2008.

PN169

Yes thank you for that, I think that's understood. What I'm saying is the operations haven't ceased, have they, they're actually suspended waiting for additional approvals, the Wollemi entries?---No.

PN170

MR LONGLAND: I object to that your Honour. That is the very matter that is for the Commission to determine. The witness has given evidence about the current state of play at the entries.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN171

MR ENDICOTT: I'll move on the last one.

PN172

THE SENIOR DEPUTY PRESIDENT: There is a question I'd like to ask you. You say that approval will result for these conceptual plans that have gone in with the Environmental Impact Statement?---They're currently with the Department of Infrastructure and Planning.

PN173

If they approve of them you'll get an approval for such activities or or?---Yes your Honour we hope to.

PN174

Subject to further plans then?---Subject to further detailed economic analysis.

PN175

If you've got any current approvals, if you wish to continue mining could you do so?---No not with longwall mining, no.

PN176

Has your approval run out?---No we still operate under a mining lease for the Wollemi Entry but we ran out. The reserves weren't suitable. The remaining reserves in the Wollemi Entry were not suitable for longwall mining.

PN177

What I'm asking you though was if you thought they were suitable could you have continued to mine, did you have departmental approval to continue to mine or did you need to seek further approval through such a document to continue the project?---No your Honour we could have continued to - - -

PN178

If you'd found the reserves satisfactory?---Yes that were economically viable, that's correct your Honour.

PN179

Thank you. I'm sorry Mr Endicott.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN180

MR ENDICOTT: Thank you. I'll just take you to one final issue that will be my last question, Mr Sutherland, which is, it's in CFMEU4 which is the Environmental Impact Statement and it's actually on page 1.1. Now the pages are numbered in order but there are lots of pages missing to keep the - so if I can start from the beginning and go to 1.1?---Yes.

PN181

It's the one that says, it's got Introduction to the introduction, at the top and then one is introduction 1.1, Wambo Coal Mine?---Yes I have that in front of me.

PN182

I'll just take you, it's the second column I take you to?---Yes.

PN183

And it's the one, two, three, four, fifth paragraph down that starts "Underground Mining Operations"?---Starting, Following the suspension?

PN184

It's the one below that. I'll ask you to read the paragraph above the one that says, Following the suspension?---Underground mining operations at the homestead - - -

PN185

Not aloud. Just - - -?---Oh sorry.

PN186

Just that first paragraph?---Yes.

PN187

THE SENIOR DEPUTY PRESIDENT: I can't find it.

PN188

MR ENDICOTT: Are you looking at 1.1 or EIS1?

PN189

THE SENIOR DEPUTY PRESIDENT: EIS1.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN190

MR ENDICOTT: Yes it's 1.1.

PN191

THE SENIOR DEPUTY PRESIDENT: I see.

PN192

MR ENDICOTT: Environmental Impact Statement.

PN193

THE SENIOR DEPUTY PRESIDENT: Under the cover page, Main Report?

PN194

MR ENDICOTT: Yes that's correct. It's the second column in the fifth paragraph.

PN195

THE SENIOR DEPUTY PRESIDENT: Underground Mining Operations at the Homestead Underground Mine, that one?

PN196

MR ENDICOTT: Yes. After the paragraph you just read it says:

PN197

Following the suspension of underground operations in 2002

PN198

?---In October 2002, that's correct.

PN199

That is a true characterisation of what's occurring, the operations are being suspended awaiting further approval?---That's correct.

PN200

In fact the operations have not ceased, they're in a suspension phase?---Well they're being placed on care and maintenance.

PN201

I have no further questions your Honour.

**** ANTHONY GORDON SUTHERLAND XXN MR ENDICOTT

PN202

THE SENIOR DEPUTY PRESIDENT: Mr Longland can you cross examine?

PN203

MR LONGLAND: I can certainly commence your Honour but I've not seen this document before and I'm loathed to- - -

PN204

THE SENIOR DEPUTY PRESIDENT: Do you want to have a short break?

PN205

MR LONGLAND: I'm happy to commence. It might be the case that we can finish today.

PN206

THE SENIOR DEPUTY PRESIDENT: I think so. We'll just go off the record and I'll allow you an opportunity to read whatever it is you think is appropriate. I'd rather complete the matter today if we can.

PN207

MR LONGLAND: Can we see how we go and when I reach a point where I need to, I'll ask for your indulgence at that time.

PN208

THE SENIOR DEPUTY PRESIDENT: All right.

<RE-EXAMINATION BY MR LONGLAND [2.49pm]

PN209

MR LONGLAND: Mr Sutherland, you were asked questions about the environmental impact. Before I get to the Environmental Impact Statement, you gave evidence that the mine is currently on care and maintenance?---That's correct.

PN210

Can you just explain what that means?---The Wollemi Entries. The three entries are locked and there is an inspection that takes place once a month, by myself, and that was approved by the Department of Mineral Resources. So on that inspection, one day a month, I just check on ventilation of the underground mine plus to make sure that all the pumps are running, are de watering some areas of that underground mine.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN211

You mentioned in your statutory declaration there's a contractor engaged. I think you say for the purpose of care and maintenance?---

PN212

MR ENDICOTT: I object, this is not an issue of re-examination, I didn't go to the issue of the fact that a contractor is engaged to do care and maintenance isn't disputed. I didn't even go to that.

PN213

MR LONGLAND: Well you asked questions about care and maintenance and this arises from that.

PN214

THE SENIOR DEPUTY PRESIDENT: I don't remember him asking any questions about care and maintenance, Mr Longland. What did he ask?

PN215

MR LONGLAND: Well I'll move on. You gave evidence in your cross examination that a decision had been made to stop mining the seam that you were mining underground because it became, I can't remember the words?---Economically unviable.

PN216

Economically unviable. Can I ask you this question, at the time that it became economically unviable did you have to place the mine on care and maintenance or did you have other options?---There were other options.

PN217

Can you tell us what those other options were?---One other option would have been to continue with pillar extraction but it wasn't a decision that the company were prepared to make.

PN218

Did you have other options, could you for instance have sealed the mines - - -

PN219

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I didn't hear, continue what extraction?---Pillar extraction.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN220

What's that?---The pillars, as you form roadways underground you actually form pillars of coal which are typically 40 metres by 40 metres after you finish longwall mining there are substantial numbers of pillars that remain that you can then go in and extract coal, but as I said, it's a lot more unsafe than longwall mining and the company wasn't prepared to pursue that.

PN221

MR LONGLAND: My question is this, at the time that you became economically unviable other than deciding to continue mining I think you said, using the pillar method, what other option did you have apart from placing the mine on care and maintenance?---There was one option to seal the three entries.

PN222

What would the effect of that option have been?---The effect of that option would have been, we would have had to apply to the Department of Mineral Resources for abandonment of the mine, which falls under section 134 of Coal Mines Regulation Act and the department could have then, we could have had the lease relinquished. They could have taken the mining lease back off the company and that would have meant a substantial amount of money in the hundreds of thousands of dollars to rehabilitate the surface area of the mine back to what it was pre-mining.

PN223

Now, just moving on to this EIS which is exhibit CFMEU4 or I should say there are some aspects of it I assume, CFMEU4. Can you just give us a broad description of what that EIS covers?---The EIS covers all the environmental impacts of the proposed development. Some of those include subsidence effects, noise effects, air quality, vibration, ground water, surface water.

PN224

Does the development project relate to anything other than the Wollemi entries?---Yes, it covers aspects of the expansion of the open cut, the rail loop.

PN225

What is the open cut?---The open cut is surface mining and that's what currently occurs at Wambo open cut mining by surface methods.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN226

Does the certified agreement that we're here applying to terminate apply to any of those open cut?---No, it doesn't.

PN227

And I think I cut you off. You said the open cut, the rail loop?---The rail loop plus as mentioned before the project also talks about reintroduction of longwall mining in four different underground seams.

PN228

What, when you say rail loop, can you give us a brief description of the rail loop which the proposal talks of?---Currently all our coal is trucked some 10 kilometres up to Mt Thorley rail loader. Part of the project, the Wambo development project is for the construction of a rail loop which would be installed right out to the mine site which would eliminate some 160,000 truck movements off the Golden Highway per year, those truck movements.

PN229

You say all coal is currently trucked. Where does that coal come from?---From the open cut at the moment.

PN230

You mentioned that you'll get an approval if the application you've made or you've lodged is acceptable. Do you know whether that approval places any obligation on the company to do anything?---No, it's only the department would give us consent to go ahead with those plans but it doesn't mean we have to.

PN231

You referred in your evidence in your cross-examination to economic conditions and I think you spoke, you mentioned the increase in the value of the Australian dollar and a decrease in coal prices?---That's correct.

PN232

Just explain how those matters impact upon any decision to commence mining?

PN233

MR ENDICOTT: I object. This clearly wasn't an issue that I crossed him on. He did mention in cross-examination the issue in support of speculative base that - - -

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN234

THE SENIOR DEPUTY PRESIDENT: You mentioned market forces and matters of that kind. I think it's open to Mr Longland to explore those matters.

PN235

MR ENDICOTT: Very well, your Honour.

PN236

MR LONGLAND: Do you remember the question?---Yes. All our coal is export coal and we sell our coal in US dollars so if the exchange rate going up to what it is at the moment in the high 60s effectively we're getting less for our coal in Australian dollars than what we were getting some 18 months ago. Plus the start of this year in February/March which is when the Japanese renegotiate their coal prices the actual price that we were getting for our coal dropped in the order of 10 per cent as well.

PN237

You mentioned in your cross-examination, I think it may have been in answer to a question from her Honour that it would be open to you to recommence mining under the current lease?---Under the current mining lease, yes.

PN238

Just explain what would be involved in doing that?---As I mentioned, with the current Wollemi entry there doesn't remain any substantial size longwall block so we couldn't go back in in the longwall mine, it would have to be a pillar extraction process.

PN239

And if you chose to do that would the mine still be on care and maintenance?---No, it would not, it wouldn't be on care and maintenance, no.

PN240

Your Honour, can I seek your indulgence for a short adjournment at this time. I'm conscious of the fact that Mr Sutherland is still under oath and I don't propose to speak with him but there are others I may need to contact on the telephone to ask certain questions about the relevant statutory provisions that govern this EIS. I would have thought 20 minutes should be sufficient.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN241

THE SENIOR DEPUTY PRESIDENT: Yes. I'd like to finish this matter today, I don't want it to go over again.

PN242

MR LONGLAND: We'll certainly do our best, your Honour.

PN243

THE SENIOR DEPUTY PRESIDENT: Can't save it from further jinxing.

PN244

MR LONGLAND: Yes.

PN245

THE SENIOR DEPUTY PRESIDENT: Mr Sutherland, you are in cross-examination. You should have a walk and come back.

SHORT ADJOURNMENT [2.55pm]

RESUMES [3.35pm]

PN246

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Longland?

PN247

MR LONGLAND: Thank you for that indulgence, your Honour. I do propose with your leave to continue my re-examination which will be extremely short and then to make submissions in the usual way. I have during the course of the break made some inquiries about various provisions of the relevant legislation; that is the legislation under which the EIS I understand is approved or not approved.

PN248

I would be seeking your indulgence at the completion of proceedings to perhaps give us a period of some 7 days if that's convenient in which to make any further submissions we might wish to make in writing. Can I say that I don't foresee that there will be any but when I have access to that legislation I'd like to have the opportunity to make some further submissions in writing if that were appropriate.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN249

THE SENIOR DEPUTY PRESIDENT: I'll think about that. In the meantime just proceed.

PN250

MR LONGLAND: Thank you, your Honour.

PN251

Mr Sutherland, one of the documents that was tendered during your cross-examination was what we were told is a photocopy of a page from a book called the Coal Industry Profile, do you remember that?---Yes.

PN252

Have you got a copy of that with you?---Yes.

PN253

That was marked exhibit CFMEU1. Mr Endicott took you to some of the figures which appear under the heading, Resources Reserves?---Yes.

PN254

Do you recall him doing that?---Yes.

PN255

And in answer to one of his questions you said:

PN256

That does include EL444 which is only in developmental stage.

PN257

Do you remember saying that?---EL444 is only an authorisation to explore that area.

PN258

So what includes that, what were you actually, I was going to ask you can you just explain why you gave that answer to that question?---Because currently we don't have authorisation or approval to mine coal in that EL444 area.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN259

Which is the EL444 area, I'm sorry?---Up the top there's 4 different coal leases which you have approval to mine coal but EL is only an exploration licence and we have no approval to mine coal in that area. So that measured resources includes coal that's in exploration licence which we currently don't have approval to mine.

PN260

If the application as I take it that is made in this, which EIS relates to, is approved what would the nature of the approval be or be called?---It would be a developmental consent but there will be a new all encompassing mining lease that will include those areas in that EIL444 area.

PN261

You referred in your cross-examination to the Wambo scene?---Yes.

PN262

I think you said it was below something?---It's below the Whybrow scene which was the scene mined in the Wollemi entry.

PN263

When the, to use the language in your statutory declaration, mining operations ceased I think it was earlier this year, you say that employees were made redundant, do you remember saying that?---Yes, that was 12 months ago, October of last year.

PN264

Do you have any knowledge about whether those employees received severance payments?---Yes, they did.

PN265

Do you have any knowledge about whether the severance payments they received were those that are set out in the certified agreement?---They are as set out in the certified agreement.

PN266

Nothing further, thank you, your Honour.

**** ANTHONY GORDON SUTHERLAND RXN MR LONGLAND

PN267

THE SENIOR DEPUTY PRESIDENT: Any re-examination? You are excused.

<THE WITNESS WITHDREW [3.39pm]

PN268

THE SENIOR DEPUTY PRESIDENT: I cant imagine that there would be very much that would arise out of an examination of the legislation, Mr Longland but I don't see any reason to deny you an opportunity to put matters that might be relevant so long as Mr Endicott is given an opportunity to respond. I'm not sure that the legislative effect of the approvals and other matters are matters that would pertain to this application but, subject to any opposition Mr Endicott has or anything he wants to put to me about it, I don't see any reason not to give you seven days to respond.

PN269

MR LONGLAND: Thank you very much, your Honour.

PN270

THE SENIOR DEPUTY PRESIDENT: Mr Endicott, do you see any reason?

PN271

MR ENDICOTT: Your Honour, I don't see the relevance but I don't oppose my friend putting his case any way he wants.

PN272

THE SENIOR DEPUTY PRESIDENT: All right. In that case, Mr Longland, you can address me and I'll hear from Mr Endicott and if there is anything that arises from your examination in that legislation you can have seven days to put your submissions in writing.

PN273

MR LONGLAND: Thank you very much, your Honour.

PN274

THE SENIOR DEPUTY PRESIDENT: Mr Endicott do you see any reason - - -

PN275

MR LONGLAND: Your Honour, I don't see the relevance but I don't oppose my friend putting his case anyway he wants. So if he wants the time - - -

PN276

THE SENIOR DEPUTY PRESIDENT: All right. In that case, Mr Longland, you can address me and I'll hear from Mr Endicott and if there is anything that arises from your examination in that legislation you can have seven days to put your submissions in writing.

PN277

MR LONGLAND: Thank you, your Honour. Your Honour, as you are aware no doubt is made under section 170MHA of the Act. There are two independent grounds upon which the Commission is given power to terminate or order the termination of a certified agreement. The first in section 170MH relates to a situation where the certified agreement in question makes no provision with respect to its termination or no specific provision and the Commission's power then is to - the Commission is directed to order the termination of the agreement if it considers that to do so is not contrary to the public interest.

PN278

This case, however, your Honour involves the Commission, does not involve the Commission I should say, taking account of the public interest but rather construing the provisions of the certified agreement that relate to its termination and once the Commission forms the view that those provisions are complied with, the statutory direction is that an order must be made approving the termination of the agreement. The relevant clause in our respective submission, your Honour, is subclause 1.4.4 and it appears to us that what's being put to you is that that subclause should be read as though it included an additional word or additional words in that we apprehend that what will be suggested to you is that you should read subclause 1.4.4 as if it read:

PN279

At the date that the agreement expires and all underground operations (other than care and maintenance) have forever ceased the parties agree that this agreement will terminate.

PN280

The clause, of course, does not include that word and that was the reason for my objection to the admission of this material into evidence. The material goes to what might occur in the future. The clause, on the other hand, speaks not to the future but to the present, or in this case, having regard to the statutory declaration to the past. Now that's not a key point, we say, or it is not an overly technical point because of the words in the brackets "other than care and maintenance" and that, of course, was the reason for my re-examination about the options that were available to the company upon the cessation of those mining operations.

PN281

It was put in evidence that one of the options that the company had was to seal the entries, and Mr Sutherland explained that that would then have consequences with respect to what additional measures might need to be taken before any mining operations could re-commence, as it were. The significance is this, your Honour, that when the union and the company signed the agreement and included the words "other than care and maintenance", it is submitted with respect your Honour that those words are proof positive that the parties didn't mean "has forever ceased" or "has ceased and never to be re-commenced" so the submission is that the word "ceased" as it appears in that subclause must be read in the context in which it appears and in particular in view of the words "other than care and maintenance".

PN282

Why would the mine be on care and maintenance if it were not possible that at some time in the future mining operations would re-commence. We're told that there is cost associated with keeping the mine on care and maintenance, not simply because a contract is required to de-water the mine and ensure its continued ventilation, but indeed because Mr Sutherland, as he gave evidence, is required to inspect that each month. So in my submission the union must be taken to have known that when mining operations ceased, the mine wasn't forever a thing of the past or wasn't forever something which would never operate.

PN283

By including reference to the possibility that it might be on care and maintenance, the union must be taken to have allowed for the prospect that mining operations might at some point in the future re-commence. Now, as to the evidence such as it is about that re-commencement it must be said that there is no evidence that mining will re-commence at the entry. The approval which is sought will merely put the company in the position where it has the opportunity to chose to do so. Mr Sutherland referred to economic conditions. He referred specifically to the fact that the current economic conditions make him certain in his mind that no mining operations would commence even if the company wanted them to for any time in the near future.

PN284

The submission is, however, there's nothing before you by which a positive finding could be made that mining operations could re-commence. Can we look then to subclause 1.4.2 which unsurprisingly appearing in the incidence and application part of the agreement, outlines the work to which the agreement applies. We concede that the evidence is that one of the proposals contained in the application which is currently before the Department will involve what's referred to as "longwall" mining. However, not only do we not know if this mining will ever re-commence, we don't know whether the people that do it will be what this clause calls "CFMEU employees".

PN285

We don't know if the CFMEU will exist if and when mining operations re-commence, and further that subclause says:

PN286

undertaken by CFMEU employees at the homestead and Wollemi entries

PN287

The evidence says that the homestead entry has been sealed. With respect, the inescapable inference is that the homestead entry no longer exists. One can be cute and say that subclause doesn't refer to longwall mining undertaken by CMFEU employees at the homestead "or" Wollemi entries, it says at the homestead "and" Wollemi entries and as a matter of fact such mining will never again occur because one of those entries has been sealed. The scope of the application which has been made is another relevant point. It is confirmed in the evidence. I note that the full application was never put before you but the evidence is such as to make it clear that the application doesn't relate only to mining which might occur by use of the Wollemi entry.

PN288

It refers also to matters surrounding the extension and continuation of open-cut mining which has never been subject to this agreement. It refers also to the potential construction of a rail loop. A rail loop which is not only capable of moving coal that might be mined at this entry but is also capable of carrying coal from the open cut mine. So it follows that if this approval's granted the company might decide to implement the approval in part, for example, by building the rail loop and only carrying coal from the open cut. These are all questions which remain open.

PN289

Can I refer to a decision of the Federal Court. I don't have the citation, your Honour, it's known as Kucks case and the employer party is CSR. I refer to the case because it states a well known principle with which your Honour will be familiar which is to the effect that industrial agreements and the instrument which fell for interpretation in that case was an unregistered industrial instrument if my recollection serves me correctly should be interpreted as though they were written by common lay people and the intention so much as it can be discerned should be applied. They shouldn't be interpreted in a way which is narrow or technical.

PN290

Underground operations have ceased with great respect, your Honour, and to read the clause any differently requires restraining that word or those words so that they read, ceased and never again to recommence, or ceased forever. It follows, your Honour, that the inescapable finding is that the conditions specified in subclause 1.4.4 have been satisfied. It's not contended that the agreement has expired and that the Commission is required by the provisions of 170MHA to order determination of the agreement.

PN291

Can I say with respect to the submission which I apprehend will be made, it's not irrelevant that the company has terminated the employment of all of the employees and the reason it's not irrelevant is because the company has done so, upon doing so the company has made significant payments to them. The entitlement to redundancy or to severance pay which is established by the agreement is not a safety net entitlement as it were. That must indicate that the company doesn't intend quickly to recommence, or it's open for the Commission to infer that that fact means the company does not intend to quickly recommence operations which is consistent with Mr Sutherland's evidence. Those are our submissions.

PN292

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Endicott?

PN293

MR ENDICOTT: Thank you, your Honour. My submissions in response will be quite brief. I note that our argument in essence is generally twofold. The first argument is that the test required by 1170MHA have not been met and really this is appropriately the application should have been made under section 170MH. The certified agreement we propose with respect to 1.4.4 reads quite clearly and that is that the operations would require to have ceased.

PN294

Now the company's assertion is that by essence, well we're not operating, we're not an underground operation at the moment, therefore it has ceased but we say that's a mischaracterisation of the word ceased and I put for the purpose of discussion this to your Honour. For example, my members are taking industrial action and I was in proceedings before this Commission and the Commission asked of me as the employer, has industrial action ceased? Well, under the employer's interpretation as long as I could say yes, they're back at work at the moment therefore it ceased regardless of the fact that it's my clear intention, or the union's clear intention in two days' time to take more industrial action over the issue. Certainly no reasonable person would have interpreted it in that fashion; ceased does mean definitively ceased and stopped.

PN295

In this case well it's quite clear the company intends and with respect to Mr Sutherland's evidence the clear evidence before this Commission is the company does not intend to cease all underground operations, in fact using the word of the EIS they're under suspension, they've suspended the operation, and in fact I rely upon exhibit CFMEU4 which is the correspondence of, it shows the correspondence of Mr Allan Davies, executive director of the company that says quite clearly this.

PN296

Wambo Coal Pty Limited believes the EIS to represent an accurate statement of the company's project development intentions.

PN297

I know it's been characterised by Mr Sutherland as some sort of speculative process but that's clearly not the case and no one could interpret this proposal as some sort of speculative development. There's no doubt from the evidence that's been brought certainly in cross-examination in the EIS the company intends to use the Wollemi entries for the purposes of longwall mining at a point in the future and the documentation in CFMEU4 actually details when they expect for that to occur. I don't need to take your Honour's attention to it. Your Honour can review the documents.

PN298

So there is no doubt work from the Wollemi entries - and I go to 1.4.2 of the agreement which says:

PN299

This agreement is to accommodate activities associated with longwall mining -

PN300

normally undertaken by CFMEU employees at the homestead and Wollemi entries:

PN301

- and will not apply to circumstances where the mine is placed on care and maintenance.

PN302

So certainly there's no dispute we would say on the evidence that they will be using the Wollemi entries, they will be doing longwall mining through them, and it's quite clear from the letter of Mr Davies that that is, that EIS represents an accurate statement with respect to the company's project development intentions. Now I note that if you look at the correspondence of CFMEU and CFMEU2, I mean, I think and we would submit we wrote to the company inquiring about whether they in the foreseeable future intended to operate the mine. They basically responded by saying no, well I think that's just a falsehood based upon the EIS and the statement of Mr Davies in that correspondence about their clear intention, an absolute falsehood.

PN303

So we would say that the operations in fact have not ceased, they have suspended, and a true meaning of the word "ceased" isn't as the company says it is is that, we're not doing it right now therefore we've ceased. Well, certainly I don't interpret ceased as that meaning. Then there is the second point, your Honour, which is an alternate position and we submit this, that if the Commission does find that the tests in, that the application was appropriate made under section 170MHA we would say that the Commission should take into account on determining whether or not to terminate the agreement should take into account the fact is that the employers we submit misrepresented the position upon our inquiries about the application and whether or not there was an intention in the foreseeable future to have worked within the scope of the agreement and certainly we would submit that a function of the Commission as set out in the Act is set out in 170LA that sets out functions of the Commission, says at point 1:

PN304

The Commission must as far as practicable perform its functions ...(reads)... objects of this part.

PN305

The objects of the Act are set out in section 3, objections of the Act, and (e) sets out as an objective of the Act is:

PN306

Providing a framework ...(reads)... agreements applying to them.

PN307

We certainly submit that the inquiry we made in CFMEU2 and the response in CFMEU3 that we say was not accurate would mean that if the agreement was terminated that it would not, the Commission should not do that because those sorts of falsehoods don't provide a framework as set out in section E of the objectives.

PN308

Your Honour, we make no further submissions than that and we ask the Commission to find that the certified agreement hasn't come to an end in accordance with section 170MH and that certainly we submit if the employer intended to terminate the agreement it would be required to do it under section 170MH, it should have been A last time, MH. If the Commission pleases.

PN309

MR LONGLAND: If I can just respond to that last submission. I think it was also the first one. I'm not sure why it is suggested that section 170MH is appropriate. Can I make it clear that we don't make the application under MH, we don't press the application under MH. It's made under MHA and my friend doesn't explain why subclause 1.4.4 doesn't make provision for the agreement to be terminated if certain conditions are met. That's what brings MHA into play and the conditions are the agreement has expired and all underground mining operations other than care and maintenance have ceased.

PN310

So with respect to the submissions as to public interest I won't respond to those because we don't press an application under that section other than for the purpose of the record to refute them. There's been no falsehood or no denial and the advice given in the letter which is exhibit CFMEU3 is entirely consistent with Mr Sutherland's sworn evidence.

PN311

THE SENIOR DEPUTY PRESIDENT: Thank you. I will order a copy of the transcript for the parties and I'll reserve my decision subject to receiving further submissions from Mr Longland and possibly a response from you, Mr Endicott.

PN312

The Commission is adjourned.

ADJOURNED ACCORDINGLY [3.59pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

ANTHONY GORDON SUTHERLAND, SWORN PN54
EXAMINATION-IN-CHIEF BY MR LONGLAND PN54
EXHIBIT #911 STATUTORY DECLARATION BY MR SUTHERLAND MADE 8 AUGUST 2003 TC
CROSS-EXAMINATION BY MR ENDICOTT PN65
EXHIBIT #CMFEU1 EXTRACT PN96
EXHIBIT #CFMEU2 COPY LETTER PN110
EXHIBIT #CFMEU4 ENVIRONMENTAL IMPACT STATEMENT PN157
RE-EXAMINATION BY MR LONGLAND PN209
WITNESS WITHDREW PN268