C2003/815, Transcript of Proceedings [2003] AIRCTrans 484 (13 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2003/815

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Centennial
Newstan Pty Limited for orders re changes to
the bonus scheme

SYDNEY

2.40 PM, THURSDAY, 30 JANUARY 2003

PN1

THE COMMISSIONER: Appearances, please.

PN2

MS L. DEAN: If it pleases the Commission, I seek leave to appear on behalf of the Centennial Newstan Pty Limited. I have with me, MR BARLOW, a solicitor with Blake, Dawson, Waldron and also MR EDWARDS who is the regional services manager north at Centennial Pty Limited.

PN3

THE COMMISSIONER: Thank you. Mr Bukarica?

PN4

MR A. BUKARICA: If it please the Commission, I appear for the CFMEU.

PN5

MS N. KERR: If it please the Commission, I appear on behalf of the Communications Electrical and Plumbing Union in this matter. I also appear on behalf of the AMWU.

PN6

THE COMMISSIONER: Do either of you or both of you oppose leave to appear Mr Bukarica and Ms Kerr?

PN7

MS DEAN: No, Commissioner.

PN8

MR BUKARICA: No, Commissioner.

PN9

THE COMMISSIONER: Leave is granted. Your application, Ms Dean.

PN10

MS DEAN: Thank you Commissioner, this is an application under section 127 for an order to stop the industrial action that is currently occurring at the Awaba, A-w-a-b-a, Colliery which is operated by Centennial Newstan Pty Limited. The Awaba Colliery is an underground coal mine which produces export thermo coal. The industrial action commenced at the beginning of night shift yesterday, 29 January. Night shift commences at 10.30 pm.

PN11

The company has been advised by its employees that the intended duration of the strike is 48 hours. Commissioner, before I proceed I should note that we have prepared an amended draft order. Our application sought orders against the four unions named in the application and in the order, however, we have today been advised that employees - two employees who are members of the Collieries Officials Association of New South Wales are not on strike and they are attending work. Accordingly we do not press our application for orders against that union or those two employees. May I hand up an amended draft order?

PN12

THE COMMISSIONER: You may.

PN13

MS DEAN: I have provided my friends with a copy of that draft, Commissioner.

PN14

THE COMMISSIONER: The draft order that marked as exhibit A1 in these proceedings.

EXHIBIT #A1 DRAFT ORDER

PN15

MS DEAN: Thank you, Commissioner. Might I first just briefly deal with the jurisdictional aspects of the case. The awards and agreements covering employees currently engaged in the industrial action are the Awaba Colliery Enterprise Agreement 2002. Might I tender a copy of that?

PN16

THE COMMISSIONER: You may.

PN17

MS DEAN: Might I also tender a copy of the Coal Mining Industry Production and Engineering Consolidated Award 1997 and the Coal Mining Industry Deputies and Shot Firers Award 2001.

PN18

THE COMMISSIONER: I actually have copies before me so I can mark those copies if you wish.

PN19

MS DEAN: Of each of those three documents Commissioner?

PN20

THE COMMISSIONER: I do.

PN21

MS DEAN: Thank you, Commissioner. Thank you.

PN22

THE COMMISSIONER: They will be marked sequentially as exhibits A2, A3 and A4.

EXHIBIT #A2 AWABA COLLIERY ENTERPRISE AGREEMENT 2002

EXHIBIT #A3 COAL MINING INDUSTRY PRODUCTION AND ENGINEERING CONSOLIDATED AWARD 1997

EXHIBIT #A4 COAL MINING INDUSTRIES DEPUTIES AND SHOT FIRERS AWARD 2001

PN23

THE COMMISSIONER: You might just hand me up a copy of exhibit A3 would you, that being the Coal Mining Industry Production and Engineering Consolidated Award 1997.

PN24

MS DEAN: Yes, Commissioner.

PN25

THE COMMISSIONER: The other ones I have. Thank you. Proceed please.

PN26

MS DEAN: Thank you, Commissioner. I will shortly be calling Mr Edwards to give evidence, Commissioner, but just in terms of the two Awards that have been handed up and the Enterprise Agreement, they simply go to section 127(1)(c) dealing with work that is regulated by an Award or Agreement. The certified agreement is an agreement that was made by the Commission as it presently constituted on 4 November 2002 that is an entire agreement and remains in force until 6 August 2005.

PN27

That agreement makes reference to the underpinning awards which are the two awards that have now become exhibit A3 and A4 in these proceedings. Might I call Mr Edwards to give evidence now?

PN28

THE COMMISSIONER: If you wish, go on.

PN29

MR BUKARICA: Commissioner, if before Mr Edwards is called, if I could just interpose to tender the new draft order. It has been brought to my attention but I am not sure if it has been brought to the Commission's attention. There is a significant alteration to that order and perhaps if that is dealt with as a preliminary issue as well if the Commission pleases.

PN30

MS DEAN: Commissioner, I was going to take you to the terms of the order that was sought at the conclusion of our case. The amendment is - - -

PN31

THE COMMISSIONER: Well, I agree with Mr Bukarica, I think you should take me to it now if you would, prior to the evidence.

PN32

MS DEAN: The amendment, Commissioner, is firstly to clause 2(a) which is the removal of the fourth union from that clause. The second amendment or amendments deal with service of the order and that being a particular clause 12 on page 2 of the draft order dealing with service of the order upon employees and provides now three different ways by which service can be affected on the employees. Those are the amendments. Obviously, sorry a consequential amendment to clause 11 removing reference to the fourth union.

PN33

THE COMMISSIONER: Does that agree with your take on the document Mr Bukarica?

PN34

MR BUKARICA: Commissioner, they appear to be the only alterations, if the Commission pleases.

PN35

THE COMMISSIONER: Thank you. We will proceed to evidence.

PN36

MS DEAN: Thank you. I will call Mr Edwards.

PN37

THE COMMISSION: State your full name and address?---John Milton Edwards, Fassifern Road, Fassifern.

<JOHN MILTON EDWARDS, SWORN [2.48pm]

<EXAMINATION-IN-CHIEF BY MS DEAN

PN38

MS DEAN: Mr Edwards, could you state your full name for the record please?---John Milton Edwards.

PN39

Right and what is your position?---I am the regional services manager, north for Centennial Coal.

PN40

Okay, what relationship does Centennial Coal have with Centennial Newstan Pty Limited?---Centennial Newstan Pty Limited is a subsidiary company of Centennial Coal Company Limited.

PN41

Okay and what if any responsibilities do you have in relation to the operations in Centennial Newstan Pty Limited?---My role is responsible for the human resources and industrial relations issues at the sites in the northern region.

PN42

Okay, have you prepared a statement for these proceedings?---Yes, I have.

PN43

Do you have a copy with you?---Yes, I have.

PN44

Is it true and correct the best of your knowledge and belief?---Yes it is.

PN45

I tender a copy of that statement, Commissioner.

PN46

THE COMMISSIONER: The witness statement of John Milton Edwards becomes exhibit A5 in these proceedings.

EXHIBIT #A5 WITNESS STATEMENT OF JOHN MILTON EDWARDS

**** JOHN MILTON EDWARDS XN MS DEAN

PN47

MS DEAN: Mr Edwards, can you tell me the current status of industrial action at Awaba Colliery at the moment?---Currently the members of the CFMEU, the AMWU and the CEPU are on a 48 hour stoppage which commenced at 10.30 pm which commenced on 29 January.

PN48

Can I ask you to confirm the position with relation to the Collieries Officials Association of New South Wales?---The COA is not involved in the stoppage.

PN49

I have no further questions.

PN50

THE COMMISSIONER: Mr Bukarica.

PN51

MR BUKARICA: If the Commission pleases, I just have one or two questions.

<CROSS-EXAMINATION BY MR BUKARICA [2.51pm]

PN52

MR BUKARICA: Mr Edwards, can I take you to paragraph 20 of your statement. Do you have that in front of you?---Yes.

PN53

Now, you talk here about the process of negotiation of the - or the process of negotiation over issues relating to bonus at the site, that is correct?---Yes, that's correct.

PN54

Subsequent to that you refer to - at paragraph 22:

PN55

Meetings of employees in response to those negotiations.

PN56

Do you see that? I should say, 21 and 22?---Sorry. In 20 and 22?

**** JOHN MILTON EDWARDS XXN MR BUKARICA

PN57

Yes?---Yes.

PN58

Now, that was yesterday?---That's correct.

PN59

Were there any full-time officials of the CFMEU involved in those meetings?---Not on-site, no.

PN60

Okay. Mr Edwards, in paragraph 23 you say:

PN61

I informed the local employee representatives that this stoppage is illegal.

PN62

And the grievance procedure is set out, etcetera, etcetera. "Illegal", what do you mean by "illegal"?---I informed them that we have an enterprise agreement in place at the site and that they had not followed the correct grievance procedures as per the enterprise agreement and, therefore, to stop work was illegal in relation to the enterprise agreement.

PN63

Okay, so you used the actual word "illegal", did you, in talking to your employees?---It would have been words to that effect.

PN64

Yes. Now, Mr Edwards, what exactly do you mean by "illegal"? Does it mean, for example, that breach of the agreement will lead to criminal sanction against your employees, is that what you meant?---It was - it was in the context of trying to get the message through to the fellows that, the situation is such that we have an agreement that is binding upon both of us.

PN65

Yes?---There may be parts of it that neither of us are comfortable with, but is an agreement that we both have to work to and by ignoring, particularly the grievance procedures part of the document, which is always an extremely important part, that they weren't abiding by it and in the context of the words it was illegal to pull up stumps and go home if they weren't happy with an outcome.

**** JOHN MILTON EDWARDS XXN MR BUKARICA

PN66

All right, I understand the process - the message that you are trying to get across?---Yes, yes.

PN67

But I am really focussing here on your definition of the word "illegal" and what you communicated that to be to the employees on-site. Now, can you - - - ?---The interpretation was that, basically, for the enterprise agreement there is to be, basically, no stoppage of work during the life of the agreement, unless you go through the correct processes, those processes had not been followed.

PN68

I see, and that results, if there is a process, or if there is action taken contrary to the processes in the agreement, then, that action is "illegal"?---It was used in a context to get a message through to the workforce that what they were doing was not complying with the enterprise agreement.

PN69

Yes, but Mr Edwards, I'm looking at your words here?---Yes.

PN70

The word is, in particular, "illegal"?---Yes.

PN71

I'm trying to get to what it is that you told your employees as to the repercussions, or the meaning of that term, "illegal"?---The - explaining the repercussions to them, the only thing I said to them was that: you have breached the enterprise agreement. We will be seeking to have you return to work by making application to the Commission to have you return to work.

PN72

Yes. Now, that is in the context of saying to those employees: this stoppage is illegal. Now, you would be going to the Commission. What other consequences did you communicate to the employees?---We didn't communicate any other consequences at all, except for the fact that we would be making application to have the employees return to work.

**** JOHN MILTON EDWARDS XXN MR BUKARICA

PN73

Yes. Mr Edwards, I don't know if you answered the question earlier, do you use the term "illegal" in this context to mean the same thing as a breach of criminal law?---No, no, I used it to get across an impact of the non-compliance with the agreement that we have all signed and has been registered with the Commission.

PN74

I see. Were you the only person there to communicate directly to those employees regarding - - - ?---There were the - the three local employee representatives were there. There was the mine manager and there was the general manager for the northern regions, so there was six of us present at the time.

PN75

I see. Six management people?---No, six people in total. Three employee representatives, a Awaba mine manager, a Centennial North General Manager and myself.

PN76

Yes. I see. And what, you all communicated this message that the proposed industrial action was "illegal"?---No.

PN77

You did, solely?---I did.

PN78

I see. So far you say that it is not your understanding that the term "illegal" in this context means some sort of breach of the criminal law, that is - - - ?---That was not the connotation that was proposed for the fellows at all.

PN79

What about economic repercussions, Mr Edwards, what about you know: if you go on strike you might lose your house, or your car, was that ever communicated?---No, never - never mentioned anything at all.

PN80

MS KERR: Well, Commissioner, I object. Mr Edwards has already explained on more than one occasion now what message he communicated to the employees. He has already indicated in response to a question that the only sanction that he referred to in discussions with those employees was an application to the Commission to have a return to work.

**** JOHN MILTON EDWARDS XXN MR BUKARICA

PN81

THE COMMISSIONER: No, I'm sorry, I agree, but Mr Bukarica has a perfect right to ask the question in proceedings.

PN82

MR BUKARICA: If the Commission pleases.

PN83

THE COMMISSIONER: I only want this matter explored as to what actually went on between Mr Edwards and the employees at this particular meeting.

PN84

MR BUKARICA: If the Commission pleases.

PN85

Mr Edwards, so at that particular meeting your exposition of the meaning, "illegal", in respect to the proposed industrial action, firstly, didn't include reference to criminal sanction?---No.

PN86

Or breaches of criminal law?---Definitely not.

PN87

Didn't contain any implied or explicit threats concerning economic - - - ?---Definitely not - - -

PN88

- - - damages, or some being claimed against the employees?---Definitely not.

PN89

I see. You are confident, are you, that that would be the message that - that your line managers and the like would communicate a position consistent with what you have just said?---I - I can't anticipate what they would communicate, or what they would say.

PN90

THE COMMISSIONER: Well, I will raise a small objection here. I think that he could testify as to what his expectations would be of his line manager, but certainly no further than that.

**** JOHN MILTON EDWARDS XXN MR BUKARICA

PN91

MR BUKARICA: Yes. Mr Commissioner, I am satisfied that I have gone as far as I need to on this issue and, hopefully, the relevance will become clearer a little bit later, if the Commission pleases. Nothing further.

PN92

THE COMMISSIONER: Ms Kerr.

PN93

MS KERR: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS KERR [2.57pm]

PN94

MS KERR: Mr Edwards, I'm going to ask you a similar question. Section - item number 22 in your statement, where you said:

PN95

The local employees represented representatives informed you.

PN96

That the employees were going on strike?---Yes.

PN97

On a 48-hour stoppage. Were any officials from the offices of the AMWU or the CEPU present at that time?---No, they weren't.

PN98

Did you have any notification from either the AMWU office, or the CEPU office of this action?---No, I did not.

PN99

Thank you. No further questions.

PN100

THE COMMISSIONER: Mr Edwards, just to return to the question to the word "illegal"?---Yes.

**** JOHN MILTON EDWARDS XXN MS KERR

PN101

Did you use that particular word in addressing your staff?---Commissioner - - -

PN102

Or is that a summary of what your view - - - ?---It's a summary. Commissioner, in the - the three employee representatives that we deal with - it was - I have known them for years. I have actually worked at that mine myself back in the mid-eighties. In talking to the guys I said - basically, words to the effect: look, Ross, come on, you know it's illegal, but what are we going to do now? And Ross just shook his head and said: not much I can now. I can't stop the guys.

PN103

So you used that actual word to them?---Yes. I was - in that context, not in a criminal, or whatever, or being rambunctious, or whatever with the guys, just to say: look, you know, what can you do to help us out basically, you know, and then it was too late, the horse had bolted.

PN104

Good, thank you. Re-examination?

PN105

MS KERR: I have no further questions, Commissioner.

PN106

THE COMMISSIONER: You may stand down, Mr Edwards?---Thank you.

<THE WITNESS WITHDREW [2.59pm]

PN107

MS DEAN: Commissioner, essentially, the agreement, the two awards and Mr Edwards evidence, particularly in the form of his witness statement, form our evidentiary case. I'm happy to go straight into submissions if there is no further - - -

PN108

THE COMMISSIONER: That is purely a matter for you.

PN109

MS DEAN: Thank you, Commissioner.

PN110

THE COMMISSIONER: I take it, you won't be seeking to call further evidence?

PN111

MS DEAN: No.

PN112

THE COMMISSIONER: Well, you proceed as you see fit.

PN113

MS DEAN: Thank you, Commissioner. Commissioner, under section 127 jurisdiction is able to be established in this case in that industrial action is happening at present. The evidence given by Mr Edwards orally and in his witness statement, which is now exhibit A5, confirm that industrial action is occurring and that is occurring in relation to work that is regulated by an award, or a certified agreement. Those awards now being exhibit A3 and A4 in these proceedings and the Awaba Colliery Enterprise Agreement, being an in time agreement, now exhibit A2 in these proceedings.

PN114

I note that the enterprise agreement at clause 16, provides a dispute resolution procedure. It confirms that all grievances, or disputes concerning matters addressed in this agreement, or otherwise arising out of the course of employment are to be dealt with by applying a procedure outlined on - it is page 32 in my copy, but two pages over - and that grievance procedure then sets out a process which includes conciliation and arbitration by the Australian Industrial Relations Commission at step 4.

PN115

Clause 16.1 of the agreement also confirms that the application of the grievance procedure - in the application of the grievance procedure - the Australian Industrial Relations Commission is to have powers pursuant to section 170LW(a) of the Workplace Relations Act. Clause 3.6 and 7 of the agreement deal with what is under the heading of: Prior Agreements. Clause 3.6, provides that:

PN116

All prior agreements other than the Awaba Colliery production bonus scheme September 2002 are superseded by this agreement and do not apply, following certification of the agreement by the Australian Industrial Relations Commission.

PN117

3.7 provides:

PN118

The bonus scheme continues to operate subject to the terms and conditions contained within that scheme.

PN119

That is the scheme that is referred to in the evidence that has been given by Mr Edwards. It has been in place - which is set out in clauses 10 onwards of his statement. It has been in place since 2 November of last year and employees have been paid bonuses in accordance with that scheme and accepted those bonuses since that time. Employees recently raised with the company some proposed changes to that bonus scheme. They have been the subject of discussions, which is set out in Mr Edward's statement.

PN120

In particular, clause 18 of the statement - paragraph 18 of the statement - sets out a conference which was attended by Peter Murray of the CFMEU and local employee representatives, in which the employees requested changes to the bonus scheme. At a further conference on 24 January of this year the company communicated that it would be prepared to consider some of the requests that had been made by the employees, and again not consider to. And then on 29 January provided a more detailed response to all of the employees on three shifts, communicating that management had agreed to at least four of the amendments which is set out in clause 20(a), (b), (c) and (d) of Mr Edward's statement, and they are the bulk of the claims that had been made by the employees.

PN121

That pattern in our submission clearly shows that the company in its dealings with the employees and dealing with the issues that have been raised in terms of the bonus scheme were reasonable. They did agree to compromise, even though there was no requirement, clearly, in terms of clauses 3.6 and 7 of the agreement - no requirement to enter into any further negotiations to amend the bonus scheme, had done so in good faith and had provided additional benefits in terms of the bonus scheme, as requested by the employees - and that is set out in paragraph 20.

PN122

Notwithstanding that reasonableness on the part of the company in dealing with those issues, the employees in question have decided to take industrial action. This is in the face of an enterprise agreement which has only been in place since November of last year and is in place now until August 2005. The industrial action in our submission is illegitimate, it is inappropriate and the Commission should exercise its discretion to grant an order in the terms sought to have the employees return to work and to continue to work in accordance with their obligations, not only under the enterprise agreement, the awards, but also their contracts of employment.

PN123

The industrial action in terms of its illegitimacy, can be looked at in terms of the coal and allied decision, which I'm sure the Commissioner is familiar with and so I won't take you to that in any great detail, but the comments in that decision as to the nature of "legitimate" and "illegitimate" industrial action are relevant in these circumstances. We submit that the industrial action is illegitimate and it is contrary to the dispute resolution procedure in the certified agreement and in the awards.

PN124

There is clearly a process by which any issues that employees have can be appropriately dealt with, that is set out in the grievance procedure and it allows for assistance of the Commission in terms of conciliation and arbitration, should there be issues that so need addressing. The industrial action that is taking place is completely improper. It is, as I have indicated, in clear breach of the enterprise agreement and the Commission in the circumstances, should exercise its discretion to make the order that has been sought.

PN125

The only decision, Commissioner, which I will refer you to is a decision of Munro J in Transfield Services Australia Proprietary Limited v AFMEPKIU, a decision of 5 July 2002 in respect of an application for 127 orders, and I hand up a copy of that.

PN126

THE COMMISSIONER: Thank you. I take it, this is not being tendered as an exhibit?

PN127

MS DEAN: No, Commissioner.

PN128

THE COMMISSIONER: Yes.

PN129

MS DEAN: The comments that in our submission are particularly relevant are set out on page 4 at paragraph 14 of that decision, where his Honour notes that - in this case:

PN130

Employees at the site need to be told that where there is a failure to accord with the substance of an agreement and the dispute resolution procedure, the Commission will waste no time whatever in making as effective as it can the embargo in the Act against industrial action being taken. I would regard almost as illegitimate by definition industrial action at that site that does not go through the dispute resolution procedure.

PN131

And the quote continues, but I won't go any further. Commissioner, in our view, it is clear based on the evidence that this is a case where the Commission should exercise its discretion. There are appropriate methods by which employees can deal with any grievances that they may have. Industrial action in these circumstances is inappropriate and illegitimate. A direction should be issued, or an order should be issued directing them to return to work forthwith. Night shift commences tonight at 10.30 pm, and we would like to be in a position where employees on that shift would be able to return to work.

PN132

THE COMMISSIONER: Certainly Munro J wasn't pulling any punches, was he?

PN133

MS DEAN: No, Commissioner, he wasn't. The draft order, Commissioner, I think speaks for itself. It requires that employees refrain from engaging in industrial action in the form of strike, bans or limitations on the performance of work and that they must make themselves available for work and performance of such work as their employer may require in accordance with the agreement, the awards and their contracts of employment. You will see paragraphs 3 onwards deal with the orders that we seek.

PN134

In terms of service, we deal with those in paragraphs 9 through to 12 dealing with service both on the three unions and on the employees who are currently engaging in the industrial action. Clause 13 at this stage leaves blank the time for which the order will remain in force. In our submission, a period of 2 months is appropriate in the circumstances and that should allow for more than sufficient time for any discussions to occur between the employees and the company if that is to be the case. If it is a situation where between the company and the employees agreement is not reached in relation to the bonus scheme then the proper course can be followed, ie the grievance procedure and then if necessary the involvement, in accordance with the grievance procedure, of the Commission. If it pleases, those are out submissions.

PN135

THE COMMISSIONER: Yes. Mr Bukarica?

PN136

MR BUKARICA: May it please the Commission, I have limited instructions, Mr Commissioner, as to the background and circumstances of this industrial dispute and what I do have or what I do know is relying upon Mr Murray has informed me as to the circumstances of the dispute so I apologise to the Commission at the outset in respect to my limited knowledge of the background circumstances. As the evidence clearly establishes, the decision to take the industrial action was done at least without the presence of the relevant union officials that are subject to this order but I will return to that shortly.

PN137

Mr Commissioner, we oppose the order sought and we do so largely because we believe that in respect to the section 127 orders the Commission has a duty upon it to become as well informed as it can be as to the merits of the dispute so that the Commission is able to come to a view as to the types of submission Ms Dean made concerning whether the action is legitimate or not. As to that issue, because of my limited instructions, I am unfortunately unable to assist the Commission. I know there is serious disagreement as to the operation of the bonus scheme but I do not know the basis of that disagreement. I do not know how the bonus scheme operates in practice, whether it is in line with the enterprise agreement, whether it is in line with the expectations of the employees and their representatives who negotiated it.

PN138

What we do know is that what is sworn to by Mr Edwards that there's been negotiations about it, there's been dissatisfaction about it, there's been a meeting where the employees have decided on a course of action. Now, in relation to that, Mr Commissioner, I say this. The Commission first should attempt to inform itself as well as it can as to the merit issues but also the Commission should not lose sight of the fact that even in circumstances where industrial action is under way and particular sanctions are being sought, that the Commission's own role in respect of conciliation remains unhindered.

PN139

The mere fact that an employer seeks to pull out the big stick, if I could use that term, at the outset does not preclude the Commission from playing an important role, as it has on many, many occasions including the Commissioners presently constituted in trying to bring the parties together to see if there cannot be some sort of sensible resolution of the issues.

PN140

THE COMMISSIONER: With whom would I have this conciliation?

PN141

MR BUKARICA: Commissioner, I was going to get to that point. What I was going to suggest is that this matter should be progressed on the basis of the local full time officials of the CFMEU and local site representatives, management and the Commission as it is presently constituted. That was where I was heading.

PN142

THE COMMISSIONER: In the meantime do they go back to work?

PN143

MR BUKARICA: Commissioner, I was going to put to you that an appropriate course may be for the Commission to either not proceed to consider issuing the order, that is adjourn the application generally subject to progress of the negotiations of the representatives of the employees and management, or alternatively if the Commission was of a mind that there needed to be a signal sent to the employees concerned, that the operation of the order be in effect suspended or made operative upon the Commission being satisfied that there's no reasonable prospect of a short term return to work. Now, Ms Dean took you - - -

PN144

THE COMMISSIONER: In the meantime the strike continues.

PN145

MR BUKARICA: Well, there are certainly practical issues in respect of that, Commissioner, and I was going to go to the form of the order and what has been asked of us as officials of the union. Also in terms of what has been proposed, in terms of the company communicating. Can I say this. There would be no issue about the union being available at short notice and its representatives - the relevant representatives being available at short notice to seek to come to an amicable arrangement in respect of this issue. We have really only become aware of this subsequent to the event occurring, that is this strike occurring.

PN146

THE COMMISSIONER: Does the strike have the sanction of the union?

PN147

MR BUKARICA: Not the - there's been, as far as I'm aware, no endorsement of the strike by way of any of the - other than the mass meeting there's been no official endorsement of the strike by the union as far as I'm aware. I wouldn't go as far as to say we disavow those employees. I certainly wouldn't say that. There's been no full time official involvement, nor has there been, as far as I'm aware, any - - -

PN148

THE COMMISSIONER: Do I take it you are telling me that as they are your members you wouldn't abandon them but the strike is not endorsed?

PN149

MR BUKARICA: I think that would be a fair assessment, Commissioner, based on the limited knowledge that I have of the circumstances.

PN150

THE COMMISSIONER: You understand this type of proceeding, that the employer, the applicants being the recipient of the action, they actually I suppose in many ways are in receipt of even less information, aren't they?

PN151

MR BUKARICA: Well, I can't assume that, Mr Commissioner. I know - from the limited amount I know from Mr Murray and through reading and hearing of Mr Edwards' evidence there's been a number of meetings concerning the dispute. Now, I don't know whether it has been a simmering issue for some time or whether it has simply blown up in the last couple of days, I just don't know that.

PN152

THE COMMISSIONER: The issue and the stoppage can be separated, can't they?

PN153

MR BUKARICA: Yes, it certainly can.

PN154

THE COMMISSIONER: In the context of an application under 127. The problem I see with your proposal is this, that you are asking me to nod or wink at a situation where negotiations proceed while the employees are on strike and that I assist in conciliating the matter whilst employees remain on strike. A tall order.

PN155

MR BUKARICA: Well, Mr Commissioner, that is - I wouldn't have put it that way but that is probably our primary submission. An alternative - - -

PN156

THE COMMISSIONER: It is a fair summary though, isn't it?

PN157

MR BUKARICA: Well, from where the Commission sits I can understand that slant but the alternative position I started to put is one that in fact Marsh SDP in another matter that I was involved in and unfortunately I've only got one copy of the relevant transcript. It was a decision on transcript where - the Commission would be aware that Bolga Coal Management, there's been a number of disputes going probably over 12 months, I would think, at a number of its sites in the Hunter Valley, particularly one site, and there was one particular episode where I say analogist to this there was a meeting where senior officials of the union were not involved.

PN158

The employees took pre-emptory action of this and the employers in that matter sought the Commission's - the Commission to exercise its jurisdiction over a section 127 order. The matter is C number 2002/3247, 25 June.

PN159

THE COMMISSIONER: 3247, was it?

PN160

MR BUKARICA: 3247, 25 June 2002 and I will shortly hand this copy up to the Commission. I apologise my friend, I haven't got any more copies. The long and short of it is this, Commissioner, that her Honour, bearing in mind the circumstances, agreed that in that situation the appropriate course of action would be to foreshadow that she would issue the orders sought but she would allow some time before the orders would take effect and that time would allow the union to speak to the employees, convene a meeting and meet again with management. Now - - -

PN161

THE COMMISSIONER: You give me your time. If I was to follow her Honour's precedent - - -

PN162

MR BUKARICA: Yes.

PN163

THE COMMISSIONER: - - - what would you suggest to me?

PN164

MR BUKARICA: Your Honour, just because of the time of the week it is and where we are in the chronology, I don't think honestly that we could get the employees back to work tomorrow. Perhaps in time for the Saturday shift but I just don't see how practically, short of us scouring the various hiding places on the Central Coast, how we are going to achieve a return to work in that time frame.

PN165

THE COMMISSIONER: Certainly even on their timetable they are trotting back on Saturday if it finishes at 10.30, does it not, tomorrow night, Friday?

PN166

MR BUKARICA: Yes, yes.

PN167

THE COMMISSIONER: You are saying any order made may be of no effect?

PN168

MR BUKARICA: No, I'm not saying that, Mr Commissioner, and it also goes - and I was going to address - if the Commission is against us on either the primary or the secondary position I was going to address the Commission on the form of the order because I think in particular the amended order has some sort of draconian inclusions in it, particularly in respect of what is required of the union which I think is asking too much in terms of how it might - - -

PN169

THE COMMISSIONER: I think you should do so because prima facie I see the situation as this. There appears to be jurisdiction. Do you dispute jurisdiction?

PN170

MR BUKARICA: I've got no basis to oppose - - -

PN171

THE COMMISSIONER: You don't dispute obviously that the workers are on strike?

PN172

MR BUKARICA: No.

PN173

THE COMMISSIONER: Do you dispute that the dispute resolution procedure is not being followed to its natural conclusion?

PN174

MR BUKARICA: I've got no basis on which to challenge the evidence of Mr Edwards.

PN175

THE COMMISSIONER: I presume you don't believe that the applicant does not have standing.

PN176

MR BUKARICA: Being the Centennial?

PN177

THE COMMISSIONER: Yes.

PN178

MR BUKARICA: No.

PN179

THE COMMISSIONER: A standing to bring the proceedings. Well, it does not leave much, does it, pursuant to 127.

PN180

MR BUKARICA: If the Commission pleases, it leaves you with your discretion. It leaves you to weigh up the merits of the case to decide whether in fact you accept without further investigation if the industrial action is illegitimate, that there is no particular role for the Commission by way of conciliation or other forms of involvement. I won't go - - -

PN181

THE COMMISSIONER: No, I don't say that at all. What I say to you is this, that the merits of the negotiations, which seem very strange to me that if I certified the agreement I think in November of last year which is not exactly a million years ago, which contained a bonus scheme arrangement which the union now seeks to substantially modify, if that is the most neutral term I can use, the employers made some offers to modify it within the first 3 months or so of the life of the agreement. I would need a lot of mighty convincing about merit in relation to it. It seems to me that the prima facie case is established. I want to have a closer look at it but I would like you to address me on those matters if you wish to continue but also on the return to the order and I will come to you, Ms Dean, in a minute.

PN182

MR BUKARICA: Yes. Well, Commissioner, I guess in relation to the merits of the case my essential point is this, that we have one side of the story currently uncontroverted in terms of the merits. Usually in my experience there's another side but prima facie the Commission is entitled to view the evidence before it as being what it says and I can understand that point of view. I still urge upon the Commission that regardless of whether the Commission is a mind to issue the order sought or not that it ought not to discount a role in conciliation for itself.

PN183

THE COMMISSIONER: I don't, certainly not with a gun held metaphorically to my head and to the applicant's head.

PN184

MR BUKARICA: Yes.

PN185

THE COMMISSIONER: I mean, the proper course of action, it would appear, would be, if you were in dispute with an employer, would be to lodge an application pursuant to section 99 at least. Ask for an urgent hearing and you have done that many times and you have got your urgent hearing and we have solved matters but it shouldn't come as any wild surprise, and I'm sure it does not to the union, it shouldn't come to the employees as any wild surprise either that they will take an action such as this and a coal company will make an application pursuant to section 127.

PN186

MR BUKARICA: Well, it has happened before, Commissioner, yes. Mr Commissioner, the orders, taking into account the preliminary view the Commission has expressed, might I address you then on the form of the orders? In doing so, can I maintain our primary position which is that we say that the Commission ought not to issue the orders. Secondly, if the Commission is of a mind to issue orders such as those sought that they should also - the operation of those orders should be deferred as in fact Munro J did in the case Ms Dean took you to.

PN187

THE COMMISSIONER: What did his Honour do?

PN188

MR BUKARICA: His Honour, at paragraph 23, says this:

PN189

In relation to the timing of the order I will out of acknowledgment of two factors defer its implementation. I shall allow an opportunity for the resumption of work on Friday morning. I do that in recognition of the ostensible reason for the industrial action.

PN190

Etcetera. Now, I don't profess to understand the background of this particular matter but what his Honour is clearly outlining here is that there is more than one way to skin a cat. The Commission can make its intention abundantly clear, can give comfort to the employer that it is not sitting on its hands. But by the same token can, if you like, cut itself a role in the conciliation process by deferring the operation of an order to allow the parties to talk and perhaps with the assistance of the Commission. Now, I'm not sure that is exactly what occurred in that particular matter but his Honour certainly did defer the operation of the orders.

PN191

THE COMMISSIONER: Well, seeing I've been giving certain pre-emptive - making certain pre-emptive statements. I would tell you that I would be inclined, if my view remains the same as it is now, that I would make an order operative from the next night shift which will be some 7 hours from now. It shouldn't be beyond the wit of mortal man to be able to have enough employees notified by that time to complain.

PN192

MR BUKARICA: Well, I simply don't know what the situation is.

PN193

THE COMMISSIONER: Yes.

PN194

MS DEAN: I apologise for interrupting my friend but I might be able to assist you there. The company has a courier on standby and it will provide by facsimile to the mine a copy of any orders that are issued and they will be delivered to the 30, 28-odd employees - - -

PN195

THE COMMISSIONER: What do you mean a crew on standby? Do you have - - -

PN196

MS DEAN: A courier.

PN197

THE COMMISSIONER: Sorry. I thought you had very helpful strikers waiting around for your return.

PN198

MS DEAN: No, Commissioner. There certainly from our perspective won't be any difficulty in advising many employees of the order.

PN199

THE COMMISSIONER: So when would you think that an order should operate from? Don't tell me immediately. I mean, when do you think it should operate?

PN200

MS DEAN: From the commencement of night shift tonight which is 10.30 pm.

PN201

THE COMMISSIONER: That accords with my view. Mr Bukarica, have you finished?

PN202

MR BUKARICA: Yes, Mr Commissioner, I wouldn't be surprised if Blake Dawson Waldron said there was a crew of courier pigeons available to do the job. I know they are very prompt in terms of those issues of service.

PN203

THE COMMISSIONER: They will be tracking down all the bolt holes of the Central Coast.

PN204

MR BUKARICA: Yes, golf courses and the like. Commissioner, I understand that there is not much more that I can assist the Commission with but I do want to just briefly address the orders sought. Clearly - the Commission might have gleaned this from the line of cross-examination of Mr Edwards earlier, that the union does have a problem with the inclusion of paragraph 12 in the revised order, which includes that Centennial individually telephone each employee advising them of the order.

PN205

Now, our apprehension about that is based on the well-founded fear, I think, arising from Mr Edwards' order, that there will be an incorrect or at least - possibly an alarmist interpretation of this Commission's order being conveyed to the employees. What I am referring to there, of course, is the use of the term "illegal". Now, the Commission fully understands how upsetting it can be to have someone ring you at home, particularly if the tone of the conversation is: You are now being served with an order of the Commission, you must immediately cease your illegal industrial action, etcetera, etcetera.

PN206

Now, in particular, I don't have any great confidence in the interpretation of the term "illegal" that Mr Edwards has put forward. It leaves me in great doubt as to what he means by that term and I probably have less confidence in terms of what his line managers might be saying to employees. I think it is - - -

PN207

THE COMMISSIONER: So what do you suggest should be done in lieu of paragraph 12, of the provisions of paragraph 12?

PN208

MR BUKARICA: I think simply giving each employee a copy of the order that the Commission issues is sufficient. I do not think there is - - -

PN209

THE COMMISSIONER: That imposes a greater burden on the employer though, does not, that is to find the employee physically.

PN210

MR BUKARICA: Well, Ms Dean said she has got a courier on stand by. Probably courier pigeons as well.

PN211

THE COMMISSIONER: I have some sympathy for what you have put to me about that and I will replace paragraph 12.

PN212

MR BUKARICA: If the Commission pleases. The other issue, of course, Mr Commissioner, is this, that the - we were given no notice of the length of the order being sought. Two months, I know that comes out of the pro forma on the Blake Dawson Waldron computer as well - - -

PN213

THE COMMISSIONER: Well, the previous document I had said 2 weeks.

PN214

MS DEAN: That was an oversight on my part, Commissioner, I apologise for that.

PN215

THE COMMISSIONER: Which was the oversight?

PN216

MS DEAN: Weeks rather than months.

PN217

THE COMMISSIONER: You meant 2 months, did you?

PN218

MS DEAN: Yes.

PN219

MR BUKARICA: Well, Mr Commissioner, you know, I think 2 months is clearly excessive.

PN220

THE COMMISSIONER: How long do you suggest, Mr Bukarica?

PN221

MR BUKARICA: Two weeks, 1 week would be ample inasmuch as I don't have any information or any basis for a belief the industrial action will continue beyond the current 48 hours that has been proposed. Also I think in terms of if the Commission is of a mind to assist by way of conciliation, then having neither side with a gun at their head, might assist the process but they are my own views as to that matter but I think a 2 week proposal is much closer to the mark, if the Commission pleases.

PN222

THE COMMISSIONER: You would be pleased to know I agree with you. When I read the initial draft order which read 2 weeks I thought how reasonable, so 2 weeks it will be if a grant such an order. Mr Bukarica, do you have anything to say to me about the specificity of the order in terms of paragraph 3 of the draft order?

PN223

MR BUKARICA: It is very broad, Mr Commissioner. I naturally would read that down to the industrial action that is occurring in relation to the dispute over bonuses and perhaps if it was made more explicit that is the case it might suffice. Also there is the usual exemption there of legitimate occupational health and safety concerns with the odd additional verbiage. In any case, that is a legal right regulated by other instruments as well but - - -

PN224

THE COMMISSIONER: Well, it is also in the Act.

PN225

MR BUKARICA: Also in the Act, yes. Commissioner, I think other than bring paragraph 3 closer to the actual subject and particular action that is occurring, that would be assistance to the Commission, if the Commission pleases.

PN226

THE COMMISSIONER: Thank you. Ms Kerr.

PN227

MS KERR: Thank you, Commissioner. I also must apologise for my limited instructions.

PN228

THE COMMISSIONER: Your what, sorry?

PN229

MS KERR: Limited instructions. Both of the unions are very ill informed about this. In fact, the AMWU office is not even aware that their members are on strike. As of 2.15 when I spoke to the AMWU research officer he informed me that their members were not in fact on strike. I informed him of what Ms Dean had told me, that they were and he could not confirm that. His instructions were that they were not on strike so details are a little bit sketchy.

PN230

THE COMMISSIONER: Just a tad.

PN231

MS KERR: Commissioner, both unions supports the submissions of the CFMEU and I will not repeat what my friend has said except to say that we fully support those submissions. We do oppose orders. We oppose orders also on the grounds that it will not resolve the dispute and the dispute really does need to be resolved. I will leave it there unless you have any questions, Commissioner.

PN232

THE COMMISSIONER: Do you have anything you wish to put further to me, Ms Dean? Thank you, Ms Kerr.

PN233

MS DEAN: Yes, I had attended at the beginning part of my friend's submissions to respond to some of the issues he raised.

PN234

THE COMMISSIONER: I just point out to you that the time is your enemy.

PN235

MS DEAN: If it is the intention of the Commission to grant an order, then I don't propose to make any further submissions.

PN236

THE COMMISSIONER: Well, I will return to make formal findings but I will advise the parties now that I do intend to issue an order pursuant to section 127(2) of the Act. The order which I will issue, formally, will take effect from 10.30 pm tonight and will be operative for a period of 2 weeks and will be binding on the CFMEU, the AMWU, the CEPU and its members and officials. Ms Dean, while I have still got you there, just refer to paragraph 7 of exhibit A1. I always wondered what these clauses mean. This requires the unions - I quote:

PN237

The unions must take all steps reasonably necessary to inform each of the employees on or before -

PN238

blank time -

PN239

on Thursday 30th.

PN240

What time do you say should be inserted in there?

PN241

MS DEAN: Given the time now - I might just take instructions, Commissioner. I think given the time now, Commissioner, and the time for which we would want, at least the night shift employees to return that on or before 8 pm would be reasonable.

PN242

THE COMMISSIONER: That puts a fair burden on the union, does not it?

PN243

MS DEAN: Well, Commissioner, critically we need the nine employees who are rostered to work night shift to be informed of the order and return to work to commence night shift at 10.30 pm this evening.

PN244

THE COMMISSIONER: I will tell you what. My inclination in relation to paragraph 7 is to insert words to the effect: The unions must immediately take all steps reasonably necessary to inform each of the employees of the terms of clause 3 and 4 of this order. I've never seen a particular point in sticking a particular hour in there. On that note I will adjourn briefly. The parties should remain in the precincts of the Court and I will return within 20 to 30 minutes.

SHORT ADJOURNMENT [3.39pm]

RESUMED [3.58pm]

PN245

THE COMMISSIONER: After hearing the submissions of the parties and the evidence of Mr Edwards I make the following findings. That the applicant has standing to bring the application. That work is regulated by a certified agreement and awards of this Commission. That industrial action is happening and continuing. That the action is illegitimate. That the action is in contravention of the dispute settling procedures in the certified agreement.

PN246

Accordingly I grant the order for relief as sought by the applicant in an amended form and I will run quickly through, with the parties, the amendments that are made to exhibit A1. Some of these are purely procedural. In 2(d), we will add, inverted commas around Centennial and having done that, the words "Newstan Proprietary Limited" are deleted from paragraph 4 and the end of paragraph 8 of the draft order. Paragraph 7 will be amended to read:

PN247

The unions must take any and all steps necessary and available to ensure that the employees comply with this order without limiting the steps that must be taken by unions.

PN248

Should read "by the unions".

PN249

In accordance with this clause the unions must immediately take all steps reasonably necessary to inform each of the employees of the terms of clause 3 and 4 of this order.

PN250

Paragraph 12 is amended to meet the concerns of Mr Bukarica as supported by Ms Kerr and will now read:

PN251

It will be sufficient service of this order upon the employees if a copy is served in accordance with paragraph 11 above and/or by Centennial serving each employee bound by this order or by leaving a copy of this order at each employee's residence.

PN252

As to the term and date of effect of the order, the order will take effect from 10.30 pm today, 30 January 2003 and will remain in force for a period of 2 weeks.

PN253

Now, in terms of Mr Bukarica's fears in relation to what the company might say to employees pursuant to what was sought in paragraph 12, I understand, Mr Edwards, that the term "illegal" is one which is cast around widely but does have specific meaning which is not relevant to this type of proceeding and I believe that the order will speak for itself and the service of the order on employees, without any particular gloss being placed on it verbally to each of them would serve everybody's purpose better. The parties are instructed to remain again in the precincts of the Court until properly sealed copies of the orders can be supplied. There being nothing further, we are adjourned.

ADJOURNED INDEFINITELY [4.02pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DRAFT ORDER PN15
EXHIBIT #A2 AWABA COLLIERY ENTERPRISE AGREEMENT 2002 PN23
EXHIBIT #A3 COAL MINING INDUSTRY PRODUCTION AND ENGINEERING CONSOLIDATED AWARD 1997 PN23
EXHIBIT #A4 COAL MINING INDUSTRIES DEPUTIES AND SHOT FIRERS AWARD 2001 PN23
JOHN MILTON EDWARDS, SWORN PN38
EXAMINATION-IN-CHIEF BY MS DEAN PN38
EXHIBIT #A5 WITNESS STATEMENT OF JOHN MILTON EDWARDS PN47
CROSS-EXAMINATION BY MR BUKARICA PN52
CROSS-EXAMINATION BY MS KERR PN94
WITNESS WITHDREW PN107