C2003/5437, Transcript of Proceedings [2003] AIRCTrans 5230 (27 November 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2003/5437
C2003/6368

ROCHE MINING PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING AND
ENGINEERING UNION

Notification pursuant to Section 99 of the Act
of a dispute re implementation of nine hour
shifts at Tahmoor Colliery

SYDNEY

11.15 AM, TUESDAY, 11 NOVEMBER 2003

Continued from 5.9.03 before Commissioner Roberts

PN167

THE COMMISSIONER: I have listed both of these matters together. One of them has previously been before the Commission before Commissioner Roberts but I will take appearances afresh.

PN168

MR J. KAY: Commissioner, I represent Tahmoor Coal.

PN169

MR M. CUTHBERTSON: If the Commission pleases, I am the employee relations manager at Roche Mining, and with me, MR G. DUNCAN and also MR J. HAYWARD of Roche Mining. We appear in the first matter C2003/5437, Commissioner.

PN170

THE COMMISSIONER: Thank you, Mr Cuthbertson.

PN171

MR A. BUKARICA: If the Commission pleases, I appear for the CFMEU, and with me, MR FITZPATRICK and MR WHITE.

PN172

THE COMMISSIONER: Are the parties content to have these matters heard together without a formal joinder or do you want a formal joinder?

PN173

MR BUKARICA: Commissioner, my understanding was that the matters were being heard concurrently and that in fact today's hearing relates solely to the notification regarding the nine hour shifts.

PN174

THE COMMISSIONER: Yes, that's correct.

PN175

MR BUKARICA: So to the extent that I've been briefed about the matter it's really only in relation to the nine hour shifts and I'd prefer to keep the matter as much as possible dealing with that discrete element.

PN176

THE COMMISSIONER: Yes, well, I'm at a bit of a disadvantage because I've only just received the transcript of the previous proceedings but I've presumed from what contact my associate has had with the employer parties that that is the limit of the dispute. Is that correct?

PN177

MR CUTHBERTSON: Perhaps if I can clarify.

PN178

THE COMMISSIONER: Yes, Mr Cuthbertson.

PN179

MR CUTHBERTSON: There was two matters before Commissioner Roberts. The first matter involved issues pertaining to sick leave and public holidays. The second matter which is the one that we've asked to be relisted today is in relation to the nine hour shift. We only seek to deal today with the nine hour shift matter. In addition there has been a section 99 notice listed by Austral which is again a separate matter and I think your reference to the two matters is the nine hour shift matter from Roche's perspective and likewise the section 99 notice that has been listed by - - -

PN180

THE COMMISSIONER: No no, sorry, I was referring to that as a single matter and I think that's what Mr Bukarica was talking about. He didn't want the other issue clouding it, is that right?

PN181

MR BUKARICA: Yes, at this stage, Commissioner, that's correct.

PN182

THE COMMISSIONER: So there are two nine hour shift matters, one relating to the contractor and one relating to the mine operator.

PN183

MR CUTHBERTSON: Correct, and we're happy to have them heard concurrently.

PN184

THE COMMISSIONER: Heard concurrently, yes, okay. There's no objection to that, I understand, from the CFMEU.

PN185

MR BUKARICA: No, Commissioner.

PN186

MR KAY: Commissioner, for Tahmoor Coal's point of view the issue is slightly wider than that. The example that we have at the moment - we have a problem with our agreement, in interpreting a particular provision in the agreement. The example that we have in trying to apply that provision is the Roche proposed nine hour roster. Nevertheless our issue is a little bit wider than just that specific issue. That if the resolution of the hearing finds for us in this particular matter then we believe it has application to other potential situations as well.

PN187

THE COMMISSIONER: That doesn't appear to be the extent of your notification. It seems to me to relate to a dispute concerning a proposal by Roche Mining to work a nine hour shift roster at the Tahmoor Mine and the lodge has notified a dispute with you for allowing Roche to work that roster alleging that you're in breach of the agreement. Is there something - I don't want to be overly technical about this but is it any wider than that?

PN188

MR KAY: Commissioner, there's a particular provision. The Roche case is the example - it's the issue that has raised that particular provision.

PN189

THE COMMISSIONER: I see, so you suspect that there may be some greater breadth to this.

PN190

MR KAY: There is definitely greater breadth to it. This has been an issue which has been debated at Tahmoor previously. It's been avoided being raised as a dispute up till now. We've managed to avoid that but nevertheless it's an ongoing issue between the parties as to the interpretation of a provision. Now, Roche has certainly been the catalyst that's - - -

PN191

THE COMMISSIONER: So we can settle the Roche matter and you would say that you still have a dispute with the lodge because they are taking a particular view of the agreement in respect potentially to other contractors.

PN192

MR KAY: That could be the case, Commissioner, yes.

PN193

THE COMMISSIONER: And what, your position is you want that resolved into the future?

PN194

MR KAY: Yes, Commissioner, we want the Roche issue resolved but we would also like the interpretation of that provision resolved for any future instances where the same sort of issue may well arise.

PN195

THE COMMISSIONER: What's the state of the agreement? Is it - - -

PN196

MR KAY: It's a registered agreement.

PN197

THE COMMISSIONER: I understand that. But is it still in force? It's obviously still in force.

PN198

MR KAY: Yes.

PN199

THE COMMISSIONER: But I detected from my very brief reading of the transcript that there's some negotiations for a new agreement.

PN200

MR KAY: Yes, that's correct, Commissioner. It notionally expired in May and we are currently negotiating for a new agreement.

PN201

THE COMMISSIONER: So mightn't it be better for you to address any ambiguity in the clause into the future in the course of those negotiations rather than getting an - I mean if we resolve the Roche matter then the capacity for you to resolve any ongoing matter is part of those negotiations.

PN202

MR KAY: That's correct, Commissioner. I guess I would be expecting from the union that they would bear in mind the outcome of this hearing today when we attempt to resolve that ambiguity.

PN203

THE COMMISSIONER: What unions bear in mind and what employers bear in mind as an outcome of proceedings in the Commission is a matter for them and I guess we have to deal with it. But anyhow I hear what you say, Mr Kay, and I reserve your rights in respect of that matter. You can certainly press for the resolution of the dispute in the formal decision of the Commission which obviously will be or possibly be subject to appeal. Who knows where you go with section 170LW these days? But I will reserve your rights in respect of that matter but I would anticipate that having heard some more opening comments from the parties that it would be appropriate for us to go into conference. Perhaps if you can give me some outline of where you are prior to that.

PN204

MR BUKARICA: Commissioner, sorry to interrupt, perhaps at this stage just as a matter of clarification and I note the Commissioner has raised the section 170LW scenario, my understanding is from reading the transcript that Mr Cuthbertson has made a commitment in respect to having the matters determined in that way and that is the company being bound by any recommendation that the Commissioner may issue from the Commission in due course. Similarly the union has through Ms Gray on the last occasion made a similar commitment. I think just for the sake - - -

PN205

THE COMMISSIONER: I need to take that a bit further then. You're saying that there was agreement to be bound by a decision of the Commission pursuant to section 170LW and the terms of an enterprise agreement between the CFMEU and Roche?

PN206

MR BUKARICA: Yes, the transcript references are at paragraphs 91 and 129 of the transcript where the Roche - - -

PN207

THE COMMISSIONER: That's to have it dealt with under 170LW, yes certainly, but I need to look at the agreement to see what I'm empowered to do unless you're able to tell me briefly.

PN208

MR BUKARICA: The agreement to paraphrase, Mr Commissioner, talks about referring the matter to the Commission for recommendation.

PN209

THE COMMISSIONER: Is there any commitment to what - so they're committed to be bound by recommendation and your reference is to - - -

PN210
MR BUKARICA: Sorry, that's to Mr Cuthbertson at PN91 and PN129. That's where the commitments appear. What I was going to suggest is in respect to procedure and dealing with the matter, rounding off any unresolved issues is whether Mr Kay on behalf of Austral is prepared to make a similar - - -

PN211

THE COMMISSIONER: Yes, I'll come to that. Was there a commitment from the union in regard to the recommendation?

PN212

MR BUKARICA: Yes, there was, Mr Commissioner. I'll see if I can locate that. It was Ms Gray on the last occasion. I apologise, Mr Commissioner, I can't find the reference right at the moment but I recall reading it.

PN213

THE COMMISSIONER: Yes. Now just to remove any ambiguity, well anyhow, you can give that commitment again anyhow if that's the position of the union. But you mentioned before that that matter was dealing with another issue as well. Do you understand that the commitment in paragraph 91 and 92 was limited to the public holidays matter or did it extend to both matters?

PN214

MR BUKARICA: The second reference I read at paragraph 129 refers to the nine hour shifts issue.

PN215

THE COMMISSIONER: Yes, I see, so it's this particular matter.

PN216

MR BUKARICA: Yes.

PN217

THE COMMISSIONER: Yes, I see. Mr Kay, there's an invitation there for you.

PN218

MR KAY: Commissioner, we're agreeable to being bound by the recommendation of the Commission.

PN219

THE COMMISSIONER: Yes, okay. I think there's probably one step earlier than that and that is that there was application made in respect of 2003/5437 for that to be treated as section 170LW notice. It was amended. Are you happy to amend your application in 2003/6368 to be a 170LW matter or am I going too fast for you?

PN220

MR KAY: My apologies, Commissioner, you are just a little bit.

PN221

THE COMMISSIONER: Okay. You've notified the dispute under section 99. That of itself does not invoke the dispute settlement procedure contained in the agreement. The dispute settlement procedure contained in the agreement is usually invoked by an application under section 170LW. Not a lot turns on it because I don't want to get too technical anyhow but what Roche did on the previous occasion was to note that it had been - or Mr Cutherbertson specifically - noted that the matter had been filed under a section 99 notice and he sought leave to make application verbally under section 170LW for the matter to be dealt with in that manner.

PN222

MR KAY: Yes Commissioner, well we would seek similarly.

PN223

THE COMMISSIONER: Okay, any objection?

PN224

MR CUTHBERTSON: No objection.

PN225

THE COMMISSIONER: I think it is implicit that it is not that leave is granted and I take it that your commitment in respect of the recommendation was similarly applies to that. Mr Cutherbtson, do you want to take me through a brief picture from your side. I will then ask Mr Kay to give me his views and then Mr Bukarice will respond to both of them and then subject to what people might say, we'll go into conference.

PN226

MR CUTHBERTSON: May it please the Commission. I will give the Commission a quick snapshot if you like of where we have come from and how we have arrived at the Commission again this morning. Commissioner, Mr Duncan on my left had some discussions back in July with Mr Graham White who is here this morning of the CFMEU and likewise executive the Tahmoor Lodge with respect to the implementation of nine hour shifts. The Lodge and Mr White took those discussions on notice and subsequently returned notice to the company that implemention of nine hour shifts was outrightly rejected. Commissioner, the company believes that it is a requirement to move or to make changes to the current working arrangements and in the interim the union notified the Commission of a dispute with respect to two separate matters.

PN227

It was at that particular point in time we thought it was timely to likewise have that matter dealt with as part of those discussions before the Commission. The Commission made a number of suggestions, or one suggestion in particular on the last occasion we were here and that was to, given the comments from the union in relation to the current negotiations being undertaken in respect to a new agreement relating to Austral and its employees, that the parties jointly sit down and try and discuss informally a way forward with respect to the issue of nine hour shifts. I can confirm to the Commission that discussions have taken place on two occasions between the parties but unfortunately we have to report that the matter is still yet to be resolved.

PN228

Commissioner the agreement which binds employees and Roche is the Roche Mining Tahmoor Development Certified Agreement 2002. It is an in force agreement, its nominal expiry date is 16 January 2005. The particular clause that has relevance to the matter at hand is the hours of work clause, clause 4.1. So if I can direct your attention, I'll first ask if the Commission does have a copy of that agreement?

PN229

THE COMMISSIONER: Yes I do Mr Cuthbertson.

PN230

MR CUTHBERTSON: And secondly ask the Commission and the parties to refer to clause 4.1 which as I said is the hours of work rosters clause. Now the hours clause we say is very clear it allows, and I'll allow the Commission to read through the clause and perhaps for clarity's sake I will read the entirety of the clause:

PN231

For all employees with the exception of Saturday and Sunday workers, the ordinary ...(reads)... appropriate notice of such changes.

PN232

Commissioner, our interpretation of that clause is quite clearly the company has the right in the absence of agreement with employees to implement certain rosters so long as the shift lengths do not exceed 10 hours which would then invoke the hurdle of requiring employee agreement. Having said that Commissioner that Roche have instigated a course of - - -

PN233

THE COMMISSIONER: Is that right?

PN234

MR CUTHBERTSON: Sorry?

PN235

THE COMMISSIONER: There seems to be a contradiction between the two paragraphs.

PN236

PN237

MR CUTHBERTSON: In which respect, in terms of the nine ordinary hours?

PN238

THE COMMISSIONER: I see, the distinction being that there can be one hour overtime in the shift.

PN239

MR CUTHBERTSON: The reference in the first paragraph talks about ordinary hours whereas the second paragraph talks about the shift lengths.

PN240

THE COMMISSIONER: So you can have a shift of 10 hours, one hour of which is overtime or more than one if - - -

PN241

MR CUTHBERTSON: Correct depending on how the ordinary hours, the 35 per week average across whatever roster cycle is designated. The cap being that 9 ordinary hours per shift is to apply.

PN242

THE COMMISSIONER: Yes, I understand.

PN243

MR CUTHBERTSON: So certainly Commissioner our understanding and clear interpretation is that we have the ability to roster hours up to 10 per day. Now currently the rosters that are being worked, and there are two sets of rosters currently being worked at Tahmoor. There is a Monday to Friday roster and also a weekend roster. The shifts that we plan to implement relate to Monday to Friday employees only. Now currently there is four crews working a day shift, an afternoon shift, a night shift and what we have called a window shift. Those shifts are all eight hours currently in length. Whereas we also work weekend crews working 12 hours shifts both day and night across Saturday and Sunday.

PN244

In a nutshell the change that we are seeking to implement is to increase the eight hour shifts to nine hour shifts for Monday to Friday employees only, so the only disruption to employees would be the Monday to Friday employees and there would be no impact on the weekend shifts that being of 12 hours duration. Since the last time we were at the Commission as I indicated there has been two discussions between the parties including the client, Austral. As I said those discussions from the company's perspective have not been fruitful in mapping out a clear path whereby the company can in a smooth sense implement the roster arrangements. In fact the company is quite concerned at comments that have been made and the information to date is that employees have been instructed that if the company seeks to implement such rosters that the employees are not to work those rosters leaving a situation where industrial action would be forthcoming.

PN245

Commissioner the company has consulted with its employees. We put out a number of memos in the time since we were last before the Commission. We have likewise made the offer to employees that are effected, that being the window shift. The shift arrangements that we are looking at implementing will essentially remove the window shift back to a three crew scenario. There will be no loss of jobs which has been clarified to the union and the employees and likewise in actual fact there will be a number of additional employees being recruited to perform work at the site.

PN246

The reasons for wanting the change are simple. At the moment we are half way through a contract with the client. We should have mined or developed 9000 metres, we have developed about half of that. There is a clear need and we have likewise been directed by the client some months ago to increase production. So we see that as a strategy in increasing production this is one of probably a few things that we will be doing. The other things that we are doing is as I said before increasing the number of employees on site and likewise increasing the equipment on site. We are in a situation where we need to implement the rosters within essentially a fortnight to match up with increased equipment which is arriving on site.

PN247

Our view quite clearly is that we can sit around the table and consult for ever and a day but at the end of the day whilst we have endeavoured to reach agreement as far as possible that we don't need agreement with employees to implement what we say is a clear right under the agreement. Now during the course of discussions we threw up two options for a way forward in implementing nine hours shifts. The first option was, and is probably a preferred option, is to work employees Monday to Friday nine hours duration. The alternate option which has been discussed and likewise rejected, was to work employees a nine day fortnight. The 9-day fortnight scenario however would mean from a requirement perspective that we would then need to have weekend crews, likewise work a third day every second or every alternate week. So the disruption to employees we say is far greater if we move to a 9-day fortnight scenario than simply if we were to increase the shift duration from 8 to 9 for the Monday to Friday crews.

PN248

Commissioner, there's nothing at this stage that I would like to put on the record and you'll no doubt seek the parties enter into discussions other than to reiterate that we're seeking implementation and a recommendation from the Commission that we can exercise what we believe is a clear right under the current agreement. If the Commission pleases.

PN249

THE COMMISSIONER: Thank you. Mr Kay?

PN250

MR KAY: Thank you. Commissioner, amongst other objections raised by the union to the proposed Roche roster there's the suggestion that Tahmoor will be in breach of its agreement if we allow this contractor or any other contractor to work a roster that is different from those worked by Tahmoor employees or which is not specified in the Tahmoor Mine Site Agreement, appendix 1.

PN251

Commissioner, it's Tahmoor's view that Tahmoor is not in breach of the Tahmoor agreement if we allow a contractor to work a different roster and we would be seeking a resolution from this hearing that confirms that interpretation. There are other matters in dispute today between Roche and the union that go to the question of the reasonableness of the particular roster that Roche is proposing. We don't seek any involvement in that particular issue; we see that issue as being between Roche and the union.

PN252

Commissioner, the issue of whether contractors are bound to work the same rosters as Tahmoor people has been discussed many times at Tahmoor. Significantly it was discussed when the current Tahmoor agreement was negotiated in 2001. At that time it was a specific union claim that the agreement should contain words to the effect that contractors must work the same rosters. Tahmoor however rejected the claim. Our view was then as it is now that it is unreasonable and unnecessary to force a contractor to work the same rosters as Tahmoor employees. It is unreasonable because the circumstances of the contractor and the contractor's employees are not the same as the circumstances of Tahmoor and Tahmoor employees and there are a number of very real examples that I could give to describe the sorts of circumstances that I mean.

PN253

Commissioner, perhaps if I could give one example and it is only an example. We have a contractor working on site at Tahmoor at the moment, not Roche. The employees of this contractor live in the Hunter Valley, their families live in the Hunter Valley. These employees in order to conform with the union expectation that they work the same rosters as Tahmoor people work 7 hour shifts Monday to Friday. They finish work on a Friday and they travel home to their families for about one and a half days and then they return to Tahmoor late on the Sunday.

PN254

Now it is reasonable to surmise that these employees would prefer a different sort of roster pattern, perhaps one that had longer daily shifts, perhaps a shorter working week and a longer weekend, the sort of roster that are common in other locations where employees are bound to travel a long distance. I raise that simply as an example of the sort of circumstance that we have in mind when we say that the circumstances of contractors are not the same as those of Tahmoor employees.

PN255

A further dimension to the issue, Commissioner, is that the contractor will often as in the case of Roche have their own agreement. That agreement may provide for a different roster arrangements than Tahmoor's. From the company's side we have always recognised that it is extremely problematic to have a provision in our agreement that seeks to prescribe work arrangements for the employees of a separate company and in a way that may well be inconsistent with an agreement that those employees may have with their employer.

PN256

For all of these types of reasons when the issue was raised in 2001 the company rejected the proposal to insert a provision in the agreement that forced contractors to work the same roster as Tahmoor people. What the company was prepared to do however was to try to address the underlying concern that if contractors were allowed to work different rosters this would be used as a precedent to change rosters worked by Tahmoor people. Various expressions were used by the union to express this concern such as it would be the thin end of the wedge.

PN257

The company is happy to commit that they will not use contractor arrangements in this way, that is the thin end of the wedge. On the contrary we reiterate that the contractor's circumstances are not the same as ours. It would be illogical to try and use their solutions for our issues. What we do say is that if at some future date we do wish to change Tahmoor rosters we will consult with representatives as provided in clause 8.1 of our agreement and we will argue the case on its merits.

PN258

Hence we have the wording today in clause 32.7 in our agreement which says that:

PN259

Contractors shall in no way be used as a precedent to change current work standards/rosters.

PN260

It is this provision that is the subject of our particular dispute. It is submitted that the wording of this provision is plain. It clearly does not state that contractors must work the same rosters as Tahmoor people as claimed by the union, nevertheless the union continued to claim that this is what it means and this is the dispute.

PN261

Commissioner, even if it should be found that these words are not as plain as believe they are we submit that on the grounds of reasonableness for all the reasons and circumstances that I have endeavoured to outline that this should still be the interpretation recognised by the Commission. Commissioner, in the Roche matter we have again tried to address the concern that Tahmoor will try to use the Roche arrangement in some way to implement changes to the Tahmoor rosters.

PN262

I have given the union a letter which specifically says that we won't do that and I'd like to hand that up to the Commission.

PN263

THE COMMISSIONER: I will mark this as exhibit K1.

EXHIBIT #K1 LETTER FROM ROCHE TO UNION

PN264

MR KAY: Mr S stated that's a fairly short note. It effectively does what I've just said. It categorically states that we will not try and flow the Roche roster on to Tahmoor employees. Commissioner, it may be suggested by the union that there is a separate agreement that Roche will work an 8-hour roster. We deny that there is an agreement, Commissioner. It is certainly true that when Roche commenced their contract all parties believed that they would be working an 8-hour roster. There would have been a number of discussions between the parties that would have addressed that very matter.

PN265

It would be wrong to construe however that these discussions amounted to separate agreements that prevented Roche from making changes that they believe are necessary. Roche advises that their circumstances have changed and that they wished to work a new roster. Tahmoor has no particular position as to whether they should or should not. Tahmoor does not believe it has any contractual ability to prevent Roche working the new roster unless we thought it was unsafe, however we are satisfied that this roster raises no particular safety issues.

PN266

In summary, Commissioner, we are seeking a result in this hearing that confirms that contractors working on site at Tahmoor do not have to work the same roster arrangements as Tahmoor employees. In this instance the issue is the Roche contract, however the issue for us is wider. Basically that is our case, if it please the Commission.

PN267

THE COMMISSIONER: Yes, thank you,. Mr Kay. Mr Bukarica?

PN268

MR BUKARICA: If the Commission pleases. Could I say at the outset that we don't propose to do anything other than give an outline in the broadest terms of the union's objections to what's been put by Mr Cuthbertson and Mr Kay. Indeed, we reserve our rights to mount a proper case as to the issues in dispute and it will be our submission that following my outline or account of our version of the facts that the Commission adjourn into conference and consider the further programming of the matter.

PN269

The matter is far from being simple or a straight out application of the existing industrial instruments. There is a real issue as to whether - and we contend that this is the case - whether Austral Coal and Roche have committed to working a fixed pattern of shifts which conforms with what has been place by the principal, being Austral Coal.

PN270

It's our contention that both the Tahmoor mine site agreement and the Roche enterprise agreement conform with an understanding that the union reached at the site level concerning the work patterns which should apply on that mine site. The understanding was clearly that the fixed work patterns contained in appendix 1 of the Tahmoor mine site agreement would in fact be applied by both the principal and any contractors on that mine site.

PN271

Mr Commissioner, it's our submission that the Commission cannot sensibly come to a determination of these claims or these assertions without hearing evidence from the parties involved in the negotiation of those instruments, and in particular Mr Fitzpatrick from the union's side, Mr Fitzpatrick being the lodge president for Tahmoor Lodge, and if necessary the company representatives.

PN272

We would submit that the proper course would be for Austral Coal and Roche to submit an outline of contentions, the union to respond in kind with outline of contentions and witness statements, and then for the Commission to determine the matter in accordance with the request of the parties under section 170LW.

PN273

It need not be the case that the hearings themselves be, in our respectful submission, too technical or complicated. Simply, there's an issue of fact that needs to be determined. One version has it that the industrial incidents speak for themselves, or there were no ancillary agreements or understandings reached. The alternative version that we put forward is that the to industrial instruments cannot be understood or properly interpreted without an understanding of the commitments that were reached by both the employee parties and the employer parties in the making of those instruments. That's the crux of the matter as far as we're concerned.

PN274

THE COMMISSIONER: Was the understanding that you say existed reached before or after the certification of the Roche Mining Tahmoor Development Certified Agreement 2002 on what appears to be 16 January this year?

PN275

MR BUKARICA: It was before, Mr Commissioner. In other words the commitment at first instance is with - - -

PN276

THE COMMISSIONER: Why would such an understanding not be reflected in the agreement?

PN277

MR BUKARICA: We say it is.

PN278

THE COMMISSIONER: In the Roche Tahmoor Development Agreement?

PN279

MR BUKARICA: In the Tahmoor agreement?

PN280

THE COMMISSIONER: No, in the Roche Mining Tahmoor Development Certified Agreement?

PN281

MR BUKARICA: Yes.

PN282

THE COMMISSIONER: See, if there was an agreement reached with Roche prior to the certification of this agreement then there would have to be a good explanation as to why it wasn't incorporated in that agreement for it to have any force, as far as Roche is concerned. It might have some force as far as Tahmoor is concerned.

PN283

MR BUKARICA: Mr Commissioner, I'll get some more instructions on that point but the principal contention is that the arrangements were so well understood and so much a part of the custom and practice of work at that mine site, that the Roche agreement could not be understood any other way. The fact that it may not explicitly say we are confined to - - -

PN284

THE COMMISSIONER: Not only that, it says something more than that. It says that they can require us to work 10 hour shifts.

PN285

MR BUKARICA: The clause, Mr Commissioner, and I will take you to it in the course of submissions, is for all intents and purposes identical to the relevant award clause. We would submit that nothing should be read in particular into that wording other than it's meant to reflect what occurs generally in respect to the award.

PN286

THE COMMISSIONER: If there was some understanding why wasn't it put in here? If that clause is to be read down by virtue of some understanding that was reached prior to 16 January 2003, then I would have expected that either at the - I can understand why it might not have been put in the agreement itself, but I would've thought at the very least that when the agreement came up for certification either the understanding would have been reduced to writing and placed on the file as a memorandum of that understanding, or that something verbally was said in the course of the certification. You know, notwithstanding the terms of this clause, the parties have an understanding that X, Y, Z. Is there any suggestion that that occurred?

PN287

MR BUKARICA: Mr Commissioner, I'm told at first instance there is reference to the weekend shift arrangements, restriction on weekend shift work within the Roche agreement.

PN288

THE COMMISSIONER: Well, then, a fortiori, even more so than one would expect to find a reference to the other one.

PN289

MR BUKARICA: The general contention we make, Mr Commissioner, and this is what we would like lead evidence about, is that the agreement with the principal is such that the principal would ensure in effect contractually that the subcontractors on that site would work a particular work pattern. On that basis, as in the cases often in for example the construction industry, the expectation is that subcontractors conform with that generally arrangement. That was certainly, in our submission, the nature of the agreement that was reached between the parties.

PN290

THE COMMISSIONER: Doesn't that raise some ACCC concerns?

PN291

MR BUKARICA: ACCC matters?

PN292

THE COMMISSIONER: Yes.

PN293

MR BUKARICA: That's perhaps for another tribunal or jurisdiction, with respect, Mr Commissioner.

PN294

THE COMMISSIONER: I understand that but it may at least prima facie be an argument as to why that agreement wasn't struck. Anyhow, I'm making your life more difficult for you than I need to at the moment. You're proposing a course of action that takes this matter further into the future and I was proposing to go into conference to see whether I can produce some sort of settlement, but I'm starting to understand that Commissioner Roberts might have had a good go at it without a lot of success, and whether I'm able to wave any magic wand is neither here nor there. I note from Mr Cuthbertson's concern about delay. He's talking about implementing things within a fortnight.

PN295

MR BUKARICA: May I address that issue, Mr Commissioner. There's an issue as well about consultation and the genuineness of such consultation. We're informed by Mr Cuthbertson that discussions have taken place and the matter remains unresolved. However, the reality is that those discussions that were initiated following the last hearing before Commissioner Roberts occurred after the company had in fact issued memoranda to its employees stating its intention to immediately commence implementation of the new shift arrangements, so in our respectful submission there it an issue here about the genuineness of any consultation.

PN296

The mere fact that the company now seeks for operational reasons to do something, well, that's its prerogative, I guess, but it can't be done if what we're contending is correct and the Commission finds it be correct, that is, that there is an interpretation of the relevant instruments that is open which says that there was an agreement between the three parties, being the principal, the subcontractor and the union, that the work patterns would be not be other than that which are worked by the principal. We contend that is the case and that is the proper interpretation of the relevant instruments.

PN297

THE COMMISSIONER: I'm just concerned that you've really got the barrow in front of you as far as Roche is concerned, that that agreement seems to me to apply, and I'm just going on its title, seems to me to be directed at the work of the contractor specifically at the Tahmoor mine. It was certified on 16 January 2003. You say that there is some prior agreement that wasn't given effect to in that agreement, and it seems pretty clear that it wasn't given effect to in that agreement. That a prior agreement about weekend work was given effect to in that agreement, either directly or indirectly by way of a statement in the Commission. I'm not quite sure how it appears but it doesn't matter, and yet on this particular matter there is no evidence other than what appears to be verbal evidence about what occurred in the course of some negotiations prior to the making of this agreement.

PN298

MR BUKARICA: Commissioner, there is more than verbal evidence. There is documentation which the company provided to the union in the course of - - -

PN299

THE COMMISSIONER: Which company? Roche?

PN300

MR BUKARICA: The principal, Austral Coal.

PN301

THE COMMISSIONER: I understand that there may have been a total agreement. Even if I grant you that prospect that there was an agreement between Tahmoor, Austral Colliery and the CFMEU that Austral wouldn't do certain things, then that doesn't in any way bind Roche in circumstances where there is no agreement of the kind that you refer to between the CFMEU and Roche. You may have some sort of comeback against Tahmoor for breach of their agreement, etcetera etcetera, but I don't know that you can make that binding. That's why I talk about the barrow being in front of you, and being pretty heavily loaded.

PN302

MR BUKARICA: Commissioner, that's precisely the issue I raised at the outset about the position of Mr Kay and Roche in terms of any LW proceedings. It appears to me that if all the parties are saying that this is an issue which affects all three parties, we want the Commission to resolve this by way of recommendation that we'll all accept, then really it's an issue for the Commission to determine the merits.

PN303

THE COMMISSIONER: Yes, certainly, but it's the merits of a proposition that there is an agreement.

PN304

MR BUKARICA: Yes. We're saying that the proposition is this, that the two industrial instruments are meant to be implemented in a certain way. On a narrow reading of the words that appear we accept that Roche for example, or in principle have got an argument, but we say that's not the complete case. The complete case involves an understanding of the particular arrangements that were reached by the three parties.

PN305

THE COMMISSIONER: I understand the position.

PN306

MR BUKARICA: And really we can only get there if the Commission hears the evidence that we want to bring and the three parties proceed in the way that has been outlined. If the Commission pleases.

PN307

THE COMMISSIONER: I'll give you an opportunity to respond to all of that, but after we have a conference. That might be the best way to proceed. The proceedings will adjourn into conference.

OFF THE RECORD [11.59am]

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 LETTER FROM ROCHE TO UNION PN264