C2003/961, Transcript of Proceedings [2003] AIRCTrans 688 (3 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2003/961

APPLICATION TO STOP OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Cumnock No 1 Colliery Pty Limited for an
order to stop or prevent industrial action

SYDNEY

11.27AM, WEDNESDAY, 12 FEBRUARY 2003

PN1

THE COMMISSIONER: I'll take your appearance.

PN2

MS L. DEAN: I seek leave to appear on behalf of Cumnock No 1 Colliery Proprietary Limited. I have with me MR L. IRELAND he is the operations manager at the colliery.

PN3

THE COMMISSIONER: The respondent not being present at the time, pursuant to my discretion under the Act I grant leave to appear to Ms Dean. Ms Dean, initially I want to ask you something. Has your side notified the CFMEU independently of our notification?

PN4

MS DEAN: We provided them by facsimile late yesterday afternoon with a copy of the application.

PN5

THE COMMISSIONER: Would you be able to put an actual time on that?

PN6

MS DEAN: Yes I can just check the facts in my transmission. Commissioner, I have a facsimile transmission of a copy of our application which was sent at 5.14pm. I only have one copy of that but I'm happy to - that's the original - - -

PN7

THE COMMISSIONER: I take it you are seeking to tender that document?

PN8

MS DEAN: I am happy to tender that, thank you.

PN9

THE COMMISSIONER: What I now intend to do is to adjourn briefly while my associate attempts to make telephone contact with the CFMEU. If they advise me that they are able and willing to attend the hearing prior to 12.30pm then I will adjourn until that time. If we're unsuccessful in making contact or there is an inability or a refusal to attend the matter will come back on at 11.45 and will be heard ex parte. We are adjourned.

SHORT ADJOURNMENT [11.30am]

RESUMES [11.47am]

PN10

THE COMMISSIONER: For the record I would like to note it is 11.47am by my watch, the CFMEU is not present for the hearing. I would also like to note for the records that my associate has been in contact with Mr Bokarica, an employee of the CFMEU, Mining and Energy Division, who has informed my associate that the CFMEU will not be attending as they alleged have no person available to do so. The hearing will proceed ex parte.

PN11

MS DEAN: Thank you, Commissioner. This is an application for an order under section 127 of the Act. The application is made by Cumnock No 1 Colliery Proprietary Limited. The company operates the Cumnock No 1 Colliery at Ravensworth which is located west of Singleton in New South Wales and the operation involves an underground long wall operation, an open cut operation and a coal preparation plant.

PN12

There are approximately 102 coalminers engages at the colliery operation who work on the three shift basis which includes night shift commencing at 11.00am and finishing at 7.00am. Day shift commencing 7.00am to 3.00pm and afternoon shift from 3.00pm to 11.00pm. The work that is performed and the employees are covered by the terms of both a certified agreement being the Cumnock No 1 Colliery CFMEU Enterprise Agreement 2000 to which the CFMEU is a party and the Coalmining Industry Production and Engineering Consolidated Award 1997. Commissioner, might I hand up copies of both the Cumnock Enterprise Agreement and the Coalmining Industry Production and Engineering Award.

PN13

THE COMMISSIONER: While you are doing that I might note that copy of your company's facsimile message to the CFMEU incorporating the notice of hearing for today dated 11 February 2003 has been marked as exhibit A1 in these proceedings.

EXHIBIT #A1 FACSIMILE MESSAGE TO CFMEU INCORPORATING NOTICE OF HEARING FOR 12/02/2003, DATED 11/02/2003

PN14

THE COMMISSIONER: I won't mark the award or agreement.

PN15

MS DEAN: Commissioner, the certified agreement which covers the work performed at the colliery is an in time agreement. Its nominal expiry date is 3 April this year, 2003, and the agreement contains obviously a grievance and dispute procedure at clause 4.1. Might I draw the Commission's attention in particular to clause 4.1.2 of that procedure which provides that in the event of any grievance or dispute arising from the interpretation of the agreement or the award or any grievance or dispute arising in the course of employment there shall be no industrial action by the company, any employees or the union while the parties utilise the disputes procedure to resolve the issue.

PN16

Commissioner, might I call Mr Laurence Ireland to give evidence.

<LAURENCE PETER IRELAND, SWORN [11.50am]

<EXAMINATION-IN-CHIEF BY MS DEAN

PN17

MS DEAN: Would you please state your full name and address?---Laurence Peter Ireland, 34 Bayswater Road, .....

PN18

Mr Ireland, you're the operations manager at Cumnock No 1 Colliery Proprietary Limited?---That's correct.

PN19

You've been employed in that position for approximately 13 months?---That's correct.

PN20

You set out in paragraph 8 through to 17 the details of the strike action that is currently occurring, could you just confirm the position in terms of - - -

PN21

THE COMMISSIONER: Can I just interrupt you, have you tendered the witness statement?

PN22

MS DEAN: My apologies, Commissioner, I tender that statement.

PN23

THE COMMISSIONER: Mr Ireland's witness statement can be marked as exhibit A2 in these proceedings.

EXHIBIT #A2 MR LAURENCE PETER IRELAND'S WITNESS STATEMENT

PN24

MS DEAN: Mr Ireland, that statement is true and correct to the best of your knowledge and belief?---That's correct.

PN25

You set out in paragraphs 8 through to 17 details of the industrial action that is occurring at Cumnock at the moment, can you just confirm the current position with respect to whether there are only employees currently at work?---There are currently no CFMEU employees at work.

**** LAURENCE PETER IRELAND XN MS DEAN

PN26

You've said in your statement that no employee attended for afternoon shift yesterday afternoon?---That's correct.

PN27

Night shift yesterday evening?---Correct.

PN28

Or day shift today?---Or day shift today.

PN29

You haven't been informed of the reason or the duration of the strike by any employee or CFMEU official?---I've had no notification at all why the stoppage and how long the stoppage is for.

PN30

You deal with in paragraph 18 and 19 your current operating position at the mine. Can you give me some detail - give the Commission some detail about the circumstances of the current operating position and the phased closure of the long wall operations?---Following that very detailed geological program late last year a fortnight ago yesterday that was presented to a board of directors for Cumnock, being that we are a public listed company, and the reserves to the eastern side have been absolutely proved as uneconomic and the board gave approval for the continuation of mining in long wall 20 block, which is currently being mined, and for the development to continue to form long wall 21 block and the extraction of that block. What that means is with our current employee numbers with 143 or all staff at the completion of long wall 20 in approximately 14 May and the start up of long wall 21 will be a reduction in the work force down to 84 and then at the completion of 21, 14 August and then the removal of yield to the surface in mid-September, employment will then just be confined to two shifts in the cold plant with 20 people employed.

PN31

Could you just detail what if any geological factors or mining issues you are going to have on long wall 20 and 21?---Those blocks are small in size and reserve but they also have a number of geological features associated with them. Currently the long wall is 220 metres wide but on 6 March we have a planned shortening of that block by 30 metres to 190 metres which will entail a five day stoppage to do that work. Then we go immediately into cutting the dyke zone, there are two dykes running straight across the block.

**** LAURENCE PETER IRELAND XN MS DEAN

PN32

Sorry can you just explain what a dyke is?---A dyke is an igneous intrusion through the coal. What it does to the mining face at the depth we mine it increases the pressures on the face and it has various associated mining risks that the long wall must keep retreating and operating. Any stoppage can be diabolical to floor heave and closure of the equipment on the long wall face.

PN33

So you've indicated that you've got you need to cut through two dyke walls?---Two dykes zones and the shortening and from our planning point of view we must have continuous operation through those zones.

PN34

Are there any similar issues in respect of the mining of long wall 21?---Long wall 21 is a little bit different in the sense that development coal will be finished and all the people will just be employed on the long wall production for the three shifts but the two dyke zones still exist and again they are continuous operations for that block to completion is necessary. From past experience, especially on long wall 18 we experienced a very nasty stoppage due to a mechanical failure and within an hour the face had complete closed up where people could not stand and walk on the face. Access was only by crawling on your hands and knees. There are 142 steel hydraulic supports on the face which weighed 19 tonnes each and clearance had to be regained by people laying on their sides and hand shovelling and it took four days to clear that zone.

PN35

Is it possible that you might experience similar conditions if either industrial action continues or happens again during the continuation mining of long wall 20 and 21?---It is pretty sure that with those zones we have to mine through and we have no interruption and that we have continuous mining so any further industrial stoppage would be diabolical.

PN36

You have also given evidence Mr Ireland in your statement in paragraph 20, this is now the third occasion during which you've had strike action in the last five months?---That's correct, on 15 October, 3 December and now 11 February, that is correct.

**** LAURENCE PETER IRELAND XN MS DEAN

PN37

I have no further questions.

PN38

THE COMMISSIONER: Mr Ireland one final question: this is the Ravensworth site isn't it?---We are in the Ravensworth district. We are not Ravensworth mine but we are in the Ravensworth district.

PN39

I am just looking at a previous order which I issued on 3 December 2002 which related to Cumnock No. 1 Colliery Pty Limited at the company's Ravensworth site. Is that still appropriate?---It is still the same.

PN40

You may stand down?---Thank you.

<THE WITNESS WITHDREW [11.59am]

PN41

THE COMMISSIONER: Ms Dean?

PN42

MS DEAN: Commissioner the evidence which is now before the Commission makes it clear that there is industrial action that is currently occurring. In relation to work that is regulated by both an award and a certified agreement those being firstly the evidence that Mr Ireland has given and secondly the Cumnock No. 1 Colliery CFMEU Enterprise Agreement in the Coal Mining Industry, Production and Engineering Consolidated Award, you will see in paragraph 1.2 of the certified agreement reference to the Coal Mining Industry Production and Engineering Award which has application to the extent that there are issues not dealt with by the certified agreement.

PN43

In terms of section 127(2) the application which is before you has been made by a party directly affected, that being the being the employer in this case. There is now clear evidence before you not only of industrial action on this occasion but now this being the third occasion on which there is what might colloquially be described as wild cat strike action that has occurred since October of last year. There is a grievance procedure in the certified agreement which now for the third time has been, in our submission, deliberately and blatantly disregarded by the employees and or the CFMEU.

PN44

There is now a clear history of industrial action and pattern of industrial action taking place shortly after the conclusion or the expiry of orders made by this Commission. The industrial action is clearly illegitimate, certainly in terms of the use of that phrase in the Coal and Allied decision which the Commission is certainly well aware. There was no notice to the employer of the industrial action and the evidence before the Commission is that there have been a variety of attempts made by the company representatives to contact both employees and officials of the CFMEU to attempt to ascertain both the reason for and the duration of the industrial action. It has been unable to ascertain either of those two things.

PN45

I only wish to make reference Commissioner to one decision of the Commission and that is a decision of Munro J in Transfield Services v AFMEPKIU. Might I hand up a copy of that decision? Might I draw the Commission's attention to paragraph 14 on page 4 of that decision, where Munro J makes the following observation in respect to this particular case:

PN46

The employees at the sight need to be told that where there ...(reads)... through the disputes resolution procedure.

PN47

Those same sentiments in our submission can be applied to the matter that is before you now Commissioner where this is the third occasion on which there has been a complete disregard for the disputes settling procedure in both the award and to the certified agreement, the entire certified agreement. There is now a demonstrable history of industrial action occurring shortly after the expiry of orders.

PN48

The industrial action in our submission is clearly illegitimate. There are going to be significant impact on the operations of the company. If industrial action occurs until the conclusion of the long wall operations in September. Mr Ireland has given evidence about the geological issues associated with the mining particularly in respect of the dyke wall and the shortening of the face of the long wall in long wall 20 and the two dykes that need to be dealt with on long wall 21.

PN49

In terms of the order that is sought, the draft order was attached to the application filed yesterday. That order seeks that employees refrain from engaging in industrial action in the form of strikes, bans or limitations in the performance of normal work including bans or limitations on the performance of overtime and certain in Mr Ireland's evidence there were four employees rostered to work overtime from 11am yesterday, only one of those employees attended and did not then continue work onto his normal shift commencing at 3pm yesterday. The remainder of the terms of order are set out from paragraph 4 onwards of the draft order.

PN50

Commissioner we do want to make a submission in relation to the term and date of effect. The next shift commences at 3pm today which is the afternoon shift. We seek that the order take effect at a time that is able to ensure that we can have people back to work for afternoon shift today. Secondly, in the circumstances that have been given in terms of Mr Ireland's evidence and the critical nature of the operations between now and September and in light of the history of industrial action at the site an industrial action occurring very shortly after the conclusion on the expiry of previous orders of this Commission. We seek that the expiry date of these orders be 14 August of this year. That coincides with the conclusion of mining of long wall 21.

PN51

We submit in the circumstances that it is appropriate for the Commission to exercise its discretion for that period of time given those particular circumstances in terms of the history of the industrial action. The complete and blatant disregard by employees of the dispute settling procedure in the agreement, and the clear history now of industrial action occurring shortly after orders expiring.

PN52

THE COMMISSIONER: Except that could lead to a situation, couldn't it, where the 127 order actually strays across to the period of the new agreement?

PN53

MS DEAN: Commissioner, there are probably two things in that regard. Firstly, the company would be unable to make an agreement for a period that would only apply between April, when the current certified agreement expires. And September when the long haul operations cease.

PN54

Secondly, section 170MT dealing with the immunity provisions clearly provides that a section 127 order does not apply to protected action. So, there is no difficulty if protected action is properly taken that any order made by the Commission today would affect the employees right to take protected action under the Act.

PN55

THE COMMISSIONER: Yes, thank you.

PN56

MS DEAN: If it pleases, those are our submissions.

PN57

THE COMMISSIONER: Before you sit, I refer you to 2.3 of your draft order. I notice that you have changed the terms to be "from members of the union has become traditional". To, "Whether members of the union or not".

PN58

MS DEAN: I understand that was certainly in the application that has been made. It might not have been in the orders that were made on the last occasion, Commissioner.

PN59

THE COMMISSIONER: There have never been any orders of mine.

PN60

MS DEAN: Right.

PN61

THE COMMISSIONER: What power do you say I have to issue a 127 order if I exercise my discretion to issue it against persons who are no members of the CFMEU?

PN62

MS DEAN: Well, the Commission has the power to make orders against employees. If it were the case that orders could only be made against members of a union then employees could avoid the affect of such orders simply by not being members of an industrial organisation.

PN63

THE COMMISSIONER: But, in practice, are there any such persons? You instruct Ms Dean and she will tell me.

PN64

MS DEAN: Commissioner, I am instructed that certainly to the best of our knowledge all 102 coal mining employees are members of the CFMEU.

PN65

THE COMMISSIONER: The problem I have with your proposed wording is that if there were such persons they haven't been notified of this hearing.

PN66

MS DEAN: I think in these particular circumstances, Commissioner, if I am instructed that all employees are members of the CFMEU we can vary that wording.

PN67

THE COMMISSIONER: I suppose I am flagging to you that I am disinclined to follow your 2.3. If I was moved to grant orders, do you have any problem with the wording of the previous order which was issued on 3 December 2002?

PN68

MS DEAN: Might I just take a moment, Commissioner?

PN69

THE COMMISSIONER: You may take any length of time you wish. I don't wish to catch you on the hop. Would you like a few minutes to -

PN70

MS DEAN: Commissioner, we have no difficulty with the terms of that order.

PN71

THE COMMISSIONER: Thank you. Given the sworn evidence of Mr Ireland, which I accept as being both candid and truthful, I make the following findings in relation to this matter. Also in the light of Ms Dean's submissions today.

PN72

I find that the industrial action at the mine is occurring. I find that the applicant has standing to make the application for the order sought. I find that work is regulated by an award and a certified agreement of this Commission. I find that the action is illegitimate and in contravention of the dispute settling procedures set out in the certified agreement. I note that the CFMEU has chosen not to put in an appearance at these proceedings.

PN73

I therefore find that a case has been made out for the issuing of an order pursuant to section 127(2) of the Act. Such order will have effect from 1.00pm this afternoon. And shall remain in force until the nominal expiry date of the certified agreement. That being 3 April 2003. I authorise the applicant in this matter to take whatever action it needs to take now on the basis of what I have put on transcript. And properly sealed orders will issue shortly.

ADJOURNED ACCORDINGLY [12.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 FACSIMILE MESSAGE TO CFMEU INCORPORATING NOTICE OF HEARING FOR 12/02/2003, DATED 11/02/2003 PN14
LAURENCE PETER IRELAND, SWORN PN17
EXAMINATION-IN-CHIEF BY MS DEAN PN17
EXHIBIT #A2 MR LAURENCE PETER IRELAND'S WITNESS STATEMENT PN24
WITNESS WITHDREW PN41