C2003/1022, Transcript of Proceedings [2003] AIRCTrans 797 (12 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2003/1022

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

BULGA COAL MANAGEMENT PTY LIMITED,
BULGA OPEN CUT

Notification pursuant to section 99 of the Act
of a dispute re alleged refusal of employer to
permit employee to perform normal duties and to
make correct payments to retrenched employees

SYDNEY

10.07 AM, THURSDAY, 20 FEBRUARY 2003

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR K. ENDACOTT: If it please the Commission, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division and with me at the bar table is MR L. HILL who is the Secretary of the CFMEU, Bulga Open Cut Lodge. I'd also like to put in apologies for MR R. CHILLINGWORTH who is an employee that's related to one of the matters.

PN3

Mr Chillingworth was meant to attend but informed me at five to 10 that he couldn't find the ninth floor of the Commission building because there was only three floors and explained he was in Newcastle. The last time he had proceedings with the Commission in which he was involved, it was held at the New South Wales Industrial Commission chaired by Commissioner Bacon and when I said you had to attend, gave him notice, he thought that was the location at which matters are heard. If the Commission pleases.

PN4

MR J. WHALE: Commissioner, I seek leave to appear in these proceedings and I apologise for my hesitation. I was cogitating the effect of what my friend was putting forward there. I seek leave to appear in these proceedings pursuant to section 42(3)(b) and (c) of the Workplace Relations Act.

PN5

THE COMMISSIONER: Mr Endacott, do you oppose leave?

PN6

MR ENDACOTT: Yes, I do oppose leave. I oppose leave on the basis that section 42 of the act sets a high hurdle that's required to met for leave to be granted. I think it refers to special circumstances and we say that none of the circumstances involving this dispute, certainly at this stage, would involve any special circumstances. I also note my friend has made no submissions in support of meeting the tests as required by section 42. I won't take the Commission to - - -

PN7

THE COMMISSIONER: Well, he's not actually required by me to make submissions until you object.

PN8

MR WHALE: I thank the Commission for that. I thought that was the case.

PN9

THE COMMISSIONER: Mr Whale, tell me why you should appear.

PN10

MR WHALE: Thank you, Commissioner. Pursuant to 42(3)(b), the discretion under 42 which is a very wide discretion available to the Commission, under 42(3)(b) relates in particular to the subject matter of the dispute. The two issues that are before the Commission today both have jurisdictional connotations attached to them whether indeed the Commission does have jurisdiction to deal with them and whether indeed they are allowable award matters pursuant to section 89 and 89A of the act.

PN11

In relation to subsection 42(3)(c) of the act, the position, Commissioner, is that the company cannot be adequately represented by other than counsel, solicitor or agent as the company does not engage employees who are experienced advocates, who are across the issues that are before the Commission on this occasion and indeed the other jurisdictional matters that may or may not be raised in these proceedings. The company should not, in our submission, be put at a disadvantage relative to the opposition and the union engages industrial officers to represent them on a regular basis in proceedings, Commissioner, who have been known on various occasions to attempt to manoeuvre cases to their particular advantage.

PN12

MR ENDACOTT: I might ask my friend on what occasion if he's going to make such a submission.

PN13

THE COMMISSIONER: Well, I would have thought that's one of the basic roles of any representative is to manoeuvre the situation to the advantage of their party so I'm not particularly worried about it. Move on, Mr Whale.

PN14

MR WHALE: Certainly, Commissioner, it's our submission that this company should be entitled to a person who is experienced in proceedings before this Commission, both in the conciliation and arbitral sense and indeed who is across the issues which may become before the Commission. If I could finally conclude, my appearance does not, I would think, disadvantage the union but Mr Endacott may believe that he is advantaged and may wish to put submissions to that effect.

PN15

THE COMMISSIONER: Do you?

PN16

MR ENDACOTT: Well, I'll respond briefly. I notice the issue of disadvantage to the union is not a test set out in section 42 of the act. I just note this. My friend says that there is a wide discretion under section 42.

PN17

THE COMMISSIONER: Well, I think it is by inference but anyway -

PN18

MR ENDACOTT: My friend says there's a wide discretion for this Commission. Certainly there is a discretion within the fetters placed upon it by the particular wording of section 42 that uses the word "special" and we would say that means to provide some sort of boundaries meaning that it would need to be something special. My friend makes a submission there's a question of jurisdiction and the matters may not be allowable. It involves, I think, essentially the stand down of an employee and the payment of bonus.

PN19

Both of those matters clearly are allowable matters under the act but I also further note that before the Commission would be required to arbitrate, they're required to, as a result of the act, attempt to resolve the matter by conciliation. Certainly we would not be objecting to conciliation and asking the Commission to jump the conciliatory process and go straight to arbitration so that should not be an issue at this stage. I know that Mr Whale says that the company - I assume he's talking about Bulga Coal Management - doesn't employ experienced representatives.

PN20

My experience is that Mr Richardson had appeared before this Commission in the past and has represented the company effectively in those proceedings and further, this company is owned by Extrata Coal Proprietary Limited. It's owned by Extrata that is a multi, multi billion dollar mining company and certainly within the framework of that organisation, there would be no doubt experienced persons that are able to represent the organisation.

PN21

This isn't a restaurant, a family owned restaurant. This is a multi, multi billion dollar mining company with, I think they have major shareholdings in 17 or 18 operations in Australia so there's not a question that this is a situation in which there will be some disadvantage or they don't have people within the structure of the organisation to represent them. I make no further submissions on that, if the Commission pleases.

PN22

THE COMMISSIONER: Just to respond to your point about a disadvantage test in case this matter, as it will, comes up again. I believe that section 42(3)(c) is in effect a test as to whether there would be a disadvantage to a party. Having heard the submissions of the parties and given the nature of the matters under review today and Mr Whale's long and continuous involvement in matters relating to Bulga before this Commission, leave is granted for him to appear. Mr Endacott?

PN23

MR ENDACOTT: Thank you, Commissioner. This notification involves two matters. The first concerning - this may not be the order they're set out on the dispute notice but one concerning the payment of bonus and the other concerning the stand down of an employee, Mr Ray Chillingworth. I'll deal with the matters separately and initially.

PN24

THE COMMISSIONER: This is the same as - what I have before me is two matters: the refusal of the employer to permit an employee to perform his normal duties.

PN25

MR ENDACOTT: Yes.

PN26

THE COMMISSIONER: That's a stand down, is it?

PN27

MR ENDACOTT: Yes, that is.

PN28

THE COMMISSIONER: The failure of the employer to pay retrenched employees the correct payment in lieu of notice payments. That's to do with bonus, is it?

PN29

MR ENDACOTT: That's correct. If I can just outline the circumstances. On 28 November 2002, the company retrenched a number of employees. They didn't require them to work out their notice and in fact paid them money in lieu of notice and paid retrenchment under the terms of the certified agreement. However, what they did not pay was an amount of $975 that was required to be paid to the employees under the terms of the certified agreement.

PN30

THE COMMISSIONER: I don't have a copy of the agreement.

PN31

MR ENDACOTT: I will provide a copy now, Commissioner. I would draw the Commission's attention to the second last page of the agreement, page 18, the last page for the signatures, Appendix E, performance incentive scheme. This is a separate scheme based on achieving certain requirements, an amount is paid. The Commission may wish to read the detail of the scheme and I will take you to specific parts of it.

PN32

THE COMMISSIONER: You might explain the table to me, I don't quite understand that, but I will just read the rest of it.

PN33

MR WHALE: Commissioner, might I request in relation to Mr Endacott's response, could I just ask that he also address where the figure of $975 comes from?

PN34

THE COMMISSIONER: I took it that he was coming to that after an exposition on the clause, I am sure he is, so just take me through the clause.

PN35

MR ENDACOTT: I can explain that, it is in the document that was provided to us on 10 January 2003 from the company that said the amount to be paid is $975, applying the scheme.

PN36

THE COMMISSIONER: Well, I don't have the benefit of this document.

PN37

MR ENDACOTT: I will show it to my friend.

PN38

THE COMMISSIONER: Do you wish to tender the document? We can have copies made for you. If you perhaps can take me through the clause and we can refer to the document after the copies come back.

PN39

MR ENDACOTT: Yes, Commissioner. In essence in addition to other payments made under the certified agreement there is a performance incentive scheme and as read out in clause 1, it says:

PN40

Commencing July 2001 full-time employees will participate in the performance incentive scheme whereby each full-time employee will on a pro rata basis depending on their periods of continuous employment be entitled to an annual lump sum payment based upon the achievement of the following criteria in each calendar year.

PN41

The criteria are set out as total overburden removed, ROM coal feed, open cut coal - ROM means Run of Mine - overburdens of dirt on top of the coal seam, number of lost time injuries which are generally referred to as LTIs, calculations of incentive scheme. Then it talks about applying the scheme. If you would look at the total overburdens column, LTIs, if you are 2_ per cent under budget you receive that amount, if you are on budget for each of those you will receive 700, if you are in excess of budget you receive more.

PN42

THE COMMISSIONER: Could you pause there and we will mark this document. The document entitled Workforce Performance Scheme will be marked exhibit A1 in these proceedings.

EXHIBIT #A1 WORKFORCE PERFORMANCE SCHEME

PN43

MR ENDACOTT: You will see at the top it says 1 January 2002 to 31 December 2003, if you look at how the criteria are determined, it says:

PN44

Determination of criteria. The employer will use the budget for determining the payment formula under the scheme. Budget figures will be discussed with employees representative. Budget numbers will be confirmed by the end of November 2001 prior to the commencement of the payment period.

PN45

So by the end of November 2001 the company has spoken to us about what the budget figures are and the need to meet them the next year, in those components. Although I had no specific instructions on that point I believe that occurred. It says:

PN46

Payments. Payments of the lump sum under this scheme will be made by 31 January in the following year, ie, for the 12-month period ending December 2002. Payment under the scheme will be made by 31 January 2003.

PN47

It doesn't have a time for when they have to pay it but essentially it cannot be paid later than that day. Then there is salary sacrifice, and point 5 means that instead of receiving it in your wage you can agree to have it put into superannuation.

PN48

Now, to go to exhibit A, this document was provided to us on 10 January 2003 by Russ White, a supervisor, and you will see that it sets out how the employees have achieved against each of the targets which are the areas in point 2. Based on the calculations you will see that we were below the amounts required by - the first column means we didn't receive any payment, didn't make it to the 350. By the Run of Mine coal you will see that we were in between the amounts set out by budget, 2_ per cent of budget, which is $975.

PN49

THE COMMISSIONER: That's a pro rata figure, is it?

PN50

MR ENDACOTT: Well, the way it is applied, if you are 2_ per cent above you get 1150, if you were 2_ per cent below you get the 350, if you were more than that you didn't get anything, they just applied I believe a formula to work out where you actually fell within that line. In my understanding, Commissioner, we are not disputing the 975, the company gave us the documentation and we are not challenging how they came to those figures.

PN51

THE COMMISSIONER: We can hear what they say about that later.

PN52

MR ENDACOTT: Yes. The agreement makes it clear that you are paid the amount but you are also paid the amount on a pro rata basis depending on the period of continuous employment. What happened was, the company issued retrenchment notices dated 28 November 2002. Depending on whether you were four or five weeks, that gave you employment service effectively up to 26 December or 1 January, but the company did not pay the pro rata component on the bonus scheme.

PN53

Now, effectively the pro rata component would either be a couple of days for the people that finished up on or about 26 December or they were given a full week's notice. For those who would go into January next year they would really have to have the year in. Certainly the scheme was set up to compensate at the end of the year for how you achieved the targets during the year, it was to be paid on a pro rata basis depending on your period of continuous employment.

PN54

The number of employees that were left said, well, hang on, I contributed almost the whole year except for a couple of days, or I contributed for the whole year, and I didn't get any of the payments. Certainly that is the issue that we seek the assistance of the Commission to resolve and we would press at this stage for assistance in conciliation in an attempt to resolve that.

PN55

The second matter is Mr Ray Chillingworth. Mr Chillingworth is an employee of the company who prior to 27 December last year was off on workers compensation with respect to a back related injury. Now, what happened was on 20 December, he provided a certificate to the company that read in part that he was fit for his normal duties but he required regular stretching or required stretching to offset injury. Now, the company informed Mr Chillingworth that they believed that based on that assessment, he was unfit for work and wouldn't permit him to start. Now, quite often there's nothing controversial about a company not believing an employee is fit for work based upon his medical assessment.

PN56

The only problem is, Mr Chillingworth stopped receiving workers comp. So Mr Chillingworth and the union rang up the company's insurer who represents the company and said, why isn't Mr Chillingworth being paid workers comp? He's got this certificate for work related - and I said, well he's fit to return. They said, what? I said, well, he's got a doctor's certificate. We've observed the doctor's certificate and he's fit for normal duties. We assess, so we don't pay people workers comp for which they're fit for normal duties.

PN57

So Mr Chillingworth for the last month has been off work without payment with the insurer saying he's fit for normal duties and the company saying he's not fit at all. What else has happened is the company raised concerns that because of Mr Chillingworth's ongoing back related problem that had occurred, they were concerned that he wouldn't be fit and asked Mr Chillingworth to attend a medical report. So he's got his doctor's one. The company said, can you go to the doctors so we can get a detailed one. So Mr Chillingworth did.

PN58

Now, the company in the latest correspondence says based on that latest medical assessment that because of your injury, even though you might be fit to drive a vehicle now, because of the chances that it will re-occur because of the ongoing back problems, you cannot perform the inherent requirements of the job and we're considering dismissing you.

PN59

So the insurance company is still saying he's fit to return to work. the company is saying well, you're not fit. Not only that, you're that unfit, you cannot perform the inherent requirements of the job and as of Wednesday afternoon, they were considering terminating him. Now, I don't want to get bogged down in the legals of it because I want to resolve it by conciliation but we say the company has got to form a view. Either he is fit or he isn't fit because if he's not fit, at least Mr Chillingworth will be receiving workers comp. But they can't - the same person, because technically the insurer is the same person, has formed two absolutely contrary views about the one person.

PN60

THE COMMISSIONER: Could I stop you there. I mean, that to me certainly gives me a thumbnail sketch about both matters. Would you mind if we heard from Mr Whale now.

PN61

MR ENDACOTT: Yes, I don't wish to add any more.

PN62

THE COMMISSIONER: Yes, and then we can proceed to conciliation with the consent of the parties, of course.

PN63

MR WHALE: Thank you, Commissioner. Commissioner, in relation to the bonus issue, I must admit the application of the applicant in these proceedings was a little bit misleading. We weren't quite sure whether in fact it was bonus or there was some other issue as it says that the dispute relates to the correct payment in lieu of notice payments. Now, let me put that aside and -

PN64

THE COMMISSIONER: It also confused me but I think there's no problem with it. I think we'll just go on.

PN65

MR WHALE: No, Commissioner, we've guessed right that we thought it was the bonus aspect that they were seeking to pursue consistent with some on-site discussions. Commissioner, the company's position in relation to this matter, putting aside whether in fact this is the place in which this can be resolved, the company's position is that there are three fundamental propositions.

PN66

The first of which is whether in fact the pro rate entitlement which is referred to under clause one arises for people who terminate part way through a year or whether in fact that pro rata entitlement or to be entitled to that pro rata entitlement, you must have been employed at the end of the year and the pro rata period commences from when you commenced employment with the company.

PN67

So just in case I've lost you, an employee who commences part way through the year and who is there and is employed by the company at the end of the year, we say would have a pro rate entitlement. A person who was employed at the commencement of the year and terminates or their employment is terminated part way through the year, we say does not have a pro rata entitlement.

PN68

THE COMMISSIONER: That seems a little odd, doesn't it?

PN69

MR WHALE: That's our view in the way in which the scheme would operate, Commissioner. So that's our first proposition. Our second proposition goes to the quantum.

PN70

THE COMMISSIONER: I just want to go back to be perfectly clear before I've declared something to be odd. A person who starts work say in June and runs June to December inclusive, you say he gets half a bonus.

PN71

MR WHALE: That's right, a pro rata entitlement based on his period of employment.

PN72

THE COMMISSIONER: A person who was employed already as at 1 January and terminates as at 1 July, you say gets nothing?

PN73

MR WHALE: Correct. The basis for that, Commissioner, is that the performance of the mine is an annualised performance. That performance varies throughout the year and from the company's perspective, the only results at the end of the day and where the money is, so to speak is if at the end of the year the company has achieved its budgets in relation to performance. So people who terminate halfway through the year, we say, have not truly contributed to the end result. Certainly that's our view.

PN74

THE COMMISSIONER: What about people who terminated, if Mr Endacott is correctly putting the situation to me, terminated in the last week of December of the year, do you say there could be a big spurt - - -

PN75

MR WHALE: Now, that's the second proposition I wish to address. Our position is that Mr Endacott is quite simply wrong at law in relation to the concept of termination and payment in lieu of notice. The law on the matter, Commissioner, in our view is very clear that the company having paid employees in lieu of notice, the termination ceases on the date of that payment being made, on the termination date. It is not extended by the period of notice. He quite simply terminates on the day and those people terminated, Commissioner, on 28 November.

PN76

Now, if I can just briefly touch on why they terminated on 28 November, Commissioner. The reason for that was because the CFMEU sought to manipulate and to avoid the termination of these people for as long as they possibly could as a tactic to frustrate the company terminating 81 people through its - - -

PN77

MR ENDACOTT: I absolutely reject the submission.

PN78

THE COMMISSIONER: I would have thought it was almost the union's duty, but if you reject it -

PN79

MR WHALE: The company's position, Commissioner, was that those people should have been terminated on 7 November. That was the company's proposed termination date for all employees who either were terminated in or out of seniority. Now, the only reason that was extended, Commissioner, was the company under the auspices of Commissioner Bacon participated in a method of testing the reason for the termination of a number of employees. With the resolution of that, the company then proceeded to terminate their employment.

PN80

THE COMMISSIONER: I'm aware of that decision.

PN81

MR WHALE: So I'm putting to you, Commissioner, that the company did not deliberately seek to extend the termination date as near as to the end of the year for the purpose of paying a bonus component. That is simply not true and we say that Mr Endacott's view on the law of the matter is wrong. The third proposition we want to put to you, Commissioner, in relation to this issue is that under the performance incentive scheme, the company is bound to pay one of three amounts in relation to three categories.

PN82

It is either 350, $700 or 1050. There is no provision within the calculation of the performance incentive payment for a pro rate-ing of the payment. It simply doesn't exist. The company is only obliged to pay for less than 2.5 per cent of budget, $350. For the achievement of budget $700 or for 2.5 per cent in excess of budget, $1050.

PN83

That is the entitlement. However, the company in respect of employees who were employed for the period who have an entitlement as of the end of December exercised its discretion in respect of those employees only to pro rata the payment. Given particularly, Commissioner, the very lengthy industrial disputation that the company had been through in the preceding months it was a sign of good faith the company that the company decided that it would pro rata the payments, it would move it from $700 to $975 and the company did in fact pay that.

PN84

We say that under the scheme there is no pro rata-ing of the entitlement and in any event the people who Mr Endacott purports to represent in these proceedings, even if they were entitled to a payment under the scheme, and we say they are not, it would only have been the budget amount of $700. Those are our submissions in relation to that matter.

PN85

THE COMMISSIONER: I am still intrigued about the people who aren't there for the entire year. You say it's because your position is based on the proposition that production is spread over the year, it might be up and down over the year, but doesn't that also affect the person who joins in July and stays until December?

PN86

MR WHALE: That person wears the fruits of their labour, Commissioner.

PN87

THE COMMISSIONER: He might be wearing the fruits of other people's labour by your argument.

PN88

MR WHALE: Well, they have an opportunity to contribute to the achievement of the goals, of the targets, a direct input, whereas a person who leaves part way through the year, whether that person leaves in the first month of employment, our view is that that person can hardly claim an entitlement to the achievement of a budget or above-budget target where that person has been there for a very minute period time.

PN89

THE COMMISSIONER: I think the minute period of time was 11 months.

PN90

MR WHALE: Well, say for someone who terminated at the end of January in that year, that person would have effectively only been there for one month.

PN91

THE COMMISSIONER: The good thing here is we are dealing with the hypothetical, are we, we are dealing with quantifiable dates.

PN92

MR WHALE: There are a number of employees, Commissioner, who the union no doubt will allege are entitled to this benefit. Throughout the course of 2002 the company operated a number of voluntary redundancy schemes and certainly forced redundancy on one occasion. Those voluntary redundancy schemes, if my recollection serves me correctly, go back to May or June of last year, in particular in the mining area, a number of employees who terminated their employment in the earlier part of the year, so we are not talking about a homogenous group of employees in totality who terminated their employment on 28 November.

PN93

THE COMMISSIONER: Well, we have beaten that one to death, what is your response to the next one?

PN94

MR WHALE: We are prepared to participate in a conference with the Commission in that matter. In relation to Mr Chillingworth, it is almost a sign of fate, Commissioner, that he is not here, because a meeting was convened on the mine site with Mr Richardson on 23 January this year, with Mr Murray, with the express purpose of talking to Mr Chillingworth and his union about the issues that confront the company and him.

PN95

The purpose of that meeting, Commissioner, was to put to him that the company has four medical reports, four occupational assessment reports, which go to him sustaining significant injuries to his lower back and his neck extending back to 1993. Those medical reports, Commissioner, I am happy to provide them to the Commission, in fact I will do so

PN96

THE COMMISSIONER: Perhaps not at this time, perhaps after conciliation. I am just concerned a little for Mr Chillingworth's privacy in such matters, unless we really need to go through them.

PN97

MR WHALE: Very well, Commissioner. The nature of those medical reports, If I could just summarise briefly.

PN98

THE COMMISSIONER: Yes.

PN99

MR WHALE: The report of Dr Smythe, an occupational therapist, on 26 March 1997, finds a significant deterioration in his lumbar region, injuries to his neck and back which are attributable to him driving heavy vehicles which result in a great deal of jarring. The doctor found that there was permanent impairment, loss of use of the left leg at or above the knee of 12 per cent, 24 per cent loss of use of the right leg at or above the knee, 25 per cent permanent impairment of the neck and 48 per cent permanent impairment of the back.

PN100

A further report of Dr Plowman, an occupational therapist, of 3 September 1997 finds in relation to Mr Chillingworth - I will just briefly read the transcript - the name is Chillingworth, not Chillingworth. Dr Plowman finds that his back disabilities generally make him unsuited for pre-injury employment, for work where there is regular jarring and jolting and when driving plant over rough ground and where heavy manual or labouring work is a factor. Dr Plowman has assessed 10 per cent impairment of the neck, 15 per cent permanent impairment of the back, but with no loss of use of the legs. Ultimately Mr Chillingworth was awarded compensation, compensation payment of 10 per cent permanent impairment of the lower back and 5 per cent impairment of the neck.

PN101

In short, Mr Chillingworth presented a doctor's certificate on 20 November last year, Commissioner, to the effect that he had sustained further back injuries. He presented the doctor's certificate on or about 27 November saying that he was fit to resume work but required time for stretching. The company in light of that undertook a full review of his medical history and alarm bells rang. Those alarm bells, Commissioner, relate to the two reports that I have just referred to.

PN102

On the basis of that history and him suffering again a further injury, the company sent him to a Dr Wong, who undertook an occupational assessment of him on 2 January 2003. Dr Wong states that based on his history of permanent impairment there is a substantial, and I emphasise the word substantial, risk of developing lower, neck and back symptoms in the future if he were to continue work as a plant operator. He finds there is a substantial risk of further injuring his neck or lower back and if he were to continue work as a plant operator.

PN103

On the basis of that report the company wrote back to Dr Wong seeking that he address the nature of this risk, what is the substantial risk and how does it relate to risk that any other employee may be exposed to. Dr Wong wrote back to the company on 31 January 2003 stating to the effect that the function or the duties required of a plant operator, the operating equipment over uneven ground, jarring, jolting, etcetera, as compared to his history of permanent impairment means that there is the likelihood of significant further damage to Mr Chillingworth if he were to resume his employment. He anticipates that there would be a worsening in the level of pain and if aggravation continues, the person's level of function or capacity may be affected, may well be affected.

PN104

In relation to the level of risk, Dr Wong finds that a deterioration in the symptoms of Mr Chillingworth as compared to a normal individual are substantial and that if he were to experience frequent pain symptoms that require periods of inactivity to allow him to recover, there is the prospect of the overall level of functional ability being adversely affected.

PN105

So Commissioner, the company is confronted with a situation where Mr Chillingworth whilst presenting a certificate which says he's fit to resume work by a local GP, the company has before it three and now medical reports that say that Mr Chillingworth, if he were to return to his role within the company bears a substantial and we say unacceptable risk of further injury. The company is confronted with its duty of care to the employee concerned.

PN106

THE COMMISSIONER: But the insurer says that he's fit to go back to work. Your insurer.

PN107

MR WHALE: The insurer is not accepting workers compensation liability, Commissioner. The insurer is not saying he's fit to resume work. The insurer is not accepting liability for workers compensation.

PN108

THE COMMISSIONER: What do you say should now happen with Mr Chillingworth?

PN109

MR WHALE: The company wrote to Mr Chillingworth indicating that again, regretting that he was unavailable to attend the meeting on 23 January to discuss the options that are available.

PN110

THE COMMISSIONER: Perhaps he had difficulty finding the mine.

PN111

MR WHALE: I believe there was a more valid reason, Commissioner. The company put to Mr Chillingworth that there are basically three options. Confronted with the medical advice that the company has received and the company provided him with copies of those reports that I've referred to, that either he obtain an occupational assessment which addresses all of the concerns and in effect says that he is not a risk, not a substantial risk of further injury and invites him to access that occupational assessment before the company then chooses what to do, Commissioner. Obviously, depending on what that further occupational assessment says would determine substantially what the company does.

PN112

THE COMMISSIONER: So in the meantime, nobody is paying Mr Chillingworth?

PN113

MR WHALE: My understanding is that he's on a form of leave. I think it's long service leave or annual leave. My understanding, Commissioner, is that he's using his award entitlements in relation to his absence.

PN114

MR ENDACOTT: Well, he's had to take it because the company won't pay him any money and won't let him go to work, that's why he's had to take it.

PN115

THE COMMISSIONER: I fully understand that. Well, at this stage, would you be amenable to conciliation now? I mean, I understand the issues. We can come back on the transcript again if other arguments need to be put.

PN116

MR WHALE: I'm left with one thought, Commissioner. I don't know and please don't take this the wrong way but the conciliation surely has to deal with what are the options and we want to know what Mr Chillingworth wants to do, confronted with those options. In his absence, I don't see that we can meaningfully do too much at all.

PN117

THE COMMISSIONER: Well, that's something we'll talk about in conciliation.

PN118

MR WHALE: Very well.

PN119

MR ENDACOTT: I just want to respond to a couple of brief issues, Commissioner.

PN120

THE COMMISSIONER: Of course.

PN121

MR ENDACOTT: Commissioner, I'm well aware of the point on when someone's termination takes effect but if you read the provisions of the act is that you're actually, and we say in the certified agreement, you're actually paid the salary you would have earned until a set period. So I don't want to go into any more detail than that.

PN122

Secondly, you'll notice I got up and said that we hampered - when I said I object totally, what we did under the circumstances with respect to sorting out these retrenchments was entirely appropriate and in fact, my friend says that the retrenchments were delayed because the company agreed to the process. I recall that we wrote to the company and said that if they didn't give us a commitment they'd delay the retrenchments, we were going to take them to the Federal Court. It was in response to that we got a letter from their lawyer saying they'd give us appropriate notice when the retrenchments were to take place.

PN123

So my friend now says they'd made a decision on 7 November. The 7th and that was delayed through process. Well, I don't know if that's consistent with other representations that have been made. The other point I'd -

PN124

THE COMMISSIONER: In any event, how this happened is probably not going to figure very largely on anything.

PN125

MR ENDACOTT: No, you're right, it's irrelevant. Moving onto the issue of Mr Chillingworth, I note that the Commission was reluctant to accept the statements because of medical privacy but I do note that Mr Whale then read verbatim from the medical history so when he said privacy concerns are not relevant - - -

PN126

THE COMMISSIONER: I think the privacy issue is no longer live.

PN127

MR ENDACOTT: The other thing I need to check which is that the company says their position is not contrary to what is their position through their insurer because the insurer is rejecting liability, the insurer has accepted liability. That's the point. They've accepted liability for the injury. The insurer has clearly said to us and instructed us when we've made representations on his behalf, they're not paying because they've assessed him as fit for work. So that's a fundamental issue we wish to change.

PN128

We haven't hampered the process of trying to sort out Mr Chillingworth's medical problem. When the company asked him to go to the medical practitioner, he did. The last point I want to make with respect to what Mr Whale said about they've indicated to Mr Chillingworth what his options are, well Mr Chillingworth is quite happy to respond and Mr Chillingworth through the union wrote to the company on 7 February 2003 and said, look, can we have all this additional information so we can tell you what we want to do.

PN129

Now, to date, we haven't had a written response to that correspondence. So in that issue, yes, we can proceed the issues with respect to what Mr Chillingworth indicated he needs to be able to continue to address the issue. I make no further submission.

PN130

THE COMMISSIONER: I suppose we've almost arbitrated this matter. I think it is time we that we adjourned to conciliation. We are adjourned.

NO FURTHER PROCEEDINGS RECORDED [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WORKFORCE PERFORMANCE SCHEME PN43