C2004/4824, Transcript of Proceedings [2004] AIRCTrans 2930 (29 July 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 12490
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2004/4824

APPLICATION FOR AN ORDER TO STOP OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Endeavour Coal Pty Limited for an order to
stop or prevent industrial action at Appin
Colliery

SYDNEY

10.15 AM, TUESDAY, 20 JULY 2004

PN1

THE COMMISSIONER: Good morning. I will take the appearances.

PN2

MR A. DEARDEN: I appear on behalf of Endeavour Coal Pty Limited, with me, MR A. VOCTOVEC, MR B. WALSH and MR P. NUBLEY.

PN3

MS J. GRAY: May it please the Commission, I appear for the CFMEU and I have with me MR G. WHITE and MR W. MOTHERSDILL.

PN4

THE COMMISSIONER: Do you have any objection for leave to appear for Mr Dearden, Ms Gray?

PN5

MS GRAY: No objection, Commissioner.

PN6

THE COMMISSIONER: Leave is granted, Mr Dearden, for you application.

PN7

MR DEARDEN: Thank you, sir. On 8 July 2004 an application pursuant to section 127 of the Workplace Relations Act was filed with this Commission. The application can be summarised as seeking orders in respect of the period of the certified agreement that currently exists at Appin Colliery and in particular seeks orders against the CFMEU taking industrial action in the form of a strike without the permission of this Commission.

PN8

By way of background, during the course of the previous certified agreement there was approximately eight to nine strikes in breach of the dispute settlement procedure. Then within five weeks of the new certified agreement being put in place industrial action again occurred in breach of the dispute avoidance procedure.

PN9

In respect of that I have spoken to Ms Gray just prior to this appearance before you Commissioner. In regards to programming for this proceeding we agree that perhaps a period of four weeks for the company to file its statements of evidence in respect of this matter and then the CFMEU to be provided with a four week period for themselves and then a two week reply period for the company.

PN10

In terms of whether or not the matter can be conciliated, the company is of the view that that would be inappropriate in the circumstances given the nature of the application that the union, it alleges, has been unable to comply with contracts it has agreed to on behalf of its members. We see the better course of action would be to present in terms of formal evidence this application on that basis.

PN11

THE COMMISSIONER: You are aware that the case law appears to say that conciliation of a 127 application can't lead to an application under 1A(5) for somebody to step aside. So I can do both.

PN12

MR DEARDEN: We certainly don't dispute that in respect of that. What we are simply indicating, from our perspective conciliation would not be of assistance to the parties. We have certified agreements with the signatories of the CFMEU in respect of that. We have had it clearly expressed to us that compliance with the dispute avoidance procedure will be at the discretion of the members of the CFMEU and that union.

PN13

THE COMMISSIONER: I will hear them about what they say about that.

PN14

MR DEARDEN: Could I suggest if there is a suggestion that conciliation would be appropriate perhaps that would be best determined at the conclusion of filing evidence so that the issues are quiet clear in respect of what is put forward.

PN15

THE COMMISSIONER: It is my strong policy not to force parties into conciliation against their will, unless there are exceptional circumstances. But I wish to ask you a question. You might get out section 127(1). I just want to see where the application is grounded. It says there, the first section in brackets:

PN16

The Commission may make orders if it appears to the Commission that industrial action is happening, or is threatened, impending or probable.

PN17

What grounds do you rely upon from that little smorgasbord of options?

PN18

MR DEARDEN: In respect of that we would rely on the past conduct of the CFMEU and its members in respect of the failure in terms of grievances or issues its members have had in the past to present those to the company for discussion and agreement before taking industrial action.

PN19

THE COMMISSIONER: So, you say there is a pattern of behaviour which leads you to believe that certain things are probable?

PN20

MR DEARDEN: That is correct, sir.

PN21

THE COMMISSIONER: Very well. At this stage I will hear Ms Gray. I am not inviting you to argue your full case about this, just to give me an outline.

PN22

MS GRAY: No, and we are going to ignore a lot of the implications and suggestions from Mr Dearden's opening too, Mr Commissioner, and just deal with the program of conciliation, etcetera. We don't think there is any necessity for the application, full stop. Although we are always of a view that talking doesn't hurt the company is clearly wanting an order for the life of the agreement and anything we might say to them, I think, is not going to convince them otherwise. So we would, in those circumstances, agree with Mr Dearden's assessment that conciliation is unlikely to resolve the matter.

PN23

We are happy with a timeframe of four weeks, four weeks and two weeks for reply. Then it would be a matter of having hearing dates set. It might be a bit difficult for us to do a reasonable assessment for hearing dates at this stage though, Mr Commissioner, not knowing how many witnesses the company intends to bring, and what material they rely on. Until we get that I think it is a bit difficult for us to assess how many witnesses we would need because our material, of course, is in the nature of reply.

PN24

THE COMMISSIONER: What we could do in the light of your problem there - I see your submission as being reasonable - we could set the four, plus four, plus two and then have a programming hearing after that.

PN25

MS GRAY: That sounds sensible, Mr Commissioner.

PN26

THE COMMISSIONER: So let us just go off the record for a moment.

OFF THE RECORD [10.22am]

RESUMED [10.25am]

PN27

THE COMMISSIONER: I have discussed the programming of this matter with the parties during the break. Formal written directions will issue today but I indicate for the benefit of the transcript that the company will file its submissions and such documentation as it wishes to rely upon by 17 August 2004. The union will reply by 14 September 2004. The company will have another right of reply by 28 September 2004. If those dates are kept to, the matter will come back before me for programming of a hearing at 10.00 am in Sydney on 30 September 2004. Is there anything further the parties wish to put to me?

PN28

MR DEARDEN: No, Commissioner.

PN29

MS GRAY: No thank you, Commissioner.

ADJOURNED ACCORDINGLY [10.27am]