|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
(ADMINISTRATOR APPOINTED)
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N 750
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
C2004/4343
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by Wesfarmers Premier Coal Limited for an
order to stop or prevent industrial action at
Wesfarmers Premier Coal Ltd, Collie
PERTH
12.37 PM, TUESDAY, 20 JULY 2004
Continued from 19.7.04
PN1038
THE DEPUTY PRESIDENT: Mr Bull?
PN1039
MR BULL: Yes, thank you, your Honour. I was yesterday advised that we had three witnesses and we had finished with the evidence of Mr Bradshaw. One thing has been brought to my attention, we've made some reference to orders of the Coal Tribunal and I haven't had the courtesy to give you a copy, if I may do that for your information, your Honour, provide a copy of the order that the Tribunal issued in respect to the Coal Miners Union? You asked yesterday about the power of the Chairman under the Act and I think it is reasonably well set out there in the preamble to the orders, that the Tribunal was relying upon section 12 of the Act, there being an urgent conference and being informed that there was industrial action commencing on 12 July in response to a proposed enterprise agreement.
PN1040
You will note there on the third paragraph there, your Honour, where the parties have been along with the Metal Workers Union participating in negotiations for a single enterprise bargaining agreement for some months, both independently and before the Chairman of the Tribunal in conferences convened under the Act, just confirming the history we've already identified through the evidence of Mr Bradshaw. He made a recommendation that the miners return to work and notes that the recommendation wasn't accepted. Then he goes on to make the order that the employees return to work immediately, certainly no later than 7 pm on the Thursday.
PN1041
You've been advised, your Honour, that they didn't actually return to work until 7 am on the Saturday, the same time as the Metal Workers commenced their industrial action. Of some interest, your Honour, is the recommendation amongst the order that the Chairman makes that is on the last page, recommendation 4, the Chairman recommends that:
PN1042
The Metal Workers Union reconsider its position as to the institution and maintenance of federal proceedings in relation to the matter, the subject of these proceedings and that it rejoin negotiations on outstanding issues as to the proposed industrial agreement with the applicant and respondent.
PN1043
That just confirms with respect, your Honour, the history as we've stated in our evidence and our submissions that there has been an ongoing series of negotiations and matters before the Tribunal to resolve the outstanding enterprise agreements for both the miners and the maintenance employees, hopefully in the end result a single agreement and to be registered before the Tribunal, that is the Coal Industry Tribunal. And the Chairman, no doubt, in view of that background had made that recommendation that they reconsider their position in terms of going down the federal path and that you will be obviously acutely aware, your Honour, that a recommendation was made before the industrial action commenced on the Saturday. It is a matter of history now that the industrial action did commence. That recommendation was obviously ignored and the industrial action continues today.
PN1044
THE DEPUTY PRESIDENT: Do you want that marked?
PN1045
MR BULL: Yes, thank you, your Honour.
PN1046
PN1047
MR BULL: Thank you. I would like to call our - - -
PN1048
THE DEPUTY PRESIDENT: The reference there is the State union, is it?
PN1049
MR BULL: The State union was the union that was negotiating the Coal Industry Tribunal.
PN1050
THE DEPUTY PRESIDENT: Yes.
PN1051
MR BULL: Your Honour, may I call Mr Jeff Allen to the witness box?
PN1052
PN1053
MR BULL: Now Mr Allen, could you give your current address and occupation to the Commission, please?---Sorry, I'm currently residing in (address supplied). My occupation is the Maintenance Manager Wesfarmers Premier Mine in Collie.
PN1054
And how long have you had that position for?---I've been in that position just on 12 months.
PN1055
And prior to that?---I was the Maintenance Manager at Curragh Queensland Mining, a mine owned by Wesfarmers Energy in Queensland.
PN1056
And as the Maintenance at Premier Coal, what is your role?---My role is to manage the maintenance of all of the operational equipment and the infrastructure for the facility, 63 maintenance employees and some apprentices that are engaged in carrying out that maintenance.
PN1057
And how many maintenance employees are engaged by Premier Coal roughly?---63 tradesman and 19 - 15 apprentices and 10 staff.
PN1058
All right. Now have you been involved in negotiations for enterprise agreement with the Metal Workers Union?---I've been involved in the negotiations that were commenced in August last year with both the miners and the trades for an agreement under the CIT.
PN1059
And how did you come to be involved in those negotiations?---I was asked by my boss at the time, by Mr Butel, to participate in the negotiations with the other people involved.
PN1060
All right. When approximately was the first meeting of both parties or the three parties, the metal workers and yourselves?---The first meeting was in early August, I think that occurred in Mandurah where we exchanged positions on - by both unions and the company.
**** JEFF ALLEN XN MR BULL
PN1061
And was there any understanding as to how the meetings should proceed?---There was a set of protocols that had been agreed prior to that meeting which essentially were that both parties would - all the parties involved would negotiate on the basis that everything - or nothing was agreed until everything was agreed. That the negotiations were to secure a single agreement with both unions.
PN1062
Were you ever given any documentation from the union in respect of the unions, in respect of their claim for a replacement agreement?---Yes. The unions gave us a document that was a joint position by both the CFMEU and the trades.
PN1063
I will just show the witness a document, if I may?
PN1064
What is that document, Mr Allen?---That's the document that was presented by the unions on that first meeting which was the claims by both the CFMEU and the AMWU.
PN1065
If I could tender that, your Honour?
PN1066
What date has that got on it, Mr Allen?---On the copy I have it's partially obscured but I actually signed it and dated it, I believe it's the 16th of the 8th '03.
PN1067
The 26th - I will show you the original?---All right. Yeah, the 20th of the 8th '03.
PN1068
**** JEFF ALLEN XN MR BULL
PN1069
MR BULL: Thank you, your Honour. Now when was that given to you?---That was given to us at meetings that were held between the company and the unions to being the process of negotiation.
PN1070
All right. Now you've seen the document that was tendered yesterday?---I haven't actually examined it, I only saw from where I was in the Commission yesterday.
PN1071
Yes. Had you seen that before?---I don't believe so, no.
PN1072
All right. So you weren't given that document?---No.
PN1073
All right.
PN1074
THE DEPUTY PRESIDENT: What document?
PN1075
MR BULL: I'm not sure what exhibit number it is, your Honour. It was put to - R1, I think it is, your Honour.
PN1076
THE WITNESS: I don't believe I've seen that document before, no.
PN1077
MR BULL: Okay. Now approximately how many meetings have you attended with the miners and the trades in respect to resolving this enterprise agreement issue?---My recollection, I've been involved in all but probably two weeks where those negotiations took place, probably some 20 meetings over 40 days roughly.
PN1078
Right. And what has been your understanding as to what would happen to the document if there was a finally agreed enterprise agreement?---Certainly my understanding was that that would be registered in the CIT as an agreement between the company and the two unions.
**** JEFF ALLEN XN MR BULL
PN1079
All right. Now have you attended conferences before the Coal Tribunal?---I certainly have.
PN1080
Now, how did you become aware of the metal workers application in the federal jurisdiction?---There were some suggestions, I can't remember exactly when, prior to the - I think the time that particularly I remember is the - Mr Saunders actually informed it was at a conference that that enterprise or that notice of bargaining was to be filed on that day. I'm not certain of the date of that conference.
PN1081
That was a conference where?---A conference in Collie.
PN1082
What, before whom?---Before Mr Kenner.
PN1083
And what happened, did the company receive that notice?---There was a notice and a log of claims that was served I believe by fax either on that day or the day after, I'm not certain as to that detail.
PN1084
And what is your understanding of what the company did as a result of that, receiving that log?---We - it was Mr Warrand wrote to the unions, to the AMWU seeking clarification of some of those clauses in the log.
PN1085
Right. And what happened as a result of that correspondence?---There was a meeting that was held with the union, with the AMWU and with Mr Saunders, Mr Kearney, Luke Edmonds and the other guys involved, had been involved in the previous negotiations at the CCI. I believe late in May and at that meeting we went through that log of claims and the unions clarified some of that detail of those claims.
PN1086
And who spoke on behalf of the union?---Predominantly Mr Edmonds and Mr Saunders, although there was some clarification from other members.
**** JEFF ALLEN XN MR BULL
PN1087
Did Mr Kearney say anything?---Mr Kearney was certainly at the meeting and he did speak at the meeting, I would be unsure of exactly which areas but he certain did speak there.
PN1088
Did he advise yourself about the reasons for the application being filed?---At that meeting we clarified I don't believe I can recall that. I had a meeting soon after that with Mr Kearney individually.
PN1089
And what was that about?---That was the Monday after that meeting where we had clarified the claims and that was to talk to Mr Kearney about some need for use of contractors on the site. There were a number of pieces of maintenance equipment which had been out of service for quite some time and to attempt to get some assistance in maintaining those. We also discussed the current state of the negotiations, some of the sticking points that we'd had in the negotiations in the CIT or for an agreement in the CIT.
PN1090
And did he mention to you about the federal claim?---I - we had a discussion, I remember saying to Mr Kearney that - this was immediately after the, or the week after the clarification meeting on the federal claim and I said to him that we would - it would be difficult to get an agreement between the parties for the CIT if we went through this process and asked him whether he was, the union was indeed serious with pursuing the federal claim and what that was about. He told me that the union would take whatever action was required to get an agreement under the federal and that he'd been advised that agreement under the federal system could be registered in the CIT.
PN1091
What is Mr Kearney's position?---Mr Kearney is the Site President for the Metal Workers, I believe, for the AMWU.
PN1092
Has he been present at all meetings?---I believe he has. I can't remember any that wasn't in. There may have been one or two occasions in the number but I can't off hand remember those.
**** JEFF ALLEN XN MR BULL
PN1093
Now can you tell the Commission the impact of the industrial action that has occurred on 17 July?---The impact of that action has been to exacerbate some problems we've had with equipment availability in that time. Prior to the action we had a - one of our shovels it was under repair and that is still out of service. On the weekend of 17th and 18th we had the other two of our electric shovels at different times out of service and they took significant times to return to service because we only had a small number of apprentices that could look at those issues. Obviously a number of apprentices doesn't go anywhere the normal maintenance crews and they don't have the depth of numbers or skills to address all the problems. And as of this morning, we've still got significant numbers of equipment out. Just - we've got an excavator, the shovel that I mentioned previously, eight haul trucks, a grader, two wheel dozers, two track dozers and two water carts which represents a significant amount of mobile equipment we operate. So instead of being able to fully man and utilise the equipment to meet our plan we're unable to do that. There's also been a number of problems with the coal handling plant which takes the coal from the mine and crushes it and distributes it to the customers. That failed, the plant was completely down Saturday afternoon of the 17th, it's been back in service and today is operating with the ability to deliver coal, the diverter shute on one of the conveyors has a mechanical device to position that's not functioning so it has had to be done manually. And on Saturday night we actually lost the delivery of one of our scheduled trains to one of our customers to Worsley. It's also impacted on the ability to build up our coal stocks.
PN1094
And in your opinion as the Manager of Operations or Maintenance, I should say, how long is it before there will be no equipment available?---It's difficult to be exact, but I believe that by the end of this week we'll be in a position where we'll have very little equipment operating. We have obviously in mobile equipment regular servicing, routine servicing that needs to be carried out on all of those pieces of equipment that continue to operate, racking up hours, getting close to those. We don't have the depth of numbers or the skills to address those in the manner which we would normally like to and we'll have a major portion of the mobile fleet probably a number of problems on and off with the plant and with our major shovels. We'll be in a position where we will be finding it very difficult to produce towards the end of this week.
**** JEFF ALLEN XN MR BULL
PN1095
All right, now in respect to the federal application by the union, have you been given any instructions by your management as to how to conduct negotiations or any instructions at all?---We've certainly taken the negotiations on board that what we clearly have a preference to do a deal an agreement with both of the unions in the CIT and that's certainly been our focus over some time. We are prepared to continue or to clarify and then negotiate with the Metal Workers on the federal claim.
PN1096
So have you told Mr Kearney the position of the company with respect to the federal claim?---Certainly I've told him that the federal claim has taken our focus away from the CIT. I've said to him that we're prepared to negotiate but at all of the meetings since the notification of bargaining that we've had with the join unions with both the Metal Workers and the trades, we've made it clear that those negotiations those discussions have been for an agreement in the CIT.
PN1097
And are you aware of any meetings with the federal state officials or site officials in respect to negotiations on their log of claims?---The only meeting that I'm aware of with the officials with the Metal Workers has been that one meeting I described earlier to clarify the log of claims.
PN1098
Well, you would have heard a submission earlier from my friend, Mr Edmonds, that the federal claim had been discussed in some shape or form on at least 11 or 12 - 10 or 11 meetings. What do you say to that?---I don't believe we have.
PN1099
Have you ever been requested by Mr Kearney or anybody to have a meeting?---I haven't certainly, no.
PN1100
Have you ever refused to have a meeting?---Not that I know of, no.
PN1101
What discussions have been held in respect to an agreed computer package for employees?---We haven't had any discussions. The only knowledge I have of that is the clarification that was made by the AMWU at that one meeting.
**** JEFF ALLEN XN MR BULL
PN1102
What discussions have you had over providing a separate breast feeding room?---Seriously, none. I believe there may have been an occasion when that was raised in jest but certainly, seriously, none.
PN1103
What discussions have you had about payment of all wages to be paid by electronic fund transfer?---Again, only the clarification when the AMWU put that position to us.
PN1104
What discussions have you had in respect to providing a work free from unfair and unlawful discrimination?---Again, none, other than the clarification at that meeting.
PN1105
Now, in respect to the industrial action, is Wesfarmers Premier Coal able to wear that at this point in time?---Certainly it comes at a time when we are in very poor shape to wear that. We have had - over the 12 months of the negotiations we have had with both unions, we have some 2.4 million BCMs, bank cubic metres, of over burden behind our budget. We have been struggling to have the necessary amount of exposed coal in the pit to manage our coal deliveries. And we have had problems, chronic problems, with equipment that have meant that our availability of mobile equipment to the mining effort has been significantly lower than we would like it to be planned over that time. It also comes at a time when, from a reputation point of view, we are in the position where a number of major contracts are currently open, including the Western Power, Worsley, the prospect of increasing contracts to Iluka, one of our newer customers who have suffered through this industrial action recently.
PN1106
And what is your understanding of the outstanding issues in reaching an agreement with the metal workers in the Coal Tribunal?---I think there is probably three major issues. The issue of the common roster is one that has been a sticking point over the negotiations. The issue of contractors in warranty. And the issue of flexibility in terms of the metal workers preference for a flexibility clause that refers to the job at hand and a slightly different viewpoint from the company.
**** JEFF ALLEN XN MR BULL
PN1107
And have there been any recent disputes over any of those issues?---We have had a dispute with the trades in the last few weeks where the company has, through Mr Warrand, asked for the use of contractors to do some work on some of our mobile equipment and that was refused by the unions. The unions indicated to us that one of the major issues with that request was the outstanding redundancies that were still in place. The two redundancies in the trades area. Since that indication, the company has removed those two redundancies and further negotiated with the union but were unsuccessful in getting the use of contractors, to get agreement. That matter was listed in the Coal Tribunal and the metal workers took strike action over that. And at a conference in the Tribunal a compromise position was reached where the unions would, in place of the contractor labour, to try and repair the equipment, would work additional overtime in the face of a 12 hour overtime per week per employee to reduce that backlog.
PN1108
All right. Now, is that overtime being performed now?---Certainly not now while the unions are - while the trades are on strike. There were, with some minor hiccoughs. In the period after that conference, there was overtime worked and that was effective on some of the jobs that we were looking to do but clearly since Saturday morning there has been either no trades normal hours or overtime.
PN1109
Now, you will recall the stop work meeting or meeting on 14 July with the Coal Miners Union?---Yes.
PN1110
Did any of your employees attend that meeting?---There was - Mr Kearney actually spoke to me. He was on day shift on that day on a 10 hour shift. And spoke to me in - asking permission to leave early enough to attend that meeting and I gave him permission for that and said that we would talk about payment at a later date.
PN1111
Why would you give a maintenance employee permission to attend a stop work meeting of the miners?---With the view that we were still trying to reach an agreement between both the unions and that the action of one union was important for the other.
**** JEFF ALLEN XN MR BULL
PN1112
And, Mr Allen, in respect to the overtime agreement that was reached, how long was that to operate for?---That was to operate for 1 to 2 months, at which time the agreement would be reviewed between the parties. And if progress had been made on the maintenance backlog on equipment, then that would cease. The company at that time clearly reserved our right that if we didn't get the support from the union in terms of the overtime, that we would be able to go back to the Tribunal and request some other means.
PN1113
Now, in respect to the unavailability of equipment, Mr Allen, can you summarise the numbers and pieces of equipment that aren't available at the moment?---We have one shovel, one excavator, eight trucks, four dozers, two water carts and a grader that are currently unavailable as of my latest discussions earlier this morning. I am not aware of developments since then.
PN1114
I have no further questions, your Honour.
PN1115
THE DEPUTY PRESIDENT: Thank you. Yes?
PN1116
PN1117
MR EDMONDS: Now, Mr Allen, you are the Maintenance Manager, that is correct?---Correct.
PN1118
And you have been there for 12 months or so, a little over 12 months?---Very nearly 12 months.
PN1119
Very nearly 12 months. So, you have been pretty much involved with these discussions pretty much from the word go, haven't you?---Yes, since the - - -
**** JEFF ALLEN XXN MR EDMONDS
PN1120
Basically they started a month after you got there, more or less?---Yes.
PN1121
And your job is to manage the maintenance of operational equipment and infrastructure?---Yes.
PN1122
Now, you had problems with keeping the maintenance equipment available since before this industrial action started?---We certainly have had problems, yes.
PN1123
And what has caused those problems, in your view?---A number of issues but certainly the age and condition of certain parts of the equipment fleet.
PN1124
Right?---The - - -
PN1125
So, not all of it has got to do with - - - ?---Sorry?
PN1126
So, not all of it has got to do with the workers?---I was just going to add that there are a number of other issues. The - certainly the time that has been lost from the workforce, both from negotiation and of the members involved in negotiation, and the industrial action has impacted.
PN1127
Yes?---The conditions under which operations are carried out where some of the demarcations, I guess, that have in the past been in place and were relaxed by the unions have been reinforced over that period.
PN1128
All right. Now, you said there was recently a conference in the Coal Industry Tribunal on the issue of the use of contractors to do warranty work. That a compromise was reached. And the deal was now that the maintenance workforce were to do overtime, 12 hours overtime a week, to catch up on outstanding maintenance. Is that correct?---The conference was for additional contract work. It wasn't actually warranty.
**** JEFF ALLEN XXN MR EDMONDS
PN1129
Sorry?---But, yes, the intent was that we would - we had large numbers of equipment were out of service. We needed the truck fleet particularly and other equipment to be in service for operational needs. And the outcome of the conference was, yes, that each of the trades members would work 12 hours overtime per week for that 1 or 2 month period to reduce that backlog.
PN1130
And how did that go, that process of reducing the backlog?---The process was reasonably effective. The overtime certainly helped with one of the jobs that was particularly a problem. The truck that had been out of service for major chassis repairs and was in re-assembly was close to completion.
PN1131
Isn't it true that despite an undertaking you gave in the Coal Industry Tribunal, you actually ran - - - ?---Sorry, can I - I was just about to say, there were other equipment that were part of that conference that we wanted to work on and haven't been able to as the overtime hours weren't sufficient to do all of the outstanding jobs.
PN1132
All right. Well, isn't it true that some of that equipment was unable to be worked on because you hadn't sourced parts for that particular equipment?---No.
PN1133
That is not the case?---No. No, there were parts required for some of those jobs. There was certainly work that could have been and was carried out.
PN1134
Isn't it true that last Wednesday and Thursday the maintenance workforce were told not to come in to do overtime because there was nothing for them to go on with?---I am not aware of that, no.
PN1135
You are sure you are not aware of that?---I am certain I am not aware of that.
PN1136
Okay. So, you would be surprised if that was the case then?---I would be surprised, yes. We need the labour.
**** JEFF ALLEN XXN MR EDMONDS
PN1137
Now, you have been involved in these discussions that commenced in August 2003 to reach an enterprise agreement to cover the site. Is that correct?---Yes, I have, yes.
PN1138
And you said there was two protocols that have been reached prior to those discussions beginning and that was nothing was agreed until everything was agreed?---That is correct.
PN1139
What does that mean?---My understanding of that is that throughout the negotiations there would be a whole number of issues that we would discuss and try to reach agreement, understanding, on. But that agreement on one of those issues would not be finalised until the whole of the deal was agreed.
PN1140
Do you think that has caused difficulties with reaching a deal? Has it caused difficulties with establishing final positions on things?---It means that because of that, that there are issues with getting agreement, for sure. But that is the protocol that was agreed and it is important that all of the issues are discussed and finalised and not one at a time.
PN1141
With respect to the second issue of the single agreement, is that a sticking point for the company? Is that something that they are intent on getting, a single agreement to cover the workforce?---We are certainly keen and it is our preference to have a single agreement, for many reasons, yes.
PN1142
Would that be a basis upon which you wouldn't do a deal if you couldn't get a single agreement to cover both the CFMEU and the AMWU?---I honestly can't answer that question, Mr Edmonds. I would have to look with the rest of the company at the circumstances at that time. And certainly we have, up until this stage, been fairly certain that we wouldn't.
PN1143
Have you ever stated or has anyone from the company ever stated in the negotiations, if you are not going to get a single deal, then you are not going to do a deal?---I am sure that we have said that we would have a strong preference for and that is what we wanted to do, yes.
**** JEFF ALLEN XXN MR EDMONDS
PN1144
Do you think anyone has ever said, if we can't get a single deal, we are not going to do a deal?---
PN1145
MR BULL: In respect to what, the Federal agreement or the State agreement?
PN1146
MR EDMONDS: With respect to reaching an agreement.
PN1147
MR BULL: Yes. But in respect to what, the Federal or the State? You have got two logs of claims.
PN1148
THE DEPUTY PRESIDENT: Mr Edmonds, can you clarify the question you are putting.
PN1149
MR EDMONDS: Well, the question is whether in the discussions that have taken place in an effort to reach an agreement, whether that be State or Federal, whether the company has ever said, if we can't get a single deal, then we won't do a deal?---I am certainly sure that in the negotiations that we have carried out for an agreement in the CIT that we have stated a preference that we wanted a single deal with both unions, yes.
PN1150
Okay. But you couldn't say for sure whether - - - ?---I can't recall those exact words, no.
PN1151
Okay?---But I am sure that we have said that we wanted to do a single deal with both unions with similar - same conditions, and have said that many times, yes.
PN1152
Okay. If the witness could be shown exhibit R1. Have you ever seen that document before?---I haven't, no.
**** JEFF ALLEN XXN MR EDMONDS
PN1153
Okay?---Well, other than the fact that I saw it presented in the Commission yesterday.
PN1154
All right. If you could just have a bit of a look through it. And would you agree that the claims that are made in that particular document pretty much represent the claims that were made by the AMWU in August of 2003?---There is some similarities but I haven't done a - obviously haven't had access to this to do a line by line check, but there are differences.
PN1155
But would you agree that it is more or less reasonably similar?---I would agree there are some similarities.
PN1156
Okay?---But I haven't - - -
PN1157
Well, maybe if we could have exhibit A7 for the witness to compare.
PN1158
THE DEPUTY PRESIDENT: What is the point of this, Mr - - -
PN1159
MR EDMONDS: Well, sir, if you can bear with me, I will get there.
PN1160
Where it says:
PN1161
Term: Minimum 3 years, maximum 5 years.
PN1162
That is pretty similar, would you agree?---Yes.
PN1163
If we go down to:
**** JEFF ALLEN XXN MR EDMONDS
PN1164
Job Security: Minimum manning numbers agreed for life of the agreement.
PN1165
It is pretty similar:
PN1166
No forced reductions from current numbers.
PN1167
Would you agree that is pretty similar?---Yes.
PN1168
So, if you can compare the two of those documents, would you generally say that they are reasonably similar documents? Maybe there is some additional stuff there, but it would be fair to say they are reasonably similar?---In the time available, Mr Edmonds, unless I go through each one, but I - - -
PN1169
Okay. Well, just maybe from the ones you have seen so far, would you say they are probably reasonably similar documents?---Certainly those first two clauses that we have identified, yes.
PN1170
Okay. Now, have you seen the Federal log of claims, amended log of claims, that were served on - - - ?---I have seen both of those, yes. The amended and the initial.
PN1171
Okay. Did you see the amended log of claims that was served on Wesfarmers Premier Coal on or about 10 May 2004?---Yes. Yes, I have.
PN1172
Okay. I took Mr Bradshaw through that document yesterday. Would you agree that a number of those claims are reasonably similar?---Certainly there are some similarities, yes.
**** JEFF ALLEN XXN MR EDMONDS
PN1173
Okay. Would you also agree that there has been numerous discussions since the Federal claim was actually served on the company?---Sorry, I don't understand the question.
PN1174
Would you agree that there has been numerous discussions since 10 May 2004 about reaching an agreement between the parties?---For what, Mr Edmonds?
PN1175
For an agreement, an agreement to cover the wages and conditions of the workers in the workplace?---I'm sure there have been a number of discussions which were joint with the miners and the trades, where we discussed the agreement in the CIT.
PN1176
Okay, but you would certainly agree there is a similar log of claims? After the Federal log of claims was served there has been numerous discussions. You would agree to that, wouldn't you?
PN1177
MR BULL: You can't try and confuse the witness, "numerous discussions" about what? There is a claim in the Coal Tribunal. He has got the exhibits in front of him. He is now confusing and is talking about the same like in the Federal Commission. He must distinguish what discussions he is talking about. If he means that they were both conducted together then he should say so.
PN1178
THE DEPUTY PRESIDENT: Yes. Mr Edmonds, can you try and make it clear what you're asking?
PN1179
MR EDMONDS: Well, certainly, sir. With respect, sir, there has been discussions taking place since August of 2003 about reaching an enterprise agreement. There was a Federal log of claims served and discussions continued about reaching Federal agreement.
**** JEFF ALLEN XXN MR EDMONDS
PN1180
MR BULL: Well, that is just a bold assertion.
PN1181
MR EDMONDS: Sorry, sir, if Mr Bull would sit down. There has been numerous discussions about reaching an agreement but to say - - -
PN1182
THE DEPUTY PRESIDENT: Can you try and ensure that the witness is clear what you're asking, whether you're asking of discussions in relation to any form of agreement, discussions in relation to a particular form of agreement or discussions relating to both, whether they be contemporaneous or not.
PN1183
MR EDMONDS: Okay.
PN1184
Since 10 May 2004 have there been numerous discussions about reaching any form of agreement between the parties?---There have been a number of discussions about reaching agreement between both the trades and the miners for an agreement in the CIT, yes.
PN1185
So that is a, yes, there has been numerous discussions about reaching any form of agreement?---Yes.
PN1186
Okay. Thank you. Now, you said in your evidence that your understanding was that any final agreement would be registered in the Coal Industry Tribunal?---Sorry, I don't understand exactly the question?
PN1187
Well, you said in your evidence that it was your understanding that any final agreement would be registered in the Coal Industry Tribunal?---Yes.
PN1188
Is that correct?---My understanding is that the negotiations that we were taking - that were taking place were done with a view to having an agreement with both unions and registering that in the CIT.
**** JEFF ALLEN XXN MR EDMONDS
PN1189
Okay. Where did you get that understanding from?---The discussions that we had had as a group negotiating team beforehand.
PN1190
When the union served its log of claims on Wesfarmers Premium Coal it said, as part of the notice of initiation of bargaining period that it intended to try to make an agreement under Division 2 of Part VIB of the Act with Wesfarmers Premium Coal and it intended to have an agreement so reached certified under Division 4 of Part VIB of the Act. Was there ever anything said to you that would give you the impression that the AMWU had no intention of registering an agreement in the Federal system?---The discussion that I had with Mr Kearney where he told me that he had been informed that the agreement under the Federal could be registered in the CIT led me to believe that there was some confusion about that.
PN1191
Would there be any reason why it couldn't be registered in both?---I honestly don't know.
PN1192
Okay. But he - - -?---Speak to the lawyers on that.
PN1193
But, certainly, the question was whether he had ever said to you that there was no intention to register an agreement in the Federal system, notwithstanding what he said about the Coal Industry Tribunal, did anyone from the union ever say to you there was no intention to register an agreement in the Federal system?---To me specifically, no.
PN1194
Okay. As far as you're aware, was anything ever said to anyone else at Wesfarmers, that there was no intention to register and agreement in the Federal system?---Not that I'm aware of, no.
PN1195
Okay. Now, you said that after the notice and the log was served by fax Mr Warrand wrote seeking clarification of the clauses in the log. Did you see that correspondence that Mr Warrand wrote?---Yes.
**** JEFF ALLEN XXN MR EDMONDS
PN1196
Okay. When did you see that?---I honestly don't know.
PN1197
Was it distributed to all the negotiating team?---I'm not certain, Mr Edmonds, that I have a copy. I certainly read and discussed that with our lawyers and Mr Warrand but I - I don't - not entirely sure. I couldn't say whether I've got a copy of that.
PN1198
Okay?---I don't - don';t recall having one but I may have.
PN1199
Did you see the response that the union sent back?---Yes, I did.
PN1200
And that was distributed to the negotiating team, was it?---Yes. It was, yes.
PN1201
Was there ever any discussions about ensuring that you didn't discuss the terms of that response with the AMWU at any of the meetings?---We certainly again discussed those issues with the lawyers but our focus was to get an agreement in the CIT and we made the clear at each of the meetings with both the trades and the miners.
PN1202
So you made it clear that your preference was to get an agreement in the CIT. What did you say about the Federal system, did you say you weren't prepared to do an agreement in the Federal system?---No.
PN1203
Did you say you were prepared to do an agreement in the Federal system?---We said we were prepared to - my understanding is that we were prepared to negotiate with the union.
**** JEFF ALLEN XXN MR EDMONDS
PN1204
Okay. But did you make it clear at those discussions that you weren't negotiating on the Federal agreement or that you wouldn't register any agreement in the Federal system?---We made it clear at each of those discussions that the discussions, the negotiations, were to gain an agreement in the CIT and that was our focus, had been over a long time to do that, and that in trying to operate in both arenas was a distraction for us and we were concentrating on the CIT negotiations with both the unions.
PN1205
Okay. Now, you said that Mr Kearney said to you that the union would take whatever action that was necessary to get an agreement under the Federal system. Is that correct?---Words to that effect, yeah.
PN1206
And what did you take that to mean?---I took it to mean that the union would take whatever industrial action was necessary as they saw it.
PN1207
So is it fair to say that you took that to mean that the union was serious about getting a Federal agreement?---I took it to say that Mr Kearney said to me that he would - they would take whatever action was necessary.
PN1208
Okay, but - - -?---That's - - -
PN1209
Okay. Well, did you form a view from that as to whether Mr Kearney was serious about the union reaching a Federal agreement?---Without any more information, no, I couldn't.
PN1210
Well, if you took it to mean he was going to take industrial action, that is a fairly serious step. Would you agree?---I certainly see it as very serious but given the amount of industrial action that has been taken I'm not certain.
PN1211
All right. I put it to you that it is a fairly serious step to take, protected action under the Federal system. Would you agree with that?---I believe it is an action that is available to the union and certainly it is in - a step that would have to be considered and taken - not taken lightly, yes.
**** JEFF ALLEN XXN MR EDMONDS
PN1212
Okay. So it would be fair to say then that as it's a serious step he would have been serious about the statements he was making, he would have been serious about taking any action necessary to get an agreement under the Federal system?---I can't assume - - -
PN1213
THE DEPUTY PRESIDENT: Mr Edmonds, I think you've taken this as far as you can. It is opinion of this witness.
PN1214
MR EDMONDS: Yes, sir.
PN1215
THE DEPUTY PRESIDENT: If you want to establish the seriousness you can present evidence.
PN1216
MR EDMONDS: Thank you, sir. I will move on from that point, sir.
PN1217
Now, you've said that your involvement with the Federal negotiations that you've made it clear that your clear preference is for a deal in the Coal Industry Tribunal. Is that correct?---I believe our company's clear preference has been for a deal with both unions and an agreement with both unions.
PN1218
Now, when you say "a deal in the Coal Industry Tribunal" what do you mean by that? So does that mean an agreement that is finally registered in the Coal Industry Tribunal?---That's my understanding, yes.
PN1219
Okay. In your opinion would the company object to any final agreement being registered in the Federal system?---I honestly don't know. I don't think we have any view on the matter. I would clearly have a preference to doing an agreement with both unions in the CIT.
**** JEFF ALLEN XXN MR EDMONDS
PN1220
Now, as far as you're aware, if an agreement was reached in the CIT would there be any impediment - I say "CIT" - if an agreement was reached during those discussions, which you say are held in the CIT, would there be any impediment to that agreement being registered in the Federal system?---I honestly don't know.
PN1221
MR BULL: Mr Allen can't answer those questions.
PN1222
THE DEPUTY PRESIDENT: I think the answer that that question got was the one it deserved.
PN1223
MR EDMONDS: But you're saying that at all the meetings that you've attended the negotiations, as far as you are aware, have been for an agreement to be registered in the Coal Industry Tribunal?---Certainly that's been the company's intention, yeah.
PN1224
Okay. And that the only meeting where discussion was held about an agreement that, within your view, was to be registered in the Federal system was at the meeting on 26 May?---The meeting where the union clarified the claims, yes.
PN1225
Okay. Did you have anything to do with the preparation of the company's response to the union's log of claims?---Yes, certainly. I was involved with negotiating team and our lawyers in that preparation, yes.
PN1226
Okay. How long did it take you to finally prepare a response to the log of claims?---I - - -
PN1227
Well, I put it to you that the final response to the union's log of claims was given to the union around 9 July. Would you think that would be correct?---I believe that's the case, yes.
**** JEFF ALLEN XXN MR EDMONDS
PN1228
Okay. Now, prior to the final log of claims being given to the union would the company have been in the position to meet on those issues?---Prior to - sorry?
PN1229
Prior to 9 July, when the company had finalised its log of claims, was the company in a position to meet with the union?---No, I don't think so.
PN1230
Okay. So - - -?---We were still carrying out negotiations in the - with both unions in the CIT. We hadn't finalised our log and we wouldn't have met with the unions before it.
PN1231
Okay. Now, I put it to you that on 9 June Mr Saunders approached Mr Warrand and asked him when a meeting was going to be held to discuss the Federal log of claims?---That may be the case.
PN1232
You don't know anything about that?---No.
PN1233
No. Okay. That's fine. But you concede that the company wouldn't have been in a position to meet with the union up until 9 July. Is that correct?---That's my understanding.
PN1234
Okay?---It had to be prepared correctly and finalise those issues.
PN1235
Okay. And if the initiation of bargaining period was served on 29 April that is some time after 29 April, isn't it?---It is, yes.
PN1236
Do you think the company had been pursuing the issue of the Federal agreement vigorously?---The company's clearly focussed on getting an agreement with both the trades and the miners in the CIT and we had been continuing that focus, the necessary work, to continue that end to clarify the log of claims was carried on together and that's how long it took, is my understanding.
**** JEFF ALLEN XXN MR EDMONDS
PN1237
Okay. So your view is that they were clearly focussed on getting an agreement to register in the CIT and that took the majority of their focus. Would you agree to that?---That was certainly a major focus for us but there was a considerable amount of work done on the Federal log of claims with our negotiating team with the lawyers and with the management to understand those and to work out our position.
PN1238
I have no further questions for this witness, sir.
PN1239
THE DEPUTY PRESIDENT: Thank you. Mr Bull?
PN1240
PN1241
MR BULL: Mr Edmonds referred to the threat of industrial action by the Federal union and whether it was serious or otherwise. Was any industrial action taken by the union in respect to their matter in the Coal Tribunal?---Yeah. A number of times there has been action taken by both the trades and the miners together over that negotiation.
PN1242
Now, prior to 9 July did you receive any indication from the union that they wanted to meet with you to talk about the Federal log of claims?---Not that I'm aware of, no.
PN1243
You say you were focussed prior to 9 July on the Coal Tribunal matter?---Yes.
PN1244
The Metal Workers, were they involved in that focus or not?---Certainly the Metal Workers attended and were involved in those discussions to conclude an agreement in the CIT.
**** JEFF ALLEN RXN MR BULL
PN1245
No further questions, sir.
PN1246
PN1247
PN1248
MR BULL: Mr Butel, could you give your current address and current occupation to the Commission, please?---Yeah. My current address is (address supplied) and I am the Managing Director of Wesfarmers Premium Coal.
PN1249
And how long have you occupied that position?---Approximately, 2 years.
PN1250
And prior to that?---Prior to that I've had a long experience and a long work career in the coal mining industry. With CSR, with Oakbridge and in recent years prior to coming and joining Wesfarmers here at Wesfarmers Premium Coal was the Managing Director at Curra Queensland Mining Limited.
PN1251
All right. Now, as the Managing Director of Premium Coal what are your overall responsibilities?---My responsibilities include the safe and efficient operation of Premium Coal, looking after the operation to make sure that we meet our operating targets, the marketing of our coal to meet the needs of our customers and ultimately the financial performance of the business unit.
PN1252
And can you tell the Commission briefly what is the nature of your business?---Our business is the business of mining coal and selling it to customers that utilise coal, either in power stations or in industrial processes.
PN1253
Who would those customers be?---Our major customers are Western Power, where in excess of 90 per cent of our coal output is sold to Western Power. We also have a major contract with Iluka, which over the last 12 months we've been successful in winning that contract - - -
PN1254
Sorry, what do Iluka do?---Iluka is a company that produces synthetic rutile here in WA and it's the second largest rutile manufacturer in the world. So in addition to Iluka we also sell small quantities of coal to a number of smaller industrial customers, including Laguna Lime at Kalgoorlie and Cable Sands in the South West as well.
**** STEWART ANTHONY BUTEL XN MR BULL
PN1255
So Western Power is your largest customer and the second largest?---Second largest customer is Iluka and, as I've just previously said, we've just recently secured the contract for the sale of coal, nut coal to Iluka in June 2003, and - and in January this year we were successful in upgrading that contract from 80,000 tons to now contractually 185,000 tons and this year we expect to be producing and selling to Iluka in excess of 240,000 tons of nut coal.
PN1256
What is your understanding of the industrial coverage of employees at Wesfarmers Premium Coal?---Our employees are clearly employed under an award and a certified - EBA agreement, which is under the Coal Industry Tribunal Act.
PN1257
And has anything happened in respect to updating those agreements?---Negotiations commenced for a new EBA under the CIT Act with both the miners, the CMU, and the AMWU back in August last year.
PN1258
Yes?---Those negotiations have been going on since that time.
PN1259
THE DEPUTY PRESIDENT: Just a moment, Mr Bull. Yes, continue.
PN1260
MR BULL: Thank you, sir.
PN1261
And what has been your role in those negotiations?---I have not been directly involved in any of the negotiations but, clearly, from a strategic point of view have kept an overviewing brief on those negotiations.
**** STEWART ANTHONY BUTEL XN MR BULL
PN1262
And what is your understanding of the basis upon which those negotiations have been entered into?---Ultimately what Premier Coal is doing is setting ourselves up to build our future and secure future as we move forward. The market place that we sell our coal into at the moment is changing before our very eyes. I mean, coal really is at the cross roads in terms of securing its future as the energy source for power generation and other use in this State. There is tremendous competition in WA in terms of power generation from gas directly against coal. I mean, if you look at the history of power generation with coal over the last 30 to 40 years, during the 1970s and 1980s about 75 per cent of power generation in this State was generated using coal based technology. With the development of the North West Shelf and the development of the Dampier to Bunbury pipeline in the late - in the early 80s coal's share of power generation has gone from in excess of 70 per cent down to about 47 per cent of power generation is now via coal. There is now approximately - - -
PN1263
Sorry, what time frame was that, roughly?---That is over the last 15 to 20 years with the development of the North West Shelf. In addition to that, gas now has something in excess of 50 per cent, 53 per cent of power generation in this State. And, clearly, coal is losing the battle in terms of competing against, directly against, gas. So, I am very, very concerned about the impact this industrial dispute is having on the long term future of coal in this State. And coal really is at the cross roads in terms of being a viable fuel source as we move forward. Our aim through these negotiations has been to set up Premier Coal as a viable long term coal supplier in this State. And in order to do that, we have set some targets that we need to achieve in order to meet the challenge of that marketplace that is changing before our very eyes. And that includes improvements in our productivity and efficiency, increasing our outputs up to 5 million tons per year, reducing our cost structure by approximately 40 per cent, and other, I suppose, more internal issues such as a safe workplace, an environmentally best practice workplace, and making sure that we have a mine life greater than 20 years. So, in terms of the future of coal in this State we have a lot of challenges and industrial actions that have been going on in Premier Coal, and particularly this last one, I am very concerned about the impact of that on our business.
**** STEWART ANTHONY BUTEL XN MR BULL
PN1264
Now, what had been your understanding of the negotiations for a single agreement in the Coal Tribunal?---Yes, they started back in August last year. And there has been a lot of effort from all three parties in order to achieve an EBA under the CIT Act. And that has involved - a lot of involvement also from Chairman Kenner from the CIT in terms of assisting the parties to move the issues forward. So, there has been a lot of work and a lot of negotiations. And to a very great extent, a lot of the issues have been discussed and resolved. But there are still some outstanding issues as part of that EBA in the CIT Act.
PN1265
And what was your understanding of those outstanding issues?---Well, my understanding of the outstanding issues, there is three or four key issues that are out there. One is clearly a common roster. And we believe we need a common roster in order for us - our business to be efficient and effective in what we do. And that common roster should be the same for our maintenance employees as for our production employees. The other issue that has been an issue of recent times has been the warranty clause in the contractor clause. And the third item has been the flexibility clause in the draft EBA document.
PN1266
And why is it that you have, if this be the case, preferred to have a single agreement?---Well, clearly, a single agreement allows us to deliver all the efficiencies between the production and maintenance employees on site. It clearly focuses on the one team, the one mind concept. It allows us to move forward in our aim in terms of increasing the efficiency and productivity of our organisation. So, it is a key corner stone of achieving that.
PN1267
Now, when did you become aware that the metal workers had some interest in the Federal system?---That was back, I think, the end of April. 27 or 29 April. When we received initiation of a bargaining period in the Federal system.
PN1268
And did you give any particular instructions to your staff in respect of how that should be handled?---Only that we need to clarify what is in their log of claim.
PN1269
Yes?---And once that clarification had been achieved, we would issue our log of claim. And at some stage down the track, we would commence negotiations between the parties.
**** STEWART ANTHONY BUTEL XN MR BULL
PN1270
And did you ever advise anybody in your staff not to negotiate with the union?---Absolutely not.
PN1271
Do you know of any case where the union have requested negotiations and that has been refused?---No, I am not aware of any.
PN1272
Are you aware of any stage where there were negotiations?---The only meeting that has taken place between the parties, I believe, is on 26 May, which was a meeting subsequent to a revised log of claims being issued by the AMWU, where we sought clarification of what the log of claims actually meant.
PN1273
Are you aware of any requests from Mr Saunders for negotiations?---No, I am not aware of any requests.
PN1274
Are you aware of any requests from Mr Kearney for any negotiations?---Not under the Federal Act, no.
PN1275
Has Mr Kearney requested negotiations under the Coal Tribunal?---Well, there has been lots of discussions and negotiation between the parties under the CIT Act over the last 10 or 11 months.
PN1276
And on receipt of the log of claims, did the company continue to negotiate under the auspices of the Coal Tribunal?---Yes. There has been numerous meetings between the parties, between the CFMEU, the AMWU and the company. Some separately but some jointly with the Chairman Kenner as well.
**** STEWART ANTHONY BUTEL XN MR BULL
PN1277
All right. Now, has there been industrial action taken by this union the metal workers union, in respect to the matter in the Coal Tribunal?---Yes, there has been, I believe, five or six major stoppages over the last 6 months. Those stoppages have been jointly with the AMWU and the CFMEU. And there has been, I believe, some separate stoppages during that period. But if you look at our performance over the last 12 months as a business, we are currently sitting about 2 and a half cubic metres behind budget. The impact of that on our business is for us to recoup that shortfall and overburden removal, it will cost us in excess of $6 million to recoup that shortfall.
PN1278
Does industrial action have any impact on your customers?---Very much so. As I said up front, over the last 12 months or so we have been working very closely in securing a new major customer, Iluka. Iluka have been very, very concerned about the industrial action that has taken place, not only just recently, but also prior to Christmas and after Christmas. And they have expressed their concern about us as a reliable customer. And have very much questioned whether coal should be their energy source for the generation of synthetic rutile at their plants at Capel. As I said before, over the last 12 months we have been successful in entering this new business at Iluka. Initially with 80,000 tons starting in June last year. And we were successful in securing an additional 105,000 starting in July this year. And Iluka is now very much questioning their commitment to us in terms of a new contract moving forward and we have had to issue force majeure notices to Iluka in recent times due to industrial action. So, we are very concerned about their concern about us being a reliable supplier of coal. And that doesn't only end at Iluka. We have other customers. Western Power. We are very concerned about the long term viability in terms of being a coal supplier to Western Power. We also have a small customer called Lagoona Lime that are concerned about our ability to supply coal. And it is fair to say as we sit today the - over the next 6 to 12 months, all our major contracts will come up for tender. Western Power have announced an issued a tender in the last couple of weeks to supply coal to them through to 2022 which is a major coal contract for this business and I am concerned about reputation as a reliable coal supplier impacting on that. Iluka will be going out to tender for an additional 140 tons of coal in early next year. Worsley, another major coal user in the South-West has also gone out to tender
**** STEWART ANTHONY BUTEL XN MR BULL
in - during the first week of July for all their coal supply through to 2015. In addition to that, the company, Premier Coal, is also tendering to build the next new coal base load power station here in WA under Western Power organised power procurement process 2. And as we speak we will be putting an indicative bid in for that power station in August this year and expect to know the outcome of a final bid in to the middle of next year. So, I am concerned about our ability to be a reliable customer in this State. And also, as a result of that, I am concerned about the long term future of coal as being a reliable energy source, not only for power generation but for industrial use, bearing in mind that we have a very cheap, reliable alternative energy supply source in this State, being the North West Shelf and the piping of that gas down here into the South West.
PN1279
Now, does the industrial action currently undertaken by the union impact on any tenders that you might put in for future contracts?---This recent industrial action starting on Saturday morning at 7 am, I believe we have currently lost about 60,000 cubic metres of overburden, about 16,400 tons of sales, and in excess of 1200 hours of maintenance time. Clearly, the timing of this industrial stoppage is the worse possible time for us as a business as we try and secure the future for our business but also for our employees and for the community of Collie. We are - as I said before, we are currently in a tender process for the majority if not all the coal from the Collie area over the next 67 or 12 months. So, I am concerned about the reputational issues, the impacts on our existing contracts, and our ability to win new contracts over the next 6 to 12 months.
PN1280
All right. Now, what is the position of the company in respect to negotiating a Federal certified agreement? Are the company prepared to sit down and negotiate one with the metal workers?---We are prepared to enter in those negotiations and negotiate agreement with the metal workers at the Federal level but we will also have entered into and continuing to have discussions at the CIT level.
PN1281
No further questions, your Honour.
PN1282
THE DEPUTY PRESIDENT: Mr Edmonds?
**** STEWART ANTHONY BUTEL XN MR BULL
PN1283
PN1284
MR EDMONDS: Mr Butel, you are the Managing Director of Wesfarmers Premier Coal. Is that correct?---Yeah. As I said up front, yes, that is my current position.
PN1285
Okay. Now, you said that the negotiations for a new enterprise agreement commenced in August 2003. That is correct, is it?---For a new enterprise agreement under the CIT, that is right, in August last year.
PN1286
Have you been directly involved in those negotiations?---No, I have not.
PN1287
Okay. Have you sat in on any of those negotiations?---No, I have not sat in on the negotiations. The only meetings that I have sat in on has been before Chairman Kenner of the CIT.
PN1288
Right?---When there has been industrial action taken by the parties.
PN1289
So, the only time you would attend any meeting would be if there was industrial action taking place?---In general, yeah, that is fair to say. I have got a very competent team of guys involved.
PN1290
I am sure you have?---And I very much trust them in what they do.
PN1291
They all very happy to hear that. They are all grinning over there. So, I am sure they are all very comfortable they will get a pay rise tomorrow. So, when you say you are not directly involved, it would be fair to say, then, that you wouldn't have the direct knowledge of what was discussed in those meetings?---Only at a very high level.
**** STEWART ANTHONY BUTEL XXN MR EDMONDS
PN1292
Okay?---I am not directly involved in the negotiations, as I said before, but I clearly keep a watching brief - - -
PN1293
Sure?---- - - on what is going on.
PN1294
Okay. But you don't know, for example, what Mr Saunders may have said or what Mr Kearney may have said. You may be told some of what they say but you wouldn't have a blow by blow account of everything they have said in every meeting. Would that be fair to say?---Except that I would say if it is something of significance, I would expect it to be reported back to me and I am sure it would have been reported back to me.
PN1295
Okay. But you can't say for sure that, you know, it has been?---No, I was not involved in those meetings.
PN1296
Okay. Have you been involved in the negotiations in front of Chairman Kenner?---I have been sitting in those meetings in front of Chairman Kenner.
PN1297
Only where industrial action is occurring?---Only when there has been a - we have been seeking return to work orders following industrial action.
PN1298
Sure. Now, as far as you are aware, there are three outstanding issues, is there? Common roster, the issue of the contractors clause and flexibility. Is that correct?---Common roster. It was the warranty clause in the contractor clause.
PN1299
Right?---And it was the flexibility clause.
PN1300
Flexibility. All right?---And particularly the work at hand issue.
**** STEWART ANTHONY BUTEL XXN MR EDMONDS
PN1301
Okay?---The job at hand.
PN1302
Now, it is your view that a single agreement will deliver efficiency. Is that correct?---That is right.
PN1303
Has it ever been stated in any of the meetings, as far as you are aware, that Wesfarmers Premier Coal is not prepared to make an agreement if it can't get a single agreement?---We have always stated our preferred position is a single agreement.
PN1304
Okay?---At - for an EBA under the CIT Act.
PN1305
But has it ever been stated, though, that if you can't get a single agreement, then you won't do an agreement?---You know, as I said, I haven't been directly involved in those negotiations. I think the evidence from Jeff Allen or Alan Bradshaw prior to me would have clarified that for you.
PN1306
Okay. Well, you were aware that the issue of the agreement in the Coal Industry Tribunal is set down for arbitration. You are aware of that, are you?---Yes, I am.
PN1307
Okay. Is it your preference to go to arbitration rather than have separate agreements?---Look, our preference is under the CIT Act is that if we can't get a suitable negotiated outcome, and we have put a lot of time and effort to try and do that, we will go down the arbitration route. And we have initiated arbitration under the CIT Act.
PN1308
All right. Well, do you believe strongly enough in having a single agreement that you would rather have the matter arbitrated than have separate agreements?---Look, our preferred position is for a single agreement but at the end of the day we will have to weigh that up right at the end.
**** STEWART ANTHONY BUTEL XXN MR EDMONDS
PN1309
Okay. Now, you have never advised your staff not to negotiate on a Federal - - - ?---Absolutely not.
PN1310
You have never advised them to delay the process of reaching a Federal agreement?---Well, I don't believe we have delayed the process of commencing negotiations in the Federal arena.
PN1311
So, that - - - ?---It took the AMWU in excess of a month to come back to us with revised logs of claims and - - -
PN1312
So - - - ?---- - - a clarification meeting on 26 May.
PN1313
So, that would be - - - ?---You know, we are only a month past that.
PN1314
So, that would be fair to say that you have never advised your staff to go slow on the issue of a Federal agreement?---No. It is - but you have got to bear in mind there is - you know, there have been parallel in the CIT.
PN1315
Okay. As far as you are aware, has anyone from the AMWU ever stated that they don't want to register an agreement in the Federal jurisdiction?---Not directly to me.
PN1316
As far as you are aware, have they stated it to anybody?---Just - can you repeat that question again?
PN1317
Has anyone from the AMWU ever stated to your team that they don't want to have an agreement reached certified in the Federal jurisdiction?---I think Mr Allen - the conversation between Mr Allen and Mr Kearney that has already been referred to in these proceedings clearly indicate that.
**** STEWART ANTHONY BUTEL XXN MR EDMONDS
PN1318
Did Mr Allen talk to you about that discussion that he had?---It has been brought up, yes.
PN1319
Because my understanding is that what Mr Allen said was that the union would take whatever action necessary it was to get an agreement under the Federal system and that agreement may also be registered or may be registered in the Coal Industry Tribunal?---Yeah.
PN1320
He certainly never said anything about not registering an agreement in the Federal system though, did he?---Well, why would he refer to the CIT unless he had some intention of going there? It just doesn't make any sense to me.
PN1321
But your preference is for an agreement in the Coal Industry Tribunal. Is that true?---Look, we have said we are prepared to enter into negotiations for a Federally certified agreement with the AMWU.
PN1322
Okay. But your - - - ?---But we would - our preference is also to see if we can get a joint agreement with the AMWU and the CFMEU in the CIT. I don't think there is anything inconsistent with that.
PN1323
Why would you prefer an agreement in the CIT rather than the Federal system?---Look, ultimately, as I said, we - our preferred position is to get a single agreement between all parties.
PN1324
Okay. I understand that?---But we are not precluding any discussions in the Federal arena for a Federally certified agreement.
PN1325
Why is it your preference, though, to have an agreement in the Coal Industry Tribunal rather than in the Federal arena?---Only because it clearly - well, under the CIT - and EBA under the CIT, if it is a one agreement, then clearly there will be certain efficiencies that come through there. If we go to a Federal Act certified agreement, then it will only be with one of the parties. But we are not against negotiating for a new agreement in - under the Federal arena.
**** STEWART ANTHONY BUTEL XXN MR EDMONDS
PN1326
Is it true - - - ?---We just have started.
PN1327
Is it true that Wesfarmers Premier Coal previously argued to the State Parliament Reviews on the Coal Industry Tribunal that the Tribunal should actually be disbanded?---Yes, that is fair to say there have been submissions in the past.
PN1328
And is your view that in those circumstances that any agreement that should be reached, rather than be in the Coal Industry Tribunal should be in the State system or the Federal system?---Well, I think I have changed my view on that in recent times. I think clearly the CIT has some merit in terms of its application but also the Federal area has merit.
PN1329
Okay. Is it true that when you haven't been able to have the Coal Industry Tribunal abolished, you have sought to change the composition of the Tribunal so that the numbers of people from the coal companies is greater than the number of persons from the unions sitting on the Tribunal?---No. No, that is not right. We have written to the - to, I think, Clive Brown, expressing our concern about any potential hearings before the CIT when there is an outside company sitting on the Full Bench of the CIT. As you know, it is a company representative. There is another coal company representative. There is two unions representatives sitting on the Full Bench. Clearly, there is a conflict of interest there, having your immediate competitor, being Griffin Coal, sitting on that Tribunal with matters relating to your business. So, that is what we have written to Clive Brown to express our concern about.
PN1330
So, would your preference in those circumstances be to have a second person from Wesfarmers or would your preference be to have just two union people, one person from Wesfarmers and the Tribunal President?---Look, it is not - we don't have the right to dictate what happens in the CIT. That comes under a State Act.
PN1331
THE DEPUTY PRESIDENT: Just a moment, Mr Butel. Mr Edmonds, what relevance is this? I mean, the legislation is there. It is what it is. Federal legislation is there. It is what it is. We operate within what it is.
**** STEWART ANTHONY BUTEL XXN MR EDMONDS
PN1332
MR EDMONDS: Certainly, sir. I will move on from that point then, sir.
PN1333
MR EDMONDS: Can you advise if there would be any detrimental impact to the company from having a Federal certified agreement with the AMWU as opposed to an agreement in the Coal Industry Tribunal?---Look, as I said, we're not adverse to doing either of those. Our preference is to have a joint agreement between the AMWU and the CFMEU and the CIT Act but we're prepared to enter into negotiations at the Federal area.
PN1334
So if you couldn't get a joint agreement between the AMWU and the coal miners and the company would it be of any consequence to Wesfarmers Premium Coal whether there was a single agreement between the AMWU and the company and whether that was in the Federal system or the State system?---Look, we would have to take the merits of whatever outcome we get in the Federal area and review that at that time.
PN1335
No further questions for this witness, sir.
PN1336
THE DEPUTY PRESIDENT: Yes. Mr Bull?
PN1337
MR BULL: I have no re-examination, your Honour.
PN1338
PN1339
MR BULL: Your Honour, that's our evidence.
PN1340
MR EDMONDS: I wondered whether now, sir, maybe an opportune time to break for perhaps lunch, sir?
PN1341
THE DEPUTY PRESIDENT: Yes. Can I also request that at some time the parties, if they're in a position to, address me on - I think you already have partly, Mr Bull. There are two aspects of section 170MP, one is the temporal nature of the requirement of genuinely tried to reach agreement, whether that is a requirement prior to engaging in industrial action or broader and, secondly, 170MP(1A), again what the reference to agreement there means. I will adjourn for 45 minutes.
LUNCHEON ADJOURNMENT [2.08pm]
RESUMED [3.04pm]
PN1342
THE DEPUTY PRESIDENT: Your have finished your case, haven't you, Mr Bull, yes. Mr Edmonds?
PN1343
MR EDMONDS: Yes, sir, thank you, sir. Essentially, sir, this action, this 127 action, is brought against the AMWU and relies upon section 170MP(1A) of the Act. It alleges that the AMWU is taking industrial action without first trying to genuinely reach agreement with the employer. We have a number of things to say in response to this application, sir.
PN1344
We would say in the first instance the action is protected. The application for a section 127 application is misguided. Any order issued under section 127 of the Act will actually be of no effect, sir, due to the operation of 127(5A) of the Act. Essentially, sir, any order flowing from these proceedings will actually be of no effect due to the operation of that particular section. We would say, sir, that bargaining period was initiated in this matter on 29 April 2004 and that document was attached to the application.
PN1345
There was notice given of the intention to take industrial action on 13 July 2004 and notice was served by fax and by hand to Mr Patrick Warrand who is the Manager of Wesfarmers Premium Coal, that action began after 3 clear day's notice were given, sir, on Saturday 17 July 2004 and that action is intended to continue for 4 weeks. We would say that the paperwork is clearly in order, that clearly the action is protected and the Commission should certainly not issue orders in circumstances where industrial action is probably protected action or is likely to be considered protected action.
PN1346
We would say in these circumstances, sir, the criteria are met for establishing that this is likely to be considered to actually be a protected action and as such no orders should issue in relation to this matter. The more appropriate vehicle for this application to be brought under as pursuant to section 170MW of the Act, which gives the capacity to the Commission to suspend or terminate the bargaining period in circumstances where the parties have not genuinely sought to reach agreement.
PN1347
We would say that that is certainly the appropriate section, sir, and we would say that that is backed up by paragraph 35 of the MEAA and North Coast News decision of the Full Bench consisting of Munro J, Leary and Commissioner O'Connor, sir. Now, we would say in those circumstances, sir, at paragraph 35 the Full Bench reasoned, sir, that the appropriate course of action in these circumstances was an application pursuant to section 170MW of the Act.
PN1348
Now, your attention was drawn at the start of these proceedings, sir, to a number of decision of the Commission and I wonder if I could perhaps deal with some of those matters, sir. In the case I just referred you to, sir, it dealt with a situation where a bargaining period was terminated on the basis that the parties had failed to genuinely seek to actually reach agreement prior to the industrial action being taken.
PN1349
In those circumstances, sir, it dealt with the situation where the union concerned had instituted separate bargaining periods against each of the 14 separate employers, that at the time of taking the industrial action had failed to actually meet with 13 of the 14 employers. Now, there is another situation, sir, and I'm afraid I don't haves a copy of this case for the decision.
PN1350
There was a decision between the Australian Industry Group and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, C No 36641/2000, which dealt with the Campaign 2000, sir, run by the AMWU, which was a situation where bargaining periods were served on many employers across Victoria, I believe, and New South Wales - across Victoria, sorry, sir, where those bargaining periods were served on an industry-wide basis and industrial action was sought to be taken on an industry-wide basis.
PN1351
In those circumstances the Commission exercised its power to terminate the bargaining periods in those circumstances on the basis the union had not genuinely sought to direct agreement with all of the parties against whom it initiated a bargaining period. We would say, in those circumstances again, sir, that deals with multiple employers which is different from this situation, sir, which deals with one employer.
PN1352
So we would say, sir, in these circumstances this current matter is different from those other cases in that it is dealing with one employer only, one union and we would say in those circumstances, sir, it is substantially different. In any event, sir, we say that the AMWU have genuinely sought agreement in relation to this matter. The employer has been standing here, sir, and attempting to maintain some sort of artificial distinction between discussions to do with the Coal Industry Tribunal and discussions to do with the Federal agreement.
PN1353
We would say in those circumstances, sir, that distinction is based upon where that agreement would be certified not where those discussions were being held. We would say that as of 29 April 2004 when a log of claims was served on the company and that log of claims is attached to the documents, sir, and includes the notification which is required by the Act and it says that under subsection 170MI(2) of the Act that notice is given by the union an organisation of employees, which intends to try to make an agreement under Division 2 of Part VIB of the Act with the applicant here today, sir, and to have an agreement so reached certified under Division 4 of Part VIB of the Act.
PN1354
We would say, sir, that in those circumstances the initiation of that bargaining period made it clear what the intention of the union was and indeed still is, and that intention is to have any agreement reached certified in the Federal Commission. The AMWU has never wavered from that intention, sir, it has never stated that it would not certify any agreement reached in the Federal system. Indeed, that is still the union's intention.
PN1355
The particulars, as specified in that particular notice, sir, are the single business to be covered by the agreement, the operations of the company in Collie, which has been the subject of all discussions between the parties to this point. The types of employees to be covered by the agreement are all employees who are members of the AMWU employed in Collie and all those employees have been the subject of the discussions to this point.
PN1356
The proposed parties to the agreement are Wesfarmers Premium Coal, as the applicant today, sir, and ourselves, the respondents, sir. The matters that should be dealt with within the agreement were listed in that bargaining period but those matters were amended by correspondence, which is again attached to the application, sir, sent on 10 May 2004 which listed an amended log of claims that were being made against the applicant, sir.
PN1357
Now, those issues that are in that amended log of claims have been the subject of discussions between the parties since 29 April. Some of those discussions had occurred with the Coal Miners' Union and the AMWU and the company on their own, others have occurred within the Coal Industry Tribunal. Notwithstanding that, sir, we would say that the important test is whether that agreement was intended to be registered and we would say in the circumstances it was the AMWUs intention to always register those agreements reached in the Federal Commission and as such, sir, for the purposes of 170MP(1) of the Act, sir, we would say that the test of genuinely try - the test of what it means to genuinely try, sir, is a question of evidence and you have to reach the conclusion, whether the party or the AMWU in this circumstance, in truth is trying to reach agreement with the other party.
PN1358
If we are, sir, then we would say we certainly pass that particular test. With respect to the question of agreement, sir, we would say that the question of agreement is or the definition of what agreement is being discussed, sir, is certainly satisfied by the initiation of bargaining period that was served on the company on 29 April 2004, we would say that it is - that notice of initiation of bargaining period from which the definition of agreement can be drawn.
PN1359
We would say, sir, in those circumstances the intention of the AMWU was to always certify any agreement reached in accordance with those particulars to have that agreement certified under Division 4 of Part VIB of the Act. We would say there has been numerous meetings between the parties and we would say that those meetings have not been inconsistent with the AMWUs intention to have an agreement registered in accordance with the Federal Act.
PN1360
We would say, alternatively, sir, if it is your view, sir, that negotiations are conducted separately for Federal agreement and a State agreement, sir, we would say in the alternative the applicant today has sought to avoid discussions with the AMWU over the Federal claim sought to frustrate and delay the process, to generally avoid reaching any sort of agreement, generally has sought to avoid having any sort of discussions of any kind about reaching an agreement in the Federal system.
PN1361
Has sought to frustrate the process as best they can while they expedite their application in the State system to arbitrate and enterprise award. So we would say, sir, in circumstances where the applicant in front of you today, sir, has had no intention of reaching agreement, has genuinely sought to stymie the process, but they can't then come in front of you today, sir, and seek to exercise their rights pursuant to section 170MP of the Act in circumstances where they certainly don't have clean hands.
PN1362
Sir, we would say in those circumstances that is a valid consideration with respect to the exercise of your discretion pursuant to section 127. To that extent, sir, we would say that the orders should not issue.
PN1363
THE DEPUTY PRESIDENT: Conceding there is jurisdiction.
PN1364
MR EDMONDS: Beg your pardon, sir?
PN1365
THE DEPUTY PRESIDENT: You're conceding that there is jurisdiction for orders to issue?
PN1366
MR EDMONDS: Well, there is certainly a - - -
PN1367
THE DEPUTY PRESIDENT: There is industrial action occurring, you're not disputing that?
PN1368
MR EDMONDS: There is industrial action occurring, sir, and it is over an agreement that is proposed under Division 2 of Part VIB of the Act, sir. So the criteria, I suppose, as set by section 127(1B) of the Act are met.
PN1369
THE DEPUTY PRESIDENT: Yes.
PN1370
MR EDMONDS: So there is certainly jurisdiction to entertain the application, sir. We would say that in the circumstances the action is protected so as such the order should not issue, but it is a question for yourself, sir. Now, unless there are any questions on my opening submission, sir, I would seek to call Mr Colin Saunders.
PN1371
PN1372
MR EDMONDS: Thank you, Mr Saunders. Can we have your full name and address?---Colin Geoffrey Saunders (address supplied).
PN1373
Can we have your occupation and title?---I'm a union official with the Australian Manufacturing Workers' Union and I hold the position as State President.
PN1374
How long have you had that occupation for?---An occupation as a union official for 25 years and with the AMWU 12 years.
PN1375
And I wonder if you could tell the Commission about your involvement in the negotiations for an agreement at Premium Coal to this point?---My involvement started probably from March onwards - March/April onwards. Prior to that I had one of my organisers, Shawn Currie, who was responsible for - well, South West but in particular in this matter Premium Coal and at one stage prior to falling ill the State Secretary was involved in negotiations with Premium Coal.
PN1376
Yes?---But after he got ill I picked up the matter.
PN1377
So prior to March were you aware of the discussions between Premium Coal and the AMWU?---Yeah. All the organisers report to me on industrial matters or matters in general on a day-by-day or week-by-week basis and the importance of these negotiations, the State Secretary also keeping abreast of the meetings he was having with Premium Coal.
PN1378
And prior to March you were aware of the stage they were at, were you?---Yes, through those briefings from the official and the State Secretary.
**** COLIN GEOFFREY SAUNDERS XN MR EDMONDS
PN1379
Okay. Now, was there anything that happened around the middle of April which made you actually get actively involved in those negotiations?---Yes. I had a phone call from John Kearney, the delegate, and also Gary Wood from the CFMEU, Energy and Mining Division, saying that the Premium Coal intended to have the award arbitrated because they failed to - well, my understanding was that an agreement was being pursued by Premium Coal which couldn't be reached with the unions because they were seeking to alter conditions to the extent that the workers wouldn't accept it.
PN1380
What was the response from the union to the application for the arbitration of the award?---In the first instance, we believed it was a ploy but had serious consequences for the industry not just for Premium Coal but for Griffin Coal, so we had discussions with the delegates of Griffin Coal with the impact that may have. I then advised the membership that was available what a Federal application would mean. That was done at a meeting in Collie around about midday - I haven't quite got the date but they were advised what a Federal application would mean and after doing so we then served our intention to bargain notice on Premium Coal.
PN1381
So what did a Federal certified agreement mean to the AMWU?---To the AMWU it - in particular, it took us out of the State jurisdiction. It was not uncommon for the AMWU in this State to have Federal certified agreements sitting on State award, but it gave us an opportunity to sit around the table and generally bargain an outcome to the negotiations that they had stalled for some time, considering they had started in August of 2003.
PN1382
Was there any sort of a strategy behind the desire to have a certified agreement in the Federal system?---Not a strategy. Obviously, we believed that Premium Coal had a strategy to avoid negotiation or attempt to influence those negotiations by saying: Look, we will arbitrate this and negotiate but as long as you give us what we want we won't go through with the arbitration. Our position was: Well, there is another jurisdiction which allows us to pursue that and gives us further protection and on that basis we believed it would even up the playing field.
**** COLIN GEOFFREY SAUNDERS XN MR EDMONDS
PN1383
Okay. So what was the company's response to your initial log of claim?---I recall - oh, the claim itself or the intention to bargain notice?
PN1384
Sorry, the initiation of bargaining period?---It was first raised at the Coal Tribunal where they were setting the parameters or dates for arbitration of the award. Notified the Chairperson, Steven Kenner, and notified the company at the same time, that we intended to - well, we had, physically had, filed a notice of intention to bargain and that we would be pursuing the Federal jurisdiction.
PN1385
Did you have any sort of meetings after you - - -?---We had a number of meetings, not as many as John Kearney our delegate did, but we had discussions - - -
PN1386
Sorry, if I can clarify that, was there any meetings which dealt with in particular the issue of the initiation of a bargaining period and the log of claims?---I think we had some correspondence setting out - they wanted a preliminary meeting about an explanation, what the claims meant. In fact, I think we had received correspondence seeking a written advice in the first instance, what it meant, and I would have to say 99 per cent of it was self-explanatory. We agreed then that they were stalling, in our opinion. Eventually, they agreed then to have a meeting of the Chamber of Commerce and Industry to seek an explanation of what the log of claims were and the amended log of claims.
PN1387
When was that meeting held?---May, I think, sitting here. I think it's May 26, but if you had of asked me before these proceedings I knew it was in May but not exact date.
PN1388
Okay. What discussions actually took place on 26 May?---They were - they - in my opinion, it was a bit of a laugh and a joke by some of the claims. I'm not sure whether they took it seriously. The organisation did and the delegates did. I think out of that, after the claims were - they ran through them and there were other people doing other work at that particular time in the rooms, that's how much notice they were taking. We then pursued a timetable to start negotiations in accordance with that log of claims and that wasn't forthcoming, even though it was pressed fairly heavily by yourself and particularly myself.
**** COLIN GEOFFREY SAUNDERS XN MR EDMONDS
PN1389
So what did they say about a timetable with those negotiations?---I think we received correspondence that they would get back to us in a fortnight's time.
PN1390
Okay. And was there any discussions with anyone from Wesfarmers Premium Coal about that timetable?---Are you talking about the union office or the - with the union?
PN1391
With the union and anyone from Premium Coal?---Not with the union office, not until I raised the issue at the Mecure some time when we were having discussions over the agreement.
PN1392
When was that, do you recall?---I think it was in June at the Mecure, around about 9 June.
PN1393
Okay. And who did you raise it with on that day?---Patrick Warrand but there was a number of the negotiating team sitting there.
PN1394
What did you say to Patrick Warrand on that day?---I said the 14 days has expired. We haven't heard from you. I believe you're stalling. And he said: Oh, look, I wasn't aware of that, I'll get back to you, had a bit of a smile on his face.
PN1395
Did he say anything else at that time?---No, no.
PN1396
And did he get back to you after that?---I think we got further advice or correspondence that the - in their opinion the 14 days wasn't up and that they - I still believe they were and then they took another week or so to talk about sending a further - their further log of claims.
**** COLIN GEOFFREY SAUNDERS XN MR EDMONDS
PN1397
Right. Now, did Mr Warrand advise you at that time that he was happy to meet with you prior to providing those details?---No. There was no - there was no discussion really to the extent of where they were heading with the Federal log. In my opinion - this is my opinion, as long as negotiations were going ahead it didn't really matter, we were there to settle an agreement.
PN1398
Okay. Now, if I can take you to the manner in which the discussions were conducted with the company. Who would generally have the conduct of those discussions with the company?---The meetings I attended they all had a dash at it. Patrick Warrand would kick if off and the team would all get involved. It was a team effort.
PN1399
Who was present from the union?---When I was there, myself - myself and at least one or more of the delegates and the - if the coal miners were there, and I believe they were there on every occasion, it was Gary Wood and his delegates.
PN1400
Okay. Were there ever any meetings held without you being there?---Yes, there was.
PN1401
And who was present at those meetings, to the best of your knowledge?---John Kearney. At least John Kearney, if none of the delegates with John.
PN1402
Okay. And would you be told prior to those meetings taking place?---On every occasion that I'm aware of John rang me to tell that he was meeting, what they were discussing and he would seek advice from the union office how they should be approached.
PN1403
Okay. And would he talk to you after those meetings?---He would let me know the outcomes of those meetings. We would discuss the position of trying to settle an agreement, where we're heading with negotiations.
**** COLIN GEOFFREY SAUNDERS XN MR EDMONDS
PN1404
Now when you were attending those discussions were you genuinely trying to actually reach an agreement?---Yes, all the way through. I'd have to say that the AMWU office, if you like, became concerned on occasions that the delegates had probably conceded a lot more than the membership was expecting and that's after having a number of mass meetings down there with our membership. But nevertheless, there was a lot of communication between the delegates and myself on most occasions and the membership and I understood to come to an agreement we had to give a bit, but they were seeking to go a bit too far.
PN1405
Now I wonder if you could explain to the Commission your view on whether all those discussions were taking place in the State system or the Federal system?---It doesn't really matter where the discussion take place as long as the discussions take place. We gave our notice that we were heading into the federal arena on 29 April. Our sole aim was to come to an agreement and that agreement would be reached in the federal Commission.
PN1406
So I wonder if you could explain the intention of the union after an agreement was to be reached, what were you going to do with it?---The agreement would be - an application for certification would be made in the federal Commission.
PN1407
Okay. Was there ever any intention to certify that agreement in the state jurisdiction?---In my own mind, no. It wouldn't have mattered if you put it in the state jurisdiction because the federal jurisdiction would have overridden the state jurisdiction. It was always our intention to go to the federal jurisdiction as of when we filed the notice of intention to bargain.
PN1408
Was it ever the intention though, to certify it in the state jurisdiction after April 2004?---Not as far as this organisation was concerned.
**** COLIN GEOFFREY SAUNDERS XN MR EDMONDS
PN1409
All right. Is it a common practice for the state office of the AMWU to have certified agreements in the federal jurisdiction and have state awards in the state jurisdiction?---Probably our - well, it is our major award is the Metal Trades General Award which is a state award in this State. We've got no federal counterpart awards and I would have a guesstimate that probably 80 per cent of our certified agreements are in the federal jurisdiction and they've got a state based award that underpins those federal certified agreements.
PN1410
Sir, I've got no further questions of this witness.
PN1411
PN1412
MR BULL: Now, Mr Saunders, you are a state official of the state union?---I'm a state official and a federal official, yes.
PN1413
But you are a state official of the state union?---I'm a state official of the state union and a federal official of the state branch.
PN1414
Of the federal union?---Of the state branch. ..... I think it is.
PN1415
Sorry, just I'm a bi slow. You are a federal official of the federal union, is that right?---I hold federal, yes.
PN1416
Mr Kearney is not a federal official of your union, is he?---He's a federal member of our union.
PN1417
He is not a federal official?---He's not an official in terms that he's employed by our union.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1418
Oh, okay. I didn't ask whether he was employed or not. He is not a federal official?---He is a federal member of the union.
PN1419
Yes, I know that - - -?---And he's a state member of the union.
PN1420
Yes. I haven't come to membership. I just asked, he is not a federal official? I'm sure that you wouldn't call all your members officials. He is not a federal official, is he?---He's not official at all then.
PN1421
No. Thank you. Now you said to Mr Edmonds that you were concerned about the serious consequences of arbitration in the Coal Tribunal?---Correct.
PN1422
That would be because you did not want to lose any conditions that you currently, or your members have in the coal industry?---That's correct.
PN1423
And you would have thought that you may well lose a lot of them if it was arbitrated?---Yeah, it had been suggested we may lose a few, yeah.
PN1424
And they would be serious to you?---Losing any conditions is serious to me.
PN1425
Yes. And going federal would slow the process of arbitration down considerably, wouldn't it?---It would allow us to continue to negotiate an enterprise agreement.
PN1426
It would slow the process of arbitration down considerably, wouldn't it?---I'm not sure. I'd understand that you would still pursue your state arbitration but whether that had an impact on a federal certified agreement, I mean, that we will know at the end of the day.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1427
Now, you say that the log of claims that you filed was 99 per cent self-explanatory, is that right?---That's my understanding.
PN1428
Yes. Why did you then file an amended log?---Because Premier Coal had their little, I take it it was negotiating - in fact, it went beyond the negotiating team, I think it went down to their supervisors, had a nice crack at some of our members about going federal, had a bit of a laugh about breast-feeding, had a bit of a laugh about the long service leave. And on those concerns the delegates contacted our office and we made sure that those which may be claiming lesser amounts that already apply in the coal fields and we altered those to make sure that they couldn't have another laugh at the organisation.
PN1429
Well, then it wasn't 99 per cent self-explanatory then, was it?---Well, I believe it was.
PN1430
Well, you've just said that you've got conditions in there that were worse than the existing conditions?---I think it's still self-explanatory.
PN1431
Self-explanatory that you wanted worse conditions. Is that what the company was expected to understand when they got that log?---That's exactly what they had a laugh about, they had a big laugh. Didn't you hear about the laugh?
PN1432
Was that your intention?---To have a laugh, for you to have a laugh at us, no.
PN1433
Was that your intention that the company understood that they were to give the members of yours less conditions, is that your understanding?---My understanding is you had a laugh at our expense, that's what I understand.
PN1434
But Mr Saunders, is it your understanding that on receipt of that log of claims the company was to believe that they were to award lesser conditions, is that your understanding?---Well, you're already trying to so I suppose that you could have, you could have under those log of claims.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1435
So when you say 99 per cent self-explanatory, that includes the fact that you wanted Wesfarmers Premier Coal to award less conditions?---Well, let me put it this way. The negotiating team plus the supervisor understood what the claims meant because they were having a laugh at our expense. So they understood what the claims were.
PN1436
Well, Mr Saunders, can you tell me what does it mean when you say you want long service leave after 10 years, does it mean that?---That's what it means, yes.
PN1437
But why did you amend it to say you wanted it after eight years?---Because that is the coal industry standard.
PN1438
So it wasn't 99 per cent self-explanatory, was it?---Well, it is self-explanatory if you ask for long service leave after 10 years. It's self-explanatory.
PN1439
Yes, all right. Well, if you don't want to admit the obvious then we will be here for a while?---Well, I'm not sure what the obvious is.
PN1440
Now minimum manning levels across the site?---Yes.
PN1441
What is your understanding of what that claim means?---That means there's no further redundancies, forced redundancies or voluntary redundancy.
PN1442
All right, but that doesn't say that, does it? It just says, "Minimum manning levels across site". It doesn't mention the word "redundancies", it doesn't say "forced redundancies" or anything, does it?---No, I suppose it's the last 9, 12 months of negotiations wouldn't have explained that.
PN1443
Well, it is not self-explanatory, is it?---I would have thought so.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1444
The request in the log of claims for separate breast feeding room, how was that self-explanatory to a company who received such a demand?---Well, it's a national demand it's also - it's one that's pursued nationally, it's one that looks after the rights of females.
PN1445
Yes, but that has never ever been raised in any of the negotiations in the Coal Tribunal, has it?---Not that I'm aware of.
PN1446
Well, how is a company that doesn't employ female maintenance employees, meant to understand that?---My understanding is you had a female apprentice there for some time.
PN1447
Well, that is your understanding, is it?---That's my understanding.
PN1448
And that is why it was made, was it?---Even if you haven't got one now we would expect that a female, any female who is a member of ours can have a breast feeding room.
PN1449
Yes. When were the negotiations held with Wesfarmers Premier Coal over that point?---Probably we started to have a - you had your snigger on 26 May, was it, when you sat down to get a - what you wanted to know what the claims was.
PN1450
All right. So that is when we wanted to know what that claim meant and you told us what it meant. Right. And in addition to that, following that meeting Mr Edmonds forwarded correspondence to explain other parts of the log, didn't he?---No. No. Well, yes - sorry, yes, he did.
PN1451
And that is because it wasn't self-explanatory, was it?---No, you sought - the clauses you want inserted into the agreement what we believe should be inserted into the agreement.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1452
Yes?---So it was on your request you asked for correspondence setting out clauses that we would wish to be inserted into a certified agreement.
PN1453
All right. Because the company did not understand what the log was about, isn't that right?---No, you wanted to know what the clauses were.
PN1454
Well, when is it that you are ever going to provide to the company the clauses in respect to blood donors leave?---You haven't sought them.
PN1455
When is it that you are going to provide clauses in respect to the provisions of an agreed computer package?---You haven't sought them. The two clauses you sought out of that meeting were those two clauses.
PN1456
But, Mr Saunders, it is your log of claims. What amendments have you made to that log of claims since you have filed it on 27 April?---The amendments were filed within a week after it, prior to the meeting.
PN1457
What amendments are they?---Oh, well I haven't got them in front of me.
PN1458
Well, I haven't either. What are they?---The amended log.
PN1459
Yes, but the amended log it was simply another list of items?---Yes.
PN1460
Yes. You've never provided any, you've made no amendments since then, have you?---No.
PN1461
Since 10 May. None whatsoever?---Not that I'm aware of, no.
PN1462
No. Well, how is it that this document here, how can it possibly be ever certified as an agreement? It can't, can it?---My understanding is we had a meeting after that was sent in. Is that correct? A clarification meeting that you call it.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1463
There was a clarification meeting which you've touched in your evidence-in-chief on 26 May?---Yes.
PN1464
Yes?---Yes. And when was the amended log sent?
PN1465
On 10 May?---Right. And when we have what you call a clarification meeting, we went through all the items, you sought a request for two additional clauses that the union were seeking. One was union rights, sorry, shop steward's rights and right of entry and the other one was redundancy.
PN1466
Yes, but you know the reason for that was that Mr Edmonds said he had draft forwarded his note for those two areas?---And you sought them.
PN1467
Sorry?---You sought, they're the only two you sought.
PN1468
Yes, all right. Well, there was a clause forward called - sorry, do you recall exactly what, did you ever see what was forwarded to the company?---Oh, I've got a basic idea what was forwarded.
PN1469
Sorry?---Yes.
PN1470
What did you say about the provision in respect to commitments regarding any redundancy?---It was a demand by the union on behalf of its members.
PN1471
Sorry?---It was a demand by the union on behalf of its members.
PN1472
Yes, well what about the ex gratia payment you were after?---What about it?
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1473
Well, what do you say about that?---What?
PN1474
What do you say about the amount of money you were after?---It was a claim.
PN1475
Yes, but what was it?---Oh, from memory it was a 100,000, I think. That's only by memory.
PN1476
You've asked for $100,000 ex gratia redundancy payment?---Yes.
PN1477
Right. So in your log of claims which you said were self-explanatory it said there:
PN1478
Commitment in respect to minimum manning levels.
PN1479
Didn't it?---Yeah.
PN1480
Now you forward a log saying you want $100,000 ex gratia payment in redundancies?---Yes.
PN1481
How could anyone say that was self-explanatory?---It is to me.
PN1482
So you expect Wesfarmers Premier Coal to believe that when you forwarded that log of claims regarding minimum manning levels that that included an ex gratia payment of $100,000. Are you telling the Commission that is self-explanatory?---Yes.
PN1483
And what do you say about the additional explanation sent by your official, Mr Edmonds, in that letter talking about the industry union education fund, what do you say about that?---That's in the shop steward's rights, is it?
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1484
It is under clause 26, it has got:
PN1485
Leave to attend industrial proceedings. 25 - Industrial union education fund, 26.
PN1486
?---I'm just trying to work out the clause that was sent to you, is that under the Shop Steward's Rights clause?
PN1487
Well, it says you want the company to agree to page 13 of page 30 of the AMWU model agreement?---I'd say it's a standard clause that's come out of an enterprise bargain package.
PN1488
But how would the company know that that is what you meant in your log of claims?---Well, you didn't have that before the meeting on the 26th.
PN1489
Well then it wasn't 99 per cent self-explanatory, was it?---My understanding it is.
PN1490
Well, how would anyone know when you asked for a rights for union officials that what you actually meant was, page 12 of page 30 of the AMWU model agreement?---Did you seek the model agreement?
PN1491
But how would anyone know that? They wouldn't. It is perfectly normal for the company to request clarification of your log of claims, isn't it? Nothing unusual about that?---Well, you haven't sought clarification of that claim until now and you've had that since 26 May, have you.
PN1492
Well, there is nothing unusual in the company having received your log of claims, asking for clarification is there?---You haven't sought clarification of that since 26 May until now.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1493
Well, I'm sure you can address anything you like to your friend, Mr Edmonds, but I would like you to answer my question. There is nothing unusual in the company asking for clarification of your log of claims, is there?---No, there's nothing unusual.
PN1494
Right. And, in fact, it would be expected, wouldn't it?---Not all companies do it, but yeah.
PN1495
Now can you tell the Commission exactly what was told to the members and by whom in respect to your union taking this issue to the federal jurisdiction?---The meeting they had with the membership there at that particular meeting was - - -
PN1496
When was that, sorry?---I haven't got the exact date, it was in April some time.
PN1497
The meeting in April, yes. And where was that?---It was outside the - because the Collie Institute was being used we had a meeting across the road in a - one the verge or the roadway.
PN1498
Yes. Was that a stop work meeting or what?---Yeah, it was a stop work meeting. Yeah.
PN1499
And what did you tell the membership about your federal application?---Well, I explained the difference between the federal jurisdiction, what I believe is the federal jurisdiction and the state jurisdiction. If we went down the federal jurisdiction that we have to certify the agreement within the federal arena.
PN1500
What is the difference though? What is the benefit of your union moving to the federal jurisdiction?---Oh, I think it assists in protecting their wages and conditions and on this particular occasion I believe that it allows us to take protected industrial action.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1501
So the advantage of taking industrial action with impunity, is that right?---No, I think the advantage is that it moves out of the state system where the arbitration was going to take place.
PN1502
And is that because the arbitration in the federal system doesn't happen very quickly?---I wouldn't say that.
PN1503
Sorry?---I wouldn't say that.
PN1504
Well, would you get a better deal arbitrating in the federal jurisdiction?---Because I believe we can get a certified agreement by negotiations and have it certified in the federal system.
PN1505
And that is because you can take industrial action with impunity?---That's correct, yes.
PN1506
Yes. What else did you advise the membership?---That was about it.
PN1507
That was it, was it? Nothing else?---Not that I can recall.
PN1508
Sorry?---Not that I can recall.
PN1509
Well, your advocate said yesterday that you advised the union members about section 170MS?---What's 170MS?
PN1510
Sorry?---What's 170MS?
PN1511
Well, you wouldn't have advised them about that if you don't know what it is, would you?---That's right.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1512
Now you personally have participated in negotiations with the coal company, Premier Coal, since the logging of this federal claim?---Correct.
PN1513
And on all occasions you've been present, the Miners Union have been present?---I would say so, yeah.
PN1514
Yes. And any agreement that you reach with the company you say was going to be certified in the federal arena?---Correct.
PN1515
And what happens then to the Coal Miners Union, Mr Saunders?---They're entitled to certify it in the state system.
PN1516
Yes, but the understanding has always been during those meetings that they proceeded on the basis and the company has always proceeded on the basis that Coal Tribunal that there be a single agreement, hasn't it?---That hasn't been agreed to by us.
PN1517
Sorry?---That has never been agreed to by us.
PN1518
But, Mr Saunders, that is what the meetings were predicated on, wasn't it?---No, not necessarily.
PN1519
Well, how do you say anything different?---Because I know that the Coal Miners Union has already made an application to have their own agreement.
PN1520
Mr Saunders, I'm talking about April, May, June. Not what happened two days ago?---Yes.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1521
Well, if you can confine your comments to the meetings I address you to in April, May and June not two days ago?---Our position was when we filed for protected - sorry, notice of bargaining, then we were always going to the federal system. Now if the company didn't realise that well there's something wrong.
PN1522
Well, the company didn't realise that, Mr Saunders?---Okay.
PN1523
Because you never told them that?---Well - - -
PN1524
You continued to negotiate under the auspices of the Coal Industry Tribunal?---No, no. We continued to negotiate to reach an agreement.
PN1525
And you negotiated in the auspices of the Chairman of the Tribunal?---And outside that too.
PN1526
Yes. And you never told the Chairman of the Tribunal that no matter what we are doing here and if we reach an agreement we are not using your services we are going to go and take this federal?---Yes, we did. Yes, we did.
PN1527
No, you didn't. When did you tell Mr Kenner that?---Told him when we put the initiation of bargaining in, in the Collie Courthouse.
PN1528
You told him you had initiated a bargaining period, that is correct, isn't it?---Yes.
PN1529
Right. You never put Mr Kenner on notice at any Tribunal hearing that the purpose of using his office to resolve a dispute was to file and certify a federal agreement, did you?---Well, my understanding is, if we file for the intention to bargain we're going to the federal system. Now if we weren't, we shouldn't be filing that notice.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1530
Well, that might be true, Mr Saunders. You've heard the evidence of Mr Allen, that said that Mr Kearney said: If we get an agreement federally, we can still register it in the Coal Tribunal. You heard that evidence?---We probably can.
PN1531
Sorry?---Probably could.
PN1532
Do you think the Coal Tribunal is going to register something that has been agreed federally in the state tribunal, do you?---I don't know.
PN1533
Well, it would be your agreement, would that be your intention to do so?---My intention is or our officers' intention is to file it in the federal Commission.
PN1534
Yes. Well, why would Mr Kearney say that you can have it registered in the Coal Tribunal?---I don't know. Maybe - and I wouldn't expect Mr Kearney to understand the difference between the State and Federal jurisdiction.
PN1535
Well, you said you held a meeting - - - ?---Yes.
PN1536
- - - in early April - - - ?---Yes.
PN1537
- - - and explained all that to the membership?---Yes.
PN1538
Now, you are telling us you don't expect him to understand?---I don't expect him to understand the intricacies of the Federal and State system.
PN1539
Well, I don't think it is necessarily an integrate aspect, is it?---Well, my understanding is, and I deal with workers every day of the week - - -
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1540
Well, what did you tell the membership? Simply that if we go and file a bargaining period Federally, we can take industrial action. Is that it? Is that the extent of it?---No.
PN1541
Well, you didn't talk about 170MS. You told us that?---I said - what I said was that once we file in the Federal system, we are going for a Federally certified agreement.
PN1542
Well, why did you attend any conference with the Chairman of the Coal Tribunal?---
PN1543
THE DEPUTY PRESIDENT: Just a moment, Mr Bull.
PN1544
MR EDMONDS: The issue of section 170MS has been raised twice now, sir. Maybe if Mr Bull wants to explain what that section means to Mr Saunders, then he can have an opportunity to advise if he has discussed that particular section with the members.
PN1545
THE DEPUTY PRESIDENT: Well, I am sure you can raise it in re-examination if you wish for any clarification, Mr Edmonds - - -
PN1546
MR EDMONDS: Yes, sir.
PN1547
THE DEPUTY PRESIDENT: - - - that is needed. So, Mr Bull?
PN1548
MR BULL: Mr Saunders, I asked before Mr Edmonds got to his feet why that you participated in negotiations before the Coal Industry Tribunal?---To reach an agreement.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1549
Yes. Why is it you never told anybody, not the least the Chairman, that you had no intention of registering an agreement in the Coal Tribunal?---As I said, as far as I - well, as far as I am aware, and I did, is in the Collie Court House.
PN1550
No. I am talking about negotiations after that?---We were negotiating an agreement which was going to be registered in the Federal arena.
PN1551
Yes. I am asking you, you have told the Commission that you notified the Tribunal that you were going Federal when the Tribunal was listing matters, hearing dates, for arbitration. Is that right?---That is correct.
PN1552
Subsequent to that, you attended a number of conferences in the Coal Tribunal to reach an agreement. Is that right?---A number of conferences, yeah.
PN1553
Yes. Why is it you never told the Chairman that you had no intention of registering an agreement in the Coal Tribunal?---Because I had already told him in the Collie Court House.
PN1554
Right. So, the understanding of Wesfarmers Premier Coal that you were negotiating for an enterprise agreement in the Coal Tribunal was wrong. Is that right?---No, we went there to negotiate an agreement.
PN1555
No. But the understanding of Premier Coal that that agreement would be registered in the Coal Tribunal, because you are before the Coal Tribunal, that was wrong, was it?---Well, that - - -
PN1556
Sorry?---If that is the impression they got, they are wrong, yeah.
PN1557
Yes. Okay. Well, why is it, then, that you were given a copy and have had a copy of the proposed enterprise agreement to finalise this matter and it states in it that the matter is before the Coal Tribunal and you have never raised that as a problem?---I haven't seen it.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1558
You say that Mr Kearney reports to you regularly on negotiations?---Yes.
PN1559
And you know that the negotiations broke down over a common roster. Is that right?---That is one issue.
PN1560
Flexibility?---Yes.
PN1561
Contractors clause in respect to warranty work?---I think there is some more in there too. Yeah, but go on.
PN1562
And you know that those terms were in a final document given to Mr Kearney to reflect an enterprise agreement to be registered in the Coal Tribunal, don't you? You know that?---No, I don't.
PN1563
He never told you that?---He had a document, yes.
PN1564
Right. But you never saw it?---No.
PN1565
Right. So, you are unaware that Mr Kearney has before him a document prepared by Premier Coal that has the Coal Miners Union and yourself as respondent? You are unaware of that document?---I haven't seen the document.
PN1566
Okay. But are you aware of it?---I am aware there is a document.
PN1567
Right. And do you know it has your union and the Coal Miners Union as parties to it?---No, I don't.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1568
You don't know that? Well, you are not well informed, then, because that is the document that has been around for 10 months?---Well, if that is the case, I am not well informed.
PN1569
If I can just show the witness a document, if I may. Have you ever seen that before, Mr Saunders?---It doesn't spring out at me. I am not saying that I wasn't sent a copy. I know I am not - - -
PN1570
Well, that is dated - - - ?---3 May.
PN1571
- - - 3 May, after you filed your Federal log?---Yeah.
PN1572
Addressed to your site rep. in Collie - - - ?---Yes.
PN1573
- - - and Mr Wood. And it talks about further discussions for the purpose of reaching an agreement in the Coal Industry Tribunal, doesn't it?---It says:
PN1574
I refer to the conference before the Coal Industry Tribunal.
PN1575
Yep. It hasn't been sent to our office. I am not aware - - -
PN1576
Yes, but it has been sent to Mr Kearney, though, hasn't it?---Yeah. So?
PN1577
Well, has he not reported to you on that?---He would probably report to me on the meeting, yeah.
PN1578
So, he did report to you that he had received correspondence about a proposed meeting between your union and the Miners Union about a proposed enterprise agreement in the Coal Tribunal?---No, he probably rang me up and said there is another meeting on down in, wherever it is, Mandurah.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1579
So, he hasn't been keeping you informed properly, has he?---I think he has.
PN1580
Sorry?---As far as I am concerned, he has.
PN1581
Well, he didn't forward this correspondence to you?---Well, to be quite frank with you, I think it is being ridiculous how the company hasn't kept the State Office informed. Anyway, that is your game. Premier coal's game, I should say, yeah.
PN1582
But, Mr Saunders, did you attend that meeting?---I didn't get the correspondence.
PN1583
Well, did Mr Kearney tell you about the meeting?---Probably did.
PN1584
Then why didn't you attend?---Because he said he was going to a meeting.
PN1585
Well, why do you complain about not being informed about it for?---Well, most employers send the correspondence through to the State Office or the office of the union. But this company doesn't. They go straight to the delegate.
PN1586
But Mr Kearney speaks to you after every meeting?---And before.
PN1587
All right. I have only got one other copy, sir. If I can just mark that as an exhibit.
PN1588
THE DEPUTY PRESIDENT: Yes.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1589
MR EDMONDS: Sir, he is seeking to tender something which Mr Saunders can't identify. How you tender something which no-one can identify what it is?
PN1590
THE DEPUTY PRESIDENT: I think Mr Bull was careful to say he wasn't tendering it but for it to be marked as an exhibit, Mr Edmonds. And it will be marked on that basis.
MFI #A8 CORRESPONDENCE DATED 03/05/2004 FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED MEETING FOR THE PURPOSE OF REACHING AGREEMENT IN THE COAL INDUSTRY TRIBUNAL
PN1591
MR BULL: Thank you, sir.
PN1592
THE DEPUTY PRESIDENT: I was correct in that assertion, wasn't I, Mr Bull?
PN1593
MR BULL: Yes, sir. One would assume that the site delegate would be called as a witness by the union. But I am just ascertaining as to whether my friend, Mr Saunders, has been given a copy. And he has made it clear he hasn't.
PN1594
Mr Saunders, I will show you another letter. If you can identify that if you can?---No, I haven't seen it.
PN1595
So, it is addressed to Mr Kearney, talking about - - - ?---Yep.
PN1596
- - - another meeting with the Miners Union to talk about an enterprise agreement in the Coal Tribunal?---Yep.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1597
And Mr Kearney never advised you of that?---He probably rang me and said there was a meeting on that date and told me the outcome of that meeting.
PN1598
All right. So, he wouldn't have told you that it is to do with the Coal Tribunal EBA?---He would have said it was over - - -
PN1599
Sorry?---Over further discussions of the EBA, yeah. Yeah, he would have told me that.
PN1600
No, but I am not asking you that. Would he have said it was to do with an EBA negotiation in respect of the Coal Tribunal?---I doubt whether he would have used those terms, no.
PN1601
All right?---He probably said there is further negotiations over the EBA.
PN1602
If I could mark that for further identification.
PN1603
THE DEPUTY PRESIDENT: Yes.
MFI #A9 CORRESPONDENCE FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED MEETING WITH MINERS UNION TO DISCUSS PROPOSED ENTERPRISE AGREEMENT IN THE COAL INDUSTRY TRIBUNAL
PN1604
MR BULL: I will show you further correspondence, Mr Saunders dated 28 May in similar terms. You can tell the Commission whether you have seen that before?---No, I haven't seen it before.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1605
You can see there, it talks about your union and the Coal Miners Union and discussions in the Coal Tribunal for the purposes of an agreement for that Tribunal. It says there:
PN1606
We will have a further meeting to discuss the new enterprise agreement under the Coal Industry Tribunal Act.
PN1607
?---It doesn't say our union but, yeah, it says there will be a further meeting with John Kearney and Gary Wood.
PN1608
Well, what do you mean it doesn't say your union. It is addressed to Mr Kearney of your union. It says:
PN1609
I confirm - - -
PN1610
?---Okay. All right. When you get to what Mr Kearney's position is.
PN1611
But you never seen that. Is that right?---No, I haven't seen it.
PN1612
Yes. Can I mark that for further identification, thank you.
MFI #A10 CORRESPONDENCE DATED 28/05/2004 FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED MEETING TO DISCUSS ENTERPRISE AGREEMENT UNDER THE COAL INDUSTRY TRIBUNAL ACT
PN1613
MR BULL: A further letter, your Honour, of 1 June.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1614
Have you seen that before, Mr - - - ?---No, I haven't.
PN1615
In similar terms. It talks about an agreement with the Coal Tribunal. If I can mark that for further identification.
MFI #A11 CORRESPONDENCE DATED 01/06/2004 FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED AGREEMENT WITHE THE COAL INDUSTRY TRIBUNAL
PN1616
MR BULL: I will give you two more, Mr Saunders. Again, in similar terms. The one I would like you to pay particular attention to is the one of 14 June which says that:
PN1617
It was requested by Mr Kearney that a meeting be held in Perth on 17 June. Premier Coal to attend. For the purpose of discussing a new EBA under the CIT Act. That meeting will be held in the Georgina at the Mercure Hotel.
PN1618
?---Yeah, I think I might have been there.
PN1619
Yes. Well, you said you were there?---Yep.
PN1620
Right. Did Mr Kearney not give you this correspondence?---I don't think I have seen the correspondence but I was at the meeting so definitely he told me all about it.
PN1621
No, but did Mr Kearney not give you this correspondence?---No, he didn't.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1622
So, the last six letters, he hasn't given you any of those?---No.
PN1623
Is that right?---He informed me of every meeting he has had.
PN1624
Yes. And he hasn't told you what the contents of the letters say?---No.
PN1625
Has he?---No.
PN1626
So, your official on site has been negotiating with the company in your absence - - - ?---Yes.
PN1627
- - - since the lodgment of a Federal agreement for the purposes of reaching agreement with the Coal Miners Union to have it certified in the Coal Tribunal, hasn't he?---No, he hasn't.
PN1628
Well, that is what everybody's intention would have been, on the basis of that correspondence, isn't it, Mr Saunders?---Well, the position is, we made it clear - you can keep going down and - the shop stewards don't reach their agreements if the organisation is going to be party to that agreement. The union office register the agreement.
PN1629
Well, what authority has Mr Kearney have? None?---He has got the same as a shop steward. He is a shop steward under the terms of the rules.
PN1630
What authority does he have?---He is entitled to talk the employer about the matters pertaining to his particular enterprise. He is entitled to address problems of members on the job. He is entitled to collect union dues from members on the job. And he is entitled to refer members to the State Office over problems they have on the job.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1631
Is he entitled to negotiate an enterprise agreement on behalf of the union?---He is entitled to be part of the enterprise agreement but he is not - - -
PN1632
Well, he is entitled to negotiate on his own or not?---I suppose he would be but he is not entitled to settle.
PN1633
Right. So, on all occasions negotiations are being held in Mr Kearney's presence and without yours. He has had no authority to settle anything. is that right?---At the end of the day, the State Office will settle that, sign it.
PN1634
And so he had no authority on your understanding to have any meetings at all on the guise that the agreement to be registered was to be in the Coal Tribunal. Is that right?---No, not from the - - -
PN1635
Sorry?---Not from 29 April.
PN1636
So, he has been acting without your authority. Is that right?---No, that is incorrect.
PN1637
Well, that is what he has been doing. You can see the tenor of the correspondence?---No, as far as I am concerned, he continues to negotiate a settlement to an agreement.
PN1638
Well, you can see the understanding of the letter. For Premier Coal and at least the Coal Miners Union - is that there will be a single agreement in the Coal Tribunal. That is self explanatory. Probably go as far as to say it is 99 per cent self explanatory?---Is it?
PN1639
So, what authority does Mr Kearney have then? He can't agree to anything until you give him the okay. Is that right?---No. Under the rules - not just me - under the rules of the union, the State Council has the authority and the Executive which is run by the State Secretary or the President.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1640
Right. So, he doesn't have authority to make agreements with the company at all. Is that right?---He has no authority to sign off an agreement, no.
PN1641
No. And when the recent contract dispute was before the Tribunal and Mr Kearney agreed that your union members would work an additional 12 hours per week, he had no authority to do that?---He got instructions to say he could.
PN1642
Sorry?---He got instructions to say he could.
PN1643
From whom?---By memory, it was Shawn Currie.
PN1644
And how did he do that?---Well, my understanding is that Shawn Currie knew all about it and he had had discussions with John Kearney, but I might be wrong. I will have to go and check.
PN1645
Well, Mr Kearney wasn't at the conference. That matter was resolved at a conference. There was an agreement on the spot?---Mr Kearney wasn't at the conference?
PN1646
Sorry. Mr Currie wasn't at the conference?---Mr Currie, he reported to me later on, but anyway that is - - -
PN1647
Well, I am just asking you. Is that another one of these situations where Mr Kearney - - - ?---The rules of the union is quite specific.
PN1648
Yes, I understand that?---Yes.
PN1649
So, if Mr Kearney at a conference before the Coal Tribunal has agreed that your members can work an additional 12 hours per week - - - ?---Yes.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1650
- - - that he has no authority, according to union, unless Mr - - - ?---Well, if that is what you are saying, no, he hasn't. And we will withdraw it. That is fine. That is fine.
PN1651
Well, you are not working now so I don't think the company would be too worried about that?---Okay. That is fine.
PN1652
But I just want to clarify. In terms of - - - ?---The rules of the union is very clear on the delegation of shop stewards.
PN1653
I just want to understand when it is and when it isn't that Mr Kearney has authority to make decisions. That is all. It appears never?---It appears - if you want to know, the union office will sign off on the agreement. And you are saying that the union itself was heading down the line of having a State certified agreement, you are wrong. If you want to go through that, at the end of the day, as of 29 April, we are going to have a Federally registered agreement.
PN1654
But that may have been your view, Mr - - - ?---Well, my view counts more than Mr Kearney's, thank you.
PN1655
Yes. Well, that might be true too?---Yes.
PN1656
But you didn't attend meetings?---I wasn't invited to a lot of meetings.
PN1657
Well, you weren't told you weren't uninvited, were you?---No, no. Premier Coal doesn't ring me. They use Mr Kearney. That is fine. No, that is fine. I have got a lot of time and respect for Mr Kearney and a lot of the good work he has done. But at the end of the day, the buck stops with the paid union officials.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1658
Yes. But Wesfarmers Premier Coal could have been under no impression that they were negotiating for a Federal agreement, could they?---I think they should be.
PN1659
Well, they had made it clear in the correspondence preceding all the meetings that they weren't?---If they wanted to play those sorts of games, they are allowed to.
PN1660
Well, it is game. You say it is a game, is it?---Well, that is the way they are playing it because you refused to negotiate on the Federal log. We continued to pursue an agreement. And eventually we will get an agreement and we will have it certified in this jurisdiction.
PN1661
But, Mr Saunders, your advocate says that these were negotiations for a Federal agreement. You say they were. Is that right?---I am saying at the end of the day - to me, personally, if you are asking my opinion, and I am not a Rhode scholar on these things, I will negotiate an agreement. At the end of the day it will be certified. Our intention was from 29 April that it be certified in the Federal jurisdiction.
PN1662
But, Mr Saunders, are you saying that the meetings that Mr Kearney attended in your absence were negotiations for a Federal agreement? Are you saying that?---A certified agreement.
PN1663
Right. Well, how are you, then, on the other hand, saying that the company refused to negotiate?---Are you saying you did negotiate?
PN1664
I am asking you, how can you put the submission that the company has refused to negotiate?---All right. Are you happy to negotiate? I am quite happy.
PN1665
Well, what is your situation? Did negotiations take place or didn't they?---I am quite happy if negotiations take place over a certified agreement, yes.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1666
I am not interested in what you are happy about. What I am asking is, are you putting the proposition that the company refused to negotiate with you?---No, no.
PN1667
Well, you said that earlier. That the company refused to negotiate. Do you withdraw that?---No, they - sorry. They thought they were playing a game on the Federal log of claims. I agree that the company has been negotiating an agreement with the union, whether it be direct with the State Office or through the shop steward, which we are going to have certified in the Federal arena. I agree with that.
PN1668
Right. So, they never refused to negotiate, is that what you are saying?---No, we had plenty of negotiations.
PN1669
Okay. All right. Well, we have got that clear. And that negotiation, you say, took place with Mr Kearney?---On some occasions, yeah.
PN1670
Right. Notwithstanding the correspondence preceding the meetings saying this has got nothing to do with the Federal application. It was in the Coal Tribunal?---It makes no difference to us.
PN1671
All right. Okay. And that is notwithstanding that the document that was composed as a result of those discussions reflects an agreement between your union and the Coal Miners Union to be filed in the Coal Tribunal?---I haven't seen it and I probably would have made some comment if I have of seen the document.
PN1672
All right. So, Mr Kearney has never ever given you a copy of the proposed EBA from the company?---I haven't seen it.
PN1673
Nor has he given you correspondence, at least six letters, about meetings?---No.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1674
All right. And he has no authority whatsoever to reach agreement on anything, has he?---He can't sign off on agreements, no.
PN1675
No. All right. Now, In respect to the clarification meeting Wesfarmers Premium Coal gave you their response in writing, didn't they, about 2 weeks later or you say it was maybe a bit longer than 2 weeks later?---Is this their log of claims?
PN1676
No, the response to your log of claims?---Maybe. You may have to show me this document. I thought the next lot of correspondence we got was on 9 July - - -
PN1677
No, 9 July was the company's log of claims and that is the agenda items they wanted to discuss?---Yes. Okay.
PN1678
Right. Now, when did you sit down and discuss with the company about those agenda items?---We haven't yet.
PN1679
When was it you sat down and discussed with the company their response to your log of claims?---I think we've doing it since 29 April.
PN1680
But they didn't give you their response on 29 April, Mr Saunders?---Well, it's all about negotiations with the group.
PN1681
Sorry?---It's all about negotiations of an agreement.
PN1682
Yes, I'm sure it is, but you received a letter addressed to yourself on 16 June:
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1683
Dear Mr Saunders, I refer to our recent discussion and correspondence regarding the above matter and to the amended log of claims received by your union. Please find attached Premium Coal's response. I confirm Premium Coal team is willing to meet with you and discuss the details of our response.
PN1684
Well, you never even replied to that letter?---Is that the one that's come out of 16 June - wasn't that the one that I raised at the Mecure.
PN1685
No, that's the one you asked for. The company at the clarification meeting said: We'll get back to you within a fortnight?---Yes.
PN1686
You eventually got the letter?---On the - - -
PN1687
You say 2 days later than the fortnight?---Well, the 16th, was it?
PN1688
Yes?---16th from the 26th, yeah, I suppose that's 2 weeks.
PN1689
Yes?---Yeah. Premium Coal - - -
PN1690
Now, you never - - -?---Is that 2 weeks?
PN1691
You were invited to discuss the detail of the response and you never even replied?---Yes.
PN1692
And now you're criticising the company because they had the temerity to ask for a clarification meeting?---I'm not criticising. I just said that's - - -
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1693
Is that your understanding of - - -?---They took 4 weeks to even ask for that. 3 weeks then to respond to that. Then - - -
PN1694
They didn't take 4 weeks to even ask for that. You had an amended log of claims on 10 May. The meeting was arranged on 26 May. It's not 4 weeks?---Oh, well.
PN1695
Now, you were given a response. You were given correspondence. You haven't even replied?---No, we've got a log of claims.
PN1696
You were then given another log of the company's agenda items they promised to send on 9 July, your immediate response is to give advice that you're going to go on strike for 4 weeks. Is that you idea of negotiations, is it?---No. It's not mine, it's - - -
PN1697
Well, you are saying that the company, on the one hand, are not negotiating, they tell you what their concerns are with the log of claims, tell you what their agenda items are and you say: Well, I'm going to go on strike for 4 weeks?---No. We've been negotiating since August last year.
PN1698
Have you. Well, August last year the matter was in the Coal Tribunal?---It doesn't matter where it was, we've been negotiating since August last year.
PN1699
Yes, for a Coal Tribunal Agreement?---No. Well, even if it was then on 29 April it wasn't.
PN1700
I take it then, Mr Sanders, that your union wishes to move into the Federal jurisdiction, you no longer wish to operate under the auspices of the Coal Tribunal?---That's correct.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1701
But you would then obviously support the abolition of that Tribunal if there is no purport for your union?---No, that's not correct.
PN1702
But your union is not a party to it, what - - -?---Not with Premium Coal.
PN1703
Sorry?---Not with Premium Coal.
PN1704
So it's only for Premium Coal?---At this stage.
PN1705
Right. But the Tribunal, you would say, should exist for the one company, Griffin?---It may.
PN1706
Yes, all right. Now, I put this to you, Mr Saunders, is it the intention of your members to stay on strike for the next month?---Not if we reach an agreement which we can have certified in the Federal jurisdiction.
PN1707
Well, have you asked for negotiations?---I want to negotiate.
PN1708
Sorry?---You came straight here. We were willing to sit down and negotiate.
PN1709
Mr Saunders, have you asked to negotiate for your Federal log?---We will sit down and negotiate tomorrow, next day, yesterday.
PN1710
While you're on strike, is that right?---If need be.
PN1711
Well, are you going to return to work and then have negotiations?---What rule - I haven't heard of that rule?
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1712
I'm just asking you, Mr Saunders, I'm not saying - - -?---I haven't heard the rule where you've got to go back to work to negotiate.
PN1713
Mr Saunders, I'm not asking you what rules apply, are you going to come back to work and then negotiate or negotiate while you're on strike?---No, we'll - we'll negotiate on strike or off strike, yeah.
PN1714
And what is your union's position if the company over the next month bring on contractors to do the work of your members?---We'll have a discussion with our members about that.
PN1715
Sorry?---We'll have a discussion with our members about that.
PN1716
Yes. So you don't know what the position is?---Hm mm.
PN1717
Well, Mr Kearney has said that contractors can't come on site. Is he speaking out of turn, is he?---I hope he's right.
PN1718
Sorry?---I hope he's right.
PN1719
MR EDMONDS: Sir, I wasn't aware that we had evidence that Mr Kearney had said that to anybody. I mean unless Mr Bull wants to get in the witness box and give the evidence himself and I will cross-examine him on his descriptions.
PN1720
MR BULL: Well, obviously, Mr Kearney hasn't given his evidence yet. I've got the opportunity and the right to put such a proposition to Mr Saunders. If indeed Mr Kearney contradicts that then we will know what the position is.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1721
MR EDMONDS: Well, obviously, Mr Kearney said it to somebody, according to Mr Bull. Mr Bull could have put that person in the witness box and got the evidence from them. If he is just going to stand there from the bar table and make assertions then I will do that too and we won't worry about calling evidence, but until that point let's stick to what the evidence is.
PN1722
MR BULL: Mr Saunders, what is the position if contractors come on site, Wesfarmers Premium Coal?---I'll have a discussion with our members if the contractors come on site.
PN1723
Well, what would your recommendation be?---I will decide that after I've had a discussion with our members.
PN1724
Well, you don't want to answer the question, is that what you're saying?---No, I said I'll disclose that after I've had discussion with our members.
PN1725
Well, you know the answer but you won't disclose it yet?---You asked me the question, I've answered.
PN1726
Yes. And the answer is you know the answer but you won't disclose it, is that what you're saying?---No. I thought I said I would have discussion with our members and out of those discussions I will then let Premium Coal know what I'm going to do - or what we're going to do.
PN1727
Now, you're currently bound by an agreement in the Coal Tribunal, aren't you?---One out of term, yes.
PN1728
Sorry?---Yeah. An agreement - agreement out of term, yes.
PN1729
Well, it is still legally binding, isn't it?---You asked whether we were or weren't, I said: There's an agreement out of term, yes.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1730
Yes, but is it still legally binding?---Yes.
PN1731
And it has a provision in there that says you are to follow a dispute procedure if you've got any questions?---Yes. There's a disputes procedure in there.
PN1732
Yes. And that doesn't make allowances to take industrial action, does it?---I don't think it allows - most stuff's supposed to go to the Coal Tribunal by memory.
PN1733
Now, when is the next meeting with your members on site?---About 23, 24 days time.
PN1734
So you've taken industrial action and you're not intending to meet for another 23, 24 days?---That's correct.
PN1735
Well, there have been meetings since you've taken industrial action, hasn't there?---Sorry?
PN1736
There have been meetings of your members on site since they've industrial action?---I think there was a meeting with - yeah, one of our officials was there on Monday.
PN1737
Yes. Well, was it then decided that you wouldn't have another meeting for 23 days, was it?---I thought you said when am I going to have a meeting with them.
PN1738
Sorry, I didn't mean personally - - -?---Well, that's what you asked me and that's what I answered.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1739
What I meant was, when is there going to be another meeting of members on site?---I think there's one set down for 5 o'clock on Thursday or Friday this week.
PN1740
Sorry?---There's one set down for 5 o'clock Thursday or Friday this week.
PN1741
And what's the purpose of that?---It's probably to have a discussion about how the dispute's going, the outcome of these proceedings.
PN1742
Now, Mr Saunders, what concessions have you made in respect to your log of claims?---I'm - my opinion, a significant amount of public holidays and annual leave.
PN1743
No. I'm talking about the log of claims filed Federally not the discussions at the Coal Tribunal?---Well, whatever we conceded in the negotiations since August last year to now is our concessions.
PN1744
But there's nothing about that in the log of claims you filed in the Federal Tribunal?---You've asked the question: Have we been negotiating as of the 29th for a certified agreement to be registered in the Federal Commission and whatever concessions were given the wages and conditions that apply up to date are the concessions we've - - -
PN1745
When did you tell the company that all the concessions you had made in the Coal Tribunal now apply to the Federal log of claims?---What I'm saying to you is whatever we - - -
PN1746
Yes. But when did you tell the company that?---When we've - when or if we come to an agreement, that agreement will be certified in the Federal jurisdiction.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1747
Yes, but when did you tell the company that the concessions that you've made negotiating a Coal Tribunal agreement now apply to a Federal one?---Probably on 29 April.
PN1748
Probably?---Yeah. I mean when they get a notice of intention - a notice of bargaining that was the - that was the signal.
PN1749
That's a signal that despite your log of claims, which don't make those concessions, that you really meant that there were concessions. Is that what you're saying?---Well, there was some concession, yeah.
PN1750
Well, how do we work that out in your log of claims?---Easy. We've been negotiating.
PN1751
Mr Saunders, are you talking about negotiating since the 27th of prior to it?---Well, whatever's happened prior to the 27th and after the 27th. What we did was signal on the 27th or 29th when you got the - the notification is that we're having the agreement certified in the Federal jurisdiction, whatever agreement that may be.
PN1752
But, Mr Saunders, how can that be with an agreement with the Coal Miners' Union?---It never was.
PN1753
Well, that's what was being negotiated up to at least that date?---Well, the intentions and the Coal Miners' Union was notified that we were going to the Federal jurisdiction.
PN1754
Yes, we know that, you've notified that you're going to the Federal jurisdiction?---And the Coal Miners' Union.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1755
Sorry?---And the Coal Miners' Union.
PN1756
Yes, and the Coal Miners' Union, yes, I understand that?---Yes.
PN1757
But you say that despite your log of claims all the concessions you've made which have got a lot to do with the Coal Miners' Union, because demarcations flexibilities concern the Coal Miners' Union, they are all to be taken by Wesfarmers Premium Coal to be granted in your Federal log, is that right?---Yes.
PN1758
But you never mentioned that at the clarification meeting though, did you?---No.
PN1759
You've heard the evidence of Mr Butel. You understand the damage that your industrial action does to the company and the company's reputation as a supplier of coal?---I understand the damage it does to our workers for being on strike, yeah.
PN1760
Does your union have a policy that union officials don't get paid during times of industrial action?---From time-to-time, yeah.
PN1761
In this case?---No, not in this case, no.
PN1762
You're being paid?---I'm being paid.
PN1763
You've never asked the Federal Commission to assist with any negotiations, have you?---No.
PN1764
That is because you're not genuine in trying to reach an agreement, isn't it?---My understanding of the application would have been filed, that we haven't sought the Commission to intervene into settling the matter. I think there's a box on the bottom of the form for - - -
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1765
Yes. That's true, yes?---Yes.
PN1766
But prior to notifying and going on strike for a month you've never asked this Commission's assistance to help in any negotiations, have you?---Never have.
PN1767
Sorry?---We never have.
PN1768
No. You just take industrial action?---No. We try and sort out problems with the company.
PN1769
Right. But when you can't you just take industrial action?---Yes.
PN1770
You don't go to the Commission?---No, we don't go to the Commission.
PN1771
Right. But you're quite happy to go to the Coal Tribunal, aren't you, and have been?---We're quite happy to try and seek an agreement - settle an agreement between us and have it certified. That's what we're quite happy to do.
PN1772
Now, Mr Saunders, why is it that you ignored the correspondence from the company in respect to their agenda items?---Which one are we talking about?
PN1773
Sorry?---Which one - - -
PN1774
The 9 July letter asking, "Can we please have discussions." Why did you ignore that?---9 July I was probably interstate, if I recall.
PN1775
All right. Interstate. However, on your return did you authorise the month's industrial action, is that right?---I think I've signed documentation, yeah.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1776
Yeah. And was a meeting held for that purpose?---There would have had to have been, yeah.
PN1777
Well, was there?---Yes.
PN1778
Well, where was that held?---Probably in Collie.
PN1779
Were you there?---More than likely, yeah.
PN1780
Well, "More than likely," Mr Saunders, it was only 13 July, were you there or not?---I was there.
PN1781
Was Mr Kearney there?---I think all the members were there and Mr Kearney and the delegates were there, yeah.
PN1782
So you do have a recollection of the meeting. And Luke Edmonds, was he there?---No.
PN1783
And you instructed Mr Edmonds to hand over the notice of intention to take industrial action?---I think we had the meeting and then I returned to Perth and I signed the notice, yeah.
PN1784
No, but when did you tell Mr Edmonds to give it to the company?---I would have said because of Deputy President Lacy's decision I would have sent - faxed a copy to the company. I understand there was a Coal Tribunal matter on that day, might have been the contractors one, but at the end of the day I would have said: Well, save on postage and take it with you.
PN1785
You've seen exhibit A5, the extract from your web site?---Oh, that one, yeah, yesterday?
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1786
Yeah. And the contents of that are accurate?---I don't know.
PN1787
Sorry?---I mean it's the first time I've seen it. If you asked me whether I put it on there I can't even - I can't even start a computer up so - - -
PN1788
No, well, I didn't ask any of those questions. Are the - - -?---I'd have to have another - - -
PN1789
- - - are the contents of that accurate?---I'd have to have another look.
PN1790
Sorry - oh, well, if the witness can be shown the exhibit?---I think it's embellished a little bit, yeah.
PN1791
Now, when is it that the company knows whether you're acting as a State or Federal official?---When?
PN1792
Yeah?---They don't. I suppose if the company asks I've got to tell them but they haven't asked so - - -
PN1793
Right. So when you're in the Coal Tribunal in the State jurisdiction, which your union, Federal union, has no standing whatsoever, you don't tell anyone that you're actually there on behalf of the Federal union. Is that right?---I'd have to, yeah.
PN1794
No. Well, you're in there under a false - - -?---I'll make sure I don't go there.
PN1795
Sorry?---I'll make sure I don't go any more then.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1796
Well, maybe if you went as a State rep wouldn't be a problem?---Well, I'll make sure I tell the Chairman, Steven Kenner, that I've been misrepresenting myself.
PN1797
Now, I take it, Mr Saunders, that it's purely coincidental that your industrial action commenced immediately the Miners' Union industrial action stopped. Is that right?---Yes.
PN1798
Have you had any discussions with Mr Wood over your industrial action?---No. I - no, no, he would have been notified probably through the delegates that we had made an application, given 3 full day's notice and the time that the industrial action was going to start.
PN1799
Now, you - - -?---I personally haven't spoken to him about it but - - -
PN1800
Did Mr Kearney advise you of the time he went to the stop work meeting on 14 July with the Coal Miners' Union?---I would say he would have but I can't recall.
PN1801
Sorry?---I would say he would have but I can't recall.
PN1802
He may not have or he did?---I would say he would have, yeah.
PN1803
But what was it he told you happened at that meeting?---As I say, I can't recall but he would have told me.
PN1804
Why would he go to a stop work meeting of the Coal Miners' Union?---I don't know.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1805
Sorry?---As I say, I can't recall it though I know he would have told me about it.
PN1806
You can't recall what he said but why would he go to a stop work meeting of the Coal Miners' Union?---You will have to ask Mr Kearney that.
PN1807
He never told you?---He probably did. As I said, I just can't recall.
PN1808
All right. Now, the items for discussion that initiated this whole exercise of EBA negotiations in the Coal Tribunal, seeing that there are two purported logs floating around, have you seen those, Mr Saunders?---I think I have seen them.
PN1809
Yes. One of them that you saw this afternoon has got the Coal Miners' Union and the Metal Workers' Union?---Yeah.
PN1810
It's a joint claim, is that right?---Well, you're telling me.
PN1811
Yeah. Well - - -?---I've seen it floating around. I haven't - it's been a while since I've seen it, I think it's R1 or something, isn't it?
PN1812
The one that Mr Allen identified this afternoon. If the witness can be shown that.
PN1813
THE DEPUTY PRESIDENT: What number was that, Mr Bull?
PN1814
MR BULL: I'm just trying to find it, sir. I'm sorry, I'm not as organised as I should be. A7, I'm told. Have you seen that?---It's a - not in this format, no.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1815
It's got your letterhead on it?---It's got our logo on it, yeah.
PN1816
Yeah?---Yeah.
PN1817
Is that the State or Federal union on there?---State or Federal, yeah.
PN1818
State or Federal, well that's a bit misleading, isn't it? How is the employer meant to know, that can be either the State or Federal, can it?---Well, I know the CFMEU is Federal so I take it that is Federal.
PN1819
Well, is it or isn't it?---Well, I take it it's Federal because the CFMEU is Federal.
PN1820
Yes, but how do we know it's Federal then, it hasn't got PKIU on the end of it, it hasn't got Federal on the end of it?---Well, that's not even the State union, is it?
PN1821
No. I'm just saying, how do we know it's a Federal union?---Because I've just had a look. CFMEU is a Federal organisation so the AMWU must be the same, because that's not the State branch.
PN1822
Sorry?---That's not the State branch of the - - -
PN1823
So the Federal union - - -?---Yes. We're both Federal unions.
PN1824
And your Federal union - - -?---We're both Federal.
PN1825
Gave the company a Federal log in August last year, is that what you're saying?---You asked me what the - the type of one it was.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1826
Yeah?---Both Federal.
PN1827
Well, why would you have Federal logs when you're negotiating a matter in the Coal Tribunal in August last year and no-one has even notified a bargaining period?
PN1828
MR EDMONDS: Excuse me, sir, I don't think Mr Saunders gave evidence it was a Federal log of claims. I think Mr Saunders gave evidence that the logos were Federal logos.
PN1829
THE WITNESS: Both of them.
PN1830
MR EDMONDS: Mr Bull can take that as he will.
PN1831
MR BULL: Why are you, Mr Saunders, using Federal logos? I mean how are the company meant to know who they're negotiating with?---Well, I - you asked me and on the basis that the CFMEU is Federal, because that's a Federal organisation, the AMWU is Federal.
PN1832
I said how are the company meant to know who they're negotiating with?---I don't know - well, obviously, it's a bit hard - difficult for us - sorry, the AMWU, but obviously they were negotiating with the Federal Construction, Forestry, Mining and Energy Workers' Union because that's their Federal logo.
PN1833
Right. That was a joint claim from your union and the CFMEU?---Federal branch, yeah, obviously.
PN1834
Right. And the State unions which are respondent to the EBAs in the Coal Tribunal are the Coal Miners' Union not the CFMEU and the State organisation of the Australian Metal Workers' Union. Is that right?---Sorry, you've told me A7, the logos.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1835
Yes?---For the Miners' Union it's a Federal organisation on top of that, so that tells me it's the Federal union negotiating - - -
PN1836
Yes. I understand what it tells you, I'm just saying - - -?---Well, you asked me - - -
PN1837
No. I didn't ask anything about them the Miners' Union, if you must know, I asked about your union?---Oh, okay. You asked about the - - -
PN1838
Your union?---Okay. That's a Federal one as well.
PN1839
Right. But that wasn't a Federal log though, was it?---No. It doesn't have to be a Federal log.
PN1840
Okay. But that was a log by both unions jointly, wasn't it?---Yes, both.
PN1841
Both unions had gone through and said: This is what we want as a replacement for the current EBAs and both unions said: That's what we want registered in the Coal Tribunal, didn't they?---I don't know what they said there. I wasn't physically there. I don't know what was said there. The assumption that was - what was happening in August 2003, my guesstimate is you're right .
PN1842
Now, you weren't at the last Coal Tribunal conference, were you, with the Chairman, Mr Kenner?---No. I think I was - - -
PN1843
Sorry?---I think I was overseas.
PN1844
Overseas and Mr Kenner was given a copy of the proposed EBA?---I don't know.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1845
You're not aware of it?---No.
PN1846
All right. I'm instructed, Mr Saunders, that there is a meeting tomorrow morning at 9.30. You don't know anything about that?---No, I don't know anything.
PN1847
And on no occasion since 26 May have you ever asked the company to sit down and negotiate any of the claims in your log of claims, have you?---As far as we're concerned we've been negotiating a - - -
PN1848
No, I know what you're - - -?---Well - - -
PN1849
Have you asked the company since 26 May - - -?---Well, you could put the words - you can try and put words in my mouth, I'm telling you that we've been trying to reach an agreement to have an agreement certified in this jurisdiction.
PN1850
Yes. I'm sure Mr Edmonds will clarify this if need be?---Yes.
PN1851
You've never asked the company to have a meeting to negotiate your log of claims since 26 May, have you?---Oh, yes, we've been negotiating since 26 May.
PN1852
No. Well, when did you ask to have a meeting to negotiate your log of claims after 26 May?---I've attended at least one or two of those meetings.
PN1853
When did you ask to negotiate the Federal log of claims?---It's all part of one. As far as we're - - -
PN1854
Sorry?---As far as we've concerned we will negotiate an agreement and then have it certified in the Federal jurisdiction.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1855
Yes. So when did you ask to have a Federal - - -?---No. Don't have to - - -
PN1856
No, never asked?---Don't have to ask because when I negotiate, the same as your organisation, the Chamber of Commerce and Industry, when we negotiate we sit down and negotiate and then we determined where it's going to be registered. Now, where we're having a dispute and we log in the Federal jurisdiction that's where it is registered.
PN1857
Yes, but the company sat down and has always said negotiations are for the purpose of the Coal Tribunal, the purpose of a single agreement and that cannot be filed in the Federal Tribunal, can it?---Why not?
PN1858
Because the Coal Miners don't have a Federal bargaining period to start with?---What's that got to do with us?
PN1859
Well, I'm saying to you, Mr Saunders - - -?---Why can't you have a Federal one in the Federal jurisdiction and an identical one in the State jurisdiction.
PN1860
Right. You never put that to the company at any stage, did you, that you were going to have two documents, an identical one for you and identical - - -?---I never said it would be identical I just said that could happen.
PN1861
Yes. But that's all very convenient to say now, it was never ever put to the company - - -?---It's all very convenient when you don't want to sit down and negotiate on a Federal log and we continue to negotiate to settle an agreement and we've notified you we're going to register in this place. You mightn't like it but that's what's going to happen.
PN1862
That's what's going to happen, is it?---That's what's going to happen because we've already said that's where it's going, at the end of the day.
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1863
So if your union wants to have a Federal certified agreement then that's what happens?---Yes.
PN1864
I've no further questions, your Honour.
PN1865
THE DEPUTY PRESIDENT: Mr Edmonds?
PN1866
MR EDMONDS: Unless you've got any questions, sir, I've only got a few things to clarify, sir.
PN1867
THE DEPUTY PRESIDENT: I just have one question or it might be a couple.
PN1868
The rules of your organisation, who has authority to initiate bargaining periods?---Through the executive or the State Council, myself and the State Secretary.
PN1869
So is there a resolution needed by - - -?---Yes. There was a resolution moved some 3 years ago.
PN1870
No, well the notice of bargaining period, I'm not sure who it is signed by but it is - - -
PN1871
MR EDMONDS: If it's of any assistance, sir, I can advise that it's signed by Mr Ferguson, State Secretary of the organisation.
PN1872
THE DEPUTY PRESIDENT: So as far as you're aware there was a resolution to initiate - - -?---Oh, yes, there was a resolution which we can supply to the Commission. Obviously, it - - -
**** COLIN GEOFFREY SAUNDERS XXN MR BULL
PN1873
It hasn't been contested, I just wanted to see it. Yes, that is all I had, thank you. Do you want to ask - - -
PN1874
PN1875
MR EDMONDS: Mr Saunders, Mr Bull made much out of whether the log of claims was self-explanatory or not, was any clarification sought of the log of claims that was initially attached to the bargaining period or did the company just seek an amended log of claims?---My recollection is the amended log of claims went in because of discussions that were held on site with our delegates and work force and that John Kearney then contacted myself and yourself, by memory, for amend those log of claims. That's my recollection of what - why the amended log.
PN1876
And is it true to say that the company then sought clarificatijon of the amended log of claims?---That's correct.
PN1877
Have they sought further clarification of the issues in that log of claims since 26 May 2004?---No. They haven't even spoken to us about the log of claims.
PN1878
There was much made about section 170MS and its implications?---Yes.
PN1879
And the question of whether you had explained it to the work force or whether you're aware of this provision. Section 170MS says that if you fail to certify an agreement in the Commission after 21 days after the agreement is made then anything done during the bargaining period is not protected action?---Yes.
PN1880
Are you aware of that provision?---Aware of that one.
**** COLIN GEOFFREY SAUNDERS RXN MR EDMONDS
PN1881
Have you put that to the work force?---That was exactly what I put to the work force but 170MS I don't walk around knowing exactly what each part of the Act says, but if people read it to me I do know how the Act - in most cases, not as good as people on the bar table or the Commissioner - Deputy President, but I can get myself around the Act.
PN1882
So on the basis of that provision was it always the intention of the AMWU to have any agreement reached certified Federally?
PN1883
MR BULL: Well, I mean all he is doing is telling the witness what the intention of the AMWU was, he can simply ask what was the AMWUs intention not what it was and then ask him to confirm it.
PN1884
MR EDMONDS: Well, can I ask what the intention of the AMWU was?---Intention is to have the agreement that's reached certified in the Federal jurisdiction.
PN1885
Thank you, sir, I've got no further questions of this witness, sir.
PN1886
THE DEPUTY PRESIDENT: Just for the record, Mr Saunders, Mr Ferguson holds what position?---He's the State Secretary.
PN1887
Of?---The AMWU.
PN1888
It's a Federally registered union?---Both Federal and State, yeah.
PN1889
So he holds offices in both - - -?---Both the State jurisdiction and - - -
PN1890
Of both organisations?---Yes. It's when we have - when we have election concurrently we hold a State position plus the Federal position.
**** COLIN GEOFFREY SAUNDERS RXN MR EDMONDS
PN1891
PN1892
MR EDMONDS: Thank you, sir, I've got no further witnesses to call in relation to these issues, sir.
PN1893
THE DEPUTY PRESIDENT: Do you wish to make any further submissions, Mr Edmonds?
PN1894
MR EDMONDS: No. Well, other than to say, sir, it's certainly been our contention that in the first instance we say industrial action is protected. As such, in accordance with section 127(5A) of the Act any order which may issue is of no effect. While that does not prevent an order from issuing, sir, it certainly goes to your discretion, sir, and we say that in those circumstances if it is in circumstances where industrial action is protected it is not necessary to issue an order in relation to that matter, sir.
PN1895
The proper section to bring this application under is section 170MW, sir, which is an application to suspend or terminate a bargaining period. We would say that in any event, sir, even if you decide - well, sir, we would certainly say that in these circumstances the AMWU genuinely sought an agreement, they have had numerous discussions with the company in relation to these issues. The AMWU has genuinely sought an agreement which it has always intended on, well certainly since 29 April intended on certifying in the Federal Commission.
PN1896
The AMWU has never made any statements or has certainly never wavered from that intention. We would say that in the alternative, sir, if you say that those negotiations are separate that there have been no negotiations for an agreement in the Federal system. We would say in the circumstances, sir, the company has sought to avoid those discussions, sought to frustrate the process and generally sought to avoid having any discussions on the Federal system or in the Federal system.
PN1897
We would say, in those circumstances, sir, they certainly have no intention of reaching an agreement in the Federal system and have conducted themselves in accordance with that belief. Sir, accordingly, they would be or they should be able to avail themselves of section 127 of the Act, sir, and that is an issue that should go to the exercise of your discretion. So in those circumstances, sir, we should say an order shouldn't issue. Do you want me to address the issue of the particular order being sought, sir, or will I get an opportunity to - - -
PN1898
THE DEPUTY PRESIDENT: If you wish.
PN1899
MR EDMONDS: Sorry, sir?
PN1900
THE DEPUTY PRESIDENT: If you wish.
PN1901
MR EDMONDS: Well, sir, what I would say, sir, is that the order itself is directed at the unions, sir, the officers, employees, the delegates and agents of the AMWU but it is also directed in particular at Mr Kearney, Mr Saunders and myself. I would say, sir, in those circumstances, sir, it is not appropriate to direct the orders at Mr Kearney, Mr Saunders and myself if any orders are to issue and what I would say, sir, is the direction that industrial action stop or not occur, sir, in the proposed order at 4.1 appears to direct itself more to the directions of the Commission that may arise under an application pursuant to 170MW of the Act, sir, and that is a direction under that proposed order that no industrial action occur unless a member of the Australian Industrial Relations Commission has certified in writing that the employees have exhausted the dispute resolution grievance procedures contained in the relevant certified agreement that is currently in place and that such dispute remains unresolved. We would say in those circumstances, sir, the order itself that they are seeking is - - -
PN1902
THE DEPUTY PRESIDENT: There aren't any certified agreements.
PN1903
MR EDMONDS: Sorry?
PN1904
THE DEPUTY PRESIDENT: There aren't any certified agreements.
PN1905
MR EDMONDS: Well, there are certified agreements in the State jurisdiction, sir, and it appears that they're attempting to invoke the Federal Commission's jurisdiction to force compliance of the State agreements, which is a curious use of the Act, sir, I have to say. On the one hand - - -
PN1906
THE DEPUTY PRESIDENT: Well, the only thing that is referred here as certified agreement I take the meaning to be certified under the Act that I'm operating under.
PN1907
MR EDMONDS: Well, yes, sir. Indeed, maybe Mr Bull can explain what he means by that particular part of the order that he is seeking sir, but we would say in the circumstances, sir, this application was better directed at an application pursuant to section 170MW of the Act, that's the section it should have been brought under and in such case, sir, no order should issue in these circumstances.
PN1908
THE DEPUTY PRESIDENT: Mr Edmonds, one of the requirements, the relevant part of the Act, whilst it is not the part that 127 is in, the Commission facilitate the making of agreements.
PN1909
MR EDMONDS: Yes, sir.
PN1910
THE DEPUTY PRESIDENT: Why will not an order have the effect of facilitating the making of the agreement of an agreement?
PN1911
MR EDMONDS: Well, if you don't issue an order, sir, I suppose it certainly creates the scenario, I suppose, sir, where attempts by the company to avoid discussions or to avoid sitting down with the unions, sir, are frustrated and it will create a scenario, sir, where it's in their best interests to sit down with the AMWU. Certainly, it was put to the company to - - -
PN1912
THE DEPUTY PRESIDENT: Well, there is no evidence that supports that contention other than the assertions of Mr Saunders. So the evidence is overwhelmingly the other way, Mr Edmonds.
PN1913
MR EDMONDS: Well, the evidence, sir, is assertions of the - - -
PN1914
THE DEPUTY PRESIDENT: Well, the statements by witnesses that Mr Bull brought who hold positions of authority within the company that I should put a lot of weight on, I would have thought as to the preparedness to negotiate.
PN1915
MR EDMONDS: Well, sir, we're certainly willing to sit down with the company and reach an agreement in the Federal system as well, sir, and to have any agreements - - -
PN1916
THE DEPUTY PRESIDENT: Well, wherever it is.
PN1917
MR EDMONDS: And to have any agreement reached certified, sir, and in those circumstances, sir, I would say that if that is what the company was seeking then they would have brought this application pursuant to 170MW of the Act, sir, but that is certainly not what they're doing and the Act, sir, is designed to facilitate the making of agreements, sir, and the taking of industrial action, the taking of protected action is part of that process.
PN1918
THE DEPUTY PRESIDENT: You see, it could be, Mr Edmonds, that you sit down and negotiate with the company and you end up with an agreement and at the end of the day you may agree with them that it is preferable for the agreement to be certified in the Tribunal where historically agreements of that nature have been certified. It would seem to me that it exposes your members to much less risk because of the potential of that to occur. You might have a change of mind of going to the Coal Industry Tribunal just as you appear to have had a change of mind of going outside the Coal Industry Tribunal but the repercussions for your members, should you have that change of mind, are serious.
PN1919
MR EDMONDS: Well, sir, I would say that following the initiation of the bargaining period, sir, and the lodging of the notice to take protected action, indeed following the strike action that began on Saturday, sir, the option of certifying that agreement in the Coal Industry Tribunal has more or less disappeared because it certainly makes the organisation and their members vulnerable to any action in tort on behalf of the company, sir, if any such agreement - - -
PN1920
THE DEPUTY PRESIDENT: But if you sat down and negotiated with the company, now the company has said it's prepared to sit down and negotiate with you over an agreement, whether it be an agreement that is proposed to be certified in this jurisdiction or not, would seem to me that your members would be less exposed by sitting down and negotiating, taking up that offer, and ceasing industrial action.
PN1921
MR EDMONDS: I don't understand why you say they're exposed, sir.
PN1922
THE DEPUTY PRESIDENT: Well, they're exposed if you have a change of mind - - -
PN1923
MR EDMONDS: And choose to register the agreement in the Coal - - -
PN1924
THE DEPUTY PRESIDENT: And if Mr Bull is right, and the action is not protected action, there are two prongs to an exposure.
PN1925
MR EDMONDS: Well, yes, sir, there certainly is, sir, but it is certainly our view, sir, that the action is protected.
PN1926
THE DEPUTY PRESIDENT: Yes.
PN1927
MR EDMONDS: And as such we don't see that our members are exposed, indeed our members would only be exposed if we were to make a decision to certify the agreement in the Coal Industry Tribunal and not in the - - -
PN1928
THE DEPUTY PRESIDENT: But the longer they're on strike the greater the exposure if you do have that change of mind and given the expressions by the officials and management of the company they seem very intent on preferring the Coal Industry Tribunal and may well result in agreement that you do have a change of mind.
PN1929
MR EDMONDS: Well, I understand that, sir, but at this point in time it is certainly my instructions, sir, that we intend to certify any agreement in the Federal system and I understand the exposure of the members may be greater the longer they're out, sir, but I understand the exposure to this point may be quite substantial in any event, sir, so in for a penny in for a pound.
PN1930
THE DEPUTY PRESIDENT: If the company were to give undertakings that it's prepared to sit down with your organisation and its representatives to negotiate an agreement without any commitment that that agreement would necessarily be any particular form of agreement, if the company gave an undertaking to sit down and negotiate the terms of an agreement, expeditiously and seriously, would your union be prepared to give any undertakings with respect to the industrial action?
PN1931
MR EDMONDS: Maybe, sir, if I could have a couple of minutes, sir, I could take some instructions on that issue.
PN1932
THE DEPUTY PRESIDENT: Yes. Yes, and I will adjourn for that purpose in a moment. Mr Bull, you've heard what I've just canvassed with Mr Edmonds. I take it from the evidence that was presented and from the submissions you've made the company is quite prepared to negotiate with whichever union for an agreement but retains a preference, and it sounds like a strong preference, for any resultant agreement to be an agreement that is registered in the Coal Industry Tribunal.
PN1933
MR BULL: Yes, that's correct, sir.
PN1934
THE DEPUTY PRESIDENT: Can you take instructions on what form of undertaking you would be prepared to make and can you as well, Mr Edmonds?
PN1935
MR EDMONDS: Yes, sir.
PN1936
THE DEPUTY PRESIDENT: And I will adjourn for a short time and I suggest you canvass those issues between yourselves as well. Is there anything you wish to comment on at the moment - - -
PN1937
MR BULL: No, thank you, sir.
PN1938
THE DEPUTY PRESIDENT: I will adjourn temporarily.
SHORT ADJOURNMENT [5.00pm]
RESUMED [5.30pm]
PN1939
THE DEPUTY PRESIDENT: Mr Edmonds?
PN1940
MR EDMONDS: Yes, sir, thank you, sir. I've had an opportunity to take some instructions on those issues, sir, and can advise that the union is certainly happy to sit down and have further discussions with the company, sir, while those negotiations take place we are happy to recommend a return to work. The recommendation will certainly be put to the workers at 5 o'clock on Wednesday in the evening, sir, which is when the next meeting is scheduled for. The return to work would most likely occur at 7 am, Thursday morning, provided that recommendation was accepted. On that basis, sir, we would also seek to have a report back to the Commission within five days of those negotiations occurring. We would say, sir, there is only three issues according to the company, sir, and we think that five days should be sufficient to resolve those issues, sir. On that basis, sir, we would be happy to have this matter sorted out with a recommendation from the Commission to that effect.
PN1941
THE DEPUTY PRESIDENT: Yes, Mr Bull.
PN1942
MR BULL: Yes, thank you, your Honour. We've had Without Prejudice discussion with the union and that proposition has been put to us. I accept the final point about there being three outstanding issues. That is our understanding in the Coal Tribunal matters, it is certainly not our understanding in the federal log of claims. I don't think Mr Edmonds has clarified that even after hearing from him just then. Unfortunately we are unable to agree to the proposition because there is no long term guarantee that these employees will remain at work.
PN1943
Now we don't want to be reporting back in five days time that the employees are on strike again and this application needs to be reconvened or re-argued. We were asking for a much longer period in terms of an undertaking that these employees give that they remain at work. We are well aware of the ten month history of negotiations in the Coal Tribunal. It would be remarkable, but certainly encouraged that an agreement could be reached in five days, certainly remarkable and we don't want to, putting the bona fides of the union's offer to one side, we just don't simply want to be back here in five days time saying: Look, we haven't reached an agreement and we want to proceed with our application whether it be a 127 or a 170MW. So on that basis, sir, the offer is not acceptable and we would then unfortunately maintain our position in respect of the section 127 order that we seek for a period of three months.
PN1944
THE DEPUTY PRESIDENT: If there were any alteration to those proposals by the respondents either in terms of where the report back occurs or the timing of that report back, would that have any influence on your client's position?
PN1945
MR BULL: As I've indicated, sir, the primary concern with the offer put by Mr Edmonds is the shortness of time. Just simply in our understanding it gives the opportunity of the union to recommence industrial action in five days time. We were hoping, as I said, the orders we seek are for three months. I haven't taken instructions on a lesser period but possibly the availability of a lesser period, certainly not too much less than three months.
PN1946
THE DEPUTY PRESIDENT: Yes, well the period I was talking about was the five days that Mr Edmonds referred to and where the report back occurs.
PN1947
MR BULL: Yes, sir.
PN1948
THE DEPUTY PRESIDENT: I'm cognisant that there have been negotiations about an agreement over a long period of time and it would seem prudent if there were to be a continuance of negotiations that any conciliation, mediation or involvement had a continuity with where negotiations to date had been facilitated.
PN1949
MR BULL: I'm sorry, I didn't appreciate that point, your Honour. Yes, that not only would seem sensible but as I said we are here simply because our employees have been on strike for four days.
PN1950
THE DEPUTY PRESIDENT: Yes.
PN1951
MR BULL: According to their notice of industrial action, they've got another 26 to go or thereabouts, 24.
PN1952
THE DEPUTY PRESIDENT: They can lodge another one, Mr Bull.
PN1953
MR BULL: Yes, they can do. Yes. We are certainly aware of that, your Honour. But we say at this point in time the action is unprotected. All we've heard today is a recommendation they will return to work, no guarantee of that.
PN1954
THE DEPUTY PRESIDENT: Yes, well there can't be guarantees.
PN1955
MR BULL: No, I understand.
PN1956
THE DEPUTY PRESIDENT: There can't be guarantees given.
PN1957
MR BULL: We would obviously be much more comfortable with orders issuing.
PN1958
THE DEPUTY PRESIDENT: Yes. Well, should they issue.
PN1959
MR BULL: Should they issue, certainly.
PN1960
THE DEPUTY PRESIDENT: Yes. Mr Edmonds, you heard what Mr Bull said. My comments with respect to where the report back were to be - - -
PN1961
MR EDMONDS: Well, I certainly appreciate the point about the Coal Industry Tribunal, sir, but what I would say about that particular jurisdiction at this point, sir, the negotiations have been going for some 11 months and haven't appeared to have got us to a finalisation of an agreement, sir. That was why we chose to come into the federal system, sir, and that is why we would prefer to stay in the federal system, sir.
PN1962
THE DEPUTY PRESIDENT: Yes. But there has been no suggestion of any 170NA requests in evidence, quite to the contrary. So I think it would be more efficient and expeditious if there were to be a continuance of negotiations, that it is a continuance within the framework of where that occurred previously. I don't think that prejudices you or your position.
PN1963
MR EDMONDS: Well, no, sir. I don't think it prejudices our position, I think our action is certainly protected at the moment while those negotiations have been taking place, sir. But we would say, sir, that we don't think a report back to the Coal Industry Tribunal at this point in time is going to be useful, sir. We would prefer to come back to this place.
PN1964
THE DEPUTY PRESIDENT: Yes. The period that you are suggesting that report back to occur within, given the longevity of these negotiations to date and I suspect the issues that are unresolved are the more complex ones. Is that realistic?
PN1965
MR EDMONDS: Well, sir, I don't know they are necessarily the most complex issues, I think that would be the stumbling block, sir, but we are certainly going to know very quickly whether those three issues are going to be resolved or not, I would suspect. The report back, sir, may have been five days that we think there is an - or we think there is capacity for the parties to move and as such we are going to continue to have further discussions or the report back it may take many forms. The report back may say that we have reached agreement and as such are, you know, the agreement needs to be certified and we would be taking those steps.
PN1966
THE DEPUTY PRESIDENT: Yes. So are you saying that what you would propose cannot be altered - or as far as you are prepared to go, is probably better terminology?
PN1967
MR EDMONDS: Maybe, sir, it would perhaps be more use to report back to Steven Kenner in his capacity as a private individual, sir, rather than the Chairman of the Coal Industry Tribunal, sir. Because we have certainly taken steps to move out of that area, sir, it seems to be going backwards to move back in, sir.
PN1968
THE DEPUTY PRESIDENT: Yes. Five days - - -
PN1969
MR EDMONDS: We think five days should be sufficient to decide whether there is going to be some capacity to reach an agreement or whether the matter is bogged down.
PN1970
THE DEPUTY PRESIDENT: Yes. Well, the company appears to be saying that is insufficient?
PN1971
MR EDMONDS: Well, we will certainly know in five days, sir.
PN1972
THE DEPUTY PRESIDENT: Yes. You have no other alternative proposals you want to canvass and get instructions on?
PN1973
MR EDMONDS: No, sir, that is the length of time we are looking at?
PN1974
THE DEPUTY PRESIDENT: Mr Bull, is that the situation with yourself as well?
PN1975
MR BULL: Well, we were hoping for some movement on the five day period but if he has got no instructions, so be it, but we can't possibly agree to that, your Honour, in view of the history of the negotiations. It would be a remarkable outcome to report back agreement in five days, particularly as the chief negotiator is in New Zealand, we don't know what Mr Kenner is doing and so forth.
PN1976
THE DEPUTY PRESIDENT: Well, that being the case I will make a determination and make that shortly. I will adjourn for a few moments and - - -
PN1977
MR BULL: Just before you do that, your Honour, I'm sorry. I did have some closing submissions - - -
PN1978
THE DEPUTY PRESIDENT: Oh, sorry, I cut you off. Please make them.
PN1979
MR BULL: Your Honour, I'm prepared to, if you don't believe it will prejudice the outcome I'm prepared to waive that opportunity if you don't think you need to hear any more from us in respect of - - -
PN1980
THE DEPUTY PRESIDENT: Well, there was that question I posed to you before the previous adjournment of two issues?
PN1981
MR BULL: Yes.
PN1982
THE DEPUTY PRESIDENT: Do you have any submissions on those?
PN1983
MR BULL: We do, yes. With respect, your Honour, we thought it was relatively plain and that is, there is no ambiguity in the way the section is worded, section 170MP saying, I think - I just wanted to clarify what it was you did ask, your Honour. The first point was as to what did the section mean in respect to when the industrial action could take place before or - - -
PN1984
THE DEPUTY PRESIDENT: Yes. Well, there is some recollection - there is some Full Bench authority, Mr Bull, I don't know that it is really an issue here, but some Full Bench authority that says it is the conduct of genuinely trying to reach agreement prior to the action taking place, not conduct that may have occurred following the action having been initiated. But here it doesn't appear that there is any differential being sought to be established between conduct before or conduct after? I don't think it is moot?
PN1985
MR BULL: No, it is not my understanding. Yes. Our position simply is that the Act requires anybody who takes industrial action to have genuinely tried to negotiate prior to taking that industrial action. Sorry, you must have genuinely tried to reach agreement prior to taking that industrial action, the wording says, before the person begins to engage in industrial action. And it is our submission that prior to the union having taken this industrial action that they must have complied with the obligation to genuinely try and reach an agreement.
PN1986
In respect to the second point, your Honour, about an agreement. Again we say it is fairly plain that this Act - or this division of the Act can only be talking about certified agreements. There are sections of the Act, you will be aware, your Honour, where reference is made to state agreements. It is not the case in this division. Reference is made in section 111AAA, to a state employment agreement where there is the attempt by the Act to distinguish between agreements under this Act and agreements elsewhere. Reference to a state employment agreement is also mentioned in section 152 of the Act. Now that is not the case here.
PN1987
At section 170MI, your Honour, if I can find it. Sorry, ML, I will just take you to ML, for example. It talks about the - well, 170MP talks about the person who doesn't genuinely try and reach an agreement, they can't have access to protected action and section 170ML which talks about protected action, talks about at 170ML2 talks about protected action during the bargaining period. Now it is only a certified agreement that allows for a bargaining period. An agreement in the Coal Tribunal or elsewhere outside this Act does not provide or require a bargaining period at all.
PN1988
One looks at other sections of the Act, it seems quite clear to us under 170MI, initiation of a bargaining period, it talks about MIC, it talks about where an employee on behalf of their own or on behalf of employees or an employer or a union want to negotiate an agreement under Division II, so it is the agreement under Division II that we are referring to. We are not referring to any other agreement, your Honour, and as this section that we rely upon talks about the protected action, the protected action comes from having a bargaining period, that the bargaining period can only come from initiating negotiations for a certified agreement, can't possibly mean an agreement in some other jurisdiction. If your Honour pleases.
PN1989
THE DEPUTY PRESIDENT: Yes, well Mr Bull, 170MP(i)(a) doesn't refer to anything other than agreement.
PN1990
MR BULL: Sorry, 170MP - sorry?
PN1991
THE DEPUTY PRESIDENT: (i)(a), simply refers to agreement.
PN1992
MR BULL: Yes.
PN1993
THE DEPUTY PRESIDENT: Other provisions in the part specifically refer to certified agreement or proposed agreement.
PN1994
MR BULL: Well, not on all occasions. For example, with respect, 170MP(iii)(a) talks about a lock out, that the employer can't lock out without genuinely trying to reach an agreement and in our submission - - -
PN1995
THE DEPUTY PRESIDENT: It refers to agreement.
PN1996
MR BULL: Sorry?
PN1997
THE DEPUTY PRESIDENT: It refers to agreement.
PN1998
MR BULL: Yes, it does.
PN1999
THE DEPUTY PRESIDENT: Well, that proposition was put to the Federal Court, 170MP(iii) that it was - referred to certified agreement and that proposition was rejected.
PN2000
MR BULL: Yes, well I'm not familiar with that decision, your Honour, I would have to take instructions on that.
PN2001
THE DEPUTY PRESIDENT: Australian Municipal, Administrative, Clerical and Services Union v TAB.
PN2002
MR BULL: Thank you. But in any event, the evidence of Mr Saunders has been consistently that he is trying to reach an agreement and that being a certified agreement.
PN2003
THE DEPUTY PRESIDENT: Yes?
PN2004
MR BULL: And I haven't heard Mr Edmonds say anything to the contrary.
PN2005
THE DEPUTY PRESIDENT: Yes, but what Mr Saunders' evidence also indicated was they wanted to reach an agreement, at one stage it was an agreement within the Coal Industry Tribunal and changed course on that, but their basic proposition is they want an agreement.
PN2006
MR BULL: Yes.
PN2007
THE DEPUTY PRESIDENT: The intention is for that, well his evidence at least tried to establish was an intention that the agreement reached was intended to be sought to be certified in this jurisdiction. But I may not be a moot point, but if there is some issue with 170MP(i)(a), well there is some guidance I have through that section you referred to from at least one Federal Court decision and then there is the guidance of the objects of the Act, if it is uncertain or ambiguous of particularly 3C. But anyway they are issues which no doubt will get clarified at some stage. I will adjourn for a brief period.
PN2008
MR EDMONDS: Sorry, sir. Just one thing that I wish to put to you, sir, with respect to the term of the agreement. Sorry, the term of the proposed order, sir. If the Commission is minded to issue an order, sir, what I would say is that the term of the proposed order was for some three months. What I would say is the application is directed at action that is presently occurring, we would say if any order is issued, sir, it should be directed at the current action, not at any future or prospective action, sir.
PN2009
THE DEPUTY PRESIDENT: Yes.
PN2010
MR EDMONDS: Thank you, sir.
PN2011
THE DEPUTY PRESIDENT: Yes, I will adjourned for a short period.
SHORT ADJOURNMENT [5.51pm]
RESUMED [6.41pm]
PN2012
THE DEPUTY PRESIDENT: I'm in a position now where I can give reasons for a decision on the application made here. These reasons are in abbreviated form. They will be edited and expanded and made available in writing as soon as possible. This is an application for an order pursuant to section 127(2) of the Act that industrial action be ordered to cease. It is not contested that the industrial action is occurring and I so find it is not contested that the action relates to the negotiation or proposed negotiation of agreement under Division 2 of Part VIB of the Act and I so find the jurisdictional pre-requisites for an order have therefore been established.
PN2013
There has been a notice of bargaining period lodged and a notice of intention to take industrial action. Whilst arguing that the notices were part of a sham it was not established that those notices were not properly made. There was some criticisms that the matters in the log accompanying the notices for a bargaining period were duplicative or additional to other logs that have been served in negotiations held regarding issues associated with this matter since August 2003. Even if there were flaws in the documents they were not such that the notice of bargaining period was invalidated.
PN2014
The argument by the applicants is the respondents have not genuinely tried to reach agreement prior to taking industrial action. They argue that there has been genuine attempt prior to the taking of the action, nor after the initiation of it, to reach agreement. Further, they say that the reference to agreement in section 170MP(1)(a) refers to certified agreement. Therefore, they argue that the action is not protected action and an order should issue. The respondents dispute that the action is unprotected. They argue that discussions or negotiations have been taking place since August 2003 and they should be considered as part of the consideration as whether they've been genuinely trying to reach agreement, even though they took a decision in April 2004 that the form of any agreement reached should be a certified agreement.
PN2015
They also argue that since the notice of bargaining period they've not avoided the negotiations nor the genuine trying to reach agreement. Respondents also argue that a more appropriate vehicle for the matter of this matter is section 170MW. The applicants' argument was incumbent on me to ascertain whether the industrial action was protected or not, on the basis of whether there was a probability that it was protected. They argued that it was a function finding I should make as part of the consideration of whether an order should issue. Such a finding, they suggest, would not be determinative as a ruling but a view formed in the process of consideration as part of the consideration as whether an order should issue. I agree with that submission.
PN2016
In considering whether the action was probably protected, in consideration that the notices have been given properly, there were negotiations prior to the notices unambiguously, seriously and genuinely trying to reach agreement and since the notice there has been no indication of unwillingness to negotiate. Rather, there have been negotiations for an agreement. The outcome of what that agreement or agreements may be is a little unclear in terms of where it would be sought to be certified but negotiations, nevertheless, have been occurring.
PN2017
I consider that the intentions of the AMWU are clear. It remains to be seen whether they will eventuate but at this juncture I am satisfied that the action is probably protected action. However, even if it is probably protected action, I can issue an order. There are a number of considerations in that regard, one being the nature of the stoppage and the industrial action. It is clear that there is no work being performed by the employees sought to be subject of this order. Secondly, the damage from the action and the extent of the action is significant to both employers and to employees, both immediately and potentially in the medium and long term. Thirdly, a consideration has been the history of regulation of potential for section 170MS to be applicable, particularly if the form of agreement that is eventually reached is decided to be certified or registered in another jurisdiction.
PN2018
In that regard, the AMWU made comment from the bar table and provided evidence that, as far as they were concerned, employees had been made aware of the ramifications of section 170MS should an agreement not sought to be certified in this jurisdiction. Fourthly, the provisions of the Act do provide a right to take industrial action. The right in this circumstance was a right in the circumstances where the AMWU decided that it no longer wished to seek an agreement in another jurisdiction, namely the Coal Industry Tribunal. Secondly, it seeks to avoid exposure to arbitration.
PN2019
Another consideration is that there has been no request of this Commission, pursuant to the provisions of section 170NA, for facilitation or assistance in the reaching of an agreement and apparent abandoning by the AMWU of the facility that has been provided by the Coal Industry Tribunal. Another consideration is the actions before and since the notice of both parties, especially the AWU, given the allegation of whether they're genuinely trying to reach agreement. Another consideration is even if the action is protected, whether an order should issue. Just a moment.
PN2020
Before making a determination of whether an order should issue I will make a number of recommendations. I recommend that there be an immediate return to work. I recommend that the AMW officials strongly recommend that to employees as a matter of urgency. I also recommend that the AMW officials ensure that all employees are conscious of their exposure, should the action not be protected action, and their exposure if the action becomes unprotected, even if it is protected now.
PN2021
I further recommend that negotiations on the content of any agreement resume as a matter of urgency and I strongly suggest that those negotiations resume under the auspices of the Coal Industry Tribunal. The form and jurisdiction, any agreement reached, is eventually certified or registered in, in my view, is a matter that may be better left to consider and explored after any agreement is reached and may, indeed, form part of the formulation of an agreement being reached. Of course, this Commission is available and remains available, through sections 170NA, to assist the parties in any regard, although no request has been made in that regard.
PN2022
I've decided, as a matter of discretion, not to issue an order. Further considerations in that decision has been the provisions of the legislation do make and provide for a right to take industrial action providing the requirements of the legislation are met, and in my view they have been, and the Act envisages that right. I would add, however, that that right brings with it responsibilities and at this juncture, whilst the action may and probably is, as I have found, protected action, that may not remain so and actions of the AMWU may cause that view to change. Actions of the AMWU and employees of the parties before me may also cause questioning of whether there is any genuinely trying to reach agreement and that view may change.
PN2023
So, whether this matter is sought to be re-agitated or there is another section 127 application lodged or, indeed, a section 170MW and, I note in passing that I agree with Mr Bull, whether this matter is a 127 or a 170MW, it is up to the applicants for any particular avenue they may wish to use under the provisions available to them in the Act and the fact that they have not lodged a section 170MW should not and did not prejudice them, in my decision, nor influence this decision. There may be out of any of those avenues, should there be any further applications come before this Commission, for orders issuing or other actions taken. I would emphasise that the course taken by this industrial action is damaging, damaging to both the employees concerned immediately and potentially in the long term and also to the company.
PN2024
I will adjourn the matter on that basis. The decision in writing will be made available as soon as it can be. Thank you. This matter is adjourned.
ADJOURNED INDEFINITELY [6.54pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A6 COPY OF ORDERS HANDED DOWN BY COAL INDUSTRY TRIBUNAL PN1047
JEFF ALLEN, SWORN PN1053
EXAMINATION-IN-CHIEF BY MR BULL PN1053
EXHIBIT #A7 DOCUMENT SHOWING JOINT POSITION OF UNION AND TRADES PN1069
CROSS-EXAMINATION BY MR EDMONDS PN1117
RE-EXAMINATION BY MR BULL PN1241
WITNESS WITHDREW PN1247
STEWART ANTHONY BUTEL, SWORN PN1248
EXAMINATION-IN-CHIEF BY MR BULL PN1248
CROSS-EXAMINATION BY MR EDMONDS PN1284
WITNESS WITHDREW PN1339
COLIN GEOFFREY SAUNDERS, AFFIRMED PN1372
EXAMINATION-IN-CHIEF BY MR EDMONDS PN1372
CROSS-EXAMINATION BY MR BULL PN1412
MFI #A8 CORRESPONDENCE DATED 03/05/2004 FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED MEETING FOR THE PURPOSE OF REACHING
AGREEMENT IN THE COAL INDUSTRY TRIBUNAL PN1591
MFI #A9 CORRESPONDENCE FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED MEETING WITH MINERS UNION TO DISCUSS PROPOSED ENTERPRISE
AGREEMENT IN THE COAL INDUSTRY TRIBUNAL PN1604
MFI #A10 CORRESPONDENCE DATED 28/05/2004 FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED MEETING TO DISCUSS ENTERPRISE AGREEMENT
UNDER THE COAL INDUSTRY TRIBUNAL ACT PN1613
MFI #A11 CORRESPONDENCE DATED 01/06/2004 FROM WESFARMERS PREMIER COAL TO MR KEARNEY RE. PROPOSED AGREEMENT WITHE THE COAL INDUSTRY
TRIBUNAL PN1616
RE-EXAMINATION BY MR EDMONDS PN1875
WITNESS WITHDREW PN1892
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2004/2937.html