C2004/4304, Transcript of Proceedings [2004] AIRCTrans 4496 (22 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 14878
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/4304

ENDEAVOUR COAL PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged refusal to
complete belt inspections at Appin Colliery

SYDNEY

10.16 AM, WEDNESDAY, 10 NOVEMBER 2004

Continued from 9.11.04

PN2511

THE SENIOR DEPUTY PRESIDENT: Ms Gray, I assume you will be addressing me first?

PN2512

MS GRAY: Yes, thank you, your Honour, and before we start this morning I just wanted to add to our appearances today MR G. WHITE, who is District Vice President of our union.

PN2513

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2514

MS GRAY: Your Honour, this is an application in effect for a reclassification of production workers on the belt crews at Appin to go from level 4 to level 5 under their certified agreement. That would be on the basis of those production workers who were appointed as competent persons under the Act to perform the belt inspections. It may not, on what we heard from Mr Kervroedan, be all of the production workers in the belt crew or it may be those plus some with additional employees to cover the requirements but it appears to be something which will be introduced over a period of time.

PN2515

What we say, your Honour, is that as soon as a production worker has completed the training and the further training which has been outlined in the evidence and is appointed by my manager under the Act to conduct the belt inspections and commences to do so, then from that time they should be classified at Level 5 and remain at Level 5. Others should be as soon as they are trained and so appointed.

PN2516

Your Honour, a great deal of the evidence has gone to what falls under the items to be inspected on the list which is a form to be filled in for the statutory inspection. I will go to that later in my submissions but what it comes down to, I am going to try to keep these submissions very simple, is that it was really an issue of demonstrating that the amount of training given to the production workers was so far inadequate. That, we say, has been acknowledged to Mr Kervroedan who has said that all of those employees will be retrained in both the theory and the practical side and he acknowledged that only a third of the people affected in his crew had been trained in the practical side to date.

PN2517

There has also been a great deal of evidence in terms of what is currently done not only by the people that we are representing here today but by trades people throughout the mine. I think it is important, your Honour, for me to address very briefly some industry history to put the 103 inspection and the requirements of trades people in the coal mining history into some perspective for the Commission.

PN2518

As your Honour realises, under the certified agreement Level 4 production and trades persons are at the same rate of pay, they are both in a single classification of production engineering mine worker for the purposes of the pay rates and the classification system. It is in that respect a single stream classification system but that does not mean that historically their work value has been assessed in the same manner.

PN2519

Up until 1990, your Honour, the industry had separate awards for production workers, for electricians, for mechanical trades persons, for deputies and for staff, and staff covered not only what might be traditionally staff but also blue collar classifications such as stores persons and chainmen, which is surveyors assistant, all the way through technical roles such as geologist and so on, statutory roles of undermanagers up to the second in charge of a coal mine but did not cover mine managers. Mine managers themselves had a separate award which only, as I understood, dealt with long service leave.

PN2520

In 1990, your Honour, the Coal Mining Industry Production and Engineering (Interim) Consent Award was made. What it did was bring together within one award production workers and trades persons. Deputies and staff in the main remained under their separate awards. I say in the main because in Queensland our union historically had coverage of deputies and still does and of open cut examiners which is the open cut statutory equivalent of a deputy, specifically a safety mining official under the Act, so for Queensland the classifications of deputy and open cut examiner were also in the Production and Engineering Award, otherwise the deputies award remained in New South Wales and the staff award covered open cut overseers which is the equivalent of the open cut examiners position plus foreman responsibilities.

PN2521

When work models were introduced into the open cuts in the coal industry, that was essentially a skills based career path structural efficiency changes in the coal mining industry. At about 1992 open cut examiners were at the top level, Level 6, which is a reflection of their statutory positions. The same with the case in the underground work models where deputies were at Level 6 for the same reason. These employees, your Honour, it must be emphasised, have essentially no role other than a safety inspecting and recording role under the Coal Mines Regulations Act and the regulations made under that Act.

PN2522

This reflected the positioning of deputies and open cut examiners, it reflected the industry's historical work value assessment of statutory accountability. In the staff award, your Honour, there are two positions, key ones, around which the others were placed in internal relativities. They were the undermanagers in underground coal mines and the open cut overseers in New South Wales in open cut mines. The work value of the two staff positions have historically always recognised their statutory accountabilities and changes to it over time.

PN2523

Trades people in the coal mining industry had their work value assessed by references to changes in work value in the Metal Industry Award plus a recognition of the environment in which they worked, that is, the coal mining industry, and this justified over time the movement of trades people in the coal mining industry to a rate higher than that which applied to outside the Metal Industry Award. However, it was the changes to the work value assessed of trade which drove their increases.

PN2524

Perhaps the most recent example of this was in approximately 1988, the Electrical Trades Union sought and obtained a work value increase for those electricians in the coal mining industry who undertook work in relation to PLCs and electronics. That was in effect, your Honour, passing on what was in outside industry a special class electricians rate. I understand that an equivalent argument was also based on outside industry, a precedent was wrung for the mechanical trades person, essentially arguing for a work value increase for specialist skills and knowledge to do with hydraulics, etcetera, in particular in relation to long walls.

PN2525

THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't follow that last submission in relation to longwalls.

PN2526

MS GRAY: That was that the work value increases of the tradespeople essentially was tied to outside increases, special class tradespeople. With electricians that was in respect to electronics such as PLCs.

PN2527

THE SENIOR DEPUTY PRESIDENT: Yes, I got that bit. It's the last bit.

PN2528

MS GRAY: With the fitters it was in relation to work with hydraulics and in an underground situation, your Honour, that was particularly relevant to longwall and pneumatics. Section 103 of the Coalmines Regulation Act - your Honour, I note that we've all been provided with a copy of the regulations and the Act by the company. They haven't been marked. Would it be helpful to do so?

PN2529

THE SENIOR DEPUTY PRESIDENT: I don't think it's necessary, Ms Gray, not with legislation.

PN2530

MS GRAY: Section 103 of the Coalmines Regulation Act deals with schemes for the testing of electrical or mechanical apparatus. Subsection (1) says:

PN2531

The manager of a mine shall prepare a scheme for the systematic examination or testing of electrical apparatus and mechanical apparatus at the mine.

PN2532

Subsection (2) says:

PN2533

Without limiting the generality of subsection (1) the manager of a mine shall include in a scheme prepared under that subsection provisions with respect to such matters as are prescribed for the purposes of this subsection.

PN2534

THE SENIOR DEPUTY PRESIDENT: What matters are they?

PN2535

MS GRAY: Your Honour, the matters are the systematic examination or testing of electrical apparatus and mechanical apparatus at the mine. That's the general terms of a 103 scheme. Then specific things must be dealt with within that scheme and then other things at the discretion essentially of the mine manager and that discretion can be delegated to the engineers in charge. In the regulations, your Honour, on the instructions that I've received the only areas that deal with regulations in respect to the 103 scheme is really in regulation 67, schemes for the examination or testing of apparatus, which refers back to section 103(2) of the Act. That's clause 67 in the regulations.

PN2536

THE SENIOR DEPUTY PRESIDENT: Would 67C cover belts?

PN2537

MS GRAY: No, no the belts are separately dealt with, your Honour, and that's clearly seen by the attachment of BN1 to Mr Neal's witness statement which shows that Division 4 inspections under the regulations are covered in clause 29, belt conveyor inspections, and also specifically - - -

PN2538

THE SENIOR DEPUTY PRESIDENT: So is a mine inspection system referred to in regulation 28 the scheme for the systematic examination referred to in section 103 of the Act, is it? I always have trouble with tying the regulation into the Act because of the slight difference in wording.

PN2539

MS GRAY: Yes, regulation 67 which I took your Honour to is tied to section 103 of the Act.

PN2540

THE SENIOR DEPUTY PRESIDENT: That's specifically tied to it. I'm just trying to see where Division 4 inspections fit. Are they a section 103 matter?

PN2541

MS GRAY: No, they're not a section 103, your Honour. They're mine inspections rather than mechanical or electrical inspections and that's why the other inspections done by deputies fall into the same Division 4 as well, the 24 hour inspections of roof, rib, floor, ventilation, gas.

PN2542

THE SENIOR DEPUTY PRESIDENT: You would say that the belts are not mechanical apparatus.

PN2543

MS GRAY: We would say that they are separately addressed in the regulations distinct from mechanical apparatus, yes, your Honour, and that's reflective of the regulation in the coalmining industry. We have the general duty of care under the Occupation Health and Safety Act which, as we know, is a very general duty of care. We have the Coalmines Regulation Act which specifies schemes such as transport schemes and managers schemes and mechanical and electrical inspection schemes that have to be set up. It gives them guidance as to what should be within those schemes but then it has some very particular inspections which must be conducted at every coalmine and it specifies what they are and who should do them.

PN2544

You will notice that in 103 there's no particularisation of who should do those other than it's the mine manager's responsibility to set up a 103 scheme and there's an ability under the Act to delegate that scheme to an appropriate person which Mr Spencer said was the in charge engineer. In charge is a statutory position as well, your Honour, just as there are under managers on every shift which are a statutory position but there is an under manager in charge at the mine site who is statutorily responsible for all those mine site inspections conducted by the under managers themselves and under the under managers the deputies.

PN2545

Section 103 has been in the Coalmines Regulation Act for many years and in fact the work conducted by tradespeople under section 103 schemes have justified past work value assessments of tradespeople. Section 103 certainly predated the 1990 Consent Award where engineering employees were brought in to a single award with production employees although separate streams and as we all know work value changes can only go back from the second structural efficiency principle increase. That was the 1990 award in the coalmining industry, your Honour, so we say that there can be no concern of flow-on from a work value assessment of production workers at Appin to tradespersons if for no other reason than those tradespeople have had their involvement in checking machinery, part of a 103 scheme, acknowledged in past work value cases and certainly in a period predating the second structural efficiency increase in the industry.

PN2546

Further, we say trades and professions are required to exercise skill and knowledge of that trade or profession and to keep abreast of changes and developments to them without it constituting a significant net increase to their work requirements. This is a well established principle in work value cases and we would only give as a passing example the SECV v AIMPE which is print H1180 and the Commercial Broadcasting Stations and Radio Technical Staff Award [1986] CthArbRp 243; 301 CAR 221.

PN2547

THE SENIOR DEPUTY PRESIDENT: What's the name of that case again?

PN2548

MS GRAY: Commercial Broadcasting Stations and Radio Technical Staff Award at [1986] CthArbRp 243; 301 CAR 221.

PN2549

THE SENIOR DEPUTY PRESIDENT: Page 221 of which volume?

PN2550

MS GRAY: Volume 301. But we say that that principle is well known, your Honour, and that's why I don't go to the cases that trades and professions are required to exercise the skills and knowledge of that trade or profession and to keep updated in it without it constituting a significant net addition to their work requirements and therefore justifying a work value increase. The Commission can be comfortable if it finds on the evidence that there should be a reclassification of production employees, as we submit there should be, at Appin for conducting these statutory inspections that it would not be open for the trades people to claim a similar increase.

PN2551

The evidence shows that at Appin, as with across the coal mining industry, trades people conduct 103 inspections, complete forms, and sign off on those forms which are kept as part of the compliance of the Coal Mines Regulations Act by others who are statutorily accountable under the Coal Mines Regulations Act. We say that that is a very important distinction, your Honour. That although these trades people sign off on their inspections it is others who are accountable under the Coal Mines Regulations Act and the Regulations for ensuring that that scheme is put in place and met.

PN2552

THE SENIOR DEPUTY PRESIDENT: I am curious to know what you mean by "accountable" in the context of this case, Ms Gray.

PN2553

MS GRAY: I will get to a couple of examples of that, your Honour. I could skip there, if you would like, now.

PN2554

THE SENIOR DEPUTY PRESIDENT: No, you take your own course. As long as you are aware that I want to be addressed on that.

PN2555

MS GRAY: So we say, your Honour, that the fact that it is a requirement of trades people at Appin to do and sign off on inspections which form part of a statutory scheme without it justifying a reclassification is a recognition of historical movements in trades people's industry rates and the very different path by which trades people and production workers have arrived at the same classification structure. It need not, we submit, concern the Commission in this case. It is with respect distinguishable on other grounds.

PN2556

THE SENIOR DEPUTY PRESIDENT: What is distinguishable?

PN2557

MS GRAY: The filling in of the forms by trades people as opposed to what is being asked to be done by our production employees. We say, your Honour, that on the other hand the historical development of production employees rates can be simply stated.

PN2558

The only two roles covered by the CFMEU or its predecessor union, the Miners Federation, which were recognised under the Coal Mines Regulations Act (NSW) or the Coal Mining Act (QLD) were deputies and OCEs in Queensland.

PN2559

These two positions were the highest paid production roles and as neither performed any hands-on production work, only safety inspections and reporting with accountability under the Coal Mining specific legislation, there work value assessment was solely and squarely based on statutory accountability.

PN2560

Distinctions between other production workers depended essentially on the equipment or machinery being operated. With machine men in undergrounds being the key position and at open cuts drag line operators being the highest paid.

PN2561

So what I am saying there, your Honour, is that amongst production workers other than statutory officials the work value assessment has been essentially done on the type of equipment being operated and the responsibility and skills involved in that machinery operation.

PN2562

Under the restructuring and efficiency principles a multitude of classifications under the pre-existing awards were broadbanded into a number of levels through the work models in the open cuts and essentially through enterprise bargaining, which was conducted in the coal mining industry through what was known as clause 20 agreements. They were in effect - I suppose the closest equivalent we would have under mainstream or out of the Coal Industry Tribunal system, your Honour, would be enterprise flexibility agreements.

PN2563

They were done as variations to the award on a site-by-site basis from about 1989 when clause 20 was introduced into the award. Essentially it was through clause 20s that undergrounds introduced their broadbanding. The result was essentially a five-level classification structure across the industry.

PN2564

THE SENIOR DEPUTY PRESIDENT: Just excuse me for a minute, Ms Gray. Yes, thank you, Ms Gray. You were just saying it was a five-level classification structure.

PN2565

MS GRAY: Yes. That is pretty well reflected in the Appin agreement itself and as your Honour has heard from the figures as to where people sit, the vast majority of employees are at level 4, 5, or 6.

PN2566

In terms of production workers at Appin Mr Kervroedan's evidence was that 109 operators are at level 4 and six are at level 5. He, and Mr Everill's evidence, discloses that the level 5 production operators are either in man-management roles - supervisory, like Mr Everill - or have specialist technical roles. Probably only one has any statutory accountability under the Coal Mines Regulations Act, but at least one does. That is what the evidence has disclosed, your Honour.

PN2567

Mr Neal's evidence is that although he has studied for, been examined, and has achieved his third class certificate of competency, the deputy's ticket, under the Coal Mines Regulations he is a level 4 person because he has not been appointed as a deputy at the mine. His career path as a production worker is from level 4 to level 6 if he does become appointed as a deputy.

PN2568

THE SENIOR DEPUTY PRESIDENT: I thought deputies were paid at a rate higher than level 6.

PN2569

MS GRAY: Yes, your Honour. It would of course depend whether or not Mr Neal chose to move under the other award. But this classification structure doesn't exclude him from being covered as a member of the CFMEU under the Appin award. Had he agreed to a temporary appointment system he would already be at level 6. So he has the training, he has the skills but he is not appointed at the mine to exercise them and therefore remains at level 4.

PN2570

The deputy role requires essentially no hands on work although deputies do assist in production or maintenance tasks from time-to-time. Mr Swan's example in his evidence was that when he is inspecting the belts if he sees a damaged roller which needs to be changed, he will do it. He will do it himself or call for assistance to do it because it is an important issue that needs to be dealt with as quickly as possibly.

PN2571

He also alluded to the fact that there was some limitation on manning levels and therefore he got in and did that himself. But his job at higher than level 6 is a mine official under the Act. He is responsible for the safety at the mine and does,and signs off on, statutory inspections. Including the inspections of the belts; geology, including roof ribs and floor; ventilation; gas; and does so in accordance with statutory time limits, time requirements.

PN2572

Examples of those given, your Honour, was that the belt inspections for two hours, after a two hour shutdown of the belt. Every 24 hours in a district where persons are not working. Every shift or more where people are working. Every five hours or more regularly when people are working in a production district. I say "more regularly" because Mr Swan said that he regarded those as the maximums, of course - once per shift or once every five hours - but often went back to check on people more regularly depending on the nature of the work being conducted. But that it was a minimum of those time requirements under the Act.

PN2573

THE SENIOR DEPUTY PRESIDENT: Those inspections go beyond inspecting the belts.

PN2574

MS GRAY: They do, your Honour. But they are also further examples of what a deputy does and I suppose in a way it helps us to distinguish between what should be appropriately, we say, paid at level 5 and what is required of higher than level 6 role at Appin. It also distinguishes, your Honour, between the type of work being conducted by trades people at level 4, 5 or 6 at Appin under the 103 scheme to a statutory official conducting specified inspections under the Act and Regulations within particular timeframes specified also in the regulations.

PN2575

Mr Swan also said that in 1999 when the new regulations came into the industry they introduced the concept of, in addition to a mine official, a competent person being able to be appointed and conduct and sign off on certain inspections. We note, your Honour, that that's not all inspections, it's some inspections and some of those inspections, of course, include the belt inspections. They also include the shiftly inspection where people are working in other than a production district.

PN2576

This change in the legislation enabled production workers at Tower Colliery to conduct belt inspections. Mr Swan's evidence was that every deputy at Tower believed that the change to the regulations allowing competent persons to conduct statutory inspections would lead to a reduction in the number of deputies. He believed that it led to his retrenchment from Tower. The mine closed two years ago with everyone there retrenched.

PN2577

The company's evidence is that mineworkers continued the belt inspections at Tower, were at level 4 but what we don't know on the evidence is whether or not there was a claim by those persons for reclassification or if so, why it was not progressed through to finality before the mine closed. What we do know, your Honour, is that there were various large issues at that mine site at the time including its intended closure with full retrenchment of the entire workforce.

PN2578

There was also a large bonus case which was run before both the New South Wales Industrial Relations Commission under section 106 of the Industrial Relations Act and a case on the same issue which was taken to the Australian Industrial Relations Commission. It was also addressed in enterprise bargaining. So perhaps it was simply an issue of priorities.

PN2579

History has shown, however, that the company after closing Tower and retrenching its workforce has now re-opened those workings or seeking to re-open those workings as the Douglas area of Appin Mine. What the evidence is though, your Honour, in this case is that, and it's unchallenged, in terms of paragraph 8 of Mr Everill's witness statement was that with the possible exception of Tower, the Tower belt crew, production workers who accept statutory responsibility in the industry are reclassified for it.

PN2580

THE SENIOR DEPUTY PRESIDENT: Sorry, it's paragraph?

PN2581

MS GRAY: It's paragraph 8 of Mr Everill's witness statement. Mr Everill goes on to say that it's certainly the case - has been the case at Appin and continues to be so.

PN2582

THE SENIOR DEPUTY PRESIDENT: What production workers is he talking about?

PN2583

MS GRAY: Well, when he's talking about - with the exception of Tower Colliery, your Honour, then he's saying in respect to production workers generally in underground coal mines. Then he goes on within that generality to specify Appin as being an example of the case.

PN2584

THE SENIOR DEPUTY PRESIDENT: Yes. Well, apart from deputies, what production workers accept statutory responsibility?

PN2585

MS GRAY: We say none so far, your Honour. I suppose it was the Tower example which we didn't want to cloud the case before your Honour.

PN2586

THE SENIOR DEPUTY PRESIDENT: Yes, so that can't be right. His understanding can't be right can it that production workers who accept statutory responsibility at Appin are reclassified for it because that hasn't happened.

PN2587

MS GRAY: It hasn't happened yet.

PN2588

THE SENIOR DEPUTY PRESIDENT: No, so his statement can't be right or his understanding can't be right.

PN2589

MS GRAY: Well, it can in terms of production workers who accept statutory - - -

PN2590

THE SENIOR DEPUTY PRESIDENT: It's wishful thinking.

PN2591

MS GRAY: No, your Honour, it's production workers who accept statutory responsibility have become deputies at Appin because that is where deputies come from, from production workers.

PN2592

THE SENIOR DEPUTY PRESIDENT: He does finish:

PN2593

The main progression for production workers through the ...(reads)... is to deputy role.

PN2594

Yes.

PN2595

MS GRAY: Yes, your Honour. But we're all very hopeful including Mr Everill. The company raised in its evidence pre-start inspections and there was a great deal of time, I think, spent on this particular issue, your Honour. The union's witnesses all gave evidence that underground production workers do pre-start inspections but they are not required to fill out an inspection report or sign off on it. Certainly they are not appointed as competent persons under the Act to perform those inspections.

PN2596

THE SENIOR DEPUTY PRESIDENT: Yes. Wasn't the company's evidence that they do fill out those forms?

PN2597

MS GRAY: The company's evidence was that there were forms that were filled out, two forms. They were attachments A and B or 1 and 2 to Mr Spencer's witness statement and that people did fill those out as a light vehicle and the surface mobile equipment pre-start inspections. The first one related to the two surface utility cars and the second one was mobile equipment and on cross-examination Mr Spencer said that there were three permanent operators on the surface who he said do fill out those inspections but he also agreed that the second half of the sheet which is annexure A was done by trades people, not production operators, the weekly inspection.

PN2598

THE SENIOR DEPUTY PRESIDENT: Yes, but the daily inspection was done by the operators.

PN2599

MS GRAY: Yes. So he said the three people on the surface did that, your Honour.

PN2600

THE SENIOR DEPUTY PRESIDENT: And you say they're not statutory inspections?

PN2601

MS GRAY: We're saying they're part of the 103 scheme.

PN2602

THE SENIOR DEPUTY PRESIDENT: You accept that they are part of the 103 scheme? I would have thought they were but -

PN2603

MS GRAY: They are, your Honour, in terms - they're not specified in the regulation 67 as being a mandatory part of the 103 scheme but they are part of the maintenance and safety scheme for mechanical and electrical equipment which has been introduced in accordance with section 103. So we say that it's really broader than what the Act requires but we don't take issue with that. We think that the more safety the better and our people most certainly undertake pre-start inspections on all equipment that they operate but our point is, your Honour, that the filling in of that form does not make somebody a competent person under the Act.

PN2604

That form is not specified as a particular inspection, a pre-start inspection which is named in the Act as having to be done as the belt inspections are and we're very clear about the distinction between 103 inspections and the belt inspections, your Honour.

PN2605

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2606

MS GRAY: Now, the company agreed with us that no underground production workers are required to fill in pre-start inspection forms or sign off on them. We've seen that the Coal Mines Regulation Act and the regulations under it provide for specific inspections such as the belt inspections which have to be done at least three times in 24 hours and as close to possible in equal distance of time between them, equally spaced. We see it that the Act specifically requires that there be the two hour shut down inspections after a two hour shut down on the belts.

PN2607

The Act specifically requires that they be done by a mine official or a competent person. The 24 hours inspections where people aren't working and the five hourly inspections where persons are working in a production district must be done by deputies. The shiftly inspection where persons are working which is not in a production district specifies that that must be done by a mine official, a deputy or a competent person.

PN2608

We say if also in section 103 of the Act provides for a scheme to be established for mechanical and electrical maintenance, it also provides - sorry, not "if", also it just provides. Mr Spencer said that the details of the scheme were at the discretion of the engineer in charge which is the statutory position. But neither the Act nor the regulation specify who must conduct those inspections under the scheme. Mr Kervroedan agreed in cross-examination that the regulations require under clause 33 that the inspections to be in writing, inspections under the Act be in writing, and to be maintained for three years and we note that the pre-start inspections by underground production workers aren't in writing and don't fall within that regulation of the Act.

PN2609

Your Honour, clause 19 of the Coal Mines Regulations - if I could ask your Honour to go to that particular clause - it deals with the competency and training of personnel. If I could give your Honour a moment to read that. So 1, 2 and 3 deal with the appointment of a competent person to perform inspections under the Act and that person must be appointed by the mine manager. Subclause (4) qualifies that, that in terms of the inspections which are conducted on as 24 hourly basis - - -

PN2610

THE SENIOR DEPUTY PRESIDENT: Sorry, subclause (4) of 19?

PN2611

MS GRAY: Yes.

PN2612

THE SENIOR DEPUTY PRESIDENT: I thought that dealt with roadway stability.

PN2613

MS GRAY: Sorry, roadway stability which is one of the inspections conducted by deputies at Appin. That has to be done by a person with the level of knowledge and equivalent experience to that of a deputy in relation to the tasks. So we see that with roadway, roadway stability, they're saying yes it can be done by a competent person but that competent person must be equivalent to a deputy if not a deputy. It's not one of the inspections which our people are at the moment being asked to do, your Honour, although we have said in our evidence and also in our submissions that there are still a lot of answers to - questions to be asked about the implementation and what inspections will continue to be done by deputies afterwards and whether the company will then seek to expand the requirement for our production workers to do other inspections are competent persons.

PN2614

THE SENIOR DEPUTY PRESIDENT: And no doubt there will be other claim for something.

PN2615

MS GRAY: Other claims, your Honour, but - - -

PN2616

THE SENIOR DEPUTY PRESIDENT: At this stage I don't need to concern myself with that because there's no suggestion that people subject to this claim will be asked to carry out any inspection task concerning roadway stability./

PN2617

MS GRAY: We've saying that we are unaware of that at the moment, your Honour, but we do say that at least in respect of clause 17 on the same page that we're quite sure that we will appraised of - I withdraw that. What we say in relation to clause 17, your Honour, is that the company must consult with employee representatives in the development revision of a mine inspection system. What we say is that that hasn't as yet occurred at Appin and we would certainly be looking for a recommendation from your Honour that clause 17 be complied with and that the parties consult on the inspection - the development of and revision of the belt inspection system to make the implementation smooth.

PN2618

THE SENIOR DEPUTY PRESIDENT: I always expect people to comply with the Acts and regulations that bind them so as far as I'm concerned it goes without saying that the company with comply with clause 17. Unless Mr Dearden wants to contend that it won't for some reason or another.

PN2619

MS GRAY: Now, your Honour, the mix of work to be done by production workers on belts who are appointed as competent persons and required to perform, record and sign off on the statutory inspections will change in a qualitative manner.

PN2620

THE SENIOR DEPUTY PRESIDENT: The mix will change?

PN2621

MS GRAY: The mix will change, your Honour. Apparently paragraph 11 of Mr Roy's witness statement gives an overview of his work. Let me turn that up. Exhibit CFMEU4, paragraph 11, your Honour.

PN2622

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN2623

MS GRAY: Now, what we've heard from Mr Roy that cleaning spills can take most of his shift. He certainly acknowledged that he controlled the belt and he looked for any problems. I don't think that that point is in contention between the parties, your Honour, I think it is accepted that although Mr Roy was unsure of what was required under certain items of this due to what we say is insufficient training, that in a practical sense on the explanation of what those items meant by Mr Swan in particular and Mr Kervroedan that in effect Mr Roy does look for most of those things which are on the list as he goes about his work. But essentially what he is doing with his work is cleaning. Cleaning the belt, he is cleaning up spills, he's cleaning up anthills and most of the time on his work is labouring work, is cleaning work.

PN2624

What we heard from Mr Kervroedan was that when people such as Mr Roy, production workers in the belt crew, commence doing the statutory inspections that they will be required to continue on with those inspections as a priority. Your Honour I think asked of Mr Kervroedan a couple of questions to elucidate that and Mr Kervroedan said that if there was a substantial spill then the person doing the inspections would be required to call others to clean it up and continue on with the inspections.

PN2625

What is really happening is that the production workers will be moving from a keeping an eye on the belt in the areas where they're predominantly working doing cleaning up work to inspecting the belts and calling others, tradesmen and other production workers, to do the labouring work, the cleaning up, the time-consuming work, so as they can get around their full belt inspection process on each shift. Mr Kervroedan acknowledged that in order to that even if would clearly require more people in his crew.

PN2626

We say that's a qualitative change. It's also demonstrative, your Honour, of a devolution of the responsibilities from the deputy to production worker in the belt crew. It is a change in the nature of responsibility and accountability from production workers not having statutory accountability under the Coal Mines Regulation Act at Appin, unless they're a deputy, to becoming a competent person under the Coal Mines Regulation Act and regulations and becoming accountable for signing off on inspections which on Mr Kervroedan's evidence were the vast majority of which was statutory. Mr Kervroedan initially said that two and possibly three of the items, 1 to 18, weren't statutory. On re-examination and with a copy of the regulations before him he qualified that evidence and said that three were not statutory. The rest were. So that's 15 out of 18.

PN2627

On any stretch of the imagination that is predominantly a statutory form, your Honour, it will be used for that purpose, it will be kept three years after being filled out. Mr Swan says that he regarded all 18 items as being essential for the safety of the belt.

PN2628

Now we say that the devolution of work and responsibility and accountability from the deputy is a devolution of work which has been assessed at higher than level 6 down to level 4 workers and on that basis we're not saying that they will start to do all of the work of deputies but they will be doing enough part of the work of deputies to justify a one level increase under the classification structure at Appin.

PN2629

Your Honour I'll get to the part I think that your Honour wanted me to address on the accountability involved. The Coal Mines Regulation Act is an Act of strict liability and where it specifies that persons who form inspections it is those persons who face statutory prosecution if those inspections are not performed properly. We know that the company has said in relation to the conveyor belt shift and shut down report form that it will be co-signed by the under manager and the coal clearance supervisor.

PN2630

THE SENIOR DEPUTY PRESIDENT: It is currently, is it not?

PN2631

MS GRAY: It is currently, yes.

PN2632

THE SENIOR DEPUTY PRESIDENT: That's the current form that has been exhibited.

PN2633

MS GRAY: Yes.

PN2634

THE SENIOR DEPUTY PRESIDENT: So currently it is signed by the deputy under manager and the supervisor.

PN2635

MS GRAY: Yes, and this form may need to be changed - - -

PN2636

THE SENIOR DEPUTY PRESIDENT: Yes, to allow the designated person to sign it, yes.

PN2637

MS GRAY: However, we say that the countersigning by the under manager and coal clearance supervisor do not abrogate the responsibility and accountability of the person conducting the inspection. What we say is that those people signing are not signing as to the accuracy of the form, and this is on cross-examination of Mr Kervroedan, they are countersigning to demonstrate that they have seen that the form has been completed and signed off on. In a managerial sense, rather than a statutory sense, they are ensuring that action is taken if required that hasn't already been taken. That was the evidence of Mr Kervroedan on cross-examination.

PN2638

THE SENIOR DEPUTY PRESIDENT: Yes, is there a section in the Act that demonstrates the Act is a strict liability and that a person who is required to do something faces prosecution if that's not done, or is that just that a principle of general law?

PN2639

MS GRAY: That's a principle. I'm sure there is some detail in there your Honour, but I don't profess to be an expert on this Act and I can only say that that is a general principle of which I am aware of eight and a half years of working in the industry, but I think it would really require statutory officials, or people such as Mr Barry Neal assisted me in bringing the particular items which I have used in my submission to my attention, but he is back at the mine now.

PN2640

THE SENIOR DEPUTY PRESIDENT: Mr Dearden, do you accept that proposition?

PN2641

MR DEARDEN: No I don't. I haven't actually looked into it myself.

PN2642

THE SENIOR DEPUTY PRESIDENT: Well there we are.

PN2643

MR DEARDEN: Just on that I do have some motions in respect of penalty so that may well arise.

PN2644

THE SENIOR DEPUTY PRESIDENT: I'll see what happens.

PN2645

MS GRAY: I can give some examples of how breaches of the Act, your Honour, and that may assist to some degree. What we say is that it may well be and it is true that an under manager is statutorily responsible for the mine, all of the underground workings whilst they are on shift. The under manager in charge is statutorily responsible for all of the workings on all shifts. The mine manager is statutorily responsible for the mine on all shifts, 24 hours a day, seven day a week whether they are there or not.

PN2646

The deputy is responsible statutorily for the districts that they patrol and the mine is broken up into various districts. What we say is that the competent person undertaking the belt inspection will be responsible for those inspections. Now just because other are also responsible for the underground workings at the same time does not derogate from the fact that the person conducting these inspections is a competent person appointed by the manager under the Act and would still have to comply with the Act and would be open to prosecution for breach.

PN2647

THE SENIOR DEPUTY PRESIDENT: So you say that the competent person would be open to prosecution?

PN2648

MS GRAY: Yes, your Honour. Just as a deputy would be open to prosecution now if they are doing those inspections. We don't disagree but an under manager could also be open to prosecution and the mine manager at a mine depending on what occurred as a result of a poor inspection or particularly a failure to inspect a part of the belt system. But just because others higher up are responsible doesn't mean that the person who is deemed a competent person appointed under the Act to perform that duty gets off the hook, is our point, your Honour.

PN2649

THE SENIOR DEPUTY PRESIDENT: Yes, the company is vicariously liable for the actions of any employee I assume?

PN2650

MS GRAY: At common law, yes. But under the Coal Mines Regulations Act they are all mine officials. The under manager, the deputy, the under manager in charge, the mine manager and they have responsibilities which are strict responsibilities not by vicarious responsibilities.

PN2651

THE SENIOR DEPUTY PRESIDENT: Yes, if for instance a deputy is remiss in something that he does and is prosecuted can the company be prosecuted for the same act?

PN2652

MS GRAY: Yes most definitely.

PN2653

THE SENIOR DEPUTY PRESIDENT: Yes, so the liability goes up the line?

PN2654

MS GRAY: Yes, it does. And by going up the line we say it doesn't move away from the official responsible either. Although all workers, we submit, are responsible for their own safety and those of others that they work with in accordance with the Occupational Health and Safety Act, this is a general duty of care dissimilar to an employee's common law duty of due diligence. That is not to be negligent, most certainly not to be reckless and of course common law duty not to be guilty of wilful misconduct.

PN2655

Nonetheless statutory accountability under the Coal Mines Regulation Act will be a factor in prosecutions under Occupational Health and Safety Act as well your Honour. So we say they are not only open to prosecution under the Coal Mines Regulations Act as the statutorily appointed competent person to perform that inspection, but also this can be taken into account into prosecutions under the Occupational Health and Safety Act. An example of this, your Honour, is the Gretley prosecution which has recently been concluded. I don't know if your Honour is aware of that particular prosecution.

PN2656

THE SENIOR DEPUTY PRESIDENT: I think you should take it that I'm not.

PN2657

MS GRAY: It is only an illustration, so I'll be very brief your Honour. Eight years ago four of our members at Gretley mine were killed as a result of an inrush where what happened was that they mined through an area into old workings which were not correctly identified on the map. They were very old workings. It was a mine that had been worked about 100 years before and as a result of that it was filled with water and the water came in, knocked a miner 30 metres or so away and killed our four workers. What had happened was, a map of the old workings had been produced from the department and apparently in the keeping of it it had been transposed back to front.

PN2658

So it had been copied but it had resulted in it being inverted. As a result of that it was given to Gretley mine. They relied on that map as being accurate. Unfortunately they did not do their own checks and inspections to verify that. As a result of that the department prosecuted the management. The mine had changed hands over the period of time and they also prosecuted the new owners. They prosecuted the previous mine manager and the existing mine manager and the prosecuted the mine surveyor.

PN2659

Now this is an example, your Honour, and all of those people were found to be in breach, the two mine managers and the surveyor, as a result of that, that was under the Occupational Health and Safety Act, I think, sections 8 and 50. The fact that these people were statutory officials was taken into consideration in that Gretley prosecution and their liability under the Occupational Health and Safety Act.

PN2660

Now the surveyor is specified in the Coal Mines Regulations Act as being the person who is able to sign off on mine plans. They have plenty of people working for them, your Honour, in a survey department. But only the mine surveyor can sign off on the mine plans. So because of that statutory position and accountability the surveyor was also found liable under the Occupation Health and Safety Act. That is an example of how statutory accountability under the Coal Mines Regulations Act can also lead to accountability under the Occupational Health and Safety Act of a different nature to that of all other employees, the general duty of care.

PN2661

We have said that we think that the company has clearly acknowledged that the current evidence is inadequate and we think that a lot of the evidence that was before your Honour was not necessarily directly relevant to the work value assessment or reclassification of these people other than to show that four hours of theory and eight hours of practical training is not sufficient to transpose a production employee, even a very experienced production employee like Mr Roy, from a Level 4 worker to a confident person under the Act to perform the conveyor belt and shutdown reports in accordance with the Coal Mines Regulation Act.

PN2662

We have been told that that will be done again, will be expanded to include the inspections for the new isolation procedures and we say that is not only a good thing in terms of safety and it gives us some comfort to know that the company has acknowledged that what training has been given so far has been insufficient, but it also is relevant to our application, your Honour, in so far as the wording of the Appin certified agreement that we rely on. That is 6.2 of the Appin agreement.

PN2663

Your Honour, that is annexure 1 to Mr Mothersdill's witness statement and (a) (b) and (c) of that tell us when people should be reclassified, so (a), the employee is required to undertake training or exercise skills of a kind not within the normal scope of work expected of and performed by a mine worker Level 4. We say, your Honour, that the training is of a type not expected of or performed by a mine worker Level 4 at Appin. The training is in order for them to be a competent person under the Coal Mines Regulation Act.

PN2664

The training is on statutory requirements under the Act to perform that inspection and we say that it is distinguishable from the mine workers Level 4 work which is conducted by trades people because that work done by trades people is part of their trade knowledge and it is not a specified and distinct inspection which trades people do regulated by the Act, it is simply what they are doing is their trade work within a scheme which is statutorily regulated. We say that's an important distinction, your Honour.

PN2665

Once, we say, we recognise that they have undertaken training of a different nature to that which is performed by mine workers Level 4, then we go to (b) where the employees exercises their skills or applies such training at all times required by the company. Once they are appointed as a competent person under the Act and required to perform these inspections, Mr Kervroedan said, they will be doing that as a priority job. That will be the change in the qualitative mix.

PN2666

Thirdly, the employee is appointed by the company to a position which requires such skills or training to be utilised, the person will be appointed as a competent person under the Act to conduct the inspections, and so that those three aspects have been complied with, your Honour, and - - -

PN2667

THE SENIOR DEPUTY PRESIDENT: There is an important omission from clause 6.2, it seems to me. It doesn't seem to talk about accountability or responsibility.

PN2668

MS GRAY: Yes, I think Mr Mothersdill's witness statement said that although this was a live issue at the time this agreement was being negotiated, the parties were comfortable with leaving it in its existing wording because it has been used to reclassify, at least in production workers, those five people who had - Mr Everill, increased responsibility and accountability in terms of being a supervisor, and others for increased technical skills achieved for infusing the water in the longwall block, doing the drilling and so on.

PN2669

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2670

MS GRAY: So we say it is important to see how the companies have applied it, this and the predecessor agreement, over a period of time to recognise responsibility, accountability, changed duties of a qualitative nature.

PN2671

Your Honour, just in closing, I would just briefly refer to what are very well known general work value principles, that the work value principle requires that there be a significant change in the nature of the work, the skill and responsibility required, all the conditions under which the work is - - -

PN2672

THE SENIOR DEPUTY PRESIDENT: It's a significant net addition, isn't it?

PN2673

MS GRAY: Yes. I didn't say that, your Honour?

PN2674

THE SENIOR DEPUTY PRESIDENT: It's a significant change.

PN2675

MS GRAY: It's a significant net addition.

PN2676

THE SENIOR DEPUTY PRESIDENT: To work, the skills - - -

PN2677

MS GRAY: The responsibility required or the conditions under which the work is performed.

PN2678

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2679

MS GRAY: It has been held that an increase in the skills, knowledge or other expertise required to adequately undertake the duties concerned has demonstrated an increase in work value and that an increase in responsibility may arise as a result of a change in work organisation requiring a major devolution of responsibility. We say that falls squarely within that, your Honour.

PN2680

THE SENIOR DEPUTY PRESIDENT: What case is that?

PN2681

MS GRAY: A couple of examples where that principle comes from is Alcoa of Australia, Western Australia award.

PN2682

THE SENIOR DEPUTY PRESIDENT: That's not a case that I was in, is it?

PN2683

MS GRAY: I don't know, your Honour, it's only because the work value principles we are relying on as a secondary thing rather than the actual agreement itself, I haven't gone to the cases and brought them along to address them, I thought it would be labouring the point.

PN2684

THE SENIOR DEPUTY PRESIDENT: Yes, well, I am not so sure about that. What is the citation of that case?

PN2685

MS GRAY: The citation for that is - I just have the print number, your Honour, it's G8821, and there's also the Gas Industry Salaried Officers (AGL Sydney Limited) Agreement 1986, which is print G6653. There is also the Alcoa case in Victoria by his Honour Justice Boulton which is print G3738.

PN2686

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2687

MS GRAY: Also, your Honour, the need to exercise proper care in confined areas and having regard to safety considerations may warrant a work value increase. That principle comes from Qantas Airways Limited Agreement [1986] CthArbRp 503; 1986, 302 CAR 547. The work organisational change which the company intends to implement by making our production belt operators competent people under the Act we say is a devolution of responsibility from the deputies, your Honour, and is a qualitative net addition to the responsibilities and accountabilities and the duties performed by our members affected and we would seek to commend to the Commission that a decision be forthcoming to reclassify them at Level 5, may it please.

PN2688

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Gray. Mr Dearden, we might just take a morning break.

SHORT ADJOURNMENT [11.27am]

RESUMED [11.44am]

PN2689

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dearden?

PN2690

MR DEARDEN: I have a more detailed outline of submissions that I'd like to hand up, your Honour.

PN2691

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I'll mark that as exhibit A6.

EXHIBIT #A6 FURTHER OUTLINE OF SUBMISSIONS

PN2692

MR DEARDEN: In some respects the start of this simply mirrors what is the original outline of submissions.

PN2693

THE SENIOR DEPUTY PRESIDENT: You emailed that to me this morning, didn't you?

PN2694

MR DEARDEN: I emailed both the original outline and a copy of these submissions.

PN2695

THE SENIOR DEPUTY PRESIDENT: Yes, I've skimmed it.

PN2696

MR DEARDEN: Okay, in respect of that I won't deal much in terms of the introduction except to simply draw your attention to paragraph 8. That is obviously the question for arbitration before the parties and what has been agreed and you will recall that the union or Mr Mothersdill's circular agreed that the other issues raised in respect of evidence filed by the union are not a question for arbitration for this Commission. The company simply submits that the employees who conduct the inspections of the underground conveyor belts and complete the checklists should continue to be paid at mine worker level 4 rate of pay.

PN2697

For your convenience, your Honour, we have set out at paragraphs 11 and 12 the relevant sections of the Mineworkers Agreement. It's our submission at paragraph 13 that an employee may only be paid at level 5 or 6 rate of pay where the employee is required to undertake training or skills of a kind not within the normal scope expected of and performed by a mine worker level 4 and you'll see we've italicised that. The company does not dispute that the coal clearance operators have undertaken training and will exercise skills in respect of that inspection of underground conveyors and the completion of the checklists in respect of that inspection. To be absolutely clear the only inspection that these operators are being required to complete is the checklist that has been annexed to both parties statements, that being Mr Roy and Mr Kervroedan.

PN2698

The company does dispute the coal clearance operators have undertaken training and will be exercising skills not within the scope of those performed by mine worker level 4. The term mine worker level 4 is quite clear in the agreement. It includes both production and engineering employees. The rates of pay under the agreement do not differentiate between production and engineering employees and all employees are treated equally within their level 4, 5 or 6 classification. This was confirmed by Mr Mothersdill, Mr Everill and Mr Roy in cross-examination.

PN2699

It would have been quite simple in terms of the ordinary words used there if there was to be a distinction to have put mine worker level 4 tradesman or production, however, the parties have chosen not to do that and have continued to carry this clause over from a previous agreement in respect of that bearing in mind that this dispute had been taken into the certified agreement negotiations and it had been agreed that this clause would remain in the agreement and would be pertinent to the resolution of this dispute.

PN2700

Paragraph 17, your Honour, clause 6.2(a) requires the consideration of what is within the normal scope of work performed by a mine worker level 4. Therefore the Commission must consider what is within the normal scope of work performed by mine worker level 4 employees. In respect of that it is submitted that the inspection of underground conveyor belts and the completion of checklists is within the normal scope of and performed by mine worker level 4 employees at the mine.

PN2701

THE SENIOR DEPUTY PRESIDENT: You'd say, I take it, that the inspections that you refer to in paragraph 19 for tradesmen are inspections over and beyond what is required of their technical skills and knowledge because to be a mechanical fitter or an electrician or another tradesman doesn't normally require you to have to sign off in some sort of statutory responsibility. Is that why you draw my attention to these mine worker 4 inspections?

PN2702

MR DEARDEN: To put it clearly in a very basic sense and to use the union's evidence they admit that mine worker level 4 engineering employees complete checklists, statutory checklists. That's the term used by the union. We're saying that they are treated exactly the same as production employees in terms of rate of pay. There's no reason why production employees could not complete a checklist.

PN2703

THE SENIOR DEPUTY PRESIDENT: Yes, and you take issue with Ms Gray's submission that these inspections fall within their trade classifications?

PN2704

MR DEARDEN: I do, your Honour. Even if we kept them to the trade classifications then, and to pick up on that point, it doesn't take away from the fact that the parties have clearly agreed in terms of the certified agreement that both roles would be treated exactly the same. Within that there is a scope for people to complete inspections be it statutory or non-statutory for that matter and that's accepted without an increase in classification.

PN2705

In respect of that simple examples are provided in the submissions which come from Mr Kervroedan's statement. It is quite clear from those annexures that they are on the face of it quite technical and pertinent to the particular skills. I think Mr Neal agreed in his evidence that the 103 inspections are complex and difficult. However, level 4 mine workers complete what the union describes as complex and difficult inspections which they sign off on.

PN2706

Mr Everill's statement admits - and I have drawn reference there at paragraph 20 to Mr Everill admitting in his evidence, written evidence, that level 4, 5, and 6 engineering employees complete inspections. Mr Everill and Mr Neal both acknowledged in cross-examination:

PN2707

Mine worker level 4 employees complete pre-operation inspections of the local dump vehicle.

PN2708

They also admitted that they complete other inspections in respect of other apparatus. Again, for the purposes of this 103 compliance.

PN2709

THE SENIOR DEPUTY PRESIDENT: Just going back to the paragraph 19 and the inspections conducted by tradesmen; are they competent persons under the regulations, the people who conduct those inspections?

PN2710

MR DEARDEN: In terms of those inspections that are (a), (b) and (c) or in paragraph 19 of the submissions, are done for the purposes of section 103 of the Act. I don't think 103 of the Act is particularly prescriptive in terms of who is to complete an inspection. Section 103 refers to mechanical and electrical apparatus but it is left to the discretion. Obviously given the vast definition of what "electrical mechanical apparatus" could actually include at various collieries, or mines, or work sites for the mine manager to take that responsibility and identify that equipment that they have at their site that would be listed under there. Hence the scheme which the mine manager clearly has to put forward what has to be checked. But it is clear from the statute that all mechanical and electrical apparatus must be checked for the statute.

PN2711

THE SENIOR DEPUTY PRESIDENT: Well, can I ask the question in another way because a large issue in the union's case is the accountability of a person who is deemed to be a competent person under the legislation, and the accountability of that person and the liability of that person to prosecution. Is the accountability of the people who conduct the tests, as set out in paragraph 19 of your submission, as great as those of a person who would be deemed a competent person to inspect the belts?

PN2712

MR DEARDEN: In my submission it would. If I can draw your attention, perhaps, to the Coal Mines Regulations Act and in particular section 160. I am jumping forward.

PN2713

THE SENIOR DEPUTY PRESIDENT: That is because I have interrupted you.

PN2714

MR DEARDEN: That's fine. This draws us to the question of accountability and the penalties which the union has tried to place some weight in respect of that.

PN2715

THE SENIOR DEPUTY PRESIDENT: And rightly so, I suspect.

PN2716

MR DEARDEN: In respect of that it is quite clear and we have said, as you would have picked up in cross-examination and even in some in-chief, that all employees are accountable. They are saying that because employees are signing this document they are more accountable. Firstly that is just a general proposition, it doesn't take account of any particular matter or instant. For example, and simply off the cuff, if a roller had - a bearing had gone and caused a heating and there was a fire. Because an operator has conducted an inspection doesn't mean that they would be liable.

PN2717

It may come down to the construction of the roller, the positioning of the roller, the construction of the conveyor, what was on the belt, whether or not that we cleared properly. It simply throws through a number of personnel. Whether or not someone the previous day or the previous shift could have it. It simply makes them identifiable as the person conducted this inspection. It doesn't raise any greater degree of liability. It is simply a question of fact in any particular incident which both parties never want to occur, which is quite clear from what occurred.

PN2718

But in respect of section 160 I think that this quite clearly shows that offences against this Act can be committed by a large range of people that are employed at the mine. It doesn't limit it to mining officials per se. Remembering a mining official - the lowest person as a mining official is a deputy. A competent person. It simply talks about people employed at the mine. It talks about people just obeying a lawful instruction that may cause injury or harm.

PN2719

Mr Roy's assessment and his failure to perhaps keep his ears open, go to the toilet and copy his colleagues answers, could arguably become a matter under these penalties. The simple fact of signing this document does not expose these people to any further accountability.

PN2720

In respect of that offer I also draw your attention to annexure D of Mr Spencer's statement. Do you have that in front of you, your Honour?

PN2721

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2722

MR DEARDEN: In terms of the top right column there, in terms of similarities between inspections that are completed, you can see there's priority codes ascribed to this inspection sheet. This is completed and provided as part of a section 103 compliance. Similar type of priority systems are required to be accorded by level for Mine Worker Electrician and that's provided for the purposes of a statutory inspection. On the bottom left it is signed by, presumably the Inspector and then it's countersigned. There's also the use of danger tags in respect of that but both parties' evidence confirms that operators and deputies both use the out of service tags.

PN2723

Mr Kervroedan's evidence in respect of that was not challenged. In terms of moving forward, your Honour, at paragraph 21 I've referred again to evidence of Mr Spencer where employees are completing reports based on their observations to draw an analogous example there. The employees are putting their name again to an observation that they have completed their duties correctly. At paragraph 22, there's evidence before the Commission the Coal Clearance Operators already performed the task of inspecting the underground conveyor belts. Ms Gray, again, even in submissions conceded that point that Mr Roy admitted patrolling the belt and looking for problems.

PN2724

It's not the actual act of inspecting the belts at all. It's the simple fact of having put their name to this document that the union says requires a pay increase which is directly against what other level 4 mine workers currently do. It was quite clear from the evidence before the Commissioner, perhaps the most neutral evidence for want of a better phrase is Mr Swan. Mr Swan agreed that if he came across a matter that he was unsure about, he would call for the assistance of personnel that he believed might be best to advise him about the correct course of action. You are not expected to be a mind reader. You are not expected to be an expert in every single facet of the operation of this equipment.

PN2725

We say at paragraph 23 that the training for the mine worker level 4 employees receive, that the Coal Clearance Operators receive is no more specialist than training given to other employees at Appin Colliery at the similar level. Mr Roy was quite clear and agreed with the comparison that he undertook theoretical and practical training when he worked at the longwall. The comparison - paragraph 24:

PN2726

The comparison between Coal Clearance Operators and other mine worker level 4 production employees shows that other level 4 mine workers complete work of a more technical nature.

PN2727

Mine workers who operate the share, or the continuous miner and the green pedal have undergone technical training and operate specialist equipment and in respect of that there is the annexures and evidence to Mr Kervroedan's statement that quite clearly when compared with the operators' competency assessment are more voluminous and are more technical in nature. Mr Neal's admitted in evidence-in-chief that other mine worker level 4 employees complete statutory inspections. He said that those employees have likely completed four years' technical training followed by on the job training and have a higher degree of understanding of what is involved in inspections.

PN2728

Mr Neal also said that those inspections were more complex than other inspections. Those mine worker level 4 employees are paid the same as the current mine worker level 4 employees refusing to complete the check list. I've set out in the submissions a summary of the five, sorry six current employees at a level 5 position. I think it's quite clear and the parties are pretty much agreed in terms of the differentiation between them. The key point I would also like to point to though is these are individual positions. They are not a class of position. We don't have five different team leaders for transport.

PN2729

We don't have five different people responsible for the water infusion process. It's definitely different in nature and not something which is something which doesn't comply with clause 6.2 of the agreement and again I think at paragraph 28 we've probably jumped ahead in respect of the accountability issue. There's been a phrase used, statutory accountability. That's not defined in any way in terms of the respective legislation before this Commission. Obviously, there's the occupational health and safety legislation but again, it simply comes down to a question of fact.

PN2730

I would go so far as to say that it's no more difficult to identify who was working on a belt on any one particular shift and maybe Mr Roy's a good example of this as opposed to who completed an inspection. Both individuals' evidence said it occurred, say for example, in the south west number one belt, both individuals would have the light put in their eyes and questioned in respect of what they had or had not seen and it could be a question of fact as to perhaps who was the last person in that area and what they may have likely have seen or should have observed.

PN2731

I don't think I'll ever forget the number of 43,485 but it's quite clear that that is the number of safety inspections completed at Appin Colliery. By longhand, so I presume it's correct but the number of belt inspections that form part of this is 2.51 percent, that is presuming every single day of the year and 365 days a year, three inspections per 24 hour period, close to 1095. So in respect of that we are only talking about a minute number of safety inspections at the colliery. That excludes inspections completed by deputies and above.

PN2732

Some point was made in respect of the co-signing of the check list. I think Ms Gray has quite clearly presented in terms of her submissions that senior people at other collieries are accountable for what has been done by people below them. There is a responsibility on those mining officials to ensure that the job is done properly and correctly. That doesn't take away from the fact that if these operators do not complete their duties correctly that they should be let away in any event.

PN2733

I've taken again from the outline of original submissions the legislation there. It is quite clear from the legislation and from Mr Swan's evidence yesterday that the amendment to the legislation in 1999 contemplated people other than deputies completing belt inspections. As Mr Swan said, we knew as deputies when this came that they would be doing it, and operators at Tower Colliery completed this at level four.

PN2734

At the same time Ms Gray has made reference to the Gretley prosecution. I don't agree with the exact interpretation and I would simply state that the - or I know for a fact that the prosecution is on appeal, but perhaps a review of the actual decision would be pertinent in respect of that. From my recollection it was the senior management that had the ability and didn't follow through in terms of their own personal duties but again that is the senior mine officials, not people at a level four position. In fact my recollection of the case, and I don't have it with me your Honour, is that the deputies involved in that prosecution were found not guilty.

PN2735

Ms Gray has referred to Alcoa Western Australia case which required a major devolution. However in subsequent submissions she just talked about a devolution of a qualitative nature. It is our submission, your Honour, that there is no devolution and a qualitative devolution is not enough to satisfy the requirements of the safety net wage review case and the principles that have been provided to you. It is not a net significant addition to the operators' work. In a practical sense it is simply putting their name on this document and what they have done during the day. They have admitted that they already do this work.

PN2736

So in respect of the summary, we rely on clause 6.2 of the agreement. It is quite clear from the parties that that was the agreed mechanism to consider, approve or arbitrate an increase in classification from level four, five or six. In respect of that there is ordinary words used in that clause which are quite clear and it pertinently talks about mine worker level four. It does not distinguish the roles. That is clearly an intentional matter. The reference to mine worker level four is extremely restricted in the rest of the agreement. In terms of late last night I could not find any difference in respect of that ..... reference that in any other areas. There is a simple reason for that. The parties said, we will look at the entire scope of what people at a level four position do.

PN2737

So in respect of that the Commission must take into account the duties of all mine worker level four employees when determining what is within the normal scope of duties. Mr Kervroedan and Mr Roy confirmed that the coal clearance operators already perform inspections as part of their normal duties. The evidence before the Commission shows that a number other level four employees complete inspections and check lists for statutory compliance purposes. The requirement to complete the check list is within the normal scope or work performed by a mine worker level four. Consequently, coal clearance operators should continue to be paid at their current rate.

PN2738

I have nothing further your Honour.

PN2739

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Dearden. Mr Gray, any reply?

PN2740

MS GRAY: Thank you your Honour. Your Honour in paragraph 16 of Mr Dearden's submission, he says:

PN2741

The term, mine worker, is used in the agreement to include both production, engineering employees.

PN2742

We concede that. He says:

PN2743

The rates of pay under the agreement do not differentiate between production and engineering employees.

PN2744

Then he says:

PN2745

All employees are treated equally within their level four, five or six classification and this was confirmed by Messrs Mothersdill, Everill and Roy in cross-examination.

PN2746

That misrepresents what was put those three witnesses on the union, your Honour. They did confirm in cross-examination that the rates of pay under the agreement did not differentiate between production and engineering employees. They did not go on, it wasn't put to them, neither did they volunteer the statement that, all employees are treated equally within their level four, five or six classification. That is part of the submission rather than part of the evidence.

PN2747

Your Honour, at paragraph 19 of Mr Dearden's submissions he said verbally when addressing that paragraph that the term, statutory check list is the expression used by the union. That is also not the case, your Honour. We don't call it a check list, that is the company's term. We call it an inspection report and we see that there is a great distinction between a check list and an inspection report, just as we see there is a great distinction between controlling a belt and inspecting a belt.

PN2748

Currently we agree that the duties of our people include patrolling the belt along with, as I have already said in my initial submissions, the predominant function of cleaning around and on the belt. It is in this area that we would have a qualitative change and a re-mix of the duties which would be introduced by their being made competent persons under the Act and being required to complete an inspection, complete an inspection report and sign off on it.

PN2749

Your Honour, we have gone into some detail in the case and I certainly won't labour the point of the distinction between what we say is the statutory inspection of the conveyor belt shift and shutdown report and the types of inspections conducted by trades people under section 103, but it is quite clear from annexure C to Mr Kervroedan's affidavit that these are job instructions attached to it and it is quite clearly headed Job Instruction. We say that job instruction is quite different in nature to an inspection report.

PN2750

We also see that in annexure E to Mr Kervroedan's witness statement again the maintenance checks which are done are headed Job Instructions. We also note that on this form there is a place for a due date but we know that regulation 33 of the regulations which deals with records and evidence of inspections requires under subclause (1), paragraph (a), that all mine inspections systems must include the date and time of the inspection.

PN2751

Now, when Ms Plambeck was being cross-examined I asked her to identify where on the form of the conveyor belt shift and shutdown report was the place for the time of the inspection, knowing that it was the statutory requirement that it be on there, she identified that there was a start and finish time for each conveyor belt marked at the top of the column. We say that the attachments to Mr Kervroedan's form relating to the maintenance inspections do not have that same provision, they are not part of the statutory form. That is also the case with the attachment to Mr Spencer's witness statement which is annexure D.

PN2752

In terms of replying to paragraph 23 of Mr Dearden's further submissions, we acknowledge that our people have technical training in terms of machine operation and we say that for production workers it is the technical training in terms of the operation of their equipment which is responsible for their classification at Level 4, just as the trade skills and technical training of the trades people are responsible for the trades people being at least Level 4.

PN2753

Mr Dearden said that Level 5 are individual positions, not a class. We say they are a class and that class is a class of Level 5 production workers. Now, we acknowledge that they are very different roles one from each other but what we say they do have in common is that they have either supervisory or technical skills which have distinguished them from Level 4, and an examination of that work as done by Mr Everill in his witness statement demonstrates the type of qualitative change necessary to go up a level for a production worker that has been recognised at Appin Colliery but we also say that in one of those instances, in the case of Mr Bob Chappell, he does statutory inspections involved with the fire equipment.

PN2754

The number of 43,485, in cross-examination the company's witnesses acknowledged that this was safety inspections, safety and maintenance inspections, in toto for the mine. Mr Spencer agreed that they were not all statutory inspections and in terms of his area of responsibility and accountability, being the undermanager in charge at the mine, he said, when I asked him how many statutory inspections were conducted, he estimated that there were about 150 per week. Of course, they don't include any maintenance statutory inspections, they are simply mining inspections which we say is what the belt inspections fall within and done by deputies. If one was done by per shift over seven days then that comes to a number of 21. I haven't done a sort of calculation of maths that Mr Dearden has, but what we see then is that the belt inspections would form approximately one seventh of the mining statutory inspections referred to by Mr Spencer.

PN2755

Mr Mothersdill reminds me that Mr Kervroedan who referred to these inspections as well, said that he had received that information from the maintenance planner and that they were in fact, the 45,000 inspections were maintenance inspections and didn't include the production inspections conducted by mining officials.

PN2756

They are the only things I think it is necessary for us to reply to subject to any questions that your Honour may have.

PN2757

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Ms Gray.

PN2758

MS GRAY: Thank you your Honour.

PN2759

THE SENIOR DEPUTY PRESIDENT: What I intend to do is to reconvene at midday tomorrow to provide my reasons for decision. I hope I'll be able to do that.

ADJOURNED UNTIL THURSDAY, 11 NOVEMBER 2004 [12.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A6 FURTHER OUTLINE OF SUBMISSIONS PN2692