C2004/3156, Transcript of Proceedings [2005] AIRCTrans 1153 (17 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11482-1

SENIOR DEPUTY PRESIDENT DRAKE

C2004/3156

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
A C WHALAN & CO PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2004/3156)

SYDNEY

10.08AM, FRIDAY, 06 MAY 2005

Continued from 24/2/2005

Reserved for Decision

PN939

MS J GRAY: I appear for the CFMEU.

PN940

MR J FARNON: I appear for Komatsu. Perhaps can I explain this, your Honour, in the submissions which have been filed, my friend has raised an issue concerning the question of the service of the company in receipt of the log of claims, an issue was raised of the evidence as to who was the appropriate employer. On the last occasion I announced an appearance for the entity served Komatsu Australia Holdings Pty Limited. The evidence discloses that the employer is Komatsu Australia Pty Limited. I appear for Komatsu Australia
Pty Limited. We don't accept that the submissions that were made were in any way tantamount as my friend's submissions suggested to an abuse of process, because the issue about employment was made quiet clear on the evidence but we now don't take that point and I appear for Komatsu Australia Pty Limited, the employer. So for the purposes of the record we accept that Komatsu Australia Pty Limited has received a demand and that demand has been not acceded to.

PN941

THE SENIOR DEPUTY PRESIDENT: Like narrowing things. Well, I have the submissions from both parties. Give me a minute here I am just making sure I don't have anything from the other employer stuck in my material that there is such a big log of.

PN942

MR FERNON: Your Honour should have a submission that was filed on
20 September 2004, a short one page document.

PN943

THE SENIOR DEPUTY PRESIDENT: No. What I have is one filed
1 December 2004.

PN944

MR FERNON: Yes. There is that one as well.

PN945

THE SENIOR DEPUTY PRESIDENT: Then one 12 April 2005.

PN946

MR FERNON: There is a more recent one of 12 April 2005.

PN947

THE SENIOR DEPUTY PRESIDENT: I don't have with me 1 December. It may be in the correspondence which I do have here, one moment.

PN948

MR FERNON: I don't think we need to rely upon the first.

PN949

THE SENIOR DEPUTY PRESIDENT: Good. Then I don't have to look for it.

PN950

MR FERNON: Your Honour, it is part of the package of materials. Perhaps I should just hand it up to you.

PN951

THE SENIOR DEPUTY PRESIDENT: All right. Give it to my associate and I will have her photocopy it.

PN952

MR FERNON: Thank you. But I don't need to take your Honour to it.

PN953

THE SENIOR DEPUTY PRESIDENT: I have sort of edited what I have brought in today so I didn't have my huge trolley following me around.

PN954

MR FERNON: Your Honour, as we would apprehend it, the question of the application of clause 1 of the log doesn't arise for the reasons that we have set out in our submissions, that it doesn't relate to a matter pertaining to the relationship of the employer and employee. It doesn't arise in circumstances where the evidence is that the relevant employer is Komatsu Australia Holdings Pty Limited. That is the employer in receipt of the claims as described in clause 1(a) of the log. In that previous decision of your Honour on 8 October 2004 to which my friend refers that is PR952134 at paragraph 43, your Honour.

PN955

THE SENIOR DEPUTY PRESIDENT: Give me the print number again.

PN956

MR FERNON: It is PR952134. Your Honour simply noted that she reserved consideration of that clause, subclause 1(b) of the log which is the clause in question and that she would consider it when an application was made for a dispute finding and obviously the subclause would be removed from the finding of the dispute against any other respondents to that matter as being determined. It would be my submissions it is not necessary for your Honour to even consider that, the operation of that particular clause because the evidence is clear as to who the employer is and clause 1(a) applies or clause 1(a) doesn't apply as far as the log is concerned.

PN957

On the more substantive question, your Honour, in our submission on the objection of the respondent the onus lies on the union to demonstrate that this is a log of claims that may give rise to a dispute with this particular respondent and that the evidence that is before your Honour fails to discharge that onus. There is an issue or a point raised from time to time concerning the public interest. In my submission, your Honour, it wouldn't take the public interest into account at this stage of the proceedings rather than what your Honour is concerned with at the moment is simply a jurisdictional fact as to whether or not employees come within the eligibility rule of the union and the public interest question doesn't enter into that. Public interest questions may enter into the equation at a later stage, if there is a later stage, but not at this time.

PN958

Next, your Honour, there is no particular evidence before you of usages or changes in the coal industry and so the extent to which reliance is said to be made upon changes in the coal industry and the like, your Honour, would not take that into account. Your Honour has delivered two recent decisions in related matters, one is in the print PR952859 which is a decision of the 2 November 2004 which I would call the AA services or AAA services matter. Then there is PR956447 of the 15 March 2005 which - what is it, Harnischfeger?

PN959

THE SENIOR DEPUTY PRESIDENT: Harnischfeger. They are the Dyno Nobel matters and then those three linked employers in the Harnischfeger matter. The second one is the AC Whalan log and the first one is the AAA services log.

PN960

MR FERNON: Yes. That is correct.

PN961

THE SENIOR DEPUTY PRESIDENT: I think there are outstanding employers to be heard in both logs.

PN962

MR FERNON: In both of those decisions, your Honour, your Honour has limited the finding to employees employed on site.

PN963

THE SENIOR DEPUTY PRESIDENT: Or nearby. I think in relation to the Dyno Nobel employees it was ..... as well. That is just my recollection. I think they had depots next door to the site or very close to it.

PN964

MR FERNON: In respect to G and S Engineering, I think it is paragraph 392, where your Honour says:

PN965

The finding does not extend to work performed by employees in the workplace.

PN966

THE SENIOR DEPUTY PRESIDENT: That's why in relation to G and S Engineering, I am just saying the only one that I didn't make an exception to, I think was Dyno Nobel where they had their depots and mixed the explosives next door. Sometimes just next door to the ...... But you are right about G and S Engineering.

PN967

MR FERNON: At any rate, your Honour, as far as these proceedings are concerned, there are three categories of employees. Employees that are off site at workshops, employees that are involved in roving around and employees that work on site. It would be my submission that insofar as there is an issue in this case it really is limited to the employees that work on site not to the other two categories. They are the people that the evidence has been concerned with.

PN968

The evidence in Mr Kelly's CFMEU3 he said in his paragraph 4, he is talking about a historical context, he said over the time I was at Warkworth with production maintenance planned and breakdown maintenance of plant and equipment on site was done by direct employees and the point that he seems to be trying to make is that in the past the work that is done by Komatsu employees on site is work that is being done by employees of the mine operator. He goes on to say, maintenance work that was sent off site was done by metal engineering shops and was not regarded as being part of the continuous process of coal mining.

PN969

It being implicit in that we would suggest that from that historical perspective where the work was off site, it wasn't regarded as coal mining but in Mr Kelly's opinion where the work was on site and done by direct employees of the coal mining operator it was part of the coal mining. But we suggest that where the real issue is here is not concerned with employees off site, it is concerned with whether or not within the eligibility rule of the CFMEU are employees that are employed on site.

PN970

In paragraph 9, Mr Kelly gives his opinion. Ultimately our submission is that
your Honour wouldn't be particularly influenced by his opinion, but his opinion is interesting at least to this extent that he says that he regards the essential functions of an open cut mine to be at least those involved in various things and lastly:

PN971

On site planned and unplanned maintenance of all this plant and equipment.

PN972

So again it seems consistent, even with Mr Kelly's evidence, that the real issue that we are concerned with is employees working on site. Similarly in the submission of my friend in paragraph 6, the question is reduced to whether it is a proper examination of the work in question performed at coal mines. So again the emphasis seems to be, even from the union, what is the work that is done at the mine. We suggest, at the mine site, and that is also, we submit, the issue, because your Honour doesn't really have any evidence apart from the evidence led by the company in relation to work that is done off site which we submit is really in a different category in relation to a different industry.

PN973

It may be work that is done for coal mining operators or it may be work that is not done for coal mining operators. It just depends upon the character of the customer at the time. The evidence was that about 90 per cent of the work is coal mining operator related and about 10 per cent is otherwise. One of the cases that your Honour has referred to and is also referred to in the submissions is the Hickman case. I just draw attention to that case because your Honour will recall that that was a case relating to transport drivers and whether the transport drivers were involved in the coal industry. The High Court held there, as your Honour will recall, that it wasn't, that the work wasn't in the coal industry.

PN974

The drivers themselves, the transport drivers themselves, were employed in different capacities. Some were involved in mixed functions so they would transport coal and other materials. 13 of the drivers I think it was, 13 of the drivers were involved exclusively in the transport of coal. That is a slightly analogous situation to what we have here, perhaps more than slightly analogous because the finding was not in the coal industry notwithstanding that there was a small group that were employed exclusively for the transport of coal. We have an analogous situation here where we have employees working in many different industries and in many capacities, a small minority of which work on site and work on equipment that is used in the coal mining operation. That is - - -

PN975

THE SENIOR DEPUTY PRESIDENT: I should be able to, but I cant remember where in Hickman the transport of that coal was from the dump from the time it was processed, after it was processed or on site in the course of processing.

PN976

MR FERNON: I can give your Honour a copy of the decision if that assists.

PN977

THE SENIOR DEPUTY PRESIDENT: Yes.

PN978

MR FERNON: I'll just check that your Honour.

PN979

THE SENIOR DEPUTY PRESIDENT: To carry screened coal at an agreed rate from bins at the said colliery to (a), Campden Railway Station and (b), to customers of the colliery owner in the Sydney metropolitan area. So from, I suppose, the end of treatment to customer or to delivery site at the railway to customer.

PN980

MR FERNON: That is at page?

PN981

THE SENIOR DEPUTY PRESIDENT: It is in the summary at the front, in page 600. I haven't gone any further.

PN982

MR FERNON: Yes, and the passage that I was referring to your Honour, is at page 607. Half way down the page it says:

PN983

The evidence shows that the applicants are haulage contractors who employ about 23 lorry drivers...reads...materials on Sundays, two are exclusively carting other materials than coal.

PN984

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN985

MR FERNON: The evidence shows that the work that is done by the Komatsu employees is the work of servicing equipment. The evidence is that the skills that are employed by those workers are essentially the skills of a fitter. Mr Falstini's evidence was that he started out as an apprentice fitter, he learnt his skills in a foundry, they are the skills that he uses to maintain machinery in the employ of Komatsu. They are the skills that he used and learnt in the foundry, they are skills that he uses and has applied in other employments that he has had throughout his employment since he first received his qualifications.

PN986

So that the character of the work that is performed, whether it be performed on site or whether it performed in a foundry, is the character of the work of the fitter so that there is nothing particularly coal industry related about that work. There is a location, that is true. It is performed on a coal site but that is a coincidental factor in relation to the work that he has done. He is engaged as a fitter, he works as a fitter, he maintains machines using the skills that he has always had. Now
Mr Falstini said, well I have also got some additional skills because I need hydraulic qualifications.

PN987

That is true and he has expanded his skills as a fitter by doing a TAFE course to get that hydraulic qualification. But essentially the character of his work is that whether it be - it is the same whether it be performed on a coal site, whether it be performed in a foundry or indeed elsewhere where a fitter's skills may be required. The evidence that my friend relies upon really is evidence in the nature of association. What my friend seeks to do is to paint a picture for your Honour that Komatsu employees are really at one with the coal operators employees who work in winning coal. Various things are pointed to and I don't pretend to mention them all. For example, that there are toolbox meetings, that the employees are subject to mine regulations, that the Komatsu employees work in proximity to mine operator employees, the same shifts and the like.

PN988

So that there is an integration is the way that it is put, with the work of the coal mining operators employees and the work of the Komatsu employees. The first thing that needs to be noted about that is that that evidence only relates to Komatsu employees employed on site not to other Komatsu employees anywhere else. But the evidence of association rather tends to breakdown insofar as it is relevant at all because your Honour has the evidence that all of those Komatsu employees on site are subject to supervision by the Komatsu supervisor. It is the Komatsu supervisor to whom they report. They are employed by Komatsu, not a mine operator, so they are employed by a company in the business of importing heavy machinery, maintaining and repairing heavy machinery and that is an important factor which differentiates significantly the work of a Komatsu employee with the work of an employee of a mine operator.

PN989

On site, Komatsu employees have their own meetings to determine the work that is to be performed and those meetings occur each day prior to the toolbox meetings and that work is determined by the Komatsu employee who sets the rosters for the ongoing systematic maintenance of machinery that is utilised on site. Not much is to be gained, in our submission, from the fact of meetings or the fact of similar rosters and the like. What is really happening here, we submit, is that Komatsu and its employees are working in with its customer, as would happen in any situation.

PN990

Across this city today there would be plumbers, electricians, painters and others attending at domestic premises to do work. They will work in with the requirements of the owner of the home as to when they are there and when they are not there and the like. But to suggest that the working in of a person with their employer, or their customer, is not to suggest that they are one and the same. Rather, it is to suggest that they are simply working to provide the best service that they can and nothing is really to be gained from that association. But when one looks more closely at the evidence it can be seen that there is a working in with, that is true, but clear lines of differentiation between the Komatsu employee and the mine operators employee.

PN991

In our submission the work that is provided by the Komatsu employees is in the nature of a service and that the decision of the High Court, that your Honour would find most assistance from, we suggest, is the decision in the Poon Brothers case. That is the Federated Workers and Allied Industry Employees Union of Australia and the Australian Workers Union. I can give your Honour a copy of that.

PN992

THE SENIOR DEPUTY PRESIDENT: I have that.

PN993

MR FERNON: Your Honour has that?

PN994

THE SENIOR DEPUTY PRESIDENT: No, I have that.

PN995

MR FERNON: It is at (1977) 51 ALJR 266.

PN996

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN997

MR FERNON: Your Honour has referred to that judgment in your Honour's other decisions and other judgments that have followed, in particular, the uranium mine case and Argyll and the like, and I will come to those in a moment. In paragraph 349 of your Honour's decision in AAA Services, your Honour concluded that as an industry the coal industry includes all those activities which are necessary to or assist in the process involved in the production of coal. It would no doubt be said against us that the work of maintaining the machinery that is used in the winning of the coal is necessary for the production of coal and so we would anticipate that your Honour will be asked to find that the service that is provided by Komatsu is necessary and therefore part of the coal industry.

PN998

We respectfully submit that the question of necessity is not the approach of the High Court in Poon Brothers in the sense that with the question of necessity it is not something that leads necessarily to an involvement in the particular industry, in this case the coal industry. In Poon Brothers, your Honour has that judgment, at page 267, in the second column, at the top of the page, it is the first complete sentence commencing:

PN999

Hamersley has contracted with the respondent Poon Brothers to supply services to it and its employees substantially similar to those provided by SHRM at Newman for Newman Mining.

PN1000

Those services are set out in the previous column from D to G, and I will not go to those. Your Honour would be familiar with that. At page 268 in the first column, this is the Chief Justice, he says:

PN1001

It is well settled that an eligibility clause expressed in the terms of the eligibility clause ...reads... employer which satisfies one or more of the descriptions in the eligibility clause.

PN1002

In our submission that is and remains the correct approach to the construction of the rule in this case because of the similar way in which the two rules are. Then at about half way down the page it continues:

PN1003

The question therefore which will decide the validity of the consent award is whether the ...reads...with the industry of metalliferous mining carried on by those companies.

PN1004

So that's similarly the sort of question that arises for us here. In the second column at about (b) it continues:

PN1005

The Full Court of the Commission answering such submissions said, "We are of the view that although the catering facilities provided by the respondent employers to those engaged in the mining industry are necessary for those people and would not exist in their absence -

PN1006

So if I can just interrupt, a similar sort of situation here where it might be said against us that the maintenance work is necessary for the operation of the mining equipment to win the coal. If I can just pick of his Honour's judgment, he continues:

PN1007

The catering industry is performed by Poon Brothers and SHRN is identifiably different from the mining industry and when a mining employer decides to obtain the services of a contractor instead of himself catering, the catering becomes a service and it is not part of the mining industry whatever it may have been before.

PN1008

So his Honour is there identifying the necessity to identify the employer in this case, Poon Brothers, in our case Komatsu, and to identify the nature of the undertaking that it is involved in. In this case catering services, in our case the provision of maintenance and alike for heavy machinery, and so it is not to the point as Mr Kelly would say in his evidence that previously work of this kind might have been undertaken by employees of an operator and regarded as work in the coal industry. The real question to be answered is a question that directs itself to the activity of the employer that's in fact undertaking the work so that the business, if you like of Komatsu, colours, characterises the work that is performed by the employee.

PN1009

Maybe it is that if that work was done by the employee of a coal mining operator it would be in the coal industry. That is not a question for this case. That happens to be the view of Mr Kelly but what the Chief Justice is pointing out clearly here is that that is not the correct approach. The correct approach is to be characterise what does the actual employer of the employees in question do and in Poon Brothers it was catering. In our case it is the provision of maintenance services and just to bear that out, at about between (b) and (f) in that second column he says:

PN1010

Although employees of the mining companies who provide food or services of the kind furnished by the respondent companies might be, have been held to be working in the industry of metalliferous mining.

PN1011

So perhaps echoing the opinion of Mr Kelly he continues:

PN1012

Such work done by an independent contractor has a different nature or quality.

PN1013

It is the different nature or quality of the work of Komatsu that we rely upon here, your Honour. In your Honour's judgment in AAA, and in my friend's submission as well and indeed in ours, reference is made to the judgment of the High Court in the R v Central Reference Board and others Ex Parte Thiess (Repairs) Pty Limited [1948] HCA 9; (1948) 77 CLR 123, a convenient extract of the dissenting judgment of Dixon J, your Honour, has set out at paragraph 337. This case is a case that is helpful to our circumstances because of the factual situation. It is the closest of the cases to the factual situation that your Honour is confronted with here.

PN1014

This is Dixon J dissenting judgment where he says, and your Honour will recall that in that decision it was held that the work performed was not work performed in the coal mining industry, but in the dissent Dixon J said, and this is from paragraph 337 of your Honour's judgment:

PN1015

The function or activity with which we are concerned is the major repair and overhaul of the earth moving and excavating equipment used in removing the overburden and in winning the coal from the open cut.

PN1016

He continues:

PN1017

As a matter of reason it seems to me that such repairs and overhauls may be carried out as an integral part of the operations of open cut mining so as to form an indivisible element in the undertaking

PN1018

So that's again echoing the opinion of Mr Kelly and he continues:

PN1019

Or may be relegated to separate and independent engineering operations outside the undertaking.

PN1020

We suggest that that is the sort of factual situation that we are confronted with here. We're a separate independent operation providing a service to the coal mining operator. In one case, I should have thought, that they might well be considered part of the industry. Again echoing the opinion of Mr Kelly. In the other case and in our submission, in our case, I do not think they ought to be so considered. He continues, and this part, your Honour, emphasised, paragraph 337:

PN1021

The difference must depend upon circumstances the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel, and equipment

PN1022

All of those factors, with the possible exception of place, point to a separateness that would lead to the conclusion that Komatsu employees are not engaged in or in connection with the coal industry. So in the Poon Brothers judgment at page 268, the Chief Justice then continues just after point (f) referring to the Thiess Repairs case. He says:

PN1023

Sir Owen Dixon thought that the separateness of the establishment in point of control, organisation, place, interest, personnel and equipment might furnish a relevant discrimin in deciding the question of fact.

PN1024

Sir John Latham in the same case thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an industry of given description. Here, a substantial character of the industrial enterprise in which the respondent companies are engaged is in that of catering and of providing cleaning, et cetera, services. Here in our case, in our submission, the substantial character of the service provided by Komatsu and its employees is in the nature of maintenance and repair of heavy equipment rather than coal mining.

PN1025

So the Thiess judgment is the closest in fact to the case that we have here, for your Honour's consideration and that consideration is also picked up in Poon Brothers in a way that in our submission is consistent. Some reliance is made, as I understand it, by my learned friend upon the judgment of the High Court in
Queen v Moore and others that the ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR at page 470. That was the case, your Honour, I will recall of where the question arose as to whether it was construction work, the construction work of the mine was work that was in or in connection with the mining operation and it was held by Jacobs J. Does your Honour have that judgment, we can provide a copy?

PN1026

THE SENIOR DEPUTY PRESIDENT: Yes. I do thank you.

PN1027

MR FERNON: At page 477 of that judgment, your Honour. His Honour said at about a third of the way down the page:

PN1028

It is abundantly clear that the coal mining companies each wish to have constructed a ...reads... constructed a metalliferous mine and its ancillary works. It is an integral part of the mining operation.

PN1029

He refers to Poon Brothers. He said:

PN1030

The facts in the last mentioned case were quite different. Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case. The decision does not assist the present applicant.

PN1031

In our submission, in that case, Poon Brothers does assist Komatsu in this case. He continues, this is about three quarters of the way down the page:

PN1032

Construction work cannot be looked at apart from what is being constructed. The connection is ...reads...work in connection with metalliferous mining when it constructs the mining installation and associated works.

PN1033

In our submission, that case and the cases that follow it, should be confined to their facts where it is a case concerning the construction of particular structures for the purposes of a mining operation. His Honour said the connection is so close as to be inseparable. In our submission it should be confined to the facts of that case relating to construction work. His Honour does not explain why the work is inseparable and so we submit it should be treated as a special case and confined and it is difficult to see that the reasoning would apply in all situations. For example, it is difficult to see that a law firm, a firm of solicitors that engage a construction company to construct a building for the law firm to undertake its practice of law would involve a conclusion that the construction company was thereby engaged in the business of legal services.

PN1034

THE SENIOR DEPUTY PRESIDENT: What if they had been engaged to put together a library?

PN1035

MR FERNON: I am sorry, your Honour?

PN1036

THE SENIOR DEPUTY PRESIDENT: There is a librarian who puts together a library for the use - it is hard to think of an equivalent of a mine for a lawyer.

PN1037

MR FERNON: The point is, your Honour, is that these cases, uranium mining and the cases that follow it, are concerned with construction work.

PN1038

THE SENIOR DEPUTY PRESIDENT: But in that case isn't the distinction - I mean continuing your analogy if you like but the difference is that of course in construction the mine itself is a tool, it is a thing that is used, whereas a legal services, what is used is the lawyer. I am not sure it is a useful analogy is all I am saying, Mr Fernon.

PN1039

MR FERNON: I was looking to the industry, your Honour, and the analogy perhaps it is not helpful, but the analogy I was trying to create was that in the uranium mining case the construction work was considered to be part of the mining industry because it was constructing structures for the purposes of the mining industry, the mining work to be undertaken. In the example I was trying to develop I was suggesting that it wouldn't necessarily follow that the builder involved in the building of a law firm's premises so that the work or business or the industry of the lawyer could be undertaken would thereby be involved in the industry or the business of legal services. That is really the extent of it.

PN1040

So my submission is that the facts and the conclusion of the uranium mining case and the cases that follow it should be confined to construction work in that context because my respectful submission is that it is not a conclusion of general application. That is the conclusion that there is a connection between the construction work and the industry that has - the industry in this case mining, is so inseparable as to involve the construction work in that industry.

PN1041

Your Honour has our written submissions and in particular the submissions filed on 12 April 2005. I didn't intend to take your Honour to that but we do rely upon those submissions. Does your Honour wish to mark those submissions?

PN1042

THE SENIOR DEPUTY PRESIDENT: No.

PN1043

MR FERNON: Ultimately, your Honour, the question, your Honour comes down to whether or not the Komatsu employees are engaged in or in connection with the coal industry. Our submission is categories one and two can be put to one side. There is no evidence in relation to them. Category three, that is the employees employed on site are the employees in respect of which there is an issue and to which the evidence is directed.

PN1044

In our submission, the association that my friend seeks to draw from the evidence is not made out but even if it were it wouldn't be sufficient to bring those Komatsu employees within the eligibility rule because they work for an independent entity, in a different business doing work that is not mining work but rather work that is work that is the work of a fitter done on site but done at other locations which have absolutely no relationship or bearing to the mining industry at all. So that when all those factors are added together they do not all come to the conclusion that there is not the involvement or association that would lead to the eligibility of it all being satisfied.

PN1045

They're the oral submissions that we wish to make and unless there is anything further, your Honour.

PN1046

THE SENIOR DEPUTY PRESIDENT: No. Thank you. Ms Gray in relation to, is it clause 1(b) of the log?

PN1047

MS GRAY: Yes, your Honour.

PN1048

THE SENIOR DEPUTY PRESIDENT: I agree with Mr Fernon so you will have to convince me how I should deal with it.

PN1049

MS GRAY: Thank you, your Honour. I did have an explanation as to why we had done that and a search was conducted.

PN1050

THE SENIOR DEPUTY PRESIDENT: It doesn't matter how it arose.

PN1051

MS GRAY: I realise that, your Honour, but it was just that the holding company came up the same ACN as the other one when we printed off the full company search, so we actually went through the normal fairly careful process but that was the result itself. Very strange reason that only ASIC could confidently know.

PN1052

THE SENIOR DEPUTY PRESIDENT: I know.

PN1053

MS GRAY: Your Honour, we handed up, but it wasn't marked, a copy of Komatsu Australia Pty Ltd Mount Thorley Certified Agreement 2003 during the taking of evidence in this case. I sought to take Mr Bird to it and your Honour said needn't because the document can speak to itself. I said at that stage that I would make reference to it in final submissions.

PN1054

THE SENIOR DEPUTY PRESIDENT: That is the one dated 19 April 2004?

PN1055

MS GRAY: It just says Komatsu Australia Proprietary Limited Mount Thorley Certified Agreement 2003 and AG2004/1357 at the top. Is that the copy that your Honour has? It's the one I thought I handed up?

PN1056

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN1057

MS GRAY: Your Honour, all I submission to do in respect to this agreement was to draw the Commission's attention to the fact that the company, although it operates in various areas and various industries we would say has branches around Australia has treated that part of its business from which the employees that we are concerned with, insofar as New South Wales goes, as a geographically extinct or operationally or separate or operational organisation unit within the single business of Komatsu. They have done so by having a certified agreement made within those terms of the part of a single business and that part of the single business of Komatsu is Komatsu Australia Proprietary Limited at Mount Thorley.

PN1058

The agreement in clause 4 of the application states that it applies to the three Hunter Valley based cost centres of Komatsu Australia Proprietary Limited known at the Mount Thorley, Bulga contract and MTO contract and that if it was to be extended beyond that, your Honour, there would be consultation with the employees affected so we would say that that is clearly applying to the Mount Thorley workshop. The Bulga contract and the Mount Thorley operation which is the contract at Mount Thorley and Warkwarth. We note that on that copy that at clause 5, parties bound, had CFMEU mining and energy division northern district which has been struck through. That is consistent with the evidence of Mr Kelly, paragraph 7, of CFMEU3, where Mr Kelly said that the union was engaged in negotiations for this certified agreement but withdrew because of the company's position that it would not have a production engineering award for the no disadvantage test.

PN1059

What we say about that, your Honour, is that the company up until the ..... of making this agreement had recognised that the CFMEU was representing employees of it, working out of the Mount Thorley branch. We note that on
page 8 of the agreement in clause 18 that there is, as was in evidence, reference in the evidence, a .... break applying for employees who were not working in the workshop and in clause 18 it also makes reference to all overtime worked on Hunter Valley mine sites being paid at double time as opposed to the overtime provisions in the underpinning award for the disadvantage test, the metal industry award. That is all we wanted to direct your Honour's attention to insofar as the certified agreement.

PN1060

Your Honour, we have done a submission in reply. That was lodged and served on the 27 April 2005. There is an error in that, your Honour, and it's now totally irrelevant because of Mr Fernon's position on the entities served but just for completeness on page 2, in paragraph 2 - - -

PN1061

THE SENIOR DEPUTY PRESIDENT: One minute. Page 2, paragraph 2?

PN1062

MS GRAY: Yes, your Honour, the second line above the italics, it says on
28 October 2005 that should be 2004. There is another one, I am sure, it is probably omitted, with some - there is a reference in paragraph 1, half way down to clause 2 of the union's log and .... clause 1 of the union's log.

PN1063

THE SENIOR DEPUTY PRESIDENT: Where is this?

PN1064

MS GRAY: Half way down the first paragraph, your Honour, on page 2.

PN1065

THE SENIOR DEPUTY PRESIDENT: Clause 1, yes.

PN1066

MS GRAY: Your Honour, we rely on all of this written submission, other than those parts which addressed the company's argument about which entity was served which is no longer relevant. We believe that our references to the case law and the extracts contained deal directly with and address on point the issues raised by Mr Fernon in respect to Poon Brothers v Others. Certainly the point raised in the Hickman case by your Honour, our summary of the facts is that the transportation being dealt with by the High Court in the Hickman case was the transport of coal in distribution. That is, once the coal left the mine site either to rail or to customers, not transportation of coal around the mine site.

PN1067

We also say, your Honour, that in terms of Mr Fernon's point he made about what he categorised as a service of Komatsu being provided, whether on that that is necessary to the process was that his summation of what the CFMEU said was a deciding issue of whether it falls within the coal mining industry or not, we disagree with that categorisation of our argument, your Honour. Although of course if it is unnecessary then we would say that it probably isn't part of the coal mining industry. We don't say that whether it is necessary that it automatically becomes part of the coal mining industry. We say it is an element and we say that whether or not the work is an inherent part of the coal mining process is the test in this respect rather than whether it is necessary and in terms of this part of the argument of whether it fails within the coal mining industry or not we did extract at page 14 of our submissions, Jacobs J quote from R v Moore at 477 where His Honour distinguished Poon Brothers and we rely on that.

PN1068

We also say, reinforce, your Honour, that Thiess Brothers was made at a time when open cut mining in New South Wales was in its infancy in the 40s. The High Court commented that it had no guidance as to customer practice and what fell within or outside the coal mining industry and when it came to those parts of the operation which weren't clearly central, such as digging coal, that it was left to make its own conclusions rather than be able to be assisted by the parties as to what was to be held or what had been held or had not been held to be in the coal mining industry in terms of functions. We say in that respect, your Honour, that the evidence of Mr Kelly is of assistance to the Commission and also the Commission's own knowledge of the coal mining industry award and certified agreements that maintenance work in 2005 is clearly recognised and has been for many years and so a function falling within the coal mining industry.

PN1069

The issue then moves on from Thiess Brothers to the R v Moore type argument of whether that function capable of being within the industry is or isn't in the industry when done by something, an entity other than the operator of the mine and that is where R v Moore comes into play when you rely on that. Mr Fernon also said that there was no evidence of usages and changes in the coal industry and we say that isn't the case but the evidence of Mr Hill and Mr Kelly which was uncontested in this respect demonstrates the coverage in the award, certified agreements and for maintenance work and for contractors in the coal mining industry.

PN1070

Mr Fernon said correctly, we say, that there are three categories of employees at Komatsu in New South Wales which the evidence goes to. The on site work, the roving crew and the off site work, Mr Fernon said that they were only concerned with the on site work. We say, your Honour, without derogating from our coverage of work in or in connection with the whole industry which we say the limits of haven't been defined, and in that respect we say that there may be an appropriate case in the future where we argue that an off site maintenance workshop is in the coal mining industry, that we came very close to running a case such as that at the beginning of the year before Vice President Lawler, but the parties reached agreement on that so it wasn't necessary to run the case.

PN1071

In this one, your Honour, what we say is that work conducted by Komatsu employees in New South Wales, both on the coal mining sites and the roving crews which on Mr Birch's evidence at paragraph numbers 423 to 425 was that there is a crew of about six employees who essentially do nothing but coal mining on site work but they rove from one site to another. It was put to Mr Birch that those employees essentially are on mine sites, always out on the mine site other than coming back and getting parts or other incidental attendances at the workshop and he said that that was correct. We say that that work clearly all falls within the coal mining industry and in order, your Honour, not to fall into the same difficulty which your Honour addressed in the Harnischfeger case we were very clear in terms of evidence on the Queensland's sites, evidence coming other than from employees performing that work but evidence coming from
Mr Anderson and we have extracted the relevant evidence on which we rely on all of the points in this case.

PN1072

Your Honour, as an annexure to our outlined submissions we rely on it all but in particular we would just simply like to draw your Honour's attention to pages
16 and 17 of annexure to the witness to the outlined submission where we extract
Mr Anderson's evidence about 50 employees engaged on mine sites in the State of Queensland. In cross-examination, your Honour, on page 17 we have extracted those parts of cross-examination where I put to Mr Anderson, I asked him whether the contracts on Queensland mine sites were much the same as the Mount Thorley operation and the Bulga contracts. He said that they were.

PN1073

We asked at which mine sites, the transcript shows Encscham, Goonyella, Riverside and then it says mines with no audible reply, so we have noted under that extract, your Honour, that at paragraph number 12 of exhibit KOMATSU1,
Mr Anderson's statement that Komatsu have acknowledged that they have had contracts at the Queensland coal mines at Encsham, Peak Downs and Goonyella. I then put to Mr Anderson that Komatsu ran those operations much the same as those at Bulga and Mount Thorley and he said they were. We asked if there were people taken on those sites in a similar way that they were at Bulga and Mount Thorley and he said yes.

PN1074

We asked if there were people permanently located on the sites to effect those contracts with just supplementary labour coming out from the Mackay workshop for shutdowns and that sort of things and he said that he agreed. He also acknowledge that there were sites where Komatsu had 24 hour a day coverage where its provided accommodation in the coal town sites for employees of Komatsu and corrected or qualified some of the statements which he had in his witness statement and those were at paragraph number 272, where he agreed that it was not the case that employees would be moving between the different industries that Komatsu then of construction or forestry or coal mining from day to day when it came to the people who were on the maintenance contracts at Bulga, Mount Thorley operations and the Queensland ones which he referred to which was Encsham, Goonyella and Peak Downs.

PN1075

In re-examination it was put to Mr Anderson that the company could move the employees around, the ones who were on the contracts at Bulga and so on.
Mr Anderson disagreed with that and said that practice was to leave them on the mine sites that was what they were engaged there for. Then Mr Fernon tried again with putting to Mr Anderson:

PN1076

"But as a matter of entitlement what is your understanding"?

PN1077

Mr Anderson's response was:

PN1078

"People that are assigned to work at a particular mine site on a permanent would generally expect to remain on that site".

PN1079

So, your Honour, we say that the evidence as it related to the Mount Thorley operation and Bulga mine sites was equally applicable through the evidence of
Mr Anderson to the operations at Encscham, Goonyella, and Peak Downs. We also say that Mr Birch in paragraphs numbered 412 to 413 identifies those mine sites that the roaming crew moves between which is Mount Owen, The Dell, Wambo, Musselbrook and Cumnock. Although he said that the work at Cumnock had dropped off of late and that at 423 to 425 is a quote that we rely on to say that the field crew are essentially on mine sites all of the time.

PN1080

So we say that all of those employees at least are in or in connection with the coal mining industry, your Honour, and we say that of course under our rule it is much broader than simply coal mining industry but goes to inner and connection with the coal industry which has in other places been found, for example, the loading of coal onto ships at the docks but we are not asking your Honour to go that far in this case. Mr Fernon also said that essentially the skills of the employees of Komatsu were those of trades person, gave an example of Mr Fastini being a fitter and said that it was just the skills of a fitter.

PN1081

Now, that argument although it is superficially attractive, your Honour, we say is not one of substance. The same could be said of plant operators who are engaged in overburden removal either for contractors or for a coal owner or operator and or land operator involved at an open cut or ripping coal. We say that Mr Fernon's suggestions that because skills can be used in different industry it means that there is nothing particularly coal industry related to the nature of the work ignores the bulk of the evidence which went beyond the employees core skills to the way in which they perform the work, the environment in which they perform it, the integration with the full time in the workforce and so on.

PN1082

Your Honour, Mr Fernon, we say with respect has made a gloss of the evidence on the hand over meetings. This was a bit of to-ing and fro-ing in the evidence so we have extracted the relevant parts for your Honour in annexure A to our submissions and we say that from those extracts it is clear that Mr Birch who in his witness statement said that all of the employees had to hand over from the Komatsu supervisors, acknowledge that Komatsu supervisors at Bolga for example were not there 24 hours a day, that there was a back crew that didn't commence when their supervisor was on site. Our witnesses clearly and repeatedly said, and on cross-examination, that maintained that the hand over meetings conducted by the mine site supervisor who allocated the work. We are not saying that Komatsu supervisors don't also supervise the employees, your Honour.

PN1083

But what the evidence showed was that from each of the Komatsu employee witnesses for the union that the hand over talks were conducted by the mine site supervisors at Bolga or at Mount Thorley operation supervisors to all of the contractual employees involved in the maintenance which included Komatsu. There was some blurring of this with the use of the word toolbox talk and what was evident from our witnesses, your Honour, was that there was a separate toolbox talk essentially that was conducted about once a fortnight which was restricted to safety issues but their daily meetings at 7 o'clock in the morning or
7 o'clock in the evening conducted at Bulga for example were operational meetings where the work needed to be done or maintenance across the mine site was addressed by the Bulga supervisors. Your Honour doesn't intend to mark the submissions of the union?

PN1084

THE SENIOR DEPUTY PRESIDENT: No, thank you.

PN1085

MS GRAY: We have nothing further to say on this, unless your Honour has any questions.

PN1086

THE SENIOR DEPUTY PRESIDENT: No. Anything in reply?

PN1087

MR FERNON: No, thank you, your Honour.

PN1088

THE SENIOR DEPUTY PRESIDENT: Yes, I will reserve my decision.

<ADJOURNED INDEFINITELY [11.23AM]