C2005/2983, Transcript of Proceedings [2005] AIRCTrans 1178 (20 May 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 11536-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/2983

CENTENNIAL MANDALONG PTY LIMITED
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA COLLIERY OFFICIAL'S ASSOCIATION OF NEW SOUTH WALES
s.127(2) - Appln to stop or prevent industrial action
(C2005/2983)

SYDNEY

2.41PM, TUESDAY, 10 MAY 2005

Hearing continuing

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Davies?

PN2

MR D DAVIES: Thank you, your Honour. I seek leave to appear, together with MR J EDWARDS, who is the Regional Services Manager as Centennial Coal Pty Limited. Also present at the bar table is MR J MURPHY.

PN3

THE SENIOR DEPUTY PRESIDENT: Where is Mr Murphy from?

PN4

MR DAVIES: With my firm, Spark Kelman Lawyers.

PN5

MR ENDACOTT: I appear on behalf of the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, and with me in the gallery is MR G SHARP and MR C FENWICK, who are lodge officials of the Mandalong Mine Lodge. I oppose leave to be given to Mr Davies.

PN6

MR M KESTOUN: I appear on behalf of the Communications, Electrical, Plumbing Union.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. What is your attitude to leave?

PN8

MS KESTOUN: We too oppose that.

PN9

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union in this matter, and we support the opposition to leave being granted.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Davies, you might need to tell me something about the application first.

PN11

MR DAVIES: Yes, thank you, your Honour. Your Honour, it's an application for orders under section 127 of the Act, of course. We've filed behind our application draft orders and also a statement from the relevant mine manager, Mr John Hayward, a statement dated 9 May 2005. That statement outlines the facts of the matter, your Honour, however, I'll briefly summarise the facts. The relevant certified agreement is the Cooranbong Colliery Mandalong Mine Development Enterprise Agreement 2002. Copies of that certified agreement are available if your Honour requires those.

PN12

Mr Hayward's statement outlines that in August 2004 an agreement was reached for a short term bonus scheme under which employees would receive the sum of $300 a week. I'm instructed that that bonus can extend to up to $340 a week for employees who work at the coal face, they can receive the higher amount, so it's a bonus that extends from $300 and $340 a week. Now, in January and February 2005 proposals by Centennial Mandalong were put forward for a new bonus scheme. The respondents to this application sought a scheme which would result in payments of $750 a week, and on 18 February 2005 industrial action was threatened and orders were sought and obtained under section 127 of the Act.

PN13

The orders sought on that occasion and obtained are in similar terms to the orders we seek today, your Honour, and copies of those orders granted by Commissioner Roberts are available. Now, since 18 February this year there's been a further
11 meetings between the parties on the bonus scheme. That's outlined in Mr Hayward's statement. The issue remains unresolved. Throughout Centennial Mandalong has paid and does continue to pay the sum of $300 to $340 a week under the scheme, so the bonus continues to be paid currently.

PN14

Centennial Mandalong has received notices of an intention to take industrial action from some of the respondents to this matter, and I should tender those, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Find for me a copy of the agreement at the same time, thank you.

PN16

MR DAVIES: Yes, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: When does the agreement expire?

PN18

MR DAVIES: On 6 August 2005, so the agreement is current.

PN19

THE SENIOR DEPUTY PRESIDENT: And the bonus agreement expired on
4 March, short term agreement?

PN20

MR DAVIES: That's correct, your Honour, yes.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Have a seat for a moment, thank you.

PN22

MR DAVIES: Yes, thank you, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: I have one here from the Colliery Officials Association, the CFMEU and the AMWU.

PN24

MR DAVIES: Yes, your Honour, what those notices- - -

PN25

THE SENIOR DEPUTY PRESIDENT: Is that the only three there are though?

PN26

MR DAVIES: That's correct, your Honour, yes.

PN27

THE SENIOR DEPUTY PRESIDENT: In relation to these matters you say that there is industrial action in breach of the agreement, that you've been served with notices but it's not protected action under the Act?

PN28

MR DAVIES: Exactly, your Honour, yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Your position this afternoon is?

PN30

MR DAVIES: Is that that's in breach of the Act, and that we seek- - -

PN31

THE SENIOR DEPUTY PRESIDENT: No, in relation to these proceedings what is your position? Do you intend to call any evidence?

PN32

MR DAVIES: Yes, your Honour. We have Mr Hayward available to give evidence in connection with his statement.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. That's all at the moment thank you, Mr Davies.

PN34

MR DAVIES: Yes, thank you, your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Mr Endacott, why wouldn't I grant leave?

PN36

MR ENDACOTT: I beg your pardon, your Honour?

PN37

THE SENIOR DEPUTY PRESIDENT: Why should I not grant leave?

PN38

MR ENDACOTT: Well, leave shouldn't be granted because there are specific tests that direct the Commission in applying discretion with respect to the granting of leave of a legal representative. And even though my friend didn't specify which of the 42(3)(b) or (c) he intends to rely upon, or both, it's quite clear, we submit, that there is, in fact, a hurdle that exists in the sense that it's not automatic leave be granted, that there are certain areas, and that is, having regard to the subject matter of the proceedings there are special circumstances. So there has to be something in the proceedings the subject matter of the proceeding, and that there are special circumstances that make it desirable that a party may be represented.

PN39

Now, we would say a 127 is in the modern industrial environment, unfortunately, bread and butter for this Commission, as in - I mean, I think employers have actually forgotten where the 9 button is on their keyboard to type in a 99. So we would say there's nothing unusual with respect to a section 127, and we would also say that my friend has made - and this is Mr Davies, my friend - has made no effort to identify what is the specific subject matter, what are the special circumstances that may be desirable, and we would say he hasn't identified those two components other than just to say what the evidence will be.

PN40

It seems to me pretty stock standard in any sort of evidence the employer brings to justify a 127 application, or try to justify a 127 application. So we would say that having regard to the subject matter, which is a standard 127, and that there are no special circumstances that make it desirable to be represented.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Kestoun and Mr Morrison, is your submission, me too?

PN42

MR MORRISON: Yes, except, your Honour, I would like to add that the particular, the 42(3)(c) of the Act, it states that the Commission must be satisfied the party can only be adequately represented by counsel, this sort of arrangement, not expertly and adequately. And I would suggest that the representatives of the company here today are quite able to adequately represent the company's interests in this application.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Davies, what do you say in response to that? What is Mr Edwards doing here if he can't do this?

PN44

MR DAVIES: Well, your Honour, let me put several matters to you, and I will deal with that point in connection with Mr Edwards. The subject matter of the proceedings is certainly significant, particularly to our client.

PN45

THE SENIOR DEPUTY PRESIDENT: Well, all the proceedings in this Commission are significant.

PN46

MR DAVIES: Yes, I appreciate that. But the fact of the matter is, your Honour, that they're significant for our client in that the industrial action that's been threatened will cost our client in the order of three quarters of a million dollars, so it's a particularly significant matter for our client and not a bread and butter matter, as it were, but a matter that they take great interest and concern over. Section 127 orders, of course, although the Commission may deal with many applications of 127 orders, have significant consequences.

PN47

The mine manager Mr Hayward is not in a position to represent the employer today. He has made a statement and may be called upon to give evidence in connection with his statement, so he cannot be a representative as well. Mr Edwards is not in possession of all the facts, has never appeared in a matter such as this and is not in a position today to represent the applicant. So there are special circumstances.

PN48

THE SENIOR DEPUTY PRESIDENT: Mr Davies, the fact is that you weren't in possession of all the facts before you asked the questions and got briefed either. That is what happens in these circumstances. I'll allow you to have leave today, but the fact is that in most circumstances I do not allow leave. My view is that the scheme of the Act is one that encourages the parties to deal together and that in most cases the company is better served by being able to do that face to face in the same proceedings. For today's purposes I'll allow you to represent.

PN49

MR DAVIES: Yes, thank you, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: Particularly that is the case in any 170LW and 99 proceedings.

PN51

MR DAVIES: Yes, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. If you wouldn't mind for the moment, Mr Endacott, seeing you seem to be the voice at the moment, would you like to tell me why it is you say that the industrial action that is the subject of these matters is protected action just in a broad way so I understand what the issues are.

PN53

MR ENDACOTT: Well, yes, I can. It's protected industrial action because there has been a bargaining period initiated by the respective parties. That bargaining period has been - and we draw evidence on this - being initiated in accordance with the requirements of the Act, that there has been discussion regarding - a term of the bargaining period includes bonus, but there are other matters. There has been discussion ongoing about the certified agreement to apply, and at a meeting that occurred on 4 May there was an issue that was important for the further facilitation of the making of an agreement, and that is whether or not the company would acquiesce to bonus being included in the terms of the new proposed agreement and the quantum of that agreement after consultation with the employees, and in discussions with their unions they decided to take protected industrial action.

PN54

Now, we say protected industrial action is open to the employees because there is no certified agreement that has operation at law that currently binds the employees, and we say this is, on a reading of the agreement the company proposes, is clear and precise. And that is, your Honour, if you look at the certified agreement on its face, it's called the Cooranbong Colliery/Mandalong Mine Development Enterprise Agreement 2002. And you will all note that we're referring to here the Mandalong mine, and the reason is because the Cooranbong Colliery, as is envisaged under the terms of that agreement, no longer exists, that the Mandalong Mine Development no longer exists, in that the development has happened and the mine is now a long wall operation, and the structure of the agreement was quite clear that the mine, as envisaged was to be regulated by this agreement, only operated until the point the employees used the drift of the Mandalong mine to enter the mine, and the normal operations of that mine commenced. Now, I can take you to the provisions that would describe it.

PN55

THE SENIOR DEPUTY PRESIDENT: There's no need to do that now. No doubt you'll get to do it at length.

PN56

MR ENDACOTT: Yes. And so we say that the employees are protected.

PN57

THE SENIOR DEPUTY PRESIDENT: You say this agreement doesn't operate in relation to work that is currently being performed by the employees at this mine at all?

PN58

MR ENDACOTT: Well, not in a manner that would prohibit the industrial action being protected, in that I can explain that. There's an agreement between the parties that they will honour the terms of the certified agreement at the new operation as it forms a contract of employment between them, but it doesn't operate for the purposes of a binding certified agreement in that envisaged under the Act, which would preclude protected action being able to be taken, and therefore we say that the action is capable of being protected. Well, it is protected industrial action and we've followed the normal processes in negotiating a certified agreement.

PN59

THE SENIOR DEPUTY PRESIDENT: Do you understand that was the position of the union, Mr Davies?

PN60

MR DAVIES: Did I understand that previously, your Honour?

PN61

THE SENIOR DEPUTY PRESIDENT: Yes.

PN62

MR DAVIES: No. That's a new one, your Honour, but I'm ready to deal with it.

PN63

THE SENIOR DEPUTY PRESIDENT: All right.

PN64

MR ENDACOTT: Well, if I can just respond to that first issue?

PN65

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't matter if he was or not. I was just asking him in case he wanted some time to give some consideration to what he has just heard. Do you want to take some instructions on that?

PN66

MR DAVIES: Well, perhaps if I deal with it briefly and then if necessary I may do that, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: What I don't need is to hear your arguments. I've only asked all of these questions, Mr Davies, so I can figure out what it is and what structure the hearing might take and what its timing might be, so I understand what the issues were. For your own purposes do you need to get any instructions on that now?

PN68

MR DAVIES: No, your Honour, I don't need to do that now. There is one other point I would like to make, your Honour, which is an issue in the proceedings, and that concerns the nature of the notices and the various periods of threatened industrial action. Your Honour will note from the notices that I've tendered that the periods of threatened industrial action differ in that the notice received from the CFMEU indicates that industrial action will run from 10.30 pm on Thursday, 12 May through to 6.30 am on Saturday, 14 May.

PN69

The AMWU indicates that industrial action will run from 12.01 am, Friday, 13 May through to 6.3 pm on Saturday, 14 May. And the COA indicates that industrial action will run from 10.30 pm on Thursday, 12 May through to 6.30 pm on Saturday, 14 May.

PN70

THE SENIOR DEPUTY PRESIDENT: Where is the COAs - - -

PN71

MR ENDACOTT: I haven't got that either.

PN72

MR DAVIES: There's several issues in connection with the COAs material, if I can put it that way, your Honour, in that the COA is not a registered organisation, but particularly if I take your Honour to the letter which is dated 7 May 2005, and your Honour will find that's six pages from the back, and it's the eighth page, and it's at that point the COA indicates that industrial action in the form of a stoppage of work will commence at 10.30 pm on Thursday, 12 May, and conclude at 6.30 pm. Whilst we're identifying issues, your Honour, there are a host of issues which I can address later in connection with the COAs application.

PN73

THE SENIOR DEPUTY PRESIDENT: Have you served the members of the COA?

PN74

MR DAVIES: Yes, indeed.

PN75

THE SENIOR DEPUTY PRESIDENT: Have you served their members?

PN76

MR DAVIES: Yes. No, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: If you're not going to get an order against the COA, it not being an organisation, you may need to- - -

PN78

MR DAVIES: In any event, your Honour, there's a range of matters at the appropriate point that I wanted to put to you in connection with the whole issue concerning the COA, but perhaps we can leave that till now. I indicated to you before, your Honour, that the bonus scheme had expired but, of course, I also indicated to you before that it continues in operation in that the company continues to pay the bonus, and that should be made clear. Bonus payments have not been withdrawn. If your Honour pleases.

PN79

THE SENIOR DEPUTY PRESIDENT: Do you want to put something, Ms Kestoun?

PN80

MS KESTOUN: If I may. As you will notice, in the protected action notices that Mr Davies has handed up there isn't actually one from the CEPU. They haven't actually threatened any industrial action, so I'm unsure as to why we've been mentioned in these orders.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, why is that?

PN82

MR DAVIES: Your Honour will note in the statement of Mr Hayward that he called a meeting of employee representatives of the respondents to discuss the notice, this is at paragraph 17 of his statement on page 2, and he indicates there that:

PN83

On 9 May I called a meeting with employee representatives of the respondents to discuss the notice received from the CFMEU. At 1.30 pm I was informed that the dispute was in connection with the bonus and that members of all four respondents will be taking industrial action commencing at 10.30 pm on Thursday, 12 May 2005.

PN84

So it was our understanding that that was the case in connection with the CEPU, but clearly if it's not - - -

PN85

THE SENIOR DEPUTY PRESIDENT: Who was he informed by?

PN86

MR DAVIES: The relevant employee representatives from each of the unions, and he could give evidence as to their names, your Honour. But if the CEPU are indicating to us that there is no threat of industrial action, then we clearly wouldn't be in a position to seek orders against them. And our orders at an appropriate juncture when they come to be discussed, your Honour, could be amended in relation to that.

PN87

THE SENIOR DEPUTY PRESIDENT: So you want to remove any application in relation to CEPU?

PN88

MR DAVIES: Given that the CEPU have, as I understand it, given an undertaking that there is no threat of - - -

PN89

THE SENIOR DEPUTY PRESIDENT: No. They have just told you that they've served a notice. I don't think they've said anything at all.

PN90

MR DAVIES: Well, perhaps if the CEPUs position is clear as to whether or not, quite apart from the issue of notice, are they going to be taking industrial action by way of withdrawal of labour this week or not, then I can get some instructions in relation to whether or not we will continue to seek orders against them.

PN91

THE SENIOR DEPUTY PRESIDENT: You should consider whether you want to continue to do that. It's your application. There's no notice of intention in either Mr - who is the person who is giving evidence here this afternoon?

PN92

MR DAVIES: Mr Hayward, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: Either Mr Hayward has been told by an officer of the CEPU or he hasn't. He hasn't been served with a notice. It's really a matter for Mr Kestoun, whether she wants to make the situation clear or not.

PN94

MR DAVIES: Yes, thank you, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: Do you wish to add anything further, Ms Kestoun?

PN96

MS KESTOUN: Your Honour, if the CEPU is intending to take industrial action we will file a notice under section 170MO as it states in the Act. We can't take any industrial action in time with the other notices anyway because there are
no - we won't be able to have three clear working days.

PN97

THE SENIOR DEPUTY PRESIDENT: The answer is no.

PN98

MR DAVIES: Yes, thank you, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: In that case you will amend your orders not to seek any order against the CEPU.

PN100

MR DAVIES: Given that undertaking, yes, that could be done, your Honour.

PN101

THE SENIOR DEPUTY PRESIDENT: I don't think it's an undertaking, it's a statement of the union's present position. I don't think she is giving any undertakings, Mr Davies. She is telling you that no notice has been served and, as she understand it, there's no present intention to serve such notice.

PN102

MR DAVIES: Yes.

PN103

THE SENIOR DEPUTY PRESIDENT: I think that's as far as she has gone. I don't think you can characterise it as an undertaking, right?

PN104

MR DAVIES: Right.

PN105

THE SENIOR DEPUTY PRESIDENT: In that case, Ms Kestoun, you are excused.

PN106

MS KESTOUN: Thank you.

PN107

THE SENIOR DEPUTY PRESIDENT: Mr Davies, do you want to call your client?

PN108

MR DAVIES: Yes, thank you, your Honour. I've just had a discussion with Mr Endacott. He fears I think - and perhaps he can speak to this - but he fears I think that he may call evidence by way of reply. If that's the case, then any potential witnesses that he has ought leave the room.

PN109

THE SENIOR DEPUTY PRESIDENT: They certainly should.

PN110

MR DAVIES: That would be appropriate.

PN111

MR ENDACOTT: Yes. The only point that I wish to say to my friend, there's two lodge officials here, Mr Fenwick and Mr Sharp. I may use one or both depending what falls in cross-examination. The only problem is that I certainly want one of them to stay if possible because I understand the Commission gave a delay for the proceedings, but I've had a conversation with him prior to the commencement of the proceedings and most of the time I spent actually trying to get as many decisions that I thought were relevant from my office, driving down, picking up some clothes from home, and then speaking to them. It would be good if someone could give me instructions. That the only thing.

PN112

THE SENIOR DEPUTY PRESIDENT: Mr Davies, do you have any difficulty with one of the members remaining to instruct Mr Endacott?

PN113

MR DAVIES: No, I don't have a difficulty with that, your Honour.

PN114

THE SENIOR DEPUTY PRESIDENT: Given the circumstances of this being a 127 as opposed to the kind of proceedings where that would be usually right, I don't think it matters very much if they're both here really. Do you care one way or the other?

PN115

MR DAVIES: Well, Mr Endacott has made the offer - indicated that, you know, one person can instruct him, and that's presumably sufficient so I'm happy with that.

PN116

THE SENIOR DEPUTY PRESIDENT: Well, Mr Endacott, if you get into any difficulty at the end of the evidence of Mr Davies' witness you can always have an adjournment.

PN117

MR ENDACOTT: Yes.

PN118

THE SENIOR DEPUTY PRESIDENT: All right, one or other, take your pick, outside.

PN119

MR DAVIES: I call Mr John Hayward to give evidence, your Honour.

<JONATHAN HAYWARD, SWORN [3.08PM]
<EXAMINATION-IN-CHIEF BY MR DAVIES

PN120

MR DAVIES: Sir, would you state your full name for the record please?---My full name is Jonathan Hayward.

PN121

And what position do you hold with the applicant in these proceedings?---Mine manager, Mandalong Mine.

PN122

Sir, I think you've made a statement in connection with these proceedings, is that correct?---That's correct.

PN123

Do you have a copy of that statement with you?---No, I haven't, sorry.

PN124

I'll show you a copy of that statement. Is that a statement of yours of some two and a half pages of 21 paragraphs, dated 9 May 2005?---Yes, it is, that's correct.

PN125

And do you now adopt that statement as being true and accurate now under
oath?---Yes, I do.

PN126

Now, Mr Hayward, can I take you to paragraph 5 of your statement. Do you see there that you refer to a short term bonus scheme being paid, do you see
that?---Yes, I do.

PN127

Is any bonus still being paid?---Yes, it is.

PN128

And what bonus are you paying?---Currently paying $300 per week per employee.

PN129

THE SENIOR DEPUTY PRESIDENT: Do you wish to tender this statement?

PN130

MR DAVIES: Yes, your Honour, I do.

PN131

THE SENIOR DEPUTY PRESIDENT: Have you got a signed copy there?

PN132

MR DAVIES: Yes, your Honour.

EXHIBIT #CM1 STATEMENT OF JONATHAN HAYWARD

PN133

MR DAVIES: Now, Mr Hayward, can I take you to the second page of your statement, and do you see at paragraph 12 where you refer to various meetings taking place, do you see that?---Yes, I do.

**** JONATHAN HAYWARD XN MR DAVIES
PN134

And you refer to those meetings taking place in connection with the bonus scheme, do you see that?---Yes, I do.

PN135

Are you willing to have any further discussions in connection with the bonus scheme?---Yes, we are.

PN136

No further questions thank you, your Honour. Your Honour, might the statement be take as read?

PN137

THE SENIOR DEPUTY PRESIDENT: Yes. I presume you say the statement is the witness' evidence-in-chief except for those matters about which you've some additional questions?

PN138

MR DAVIES: That is correct, your Honour, yes.

PN139

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Endacott, are you in a position to cross-examine, or do you want some - - -

PN140

MR ENDACOTT: Yes, I'm in a position to cross-examine.

<CROSS-EXAMINATION BY MR ENDACOTT [3.12PM]

PN141

MR ENDACOTT: Thank you, Mr Hayward. My name is Mr Endacott, I work for the CFMEU. I don't know if we've met previously. I'll be asking you a few questions in cross-examination. You say at paragraph 1 that you're the mine manager at Centennial Mandalong Pty Limited?---Yes.

PN142

In fact, Centennial Mandalong is the name of the company?---Correct.

PN143

And you are the mine manager at the Mandalong mine?---That's correct.

PN144

Now, do you have any familiarity regarding the Cooranbong Colliery and the development that occurred at that colliery for the Mandalong mine?---Yes, I am.

PN145

When did you start at the mine?---4 January 2005.

PN146

And when you started what was the status of the Cooranbong Colliery?
---Cooranbong Colliery was connected to the development drift, the Mandalong drift and the entry to the mine workings was via both Mandalong Colliery and also Cooranbong Colliery, and the coal clearance system, the coal is still delivered through the Cooranbong mine workings for the Cooranbong colliery pit.

PN147

Okay. Now, the persons that the order seeks to cover, what entry do they use to enter the Mandalong mine?---Via the Mandalong drift.

PN148

And you know since for how long the employees have been using the Mandalong drift to gain entry to the Mandalong mine?---I think it was approximately November. I'm not 100 per cent sure on that, around about that time.

PN149

Are you aware that the CFMEU has notified of a bargaining period between the union, it's members and the company?---Yes.

PN150

I want to show the witness a document. I provide you with a copy of a document that has a cover page dated 21 February 2005, and attached to it is three pages?
---That's correct.

PN151

Have you seen that previously?---Yes, I have.

PN152

And do you accept that that constitutes the notification of initiation of bargaining period that the union provided to Centennial Mandalong Pty Limited?---The way I understand the process, yes.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN153

If I take you to the attachment to the document that says Notice of Initiation of Bargaining Period, which is the second page, and then if you turn over it says Attachment?---Is that attachment A?

PN154

Yes. Do you have a copy of that?

PN155

THE SENIOR DEPUTY PRESIDENT: No, I don't. I may provide a copy of that too. Your Honour, I would ask for that to be marked into evidence.

EXHIBIT #CFMEU1 THREE PAGE DOCUMENT DATED 21/02/2005

PN156

MR ENDACOTT: Well, if I take you to that document again. If I just take you to the second page you'll see at point C it says:

PN157

The matters that the initiating party propose should be dealt with by the agreement as set out in attachment A.

PN158

?---Yes.

PN159

And if I take you to attachment A to number 16?---Yes.

PN160

You'll see that that says bonus?---That's correct.

PN161

So you agree that the CFMEU members desire bonus to be a term of the certified agreement they're negotiating with the company?---It's included as a part of the
77 item wish list, yes.

PN162

So you do agree that the employees, the CFMEU members desire bonus to form a part of the certified agreement?---That's part of their wish list, yes.

PN163

Now, has the company informed the employees what their position is on bonus being included in the certified agreement?---Sorry, could you please repeat that?

PN164

Have you informed, from the company's perspective, the employees what the company's position is with respect to bonus being included in the certified agreement?---We advised our employees that we didn't want it as part of the enterprise agreement.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN165

And you agree that that's currently your position, that you don't wish bonus to be a part of the certified agreement?---That's correct.

PN166

So you've agreed that whether or not - well, first I'll take you back. Is the company and the employees currently discussing the terms of the new certified agreement?---Yes, we are.

PN167

And you will agree that one of the issues, one of the current issues of disagreement is whether or not bonus is included in that document, the bonus is included? Sorry, you will agree that one of the mattes that are at issue between the parties is whether or not bonus will be included in that agreement?---It was one of the issues raised amongst many other issues.

PN168

And it's fair to say the employees want it included, and the company
doesn't?---Correct.

PN169

You will agree that the company has been preparing draft certified
agreements?---Yes.

PN170

And that you will agree the company in preparing those draft agreements has not included within the terms of that agreement any reference to the bonus?---That's correct.

PN171

If I take you to paragraph 12 of your statement, you refer to discussions at which the bonus has been discussed?---That's correct.

PN172

But you will also agree on some of those days that they were actually certified agreement negotiations occurring?---That's correct, from 6 April.

PN173

So from 6 April, where you say bonus is being discussed, you will acknowledge that also involved discussion of the terms of the certified agreement?---Correct, the two separate issues.

PN174

Well, you will agree that the employees want bonus included in the certified agreement?---That is correct.

PN175

And the company has declined to accept that?---But this is a continuation of the bonus process which started on 18 February, where a number of bonus documents and incentive schemes have been tabled, and because that process was going on and we want to start the EA process, then there's an overlap of the two, those two separate issues.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN176

Say for example, on 27 April 2005, was bonus discussed in the context of the certified agreement?---Not in the context of the certified agreement that I'm aware of.

PN177

On 4 May 2005 was bonus discussed in the context of the certified
agreement?---Not that I'm aware of.

PN178

Well, when do you say it was discussed that they wanted the bonus to be included in the certified agreement?---It was raised on occasions.

PN179

Okay. So now you will say that bonus was raised in discussions with the certified agreement?---As an item that the unions wanted included as part of the EA process, yes.

PN180

And when that was raised the company rejected it?---Correct.

PN181

And they rejected it on 4 May 2005, didn't they?---There was a discussion on the bonus scheme in my recollections.

PN182

And the bonus scheme being included in the certified agreement?---I can't recall it being discussed as part of the agreement on that day. It has on occasions but I can't recall it being discussed on that day.

PN183

But when the bonus scheme has been discussed, and when it has been discussed they want it included in the certified agreement, that has been rejected by the company, hasn't it?---Correct.

PN184

THE SENIOR DEPUTY PRESIDENT: Can I just ask you a question, Mr Hayward. In paragraph 17 you say:

PN185

At 1.30 pm I was informed the dispute was in connection with the bonus and that members of all respondents would be taking industrial action.

PN186

MR ENDACOTT: Would you tell me who said that?---At that meeting there was Mr Sharp - sorry, he wasn't there - Mr Howells, Mr Parker representing the COA, Mr Fenwick, who is here today, and Mr MacBeth representing the CFMEU.

PN187

Thank you. Now, if I go back to the meeting of the - I'll move on to 6 May - sorry, 9 May. If I take you to paragraph 17, you say you called a meeting with the employees representatives of the respondents. How did you inform those employees that you desired the meeting to occur?---Through the outline superintendent.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN188

And at that stage you had received the notification of protected industrial action from the CFMEU?---Yes.

PN189

I'll just show the witness this document. I believe this document has already been provided to your Honour.

PN190

THE SENIOR DEPUTY PRESIDENT: Is that just the covering page, dated 6 May?

PN191

MR ENDACOTT: Yes, that's correct, there's only one page to that document.

PN192

Now, in paragraph 9 - sorry, that is the notification of protected action from the CFMEU that you just indicated you recalled seeing?---Correct.

PN193

I would mark that into evidence.

PN194

THE SENIOR DEPUTY PRESIDENT: I don't have a problem with that.

EXHIBIT #CFMEU2 NOTIFICATION OF PROTECTED ACTION

PN195

MR ENDACOTT: Now, you agree that it was the CFMEU in correspondence dated 6 May 2005, CFMEU2, that informed you that industrial action was being taken?---Yes.

PN196

And you agree that you were informed that the industrial action was being taken in support of a bargaining period?---I received this - all I received is this notification, and then I requested a meeting to find out what it was all about, and there was the meeting at 1.30 on 9 May. At that meeting I was advised of the - I asked the question, what was the dispute about, and the answer was bonus.

PN197

Thank you. Well, I take you to this. You were informed in correspondence dated 6 May 2005 by Robert Barker, the district secretary, that the industrial action was in support of claims and negotiations under the bargaining period initiated by the union bargaining period number 2005, 28 of 2005, weren't you?---By this notification, yes.

PN198

Yes. So you were informed that it was for the purpose of pursuing negotiations under the bargaining period?---By this notification, yes.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN199

Did you make any attempt to contact Mr Barker?---No, because the document was received late on Friday afternoon.

PN200

Are you aware of who the vice president of the district is that covers
Mandalong?---Vice president, Mr Murray I think.

PN201

I imagine you contacted Mr Murray?---No, I didn't.

PN202

Thank you?---Because that was about 5.30, 5 o'clock on Friday night I received the notice, it was quite late.

PN203

Did you seek to speak to Mr Sharp about the notification?---Not on the Friday night or the weekend.

PN204

You are aware that Mr Sharp is a member of the board of management of the northern district branch of the union?---I'm aware of that.

PN205

But you didn't contact him?---No, I didn't.

PN206

So, in fact, no employee or officer of the union has informed you - so you agree that the CFMEU officers and employees have only informed you that industrial action is for the purposes as set out in 6 May 2005 correspondence?---Except with the qualification of the meeting on Monday afternoon at 1.30.

PN207

Was that with an employee or officer or official of the CFMEU?---Yes.

PN208

Who as that?---This is on Monday afternoon at 1.30.

PN209

Well, who did you speak to?---Mr Fenwick and Mr MacBeth.

PN210

Mr Fenwick. They aren't officers, employees or officials of the CFMEU, you will agree with that, they're lodge delegates?---They're lodge delegates but they're officials of the colliery, union officials of the colliery.

PN211

So you didn't understand that they weren't officials of the CFMEU when speaking to those about the letter you received from the district secretary?---They're employee representatives representing employees of Mandalong mine and as such they're the people that I deal with at the mine.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN212

But you weren't aware they weren't officials of the union or officers or employees when you spoke to them about what this letter was about?---Officials representing the employees at Mandalong mine, and they're the people that I deal with.

PN213

THE SENIOR DEPUTY PRESIDENT: He is asking you a specific question though, Mr Hayward. Please listen to the question. I understand that you understand that they are onsite representatives of the employees. Do you understand that they are not officials of the CFMEU?---I wasn't sure of that. That wasn't clear to me.

PN214

MR ENDACOTT: If I take you back to the meeting. I put to you that at that meeting that Mr Fenwick told you that one of the issues, the issue was that they wanted the bonus, they wanted to reach agreement on the bonus, and it included within the certified agreement, I put to you he said that?---Yes. What he - I asked him the question, what's the dispute over, and Mr Fenwick told me that it's bonus. Then I was advised that they wanted it as part of the EA, that's correct.

PN215

Okay. And you didn't put that in your statement that you provided?---No, that's correct.

PN216

Is there a reason why you didn't put it in the statement?---No.

PN217

Would you have thought that was relevant in describing the nature of the dispute to say they wanted bonus included in the EA, the certified agreement they were negotiating?---Not really. The issue to me was the dispute was over bonus, and discussions were still undergoing on the bonus.

PN218

So you didn't think that was relevant to say that they wanted the bonus included in the certified agreement they were negotiating?---The main issue as far as I was concerned was that they were going on strike over bonus negotiations only.

PN219

You refer to, in paragraph 10, you refer to there was industrial action on 18 February 2005?---That is correct.

PN220

You also indicated that there was orders under section 127?---Yes.

PN221

That was sought and obtained. Did you attend the proceedings that day?---No, I didn't.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN222

Were you informed that no union attended that day at those proceedings to defend the 127?---I wasn't aware who actually attended.

PN223

Well, were you informed about the union's attendance at all at those
proceedings?---I'm not sure.

PN224

You can't recall whether or not you were informed?---I can't recall who was actually - who attended that meeting.

PN225

I mean the Commission proceedings?---Mm.

PN226

So you weren't aware that no union attended those proceedings?---I'm not sure. All as I was aware of, that was very late on Friday night, that these proceedings were held.

PN227

But you were aware that 127s involving the Mandalong mine, that they were being listed at such short notice that the unions were having trouble attending, are you aware that that was the case?---I wasn't aware that was the case.

PN228

Okay. Well, I have no further questions on that point. I would like to provide the witness with a copy of the document. I don't have copies of that document, your Honour.

PN229

Could you identify that document to the Commission?---It's a document entitled Mandalong Mine Enterprise Agreement 2005, negotiation draft 2.

PN230

And when earlier in my cross-examination I indicated that the company had been providing documents in the certified agreement discussions, that was one of the documents provided?---That is correct.

PN231

And when you responded by saying that the company has not included in those documents a reference to bonus, that's a document you were also referring to there?---Correct.

PN232

And you can confirm that that document doesn't contain a bonus scheme?---That is correct.

PN233

I would like that marked.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN234

THE SENIOR DEPUTY PRESIDENT: Is that the current agreement?

PN235

MR ENDACOTT: No. That's the one that's been negotiated within the bargaining period. I will tender a copy of the current certified - - -

PN236

THE SENIOR DEPUTY PRESIDENT: Well, you don't need to tender a copy of the Commission's own document.

EXHIBIT #CFMEU3 MANDALONG MINE ENTERPRISE AGREEMENT 2005, NEGOTIATION DRAFT 2

PN237

MR ENDACOTT: Now, I would like to show the witness a copy of a certified agreement. You will agree, Mr Hayward, that appears to be a copy of the Cooranbong Colliery/Mandalong Mine Development Enterprise Agreement 2002?---That's what it's titled, yes.

PN238

Thank you. Have you seen that document previously?---Yes, I have, not in this format.

PN239

It's the format downloaded off the Wagenet, I believe it's the same document. I just want to take you to this document. If you go to clause 2, Definitions, and it says there:

PN240

Mandalong is the underground mining operation and associated facilities within the Mandalong Mine Colliery Holding.

PN241

?---I'm sorry, which point is this?

PN242

This is point 2.10?---That is correct.

PN243

And is it your understanding that that's where the employees are currently working that will be affected by any order made by this Commission?---That's correct, Colliery Holding also includes the Cooranbong site.

PN244

It's got 2.11, it says normal operation at Mandalong, and I'll read that definition to you. It says:

PN245

Normal operation of Mandalong is when the Mandalong work force is required to use the Mandalong surface facilities and travel to the workplace via the Mandalong decline.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN246

?---To the workplace, agreed.

PN247

And so you'll agree that what's happening at Mandalong Colliery at the moment is the normal operation of Mandalong?---Yes, which also includes access to the Cooranbong workers. We say workplace, but there's also people that, because of the conveyor system, the public system, ventilation system in Cooranbong still all part of the same operation.

PN248

Yes. But you will agree that they are now using the Mandalong surface facilities and travel to the workplace via the Mandalong decline?---Yes. There's also access via Cooranbong for maintenance and conveyors and roadways.

PN249

So what if you take, for example, Mr Sharp here and Mr Fenwick, would they be using the Mandalong decline to enter the Mandalong mine?---Yes.

PN250

And the orders you seek here would seek for those people to go to work and not take the protected industrial action?---Well, they want to - yes.

PN251

Thank you. Now, you will see here, if I take you to 2.26, the certified agreement gives a definition of the mine, and you will say:

PN252

The mine is the underground coal mining operations and associated surface facilities where employees covered by this agreement are employed. It does not extend to the normal operation of Mandalong as defined by 2.11.

PN253

You will see that?---That is correct.

PN254

So when this document uses the term mine it's actually not talking, it doesn't cover or doesn't extend to the normal operations of Mandalong as defined in 2.11, you will agree with that, don't you?---I don't understand what you're saying.

PN255

Well, I'm saying the definition of the mine in this document does not extend to the normal operations of Mandalong as defined in 2.11, you agree with that, don't you?---"Underground coal mining operations and associated surface facilities," I see it as the same thing, it's to - - -

PN256

So your view is the word mine also means the employees that are using the Mandalong drive to access the Mandalong mine?---The mine colliery holding, which under the Mining Act the colliery holding includes Cooranbong mine.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN257

So what does, "Not extend to the normal operation of Mandalong as defined by 2.11" mean?---Normal operations is where they're required to use the normal - the Mandalong surface facilities, to travel via the Mandalong decline.

PN258

Yes, so what does that mean? It does not extend to that? It means the
mine - - -?---It means access to their workplace via the Mandalong decline.

PN259

So you'll agree the definition of "mine" given in 2.6 doesn't extend to that, does it?---That's not quite clear to me.

PN260

So your view is, it's just not clear?---That's correct.

PN261

THE SENIOR DEPUTY PRESIDENT: Not clear to him, anyway.

PN262

MR ENDACOTT: Yes?---Not clear to me. I didn't write the clause.

PN263

THE SENIOR DEPUTY PRESIDENT: You'll have to make it clear.

PN264

Now, you'll agree that the development of the Mandalong Mine was the development for the purposes of establishing a long wall? Do you agree that that was the case?---Correct.

PN265

And you'll agree the long wall is now operating?---Yes.

PN266

If I take you to clause 4, Duration; it says 4.2?---Yes.

PN267

It says:

PN268

Four months prior to the normal operation of Mandalong -

PN269

And you'll agree that normal operation of Mandalong is now occurring?---Yes. I imagine the long wall operational.

PN270

Okay, 4 months; and you say that happened in about November?---No. November was when the access to the Mandalong workers - access to the work was via the Mandalong- - -

PN271

Drive?---- - - decline. The commencement of what we considered is normal operations is when the long wall commenced. Which was the end of January this year.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN272

But you agree that this definition that you just gave is not consistent with the definition in 2.11?---I think it's inconsistencies - inconsistencies in the wording there.

PN273

If I take you back to the clause, you'll agree that normal operations has continued, and it was either in November, when they started using the drive, or in January when the long wall started, that you understood the normal operations of Mandalong occurred?---Normal operations of the mine, you know, in a business sense, is when the long wall commenced operation. Prior to that, it was a project.

PN274

Well, I am saying for the purposes of 4.2, "Four months prior to the normal operation of Mandalong"; when do you say that was?---That's four months prior to January.

PN275

Okay. It says:

PN276

Negotiations can commence with any or all of the organisations that are signatories towards the agreement.

PN277

And then it goes on:

PN278

For a new agreement to cover the normal operations of the mine -

PN279

Then it says:

PN280

It is agreed that at this time, a new agreement may be negotiated under section 170LL of the Workplace Relations Act 1996, Greenfields Site, if required by the employer.

PN281

You agree that's what it says?---That's what it says.

PN282

Now, it was always the view of the company that when Mandalong started, that that was to be some sort of distinct or new operation. That's why you reserved the right to have the Greenfields Site agreement, wasn't it?---I'm not sure. I wasn't there at the time.

PN283

THE SENIOR DEPUTY PRESIDENT: I don't think this witness can take that any further.

**** JONATHAN HAYWARD XXN MR ENDACOTT
PN284

MR ENDACOTT: Yes. I'll take the witness to one last point on this issue, which is the employment and workforce reduction.

PN285

THE SENIOR DEPUTY PRESIDENT: All right.

PN286

MR ENDACOTT: I take you to that clause, and if you read it?---Sorry? What clause was that?

PN287

Clause 13, employment arrangements; is it your understanding that all the employees that were working at the Cooranbong colliery, Mandalong mine development, and are now working at the Mandalong colliery, were all given a letter informing them they had been successful in obtaining employment at the Mandalong mine?---I'm not aware of that letter before my - my starting at the colliery.

PN288

I have no further questions of this witness, your Honour.

PN289

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Morrison?

PN290

MR MORRISON: Yes. Thank you, your Honour.

<CROSS-EXAMINATION BY MR MORRISON [3.47PM]

PN291

MR MORRISON: Mr Haywood, if I can take you firstly to the statement that you have sworn to today, if I can take you to paragraph 17 of your statement regarding a meeting you called on 9 May?---Yes.

PN292

Who, from the AMWU, was in attendance at that meeting?---Steve Hayes? No - sorry, sir, I- - -

PN293

Were any identified AMWU officials at that meeting?---No, I don't think there was.

PN294

Have you participated at any meetings with officials of the AMWU?

PN295

THE SENIOR DEPUTY PRESIDENT: I think you should identify a period that you're asking. You mean since the service of the notice?

PN296

MR MORRISON: In fact, I might say- - -

PN297

THE SENIOR DEPUTY PRESIDENT: Since the notice of the intention to take industrial action?

PN298

MR MORRISON: Yes. On 28 April, you were aware of the AMWU initiating a bargaining period?---Yes.

PN299

Have you had any meetings with any officials from AMWU from 28 April this year regarding the log of claims that's involved in that initiation of the bargaining period?---I'm not sure we've got an AMWU representative- - -

PN300

Have you met with an AMWU delegate? Anyone who identified themselves as an AMWU delegate?---Not as an AMWU delegate.

PN301

An AMWU organiser? Mr Daniel Wallace, perhaps?---No.

PN302

Did you take any action when you received the initiation of a bargaining period on 28 April with regard contacting the AMWU?---No, I didn't.

PN303

You did not meet with anyone, to your recollection, as an official of the AMWU on 9 May?---No.

PN304

No. You did receive a letter on 9 May from Paul Bastian advising you of the notice by the AMWU to take intended industrial action?---Yes, I did.

**** JONATHAN HAYWARD XXN MR MORRISON
PN305

You recall that? Now, if I could take you to the enterprise agreement, entitled Cooranbong Colliery/Mandalong Mine Development Enterprise Agreement 2002?---Yes.

PN306

Just so I am clear, if I could take you to 2.11, Normal Operation of
Mandalong?---Yes.

PN307

What do you understand that to mean?---My understanding of that, normal operation of Mandalong, from an operational business perspective is when the long line was in operation, first year of the long line. That's what an operating mine may deem as a project.

PN308

To your understanding, is the Mandalong mine now what you would call the "Normal operation of Mandalong"?---Yes.

PN309

Yes. If I could take you to clause 3 of this agreement, Scope Application and Parties Bound, of this agreement?---Yes.

PN310

Do you agree where 3.1 says:

PN311

This agreement is binding on the following parties in relation to the operation of Cooranbong Colliery and the underground development work for Mandalong Mine.

PN312

?---Yes.

PN313

It does say that? Do you understand the underground development for Mandalong mine, does that mean the same as the normal operation of Mandalong?---No.

PN314

It does not?---No. It went in line with the - in 2002 was the - the Cooranbong mine was developing the Mandalong leases, before the Mandalong site was constructed.

PN315

So would you agree with me that the heading, "Scope of Application and Parties Bound" does not apply to the current operation of the Mandalong mine?---Not necessarily. It says, "In relation to the operation of Cooranbong Colliery" because this is a time when they're looking at - in 2002, before the - before the long wall was installed, before the - development were picked up - so it was in development phase, the mine, yes.

PN316

And it applied to that, but it doesn't apply to it now, does it?---Underground development - we're still doing underground development works. We are an operating mine, yes.

**** JONATHAN HAYWARD XXN MR MORRISON
PN317

An operating mine?---Yes, yes.

PN318

So the workers that your company is seeking the orders against are not in fact covered by clause 3? They are not involved in this work, are they?---I wouldn't read it that way.

PN319

How do you read it?---I'd read this - this is still applicable to the mine employees. Because they're employees of Mandalong, attending Mandalong work.

PN320

Yes, but are they involved in, in relation to the operation of the Cooranbong Colliery and the underground development works of Mandalong mine?---We're still doing underground development works.

PN321

But you yourself told us that's not the main business, is it?---No. We are an operating - we're an operating mine as a long wall, but we're still doing underground development work.

PN322

How much of the work is underground development work?---We're still doing a - a large part we're still doing the Delta entry drive which has got another four or five months of development work, which will take us up to about October.

PN323

What percentage of the workforce is involved in that work?---Probably around about 35 or 40 people, so - - -

PN324

Are they employed by your company?---They're contractors.

PN325

They're contractors? No further questions.

PN326

THE SENIOR DEPUTY PRESIDENT: Mr Davies?

PN327

MR DAVIES: Yes. Some brief re-examination, thank you, your Honour.

<RE-EXAMINATION BY MR DAVIES [3.55PM]

PN328

MR DAVIES: Sir, do you remember that you were taken to a draft certified agreement? I think it was identified as CFMEU3. Do you recall that?---Yes, yes.

PN329

Now, was that a final document?---No.

PN330

Are you open to changes in that document?---Yes.

PN331

I think you have a copy with you of the relevant certified agreement; do you have that?---Not the three versions. Draft 3 was handed up as a- - -

PN332

No, I am sorry, I am now talking about the actual certified agreement, the 2002 certified agreement?---Yes.

PN333

Do you have that? Can I just ask you to go to clause 2.11?---Yes.

PN334

Do you remember being asked some questions about that clause?---Yes.

PN335

Do you see that there's a reference to Mandalong surface facilities within clause 2.11?---Yes.

PN336

Were are the surface facilities?---Surface facilities are at the Mandalong site, which is the top of the - top of the- - -

PN337

And what are the surface facilities?---Surface facilities are bathrooms, offices, workshop, stores facility.

PN338

Now, who are those working in the Cooranbong area employed by?---Mandalong mine.

PN339

What agreement are those working in the Cooranbong area covered by?---This agreement.

PN340

Now, do people working in the Mandalong area travel to the surface?---Yes. Below the surface.

PN341

And people working in the Cooranbong area travel to the Mandalong area?---Yes.

PN342

Now, can I take you to clause 4.2 of that agreement?---Yes.

**** JONATHAN HAYWARD RXN MR DAVIES
PN343

Do you see that there's a reference in clause 4.2 to a Greenfields Agreement? Do you see the reference to "Greenfields site"?---Yes.

Perhaps if I just read it to you. The clause says:

PN344

Four months prior to the normal operation of Mandalong, negotiations can commence with any or all of the organisations that are signatories to this agreement for a new agreement to cover the normal operation of the mine. It is agreed that this time a new agreement may be negotiated under section 170LL of the Workplace Relations Act Greenfields Site if required by the employer.

PN345

You see all that?---Yes.

PN346

Now, has the employer ever required a Greenfields agreement?---Not that I'm aware of.

PN347

No further questions. Thank you, your Honour.

PN348

THE SENIOR DEPUTY PRESIDENT: You're excused, Mr Hayward. You can leave the witness box. You may come and go as you please.

<THE WITNESS WITHDREW [3.58PM]

PN349

THE SENIOR DEPUTY PRESIDENT: Mr Davies?

PN350

MR DAVIES: Yes, your Honour?

PN351

THE SENIOR DEPUTY PRESIDENT: I think you should tell me why the material I have heard already establishes any entitlement to an order under the section.

PN352

MR DAVIES: Yes, your Honour.

PN353

THE SENIOR DEPUTY PRESIDENT: So far as I understand it, and I will put this to you upfront so you can address me on it, your witness's evidence is that a notice of initiation of bargaining period dated 21 February was served and received on 22 February. A notice of intention to take industrial action dated 6 May was served and received on 6 May. The matters in dispute include a list of matters set out in attachment A to the notice of the initiation of a bargaining period, and included in that list was the matter of bonus. One of the matters in dispute is that the union seeks the inclusion of a bonus in the new certified agreement and the employer opposes that inclusion. That's one of the matters in dispute.

PN354

At the meeting on 6 May, which is referred to in paragraph 17 of Mr Hayward's statement, Mr Hayward refers to a site delegate, and saying that the bonus was in dispute and in his oral evidence he says that inclusion of bonus in the certified agreement was a matter of dispute. So, so far as I can tell, the matters in the bargaining period are matters of dispute, and one of those is the inclusion of a bonus in the new certified agreement due to renewal in August. Is it August 2005?

PN355

MR DAVIES: Yes, 6 August, your Honour. Yes.

PN356

THE SENIOR DEPUTY PRESIDENT: Do you disagree with any aspect of - you might have other things to say about it, but do you disagree with any of the matters I have summarised there?

PN357

MR DAVIES: Except to say this, your Honour, that it's our submission that
Mr Hayward's evidence was primarily focused upon the bonus, that on several occasions he gave evidence that he thought the point in dispute was the bonus, and it was clear from his evidence that that was the central matter. So it may be a question of emphasis, your Honour, but that's our submission in connection- - -

PN358

THE SENIOR DEPUTY PRESIDENT: All right. So your submission is, it's a matter of emphasis, and that I should infer from his focus that his view is that, primarily, the matter in dispute is payment of the bonus at present, and not inclusion in the certified agreement?

PN359

MR DAVIES: That's correct, your Honour. Yes.

PN360

THE SENIOR DEPUTY PRESIDENT: All right.

PN361

MR DAVIES: Here and now.

PN362

THE SENIOR DEPUTY PRESIDENT: But other than that emphasis, the matters I put to you are not matters that you contend with?

PN363

MR DAVIES: That's correct, your Honour.

PN364

THE SENIOR DEPUTY PRESIDENT: Right. Thank you.

PN365

MR DAVIES: Your Honour, perhaps if I turn, then, to the grounds and reasons for why we seek the orders; would that be appropriate to do that now, your Honour?

PN366

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN367

MR DAVIES: So, the first matter that we put to your Honour is that the industrial action threatened is not protected action as the certified agreement itself is current until 6 August 2005. Therefore, section 170MN of the Act becomes relevant, in particular, subsections (1) and (3). Section 170MN indicates that no industrial action during the term of an agreement may take place, and (3) indicates that if industrial action does take place, it will not be protected industrial action.

PN368

THE SENIOR DEPUTY PRESIDENT: Even if it's about a matter that's outside the current agreement?

PN369

MR DAVIES: I think the case that's being put to your Honour is that those matters, that is, the bonus and matters pertaining to the certified agreement, are relevant to the dispute. I don't think that's an issue, but I stand corrected on that, but it's as I understand the evidence put forward and the nature of the questioning. I see where your Honour is going, and I am of course aware that section 170MN has been considered in recent times in the M-West decision and the AIG decision. I don't think that's a matter that I need address your Honour because I think the tenor of the submissions from my friends is that there were a range of matters put forward in connection with this dispute.

PN370

It's not purely a matter of bonus. I don't think that argument is made against us, but if it is, I can deal with that. The other matter is the no extra claims clause which is currently contained within the agreement. I just take you Honour to that. It's at clause 5. It indicates:

PN371

During the term of this agreement, the parties will not pursue any claims unless such claims are provided for under this agreement.

PN372

Now, the no extra claims clause would cover the bonus sought, if your Honour took the view that the bonus was not covered by clause 3.6, but in any event, as I said before, it's put to the Commission, as I understand it, that there are a range of matters that are the subject of this dispute. Now, I'd like to take the Commission to the decision of the Federal Court in Hawker De Havilland Aerospace Pty Ltd, and I have copies of that. The full citation is Hawker De Havilland Aerospace Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, a decision of the Federal Court dated 14 December 2004.

PN373

This decision considered the application of section 170MN and the case involved an interlocutory injunction before the court. Central to that case was section 170MN and whether or not industrial action over coverage of, in this case, a share value trust was protected action. If I can take your Honour to page
11 where his Honour Goldberg J said at the second paragraph:

PN374

I turn also to clause 1.9 which contains a heading "No Extra Claims"

PN375

And he then referred to the specific no extra claims provision found within that particular agreement. He went on to consider that clause at page 12, the last paragraph, paragraph 38, and he went there with the M-West case, and your Honour is aware that the M-West decision followed on by the AIG decision, dealt with the issue of matters agreed or not agreed in a certified agreement, and whether industrial action taken in connection with matters that were not agreed or agreed was protected action or not. The judge there took the view:

PN376

The no extra claims clause in paragraph 1.9.1 was not a matter that was dealt with by Kenny J in her decision ...(reads)... subject of determination, consideration or submission by the parties.

PN377

So the judge makes the point there that this no extra claims clause was not a matter that was dealt with previously in the M-West judgment which was of course reviewed in the AIG case. The judge goes on to say over the page at page 13, paragraph 39, to deal with written submissions which were put. Then at paragraph 40 in particular, the judgment states:

PN378

What is an extra claim? It was submitted by counsel for the company that it covers the claims which are made by the unions ...(reads)... also raises a series question to be tried that it covers the claims now made by the respondents.

PN379

The judge was looking there at whether there was a serious question to be tried, but it's persuasive, in our submission. So what we say, therefore, is certainly by virtue of the no extra claims clause, then section 170MN becomes relevant and that section 170MN(1) and (3) ought to apply, and that this action contemplated cannot be protected action. That's our first submission.

PN380

THE SENIOR DEPUTY PRESIDENT: You say that is the case whether or not it is industrial action for the purposes of payment of the bonus during the term of this agreement, or payment of a bonus during the term of the next agreement? That is, inclusion in it?

PN381

MR DAVIES: Well, whilst soever there's a certified agreement in place, which is in it's current term we say is the case, but clearly when this agreement
expires- - -

PN382

THE SENIOR DEPUTY PRESIDENT: No. I mean, no matter what the subject matter of the dispute, as I understand Mr Endacott will say a dispute, that is concerned with about inclusion of the bonus to the new agreement and an inference to be drawn from what Mr Hayward's understanding is, that it related to payment of a bonus at the present time. Have I characterised it briefly?

PN383

MR DAVIES: I think so, your Honour, yes.

PN384

THE SENIOR DEPUTY PRESIDENT: You say that the no extra claims clause operates in any event on that basis?

PN385

MR DAVIES: That's correct. Yes. No matter what the subject matter. So the first point I suppose, your Honour, is that the subject matter of the dispute is primarily but not exclusively bonus - that seems clear - and the second point is that in any event, the no extra claims clause operates as I have outlined, in looking at that decision, yes. The next point we make, your Honour, and the second ground and reason, is that it's apparent that the matter is being reasonably dealt with by Centennial Mandalong, that the applicant still continues to pay the current bonus, notwithstanding that an argument may have been available that it had expired; it continues in operation.

PN386

There has been attendance at a number of meetings called, 11 meetings in all, and a number of revised proposals put forward by Centennial Mandalong and the mine manager has indicated that he's willing to continue his discussions in connection with the bonus and that certainly in connection with the draft certified agreement that was put forward, that there was nothing final in that draft, that he was open to changes to that. It's apparent that it's a draft put forward for the purposes of facilitating negotiations; it couldn't be put any higher than that, in our submissions. The fact is, is that the employer puts that it can't sustain a bonus payment at the level of $750 a week, but it is willing to continue its negotiations in connection with the bonus.

PN387

So when the Commission comes to look at the conduct of the employer, the employer has dealt with the matter reasonably to date and has outlined a course of action for the matter to continue to be dealt with. That is, that discussions ought to continue. The third matter we put forward is that the disputes procedure in the agreement is relevant, and clause 16.3 of the agreement indicates that work out to proceed under the conditions prevailing before the grievance or the dispute. So when your Honour comes to exercising your discretion to make orders, when you evaluate the character of the industrial action, you can see that in all the circumstances, it's not legitimate.

PN388

I should now address your Honour in connection with the COA material, in that we say there are several defects within the notices put forward by the COA which would render their threatened industrial action, notwithstanding our submissions, not protected in any event. Perhaps if I just quickly summarise those, your Honour?

PN389

THE SENIOR DEPUTY PRESIDENT: Are they entitled to serve a notice?

PN390

MR DAVIES: Well, I will be fairly quick on this, your Honour, but if I could just take you to the notice which you will find - it's dated 7 May 2005. I referred you to it briefly before.

PN391

THE SENIOR DEPUTY PRESIDENT: Yes, I have seen that.

PN392

MR DAVIES: It is page 8 of that bundle. We say three things about that notice; the first is the heading itself states:

PN393

Notification of initiation of bargaining period.

PN394

Now, if it's the intention that this be a notice of intended industrial action under section 170MO, then the heading is clearly wrong. It refers to, presumably, a notification of bargaining period, so there's a defect there. The notice also refers to:

PN395

In accordance with the requirements of section 170MI(2).

PN396

That section of course refers to the initiation of a bargaining period, so this isn't a proper notice under section 170MO, therefore, the requirements of section 170MO aren't met and this can't be protected action. Furthermore - and this is the third point - notification of a bargaining period, your Honour would see, is dated 7 May 2005, and section 170MK states that when a bargaining period begins, and it is seven days after - the bargaining period begins seven days after the end of seven days from 7 May. So the bargaining period couldn't begin until 15 May. Section 170ML(2) only refers to protected action during the bargaining period.

PN397

So protection action couldn't commence on 12 May in line with the notice. So there are three defects with the notices, in our submission, and that ought to be sufficient to take it out of the realm of protected action. The final matter that I ought to address your Honour on concerns the argument of Mr Endacott which he took us to in part, and that concerned the submission, I think, that there is in effect no certified agreement in place at the moment. Perhaps if I could just briefly address your Honour on that, and then if Mr Endacott has anything more to say, I might reserve a right to reply, perhaps, if that would be appropriate?

PN398

I can deal with that reasonably quickly. If we turn to the terms of the
agreement- - -

PN399

THE SENIOR DEPUTY PRESIDENT: Well, I heard from you at this moment because I though that I needed to hear from you to establish in my mind whether there was any need to move further.

PN400

MR DAVIES: Yes, your Honour.

PN401

THE SENIOR DEPUTY PRESIDENT: Putting to you the matters that were in the evidence and hearing from you as to whether you said that they amounted to a proper application, facts on which you could make a proper application under the section and I have heard you about that. It seems to me that you have raised matters that indicate that there is such a case to answer. I will hear from
Mr Endacott, and then in relation to the matters that he says, I think both you and I will benefit from hearing him putting the case at greater length in relation to the application of the agreement than he did by simply putting matters to the witness. So I won't call upon you to answer that at the moment.

PN402

MR DAVIES: Thank you, your Honour.

PN403

MR ENDACOTT: Thank you, your Honour. Your Honour, I asked Mr Fenwick to - Mr Fenwick left the agreement so that there could be an opportunity then to give evidence would be retained by - I wouldn't be affected, not retained, affected by the evidence given, so it would be clear. From the purposes of the CFMEU pursuing the case, it appears that there's one argument on the evidence that's before the Commission. There's only one point that we'd really like to bring evidence on in our defence, and that is about the status of the certified agreement.

PN404

For that, we really need, certainly I need, to bring in evidence from an official of the union that either as overview scope of the mine and/or someone that was involved in the negotiations so that we can develop our argument about the agreement not apply. Certainly, I am able to make a submission- - -

PN405

THE SENIOR DEPUTY PRESIDENT: Do you want to do that tomorrow?

PN406

MR ENDACOTT: Yes. I don't expect the evidence will be- - -

PN407

THE SENIOR DEPUTY PRESIDENT: You don't intend to call anybody other than that now?

PN408

MR ENDACOTT: No, no. I was going to try and arrange for Mr Murray to be here, depending on what he would say. I was tempted to go over and hop in the witness box myself, but no, I don't think that would be the best way.

PN409

THE SENIOR DEPUTY PRESIDENT: Especially not - the cross-examination would be awkward.

PN410

MR ENDACOTT: Yes. Really, the issue we just want to bring evidence about - and I don't think it would be lengthy - would be about, if I can get the appropriate witness from our office, the discussion about what was happening when the Cooranbong Colliery/Mandalong development concluded, what had happened. I tried to take the manager's witness to it, but it was evident that he wasn't familiar enough with that arrangement.

PN411

THE SENIOR DEPUTY PRESIDENT: No, I don't think he was in the employ of this mine early enough to have any input into that.

PN412

MR ENDACOTT: Yes. Really, so there can be no confusion about how much time may be required, really the issue we want to get to, even though it's referred to in many parts, the crux of it is in section 13, Employment and Workforce Reduction, which is 13.1 which is the very last sentence. It says:

PN413

The normal operations of Mandalong will take place under a new agreement which may be negotiated under sections 170L of the Workplace Relations Act, Greenfields Site.

PN414

I was just want to bring evidence about the negotiations around that.

PN415

THE SENIOR DEPUTY PRESIDENT: Do you want to give Mr Murray a ring and see when he can get here? We'll just go off the record for a moment. Thank you.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

JONATHAN HAYWARD, SWORN PN119
EXAMINATION-IN-CHIEF BY MR DAVIES PN119
EXHIBIT #CM1 STATEMENT OF JONATHAN HAYWARD PN132
CROSS-EXAMINATION BY MR ENDACOTT PN140
EXHIBIT #CFMEU1 THREE PAGE DOCUMENT DATED 21/02/2005 PN155
EXHIBIT #CFMEU2 NOTIFICATION OF PROTECTED ACTION PN194
EXHIBIT #CFMEU3 MANDALONG MINE ENTERPRISE AGREEMENT 2005, NEGOTIATION DRAFT 2 PN236
CROSS-EXAMINATION BY MR MORRISON PN290
RE-EXAMINATION BY MR DAVIES PN327
THE WITNESS WITHDREW PN348