C2005/3088, Transcript of Proceedings [2005] AIRCTrans 1247 (6 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11659-1

COMMISSIONER BACON

C2005/3088

BHP COAL PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3088)

BRISBANE

2.45PM, MONDAY, 23 MAY 2005

Reserved for Decision

PN1

MR N LE MARE: I seek leave to appear on behalf of the applicant company.

PN2

MR A VICKERS: I appear on behalf of the CFMEU. Firstly, might I apologise to the Commission. Whatever has occurred internally in my office, the notification was dropped on my desk about 10 minutes ago. My apologies for the delay and I oppose Mr Le Mare's application for appearance.

PN3

MR E MOORHEAD: I appear on behalf of the AFMEPKIU. We seek similarly object to Le Mare's appearance.

PN4

MS P ROGERS: I appear on behalf of the CEPU. With me I have MR G HALL who is the organiser responsible for the area, and I support the objections by the two previous unions.

PN5

THE COMMISSIONER: Thank you. Mr Le Mare?

PN6

MR LE MARE: Thank you, Commissioner. The Commission has the power to grant leave under section 42(3)(b) of the Act if having regard to the subject matter of the proceedings there are special circumstances that make it desirable that the parties may be so represented. The three submissions I make in relation to those special circumstances are as follows.

PN7

The first one I would say that by its nature a section 127 application is special. I say that because what it potentially does is alter parties' rights, and what it potentially does is vest in the Federal Court jurisdiction to issue orders under the Act.

PN8

So fundamentally I would say we were dealing with an application which has the potential to alter people's rights such as an application of this nature wishes to be distinguished from a 99 conference or things like that. Then, by its nature - - -

PN9

THE COMMISSIONER: Are you saying people's rights can't be altered in a section 99 matter?

PN10

MR LE MARE: Depending upon the conduct of the dispute application, I made that by way of example. I guess what my first submission is in relation to leave is that by its nature this application is one which does have the potential if the company is successful in gaining in all this in altering people's rights, because of what it effectively does is it was successful in obtaining orders, it obtains orders from the Commission which requires people to desist from certain types of action. If those orders are not complied with then again it feeds into the jurisdiction of the Federal Court. That is my first submission.

PN11

The second submission is really one of practicality. I propose to call two witnesses today, Mr Gerard, who is with us and also Debbie Cheyne who is the human resources manager at the relevant mine. In circumstances where both of those people will be giving evidence on behalf of the company in my submission to be undesirable were the company forced to use either of those two people to make an appearance today.

PN12

The third one dealing with the subject matter behind the factual circumstances behind this application. We are dealing with interplay between coal mining safety and health legislation, application of the safety caveat if I can put it that way, and the definition of industrial action, and what I apprehend are alleged breaches of the coal mining safety and health legislation. Now, the coal mining safety and health legislation imposes onerous obligations and has the potential to lay the ground work if you like.

PN13

These proceedings, if you don't have the potential to lay the groundwork for potential proceedings in the court for breach of coal mining safety and health laws. Now, there is a sliding scale, of course, as to what can arise from those breaches be it a penalty or up to and including imprisonment. So that brings me back to my initial point about the subject matter where we are dealing with particularly allegations concerning breaches or potential breaches of the coal mining safety and health legislation. That is a matter of my submission which justifies the granting of leave. Those are my submissions, Commissioner.

PN14

THE COMMISSIONER: Thank you. Mr Vickers?

PN15

MR VICKERS: I note that Mr Le Mare has relied exclusively on paragraph 43(3)(b) of the Workplace Relations Act to justify his application for leave to appear in this matter, and in doing so then relies upon three distinct circumstances as further justification.

PN16

Firstly, Commissioner, he relies upon the fact that the nature of these proceedings being proceedings pursuant to section 127 of the Act are special and that ultimately these proceedings have the potential to alter parties rights and of course create the jurisdictional basis for the matter or a similar matter to be further dealt with by the Federal Court of Australia.

PN17

With due respect this is a common or garden variety application to the Commission pursuant to section 127 of the Act. Unfortunately, in this industry they are mere daily occurrences, there is certainly very rarely a week which goes by without an application by either a union or an employer in the coal mining industry with respect to section 127 of the Act.

PN18

If, however, the Commission is convinced of Mr Le Mare's argument that these circumstances are so special as the outcome may well alter the parties rights, and it may well be the jurisdictional basis for further proceedings in the Federal Court of Australia, then the union would seek to adjourn this matter until such time as we are capable of briefing counsel to protect both the union's and the members' rights in this special case.

PN19

As far as the second leg of his submission is concerned that deals with the practicality. He has indicated that he wishes to call Mr Gerard and Ms Cheyne. I am aware that Ms Cheyne was never going to represent the company in these proceedings unless we got to the stage where advocates are going to do it over the telephone.

PN20

I note that there is an intention to call Mr Gerard. I am also aware, as this Commission is aware, that Mr Gerard is not the only person employed by BHP Coal Pty Ltd or BMA or whatever the correct term is who reside across the road from this building who has both extensive experience in industrial relations and indeed in advocacy before industrial commissions.

PN21

The mere fact that BHP prefers to be represented by legal counsel as opposed to being represented by their own employees is not justification pursuant to section 42(3)(b) in my submission of the Act.

PN22

The third point that is made is the alleged potential interplay between perhaps the certified agreement, the Workplace Relations Act and particularly the Coal Mining Safety and Health Act and the issue of an apprehension that there may well be alleged breaches of the safety and health legislation, and indeed that that in itself may provide the ground work for potential proceedings.

PN23

This Commission again particularly as presently constituted regularly deals with the interplay between various pieces of statute and certified agreements, and indeed the Workplace Relations Act. It is required to on a regular and consistent basis. There is nothing to say that the Commission needs to assistance of legally trained persons to form its own view about what legislation may or may not be. In fact given the record quite frankly without being overly derogatory of some members of the legal profession particularly as far as the Coal Mining Safety and Health Act is concerned that is the Act that applies in Queensland and the Commission would be better without getting advice from legal practitioners because they seem to give the same ordinary and bad advice as a lay person is quite capable of doing.

PN24

If, however, the Commission is of a mind to give any credence to Mr Le Mare's application on this basis, the third leg of his trifecta of attempting to justify his right to appear on behalf of BHP, because of this potential legal interplay, then again the CFMEU would make an application for an adjournment to allow it to brief legal counsel so that it can be equally represented as BHP seeks to be on this occasion. Those are my submissions and I continue the objection.

PN25

THE COMMISSIONER: Thank you, Mr Vickers. Mr Moorhead?

PN26

MR MOORHEAD: Commissioner, the only formal submissions that we seek to make is that much of the application for leave to appear by Mr Le Mare is made on the basis of the interplay with the Coal Mining Health and Safety Act and the apparent wish by the company to have legal advice as to material that may incriminate them in further proceedings. Well, that is a very narrow point in which Mr Le Mare could remain in the room and provide advice on and doesn't require the representation by legal practitioners throughout the entirety of the proceedings. That is the only further submission I wish to make.

PN27

THE COMMISSIONER: Thank you. Ms Rogers? I take it that the shake of the head means that you have nothing to add, Ms Rogers.

PN28

MS ROGERS: Commissioner, I am not sure I have anything I can usefully add, but I support fully the submissions of the two previous union applicants.

PN29

THE COMMISSIONER: Thank you. Mr Le Mare?

PN30

MR LE MARE: I have further submissions by way of clarification. My instructions are that in terms of other personnel in the Brisbane office, the other person, I am not sure if this is who Mr Vickers was referring to, was Mr Stephens. My instructions are he hasn't had experience in dealing with matters of this nature before the Commission. Now, if there is somebody else that Mr Vickers is referring to I will gain further instructions in relation to that.

PN31

So it comes back to the issue of practicality and that for the purpose of these proceedings I do intend to call the appropriate person from the company who would otherwise have the experience in dealing with these types of matters and that being Mr Gerard.

PN32

In terms of the narrow point about coal mining safety and health matters, I certainly oppose the view that it is a narrow point. It is a very important point, and I guess that the flow on from potential ramifications are potentially vast, and it impacts upon the manner of cross-examination that might be conducted of one or other of these witnesses, or the evidence that is lead in chief, and indeed the submissions. So I certainly do not agree with the conclusion that because it is a point involving Coal Mining Safety and Health Act matters that it can be dealt with just by me advising Mr Gerard while he would otherwise conduct the submissions.

PN33

With all those in mind, I reiterate my first three grounds for the application for leave, and seek that it be made.

PN34

The question which I will deal with very briefly also was raised by Mr Vickers in terms of delay. The application was provided to each of the union's respondent this morning by facsimile beginning from in respect of Mr Vickers at 10.05 is the facsimile confirmation. Now, Mr Vickers has had between 5 past 10 this morning and 2.30 this afternoon to organise, if he so wished, legal representation. He has decided for one reason or another not to do so, and is then saying that if my client's application for leave is granted, then he would be seeking an adjournment. We just don't see that as appropriate in the circumstances, Commissioner, we are dealing with what is an urgent application. If Mr Vickers wanted to have legal representation he had the opportunity and was put on notice that Blake Dawson Waldron were involved at five past ten this morning.

PN35

Those are my submissions, Commissioner.

PN36

THE COMMISSIONER: Mr Le Mare, can you tell me what evidence Mr Gerard intends to give?

PN37

MR LE MARE: The evidence will be to talk about the background to the current stoppage dealing with a media release that was issued by the Queensland Health. Subsequent notices to employees and contractors about the arrangements put in place by the company subsequent to that release, and then more particularly the remedial action that the company is aware has been taken and has been a driving factor in terms of arranging as early as today. So we are dealing with the steps that have been put in place to dealing with the underlying concerns of this matter. Now, all of those in my submission are fundamental to the exercise of the Commission's jurisdiction and also to the exercise of the Commission's discretion to issue orders. So in broad terms the background to the current stoppage and remedial steps that the company has taken to address those concerns?

PN38

THE COMMISSIONER: Let me firstly say that I do not accept that you have made out the ground that this matter is special because it involves an inter relationship between perhaps the certified agreement, but certainly the Workplace Relations Act and the Coal Mining Safety and Health Act. Presumably, both parliaments that were responsible for those pieces of legislation intended that it would be hoped that the language used therein is simplistic enough to be understood by those people who are actually required to abide by the terms in both those pieces of legislation, and that is people who actually work at coal mines, and if it be that those two pieces of legislation are so complex that the only way we can make sense of them is to be with the assistance of people who are legally trained then I am not quite sure why it is that the responsibility for that generally falls to a layperson's tribunal.

PN39

Similarly, I do not accept that there is anything special about this application. It is an application pursuant to section 127. I don't find anything special about those, it is just another section in the Act. If an application of this nature was of itself special one would presume it was special as such that it needed the parties to be presented by people who are legally trained, and presumably under section
42 would recognise that.

PN40

The only thing that remains is this question of the practicality of the need to call Mr Gerard. I think on balance, that is the only ground that I find persuasive that the company does allege that there is industrial action, and therefore needs to deal with the matter urgently, and as such has to apparently rely on the evidence of Mr Gerard, and there are practical difficulties in the event that Mr Gerard represents the company. I am going to grant you leave on that ground, but I make it clear that that basis is a ground that is contained at 42(3)(c) and not (b). I just don't accept that there is anything special about all of this.

PN41

MR LE MARE: I apologise for the day, Commissioner, I wanted to seek instructions in relation to that. With leave I seek to amend my submissions and to rely also on 42(3)(c).

PN42

THE COMMISSIONER: Well, leave has been granted on that basis, Mr Le Mare.

PN43

MR LE MARE: Thank you. In the circumstances, Commissioner, I seek to call Mr Gerard as the first witness.

<GREGORY WILLIAM GERARD, AFFIRMED [3.07PM]
<EXAMINATION-IN-CHIEF BY MR LE MARE

PN44

MR LE MARE: For the purposes of the record, could you please state your full name and position?---Gregory William Gerard, I am Manager, Employee Relations for BHP Coal Pty Ltd.

PN45

Can I hand you up a bundle of documents to begin with, Mr Gerard. Do you recognise those documents?---Yes I do.

PN46

For the purpose of the record, please state what you understand them to be? The first document appears to be a photocopy of the principle part of the BHP Coal Pty Ltd Enterprise Agreement 2004 which is commonly referred to as the central document, and that central document also takes into consideration and draws in an as an annexure to that agreement an agreement called schedule G, the Blackwater Mine, conditions that relate to Blackwater Mine.

EXHIBIT #BPH1 BHP COAL PTY LTD ENTERPRISE AGREEMENT AND SCHEDULE G

PN47

MR LE MARE: Would it be correct to say, Mr Gerard, that those documents or at least in part regulate the employment of persons at Blackwater Mine?---Yes, they do.

PN48

Members of the unions who are respondent to this application?---Yes, they do.

PN49

I wonder if I could hand up two further documents, Mr Gerard. I ask again as to whether or not you recognise these two documents?---Yes, I do.

PN50

Perhaps dealing with the one that is headed media release first. Are you aware of the contents of that document?---Yes, I am.

PN51

And the second one a notice on BMA letterhead by Mr Blanning to employees. Are you are aware of the contents of that document as well?---Yes, I am.

PN52

Perhaps just by way of summary if you could deal with the background to the John Blanning notice and put in context how this notice was issued?---Yes. A media release was issued by the Central Highlands Health Service District which is the one you referred to earlier, Mr Le Mare. As a consequence of that, and after a number of discussions were held between Mr Blanning was shown the HR manager at Blackwater in discussions with Mr Castles who is the medical, sorry, the Acting District Manager of the Central Highlands Health Service District, this document was put to explain to the employees at Blackwater the changes that had taken place at Blackwater Hospital due to the illness of Dr Brown, the medical superintendent at Blackwater and what Queensland Health had put in place to cover his absence during a four week period or a months period.

**** GREGORY WILLIAM GERARD XN MR LE MARE
PN53

You have been involved in further discussions today in relation to the issues dealt within those two notices?---Yes, I have.

PN54

Could you give, please, a brief chronology or summary of the discussions you have had to today in relation to those issues?---The discussion was held at the instigation of Commissioner Bacon with a view to try to attempt to resolve this particular issue without the need to actually activate the section 127, and without going into a fairly lengthy meeting, but essentially the parties were attempting to put an interim step in place to ensure that there was medical coverage at Blackwater Hospital in the event of an emergency which seems to be the concern expressed by the workforce, it is certainly expressed by their representative, Mr Vickers.

PN55

Dealing with specifics if I could, what arrangements have been put in place to the best of your knowledge dealing with the availability of medical support at the Blackwater Hospital?---A number of issues were discussed. One that is certainly in place right now is that the company has put on standby a helicopter in Emerald and a contact number has been given to Mr Castles with a view that if there is an emergency at Blackwater Hospital that a doctor from Emerald will be transported to Emerald to Blackwater but only during daylight hours. We also have various indications of times in place to cover a flying doctor service doctor who lives at a property at Springsure with a view of trying to extend the two days that they have already arranged with Dr Russell to attend in Blackwater, and that relates to, sorry, it is not mentioned in that particular doctor as I can see. So trying to extend the ability of Dr Russell to attend to Blackwater Hospital during daylight hours. We have also looked at what can be done after daylight hours, and at five minutes to two I still haven't had a response, sorry, I spoke to Mr Castles, and at that particular stage he hadn't been able to talk to the director of health services in Emerald to ascertain whether a Emerald doctor could be placed in Blackwater on a standby basis simply to be able to respond to emergencies that may have arisen in Blackwater. So that particular issue is unresolved at this point in time.

PN56

There was one question I neglected to ask you previously in relation to the enterprise agreement documents that were handed up first of all. Have you received at all any written notification of a dispute dealing with the subject matter which is the subject of today's application?---No, I haven't.

**** GREGORY WILLIAM GERARD XN MR LE MARE
PN57

THE COMMISSIONER: Mr Vickers?

<CROSS-EXAMINATION BY MR VICKERS [3.16PM]

PN58

MR VICKERS: Mr Gerard, you had a copy of what you referred to as the central document that is one part of BHP1 in these proceedings. Could I just ask you to go to clause 6.1, please?---Yes.

PN59

Could I just ask you to read out the first sentence?---"Employees must perform such tasks as the company may reasonably require subject to the employee being skilled, competent and trained to do so".

PN60

Now, the media release which has also been handed up, I'm not certain if it was marked or if it was intended to be marked. I will leave that to Mr Le Mare, perhaps to tender that.

PN61

MR LE MARE: My apologies, Commissioner, if I could have those two documents marked.

EXHIBIT #BHP2 QLD HEALTH MEDIA RELEASE
EXHIBIT #BHP3 NOTICE TO EMPLOYEES SIGNED BY MR BLANNING

PN62

MR VICKERS: Mr Gerard, BHP 2 which you have referred to, that has a date on it, does it not?---Yes, 12 May.

PN63

And today's date is?---23rd.

PN64

So for 11 days this situation has been in place, has it, where the medical superintendent has not been available?---As I understand it.

PN65

And the arrangements that you advised Mr Le Mare that were put in place, this is where a helicopter is on standby for daylight use at least and to bring a doctor from Emerald Hospital in the event of an emergency at Blackwater Hospital, when was that arrangement put into place?---This morning.

PN66

Eleven days after Blackwater didn't have a medical superintendent, is that correct?---yes.

PN67

And BHP3 is dated what date?---13 May.

PN68

So there is no dispute or argument but that the mine manager at Blackwater was aware of the lack of a medical superintendent at Blackwater Hospital on or about the 12th or the 13th?---He was aware, but my understanding is he was comfortable with the arrangements that were in place.

**** GREGORY WILLIAM GERARD XXN MR VICKERS
PN69

He was comfortable with the arrangements that were in place?---Yes.

PN70

Now, do you have any knowledge of a serious accident which occurred at Blackwater Mine on or around 13 May?---I know there was an accident involving a staff person, but I am not completely familiar with the details.

PN71

Could I help refresh your memory? Do you have any knowledge that that the employee suffered a severely fractured skull?---I know that, yes.

PN72

Was the employee transported to Blackwater Hospital, do you know?---I don't know.

PN73

Is it your understanding that that employee at least was injured at the mine with a fractured skull when there was no medical superintendent at the Blackwater Hospital?---No, I don't know.

PN74

Except you do know it was on or around the 12or 13 May, the accident?---Yes, I do.

PN75

So more than likely given the media releases it occurred when there was no medical superintendent at the hospital?---I understand it occurred on a Thursday night which was the 12th.

PN76

Now these alternative arrangements or arrangements perhaps that have been put in place today which you have briefly outlined, you said that they arose as a consequence of discussions that took place today instigated by Commissioner Bacon?---Yes.

PN77

Do you know what time those discussions commenced?---Ten minutes to 10.

PN78

Just for confirmation the Commissioner and I know who were there, but perhaps your might confirm for Mr Le Mare's benefit who was there?---Mr Stephens, myself, yourself, Mr Vickers and Commissioner Baker.

PN79

And those discussions commenced about 10 to 10?---Approximately, yes.

PN80

And do you have a recollection about what time they concluded?---About 1 o'clock. It may have been a bit after.

**** GREGORY WILLIAM GERARD XXN MR VICKERS
PN81

You were in the room when Mr Le Mare made his submission for leave to appear?---Yes.

PN82

You recall him making a submission that the CFMEU or Mr Vickers was notified by Blake Dawson Waldron of the application in this matter at approximately
10 past 10 this morning?---Yes.

PN83

From your recollection where was Mr Vickers at 10 past 10 this morning?---In Commissioner Bacon's office.

PN84

Until about 1 o'clock?---Yes.

PN85

Is that your evidence?---Yes.

PN86

Mr Gerard, I think it was your evidence that Mr Blanning the author of BHP3 was satisfied with those arrangements that are outlined in that?---Yes.

PN87

That is correct?---Yes.

PN88

He remained satisfied with those arrangements?---As I understand it, yes.

PN89

So he is opposed to the arrangements that you have just outlined which were developed and put in place this morning?---No, he believes that that will assist in the event of an emergency, but he was comfortable that if an emergency did arise that we could get medical help from a doctor at relatively quick notice.

PN90

But no helicopter had been arranged to your knowledge in the 11 days up until this morning?---No.

PN91

There seems to be nothing in either the media release from Queensland Health or in Mr Blanning's letter of 13 May to all employees about doctors being on standby to be transported at short notice to Blackwater, or am I missing something?---No they are not.

PN92

There is nothing in there?---No.

PN93

So if it was part of Mr Blanning's arrangements it wasn't communicated in his letter to employees, correct? If there was something about doctors being on standby to be brought to Blackwater at short notice in the event of an emergency, it is not communicated to employees in the letter of the 13th?---Correct.

**** GREGORY WILLIAM GERARD XXN MR VICKERS
PN94

And it doesn't form the same thing, doctors on standby to be available at short notice to be brought to Blackwater doesn't form part of the arrangements that Queensland Health outlined in their media release. Is that correct?---No.

PN95

If Mr Blanning was satisfied as the mine manager with the arrangements that were in place from 12 May until this morning, why is there a need to make alternative arrangements for the treatment of emergencies at Blackwater Hospital?---It is a stop gap measure until we can make more permanent arrangements for a doctor to be present.

PN96

I understand that, but there was no doctor present for the 11 days from the
12th until today, was there?---No, there wasn't - I don't know whether is the case.

PN97

But certainly the arrangement that you have referred to in your evidence wasn't in place from the 12th until today, was it?---No.

PN98

Yet Mr Blanning was satisfied with that arrangement obviously from his letter of the 13th?---Yes.

PN99

What about from your own perspective, Mr Gerard, you have been in the industry for a long time, have you not?---Yes, I have.

PN100

Was it your view that it is reasonable to expect employees to perform their normal duties when there has been a reduction in the emergency care standards at the Blackwater Hospital?---My understanding is that the desirable position would be that there be a doctor there, my understanding from discussions I have had over the last week and a bit, and also discussions today, that Queensland Health has a dire problem in getting people to relieve. They in fact had someone ready to relieve today, and that person had to pull out because their wife was ill. I am still of the belief that the arrangements that were put in place by Queensland Health who know what they are doing far better than I do are adequate to cover incidents that arise in Blackwater. Blackwater Hospital just doesn't cover Blackwater Mine.

PN101

No, in fact it covers a number of mines in the area, does it not?---And other businesses in other towns.

PN102

But other mines as well?---Yes.

**** GREGORY WILLIAM GERARD XXN MR VICKERS
PN103

If what Queensland Health were able to put in place and did put into place which Mr Blanning was satisfied with on 12 May, if that is acceptable why is there a need to do anything else, why is Queensland Health searching for another locum, for example?---Queensland Health obviously believe that it is preferable to have a doctor based in Emerald, and still endeavouring to - in Blackwater, sorry, but is still endeavouring to do that, however, given that they have had great difficulty in obtaining that doctor, and not taking doctors from other areas that will put those other centres in jeopardy, they have put in place the best arrangement they can until that locum is available.

PN104

In fact the words that they used in their media release is that they have a number of interim strategies in place?---Yes.

PN105

Something that is second best at best?---Yes, it is second best.

PN106

And it is acceptable to BHP Coal and or BMA that their employees are subjected to second best emergency response facilities?---It is not preferable.

PN107

But it is acceptable?---Yes. We have to be guided by the experts, Mr Vickers, and we are not the experts on health.

PN108

No, but you do have a responsibility to your own employees, do you not?---Yes.

PN109

I hear a lot about BHPs obligations to its employees?---Yes.

PN110

Yet BHP is quite happy for its employees to continue at work, exposing themselves to the known hazards of work in the coal mining industry as evidenced by the serious injury to its supervisor, with second best emergency response capabilities in the town of Blackwater. That is a correct statement?---Yes.

PN111

And industrially, from your experience, and bearing in mind the sentence that you read out in clause 6.1, you would say that that is reasonable of the
company?---Yes.

PN112

Can I ask you when it was that the arrangement that you have outlined in your evidence, that is in respect of the helicopter and the available doctor from Emerald with the assistance of Mr Castles, when that was confirmed as being
available?---Late this morning.

**** GREGORY WILLIAM GERARD XXN MR VICKERS
PN113

And are you aware of whether that has been communicated to employees at Blackwater Mine?---No, I am not. It has been a rather hectic day.

PN114

No further questions.

PN115

THE COMMISSIONER: Thank you. Mr Moorhead?

<CROSS-EXAMINATION BY MR MOORHEAD [3.29PM]

PN116

MR MOORHEAD: Mr Gerard, what hours is there a doctor available at Blackwater?---There is a general practitioner in town who isn't accredited to attend at the hospital, but who has indicated he is under his accreditation able to attend emergencies. There is the Royal Flying Doctor who is attending at this point in time two days a week, there are doctors coming from Emerald to do, I think, some antenatal work and other issues, but generally on days, during daylight hours.

PN117

So you would accept that there is not doctor there at night?---No. The superintendent at the Blackwater Hospital, as I understand it, is a GP who is also runs his own private practice, but has a contract with the Queensland government to act as a superintendent at the hospital.

PN118

And the GP that you are referring to who is in Blackwater cannot use the hospital facilities?---No, he can't, and the last advice I had from Mr Castles is that it is unlikely that he will be accredited to actually be able to act as a superintendent during the period.

PN119

What about weekends? Is there a doctor available at Blackwater on the weekends?---I am unaware.

PN120

So you don't know of any doctor?---The GP is in town.

PN121

So the dispute that has come here before us, how did that come to BHPs attention?---My understanding was that the HR manager at Blackwater received a telephone call last night.

PN122

From who?---From the lodge president of the CFMEU who advised at stop work meetings this morning.

PN123

What happened after that in terms of discussions?---I don't know of any - there have been discussions, Mr Moorhead, I don't know what occurred, I haven't had a chance to talk to Ms Cheyne about it.

PN124

Were there discussions with the mine manager?---I don't know.

PN125

Were there discussions with more senior officials of both the company and the union?---If you are asking - I had a discussion with Mr Barker about 10 minutes past 7 this morning.

**** GREGORY WILLIAM GERARD XXN MR MOORHEAD
PN126

Have you had any discussions with other union officials?---Mr Vickers.

PN127

So what about from other unions?---No.

PN128

So was the issue of the safety or otherwise of the mine discussed with the site health and safety reps?---Well, I know that no site safety and health representative has actually approached the mine manager at Blackwater on the basis of a discussion I had with Mr Blanning this morning. However, they were in the possession of this notice, I think it is BHP3, which in turn was also forwarded to Mr Barker of the CFMEU, Mr Lees of the AMWU and Mr Williams of the CEPU on 13 May.

PN129

But the company never spoke to the health and safety reps about the safe operation of the mine?---I don't know.

PN130

Now, I can only assume there is a risk analysis or job hazard analysis process at the mine?---Yes.

PN131

Have those risk analysis and job hazard analyses been reviewed as part of this process?---I don't know.

PN132

Has the disaster plan been reviewed?---I don't know. I don't even know what a disaster plan is.

PN133

The statement from Mr Castles says:

PN134

We are also contacting local mines to alert them to make temporary changes to their disaster planning.

PN135

So has there been a change to the company's evacuation procedures?---I don't know.

PN136

Would you expect if there was that employees would be made aware of those procedures?---Well, we have an ambulance officer on site and we have the mines rescue officer on site. The normal procedure is that those persons attend. A doctor only gets involved if the person is in town.

PN137

But you must inform employees about disaster evacuation or accident evacuation?---I don't know what the act of the regulation says in relation to that, Mr Moorhead, it is not an area of my expertise.

**** GREGORY WILLIAM GERARD XXN MR MOORHEAD
PN138

The employees haven't left the site though, have they?---I don't know. Some were there, some may have left, I don't know.

PN139

I put it to you that they are at site and prepared to do alternative work such as training?---They have indicated as I understand it they are prepared to do training, but they have been asked by their supervisors are they prepared to do their normal work, and they have said no.

PN140

I have no further questions, Commissioner.

PN141

THE COMMISSIONER: Thank you. Ms Rogers?

PN142

MS ROGERS: No questions, Commissioner, thank you.

PN143

THE COMMISSIONER: Thank you. Mr Le Mare.

<RE-EXAMINATION BY MR LE MARE [3.36PM]

PN144

MR LE MARE: Only a few matters arising, Commissioner.

PN145

Mr Gerard, you were asked a few questions by Mr Vickers about emergency response capabilities et cetera, what I am keen to understand is whether, to the best of your knowledge, the matters of concern that have been raised with you involve the BHP Coal emergency response capability, the availability of doctors or otherwise at Blackwater Hospital or both. What has been the concern?---Could you rephrase that question, please?

PN146

You had an exchange with Mr Vickers about the appropriateness or otherwise of the emergency response capability at the Blackwater Mine. I would like a better understanding from you as to whether when you use the term "emergency response" and whether or not the matters underlying the concern here, are you talking about the lack or the misgivings in BHP Coal's emergency response at Blackwater Mine? Are you talking about the availability of doctors at Blackwater Hospital? Or are you talking about both of those matters?---When I talk about emergency plan the plan refers evacuation et cetera, it relates to the ability of people on site together with the QAS, that is the resident QAS officer who is at Blackwater 24 hours a day, 7 days a week, together with the QAS that would then come from Blackwater. So that is the response, the doctor would only come into play, a doctor would only come into play if necessary, and could be at Blackwater or could be elsewhere.

**** GREGORY WILLIAM GERARD RXN MR LE MARE
PN147

I put it to you this way then, is the concern as you understand it, the availability or otherwise of Dr Brown or a replacement to Dr Brown at Blackwater Hospital or does it extend to other deficiencies in BHP Coal's emergency response?---It only relates to the fact that there is no-one in Blackwood Hospital.

<THE WITNESS WITHDREW [3.38PM]

PN148

MR LE MARE: I am now seeking to call Debbie Cheyne by telephone if we could.

<DEBORAH MYA CHEYNE, AFFIRMED [3.39PM]
<EXAMINATION-IN-CHIEF BY MR LE MARE

PN149

MR LE MARE: Thank you, Ms Cheyne, Nick Le Mare speaking. I wonder for the purposes of the record can you please state your full and position?---My full name is Deborah Mya Cheyne and my position is human resources manager at Blackwater Mines.

PN150

I wonder if you could given an outline please of discussions you have had with representatives of the single bargaining unit at Blackwater Mine. Perhaps if we can start last night and work your way through until current time?---Sure. Is it okay if I refer to my notes here, I have got a heap of them? Okay, I had a call last night from Andrew Curtis at 9 pm and he requested a stop work meeting for Monday morning. He said he had to address the members about the doctor situation in town. He said he had information to convey to the members which might be a solution to the whole problem. I asked Andrew was he able to share that solution with me, but he refused. I told him he was not authorised to hold a stop work meeting especially at the late hour and asked him could we talk some more tomorrow and perhaps find a solution and talk to the men as a group. Andrew asked me, was I authorising a stop work for Tuesday? And I said I would need to have a talk with John Blanning who was, I thought, in Brisbane, but I wasn't authorising, I was just trying to find another avenue. He said he couldn't wait for that and he said he needed to have a two shift meeting, that he planned to go into work early in the morning to talk to the nightshift as they came off and the day shift before they started work. He said that he would endeavour to try and talk to them separately and that maybe the dayshift would be about 10 minutes late. I said if the men were late they would be docked because it wasn't authorised. I asked him probably on three occasions would he share with me the solution he had and I asked him, was it a solution for the town? And he said, "No, not necessarily". I at one stage said to him, "I hope the solution isn't for you guys to strike until a doctor is stationed here, because if that's the case, that is no solution for anyone". Andrew didn't respond to that statement of mine. We talked for approximately 25 minutes. I reiterated the conversations that I had with him on, I believe, Wednesday when he called me and asked for Paul Vickery to be released for a meeting he was having in town with other members, I think at the SBU. I talked to him again last Friday and we virtually went over that stuff again. Where I said I supported the efforts that Queensland Health had made and certainly I communicated the media release and I communicated a letter from John Blanning and I was very pleased to hear during last week that an RFDS doctor, a lady doctor, would be stationed in the town two days a week. Basically, Andrew said that he didn't find Queensland Health or John Blanning's options suitable, he said he had been copping a lot of punishment and that he had been under pressure to find a solution and I understood the pressure was from the members. I said to him, "Well, people are being unreasonable. Queensland Health can't pluck a doctor out of thin air if there aren't any". He said he didn't think Queensland Health was fair dinkum and that he would share something with me off the record which I never found out what that was. I told him again he wasn't authorised and it was an EA issue. He said, "Well, it will be if someone gets trapped at the mine and they have to wait for a doctor to come from Emerald or Rocky". He then went on to share a story about a Curragh employee who had some chest pains and he said had been made to wait at the hospital and go to a GP the next day. So that conversation went for about 25 minutes. In relation to other conversations, I came to work, it was about 7 or 5 minutes to 7 this morning, and I can see the men dispersing and going into work. I was quite close to Andrew Curtis, I said "Good morning" and he said, "Good morning" back, and there was no indication that anything was any different to what he talked to me about last night and what he would endeavour to do. I got into my desk and I was handed a copy of a note from the SBU by Keith Downham, the Mining Manager. And that was a letter addressed to the mine manager. I don't know if you want me to read it?

**** DEBORAH MYA CHEYNE XN MR LE MARE
PN151

I don't have a copy in front of me so perhaps you could if you wouldn't mind?---It is from the SBU Blackwater Mine, it is signed by Andrew Curtis on behalf of the SBU.

PN152

20 May 2005
To the mine manager

Dear Sir

Due to the recent events surrounding the lack of a doctor at Blackwater Hospital, we wish to advise you of the following measure/s. If there is no guarantee forthcoming regarding the hospital having 24/7 doctor coverage in Blackwater, we see no other option and for the members to exercise their right under section 274 of the Coal Mining Safety and Health Act. To that extent, our members will attend to their normal rostered shifts but will remove themselves from the unacceptable risk of normal duties until such a time that there is medical coverage by a doctor on a 24/7 basis at Blackwater Hospital.

PN153

And I received that just after 7 am. The other communications I have had is about 10 past 10, Andrew Curtis, Greg Donahue and David Booth came to see John Blanning and basically, I didn't take very good notes of this meeting, but it was something like Andrew said to John Blanning that he was disadvantaging the employees under the Act. Basically, John said there was nothing in the Act that required a doctor to be in town, Andrew asked for a copy of the hazard and management plan, and then said to John Blanning, "You are in breach of section 274 by not paying the men". So that was a brief meeting for about five minutes, and I believe that was as a response to out supervisors going asking the men to return to work or commence their normal duties, and advising them that they wouldn't be paid. So they are the direct conversations I have had with the union members.

PN154

MR LE MARE: You referred to a notice a short while ago dated Friday I presume, but handed to you a little after 7 or thereabouts this morning where it refers to concerns about not having a doctor at the Blackwater Hospital, 24 hours a day, 7 days a week. To the best of your knowledge is the concerns raised by members of any of the unions directed at anything other than the availability of doctors at Blackwater or does it involve other issues concerning BHP Coal's emergency response capability?---Well, I believe it is just the doctor. All that has been talked to me about is the doctor, and that basically they want someone in town 24/7.

**** DEBORAH MYA CHEYNE XN MR LE MARE
PN155

Very briefly, are people currently at work?---The day shift came in a sat in the crib rooms and they said they would do training or tool box talks or things like that, but they wouldn't go and do their normal duties because there was a whole host of reasons from, "There's no doctor in town", "They don't want to accept the risk", "It's a safety issue". There were numerous reasons.

PN156

Specifically, members of a CFMEU or people who you would expect to be eligible to be members, are they currently performing work?---They are on the mine site, but they are sitting in the crib room.

PN157

They are the people you are talking about having been directed to perform work but saying they wouldn't do so?---That is correct.

PN158

Members of the AMWU or eligible to be members of the AMWU, do you know about them?---Yes. They are sitting in crib rooms too. All day shift employees to my knowledge are sitting in crib rooms except for three men who returned to their work in the service bay.

PN159

We are aware of notices issued back in 12 and 13 May, I am just interested to know what action has been taken by the employees, if at all, between that period and this morning?---I'm sorry, I don't understand the question.

PN160

Was there a strike or anything of that nature, go slows, industrial action by members employed under the BHP Coal Agreement between the period 12 May and 7 o'clock this morning?---No, certainly not, no. As I said, when we received the media release from Queensland Health that was Thursday, 12 May, I issued that to all employees on email and asked for it to be placed on noticeboards, and then the following day, Friday, 13th, John Blanning issued a letter to all employees as well giving an update of what the situation was in the town.

PN161

Finally, how much coal do you expect from recent figures would be an average or expected tonnage of coal produced in a 24 hour period?---Okay, well, we are scheduled for 13.4 million tonne this year which works out at about 260,000 tonne a week, so somewhere between 35 and 40,000 tonnes every 24 hour period.

PN162

Have you been achieving that or close to it?---Certainly in the last number of weeks the schedule has been about 36,000. The tonnage that I just gave you, the 13 million, 13.4 million that is a revised estimate from what was originally budgeted, so at 13.4, yes we have been achieving between 35 and 40,000 tonne a day.

**** DEBORAH MYA CHEYNE XN MR LE MARE
PN163

How much per tonne, broad terms, do you expect to get in terms of
revenue?---Well, the met coal we get a lot more for and then we have a fair bit of thermal coal which is lower, but overall the average of the lot is Australian dollars about $110 and that is about 83 US dollars a tonne.

PN164

What does that equate then for each 24 hour period?---It is just under 4 million.

PN165

Anything in relation to trains that you want to tell us about today?---Yes, I do. Basically, we have got a number of trains scheduled, in fact there was a train being loaded this morning at 6.30 am which the nightshift guys were loading. They finished their shift and the train waited for the dayshift to come on, but the dayshift wouldn't load it even though the nightshift had been loading it prior to then. Basically, that train had to be sent away because there was no one in that area to load it. We had another train come into the southern prep plant and it was loaded by staff. In the northern plant, there is a train scheduled for 2 am tomorrow morning, and then the southern plant there is a train scheduled for
1720 and 2320, and basically the plant is just idling.

PN166

You have got a dayshift currently, what is the next rostered shift change
today?---It is nightshift.

PN167

Which starts when?---Some men start at quarter 7 and some men start at 7.

PN168

That is all, thanks very much.

PN169

THE COMMISSIONER: Mr Vickers?

<CROSS-EXAMINATION BY MR VICKERS [3.55PM]

PN170

MR VICKERS: Ms Cheyne, I understand your evidence that you spoke to Mr Curtis both on Wednesday of last week and Friday of last week, is that correct?---Yes, that is correct.

PN171

What was the subject of those discussions?---On the Wednesday I got a message from Andrew on my answering machine here to give him a call and the message came through at about 11 something and I guess I called him around 2.30, 3, and he phoned me apparently to ask me if Paul Vickery could be released from day shift to go into town where he was having a meeting about the doctor situation, and when I rang him he said, "Oh well the meeting is already underway" and that was Wednesday. Then Friday, Paul Vickery and Andrew Curtis came to see me about a number of issues, not specifically about the doctor.

PN172

But was the doctor issue included in the issues you discussed?---I believe it was even though I didn't write it down in my notes, it has been a topic of conversation.

PN173

And in what respect was it a topic of conversation?---Generally, across all of the discussions?

PN174

Yes?---Yes, there was concern that there wasn't a doctor based here as Dr Brown had been.

PN175

When you had the conversation with Andrew Curtis last night, was that the first time that you were aware that Mr Curtis and or Mr Vickery at least had concerns about the Blackwater Hospital not being manned in the way that it had been prior to 12 May?---No, certainly it wasn't, because I talked to Andrew on the Wednesday when he told me that he was having a meeting in town, and that is when he asked for Paul Vickery to be released that I didn't get the message until a couple of hours later.

PN176

That is fine, but the first you knew that there was an issue at least with Mr Curtis wasn't last night?---No, it wasn't last night, but the issues about not coming to work were certainly last night.

PN177

Now, you said that supervisors approached the employees to commence normal work, is that correct?---Yes, they did. They gave them an update to provide first of all and then they asked them some questions and directed them to return to work.

**** DEBORAH MYA CHEYNE XXN MR VICKERS
PN178

When you say they asked them some questions, do you know what those questions were?---Yes, I do. They asked them to return to work as normal. They told them that if you don't return to work, you will be refusing the comply with a lawful direction of BHP Coals and you won't satisfy your contractual obligations. They were told that they wouldn't be paid for the shift. They asked them did they understand that. They asked them did they refuse to work as directed.

PN179

Am I right in assuming that the supervisors were probably asking prepared questions?---Yes, they were.

PN180

Were those questions prepared by you as the HR manager?---No, I prepared the update with assistance from John Blanning which was the update the crews that there is an ambo on site, we have got a qualified and trained rescue team so there was about eight dot points there, and then the questions to ask for that the supervisors asked the employees, I believe I received it from Greg Gerard.

PN181

So they were prepared external to the mine?---They were, the questions were.

PN182

Now, Mr Cheyne, are you familiar with the certified agreement that is in place at Blackwater Mine?---The schedule itself?

PN183

No, more particularly what is referred to as the central document?---Yes.

PN184

Do you happen to have one available to you right now?---I do.

PN185

Can I ask you to open it up and go to clause 6.1, please?---Yes.

PN186

Now paraphrasing that it says:

PN187

The employees must perform tasks that the company reasonable requires.

PN188

Do you agree with that?---Yes.

PN189

Do you say then that it is reasonable to expect employees to go to work and work normally when there is no emergency medical facilities in
Blackwater?---Mr Vickers, the update that we provided to the employees via the supervisors this morning was to say that there is an ambulance officer on site, we have a highly qualified and trained rescue team, there is a qualified rural and remote nurses at the local hospital, the doctor is in Emerald 50 minutes away from the northern prep plant and approximately an hour to the workshop. It is
50 minutes to Gregory. We told them that John had not been contacted by the site safety and health reps. We also told them there is a local doctor in town and the doctor, Dr Hooda is a doctor in town who I understand is quite popular.

**** DEBORAH MYA CHEYNE XXN MR VICKERS
PN190

Did you tell them that Dr Hooda is not accredited to practice out of the Blackwater Hospital?---That is widely understood because that is I guess, when I say widely understood, that would have been the easy simple solution to Dr Brown's illness, and that hasn't been able to be provided.

PN191

I am assuming that Dr Hooda works out of a practice in Blackwater?---I haven't been to him, Mr Vickers, but I understand he has a general practitioner's office practice here.

PN192

Do you know whether or not he has accident or emergency facilities at that general practice?---I have never been there, Mr Vickers.

PN193

That hasn't been checked out by BHP?---What I have understood is that he doesn't have, I guess they call it, the rights to operate at the Blackwater Hospital, and I think that becomes an appointment by Queensland Health, but I am not sure.

PN194

It is more the facilities at his practice I am concerned about. Did either you or any of the supervisors who directed employees to perform their normal duties today know whether or not Dr Hooda had emergency facilities available to him at this practice?---No, I certainly don't know that, but a discussion our safety manager had with the doctor this morning he said that under his doctor ethos if there was an emergency, that he would respond.

PN195

Yes, but we don't know to the extent to which he can respond because we don't know, and you can't advise me, as to whether or not he has emergency facilities available to him at his practice?---That is correct, I can't advise you because I have never been there.

PN196

And neither you nor, to the best of your knowledge, no one else in authority from BHP at the mine checked that out before the instructions were given to employees to perform their normal duties today. Is that correct?---That is correct, I did not check it out.

PN197

But you have known, and other management people including Mr Blanning in particular have known since 12 and or 13 May that Dr Brown, and therefore the emergency facilities at the Blackwater Hospital, was unavailable. Is that
correct?---That is correct. The first we knew was when the Mr Castles contacted us, and that was Thursday, 12 May.

**** DEBORAH MYA CHEYNE XXN MR VICKERS
PN198

And did he contact you directly or was it by way of the media release which has already been tendered in these proceedings?---I didn't speak to him directly, but I understand that he left a message for John Blanning, and whether John spoke to him directly, I can't be positive, but I know he left a message there, and I am assuming John did speak to him.

PN199

Do you know whether or not the emergency procedures at the mine cater for the transport of seriously injured employees, for example, to the Blackwater Hospital for treatment?---I do not, Mr Vickers, in fact on Wednesday morning I am part of the group that is being planned for about three weeks to look at the emergency management updated plan, and that wasn't a result of the doctor situation, that was scheduled probably in the first week I came here.

PN200

I am looking at the media release. It has been tendered in these proceedings. I would accept that you may not have it in front of you, but the media release in the second last paragraph says:

PN201

We are also contacting local mines to alert them to make temporary changes to their disaster planning.

PN202

As I say, you may not have that media release in front of you, but do you recall those words at all?---Sorry, which release is this, Mr Vickers?

PN203

This is the media release from Queensland Health dated Thursday, 12 May 2005, and headed, "Temporary Service Changes Blackwater Hospital"?---I do have it in front of me, which paragraph is it?

PN204

The second last paragraph, the last sentence:

PN205

We are also contacting local mines.

PN206

Do you see that?---Yes, I do.

PN207

So has Blackwater Mine, to your knowledge, been contacted by Queensland Health?---Yes, I believe Mr Castles from the Emerald Hospital contacted John Blanning.

PN208

And do you know or do you understand that Mr Castles may have alerted Mr Blanning or someone else to make temporary changes to their disaster planning?---I can't answer that Mr Vickers, I don't know.

**** DEBORAH MYA CHEYNE XXN MR VICKERS
PN209

Now, did you receive the question from which you said came from Mr Gerard in Brisbane which a supervisor has ultimately pressed on employees earlier
today?---Did I receive it?

PN210

Yes?---Yes, I did.

PN211

And did you pass it on to the supervisors?---Yes, I made some changes to it.

PN212

Did you direct the supervisors to ask those questions?---Yes, I did.

PN213

You didn't bother to check whether the disaster planning at the mine had been altered to cater for the changed circumstances before you directed the supervisors to ask those questions of employees?---No, I didn't.

PN214

Now, you also gave evidence to Mr Le Mare that the responses that you understand the employees gave to the supervisors were various?---Yes.

PN215

Is there any doubt in your mind from the advice that you have received that the underlying concern of the employees is the lack of, it has been described,
24/7 doctor coverage at the hospital?---I actually had some of them in front of me, and this was written down by the supervisor. Basically, do not accept the risks, no doctor in town, no doctor in hospital, no doctor ..... so, yes, it is pretty much, no doctor.

PN216

I may have asked you this before, and if I did I apologise if I am repeating myself. I took you to clause 6.1 of the certified agreement, do you recall that?---Yes, I do.

PN217

So the questions and instructions that you gave the supervisors to place on the employees, and that is for them to perform their normal duties, is it your position then that that was a reasonable request?---Yes, I do believe it was reasonable,
Mr Vickers, given that the situation and the discussion I had last night with Andrew Curtis. At no stage, even when I did question him about, you know, I hope this isn't a strike or no work until a doctor is placed here, he didn't indicate that level of concern that the men would be in the crib rooms, yet he must have had that on his mind because the letter I get this morning is dated the 20th, yet he only called me last night.

PN218

That is all about Mr Curtis's view, what I am interested in, Ms Cheyne, is your view, and that is whether as a senior representative of management, one who instructed supervisors to direct employees to perform their normal duties whether, in your view, that requirement to perform normal duties in the circumstances of the reduced medical service in Blackwater, is a reasonable request?---I believe given the circumstances that have been conveyed to us over numerous media and Mr Castles et cetera and what Queensland Health are trying to do, I believe it is reasonable.

**** DEBORAH MYA CHEYNE XXN MR VICKERS
PN219

So do you accept that the emergency medical service available in Blackwater at this point of time is substantially less than what it was prior to 12 May?---Yes, it is less than because Dr Brown is taken ill for a month.

PN220

And as a consequence there is no doctor available to provide emergency service at the Blackwater Hospital, is that correct?---That is partly correct, but it was announced last Tuesday that an RFDS doctor was going to be stationed here at the hospital two days a week.

PN221

So that was announced last Tuesday, which days between last Tuesday and today has the RFDS doctor been in Blackwater?---I do not know, Mr Vickers.

PN222

Did you check whether or not the RFDS doctor was available in Blackwater today before you issued the instructions to the supervisors to require the employees to perform their normal work?---No, I did not, because I am aware that there is a highly trained rural and remote nurse there, and that was conveyed in the Queensland Health media release and, you know, that lady, I understand, is highly qualified.

PN223

She is not a doctor, is that correct?---No, she is not a doctor to my knowledge.

PN224

If she was a doctor she could well be appointed by Queensland Health to fill the current interim vacancy by Dr Brown, couldn't she?---Yes.

PN225

So one assumes given all the noises that Queensland Health are making that she is not so qualified?---Yes, correct.

PN226

Ms Cheyne, are you familiar with a serious accident at the mine last Thursday evening or early Friday morning?---Yes, I have knowledge of it.

PN227

That I understand was a supervisor who suffered severe head injuries, is that correct?---Yes, a fractured skull and a broken wrist.

PN228

And was that employee transported to Blackwater Hospital?---Yes, I believe so, but I don't know the details.

PN229

So you don't know whether or not he was seen by Dr Brown?---I don't, Mr Vickers, no.

**** DEBORAH MYA CHEYNE XXN MR VICKERS
PN230

So you don't know whether he was treated by a doctor in Blackwater Hospital or not?---I do not know. The first I even knew there was an accident was when I came to work the next morning, and the information I had was that he was on his way to Brisbane, being flown to Brisbane.

PN231

Thank you, I have no further questions, Commissioner.

PN232

THE COMMISSIONER: Mr Moorhead.

<CROSS-EXAMINATION BY MR MOORHEAD [4.13PM]

PN233

MR MOORHEAD: Thank you, Commissioner.

PN234

Ms Cheyne, Evan Moorhead from the AMWU. Ms Cheyne, the Director of Nursing at the hospital, what role does she play in the emergency process?---I am sorry, I can't hear what is being said, there is a lot of paper rustling.

PN235

In your evidence you said that the rural remote nurse at the Blackwater Hospital had significant training and experience. What is her role in the emergency procedures for employees injured at the mine?---Well, I understand from the media release, I haven't spoken to this lady personally, but I understand that she would be available to provide after hours triage for patients presenting to Blackwater Hospital.

PN236

So she won't actually provide treatment though, just triage?---Triaging, yes, and that Emerald Hospital would provide additional accident and emergency trained nurses to Blackwater Hospital.

PN237

But she won't treat people though?---I don't think she is a doctor, but I am sure she can - I think in the case of Mr ..... she was probably involved.

PN238

Now, does the Blackwater Hospital play a part in your emergency evacuation plan accident evacuation plan?---I cannot answer you. I would have to ask our safety manager.

PN239

If that was the case, assuming that it is, would you expect that the process would be changed if there was no doctor at the Blackwater Hospital?---It think it would probably and, you know, I am no medical expert here, but I think it would probably depend on the severity and depend on whether who was based in the hospital, if that RFDS doctor was there, that would probably be a different scenario. Whether the type of incident it was, I really don't know, I would only be speculating.

PN240

If the site evacuation plan disaster plan were changed, you would expect that that would be communicated to employees, wouldn't you?---Yes.

PN241

Now, how many days a week is the Royal Flying Doctor Service doctor available?---I believe it is two.

PN242

But how long on each of those days?---I don't have that information.

**** DEBORAH MYA CHEYNE XXN MR MOORHEAD
PN243

And what hours does the mine operate?---The mine operates two nominally
12 hour shifts, so the mine operates 24 hours a day.

PN244

Seven days a week?---Yes.

PN245

So what is the mine doing for the other period other than when the Royal Flying Doctor Service doctor is there?---What is the mine doing in relation to what?

PN246

Emergency evacuations?---Well, the mine has been in discussions with Mr Castles and trying to support the initiatives that Queensland Health has been trying to provide to the community and, yes, basically that would be my understanding of it.

PN247

Has the company undertaken a risk analysis or job hazard analysis since the change in circumstances with the doctor?---Not to my knowledge, but I wouldn't be involved in that necessarily.

PN248

Now, I understand that the miners made some arrangements in respect of a helicopter in Emerald?---Is that after this morning's discussions?

PN249

Yes?---I haven't had anything in writing about that.

PN250

Have you had it confirmed verbally or have you had discussions with somebody about that arrangement?---Yes, I had a message left on my machine from John Stephens.

PN251

What did Mr Stephens tell you?---Well, I was listening to it and I was mindful of the fact that this call was coming through so I didn't hear the message fully through, but the gist of it I got was that some helicopter arrangement based in Emerald that could fly to Blackwater Hospital.

PN252

So I can assume that that message came to your phone slightly before 2.30?---I didn't check, I had a heap of messages on my phone. I don't know what time it came, but I can go back and check.

PN253

I can assume that that hasn't been communicated to employees?---Certainly not, no, I was waiting for this call to come through.

PN254

Now the employees have remained on site?---Yes, I understand they are in crib rooms other than the three employees I mentioned earlier who returned to work.

**** DEBORAH MYA CHEYNE XXN MR MOORHEAD
PN255

And they have been offering to do work such as training or, I think it was described as, SOPs work?---I understand just training, and SOPs could have been part of it, that could be put in under the heading of training.

PN256

I have nothing further, Commissioner.

PN257

THE COMMISSIONER: Thank you. Ms Rogers?

PN258

MS ROGERS: No questions, Commissioner, thank you.

PN259

THE COMMISSIONER: Thank you. Mr Le Mare?

PN260

MR LE MARE: Nothing arising, Commissioner.

PN261

THE COMMISSIONER: Ms Cheyne, it is Ken Bacon speaking?---Yes, Commissioner.

PN262

The phone message that you referred to about this helicopter situation, you say you only received that just before we made contact with you during the hearing, is that as I understood your evidence?---Yes, the message from John Stephens, yes. If I go back and check it could have been there for an hour or two hours, I don't know.

PN263

The point being that that is not being conveyed to the workforce at this stage that there are arrangements in relation to getting a doctor to the Blackwater Hospital in the case of an emergency that is different to what they understand the position to be?---Well, it may be that John Blanning is doing that and it is likely that John Stephens rang him as well, but I have been sitting here in my office for a good while expecting the call to come through and not game to leave. His office is, you know, a good walk away from mine. But around lunchtime, John Blanning did ask me to ring CQ Rescue in Rockhampton and ask them what were, you know, what was available through them, in particular did a doctor come out on a helicopter.

**** DEBORAH MYA CHEYNE XXN MR MOORHEAD
PN264

Thank you. No-one has any questions arising from that?

<THE WITNESS WITHDREW [4.22PM]

PN265

THE COMMISSIONER: Mr Le Mare?

PN266

MR LE MARE: I'm not sure if - - -

PN267

THE COMMISSIONER: Well, that completes your evidence.

PN268

MR LE MARE: That completes our evidence. As to whether or not the unions intend to call any evidence directly.

PN269

THE COMMISSIONER: Is there any intention to call evidence?

PN270

MR VICKERS: I can't call myself, and I haven't had time to brief counsel, Commissioner.

PN271

THE COMMISSIONER: Well, you can call yourself.

PN272

MR VICKERS: I will wear myself out running backwards and forwards from the chair. No, no evidence to be called, Commissioner, from the CFMEU.

PN273

THE COMMISSIONER: Thank you. Mr Le Mare?

PN274

MR LE MARE: I will make my submissions then in support of the application if I could, Commissioner. There is a fundamental point which came across both in the evidence of Mr Gerard and in the evidence of Ms Cheyne, and to that matter seems uncontroversial, and that is at the very nub of this dispute concerns, if I can put it this way, staffing levels at the Blackwater Hospital which are, if I can put it this way, Commissioner, Queensland Health issues as opposed to matters directly within the control BHP Coal.

PN275

Now, that in my submission is a fundamental starting point. At no stage, and we asked Mr Gerard about this and Ms Cheyne was cross-examined about this is there a suggestion that the emergency response capability of BHP Coal getting people from the mine site to elsewhere is somewhere called into question. What we are dealing about is the circumstances of what happens when somebody is injured and when they get put into the care of Queensland Health or thereafter.

PN276

We are dealing with matters which in my submission are now extraneous to BHP Coal. Now, that becomes absolutely fundamental when you are looking at definitions of industrial action under the Act, whether or not there is an immediate risk to health and safety under section 274 of the Coal Mining Health and Safety Act to understand that distinction.

PN277

Now, if we go to section 274 of the Coal Mining Health and Safety Act first, and this, if the Commission will recall, was referred to in a notice issued by the single bargaining unit to BHP Coal, I believe dated Friday, but nonetheless handed over this morning, and it operates if a coal miner worker believes there is immediate personal danger, they have certain rights.

PN278

Now, can it be said that there is immediate personal danger arising out of staffing levels at the Blackwater Hospital. In my submission, you simply cannot read section 274 in light of such extraneous circumstances. If you could read section 274 like that it would mean that potentially nothing at BHP Coal that has control over ie things that are entirely outside of BHP Coal's control would then amount to a breach of the site safety and health representative or the SSCs obligations under 274.

PN279

THE COMMISSIONER: Is it implied in that submission that the duty of care of an employer is only to prevent injury, but not to provide best medical assistance to an employee once they are injured that there is no obligation on an employer to do that?

PN280

MR LE MARE: I wouldn't take it that far, Commissioner. BHP Coal is not here today saying that the crisis, if you like, in terms of Queensland Health and its ability to provide medical practitioners across the state is not impacting upon people. Absolutely, BHP Coal would prefer to have a dedicated medical practitioner at Blackwater Hospital to provide appropriate coverage on a 24 hour basis, no question about that.

PN281

In a strict sense, the obligations in the Coal Mining Safety and Health Act are to provide a safe place of work, and to ensure that coal mine workers during the performance of work are not exposed to an unacceptable level of risk. So technically I accept that, but yes, the obligation is to prevent injury.

PN282

Having said that, BHP Coal obviously does not want a circumstance to arise whereby if a coal mine worker is injured that nobody is able to treat them, surely not so callous.

PN283

Having said that, BHP Coal as a number of other industries, people across Australia are affected by effectively staffing problems within Queensland Health.

PN284

Now, BHP Coal has formed a view that despite the suboptimal position of having a medical practitioner at Blackwater on a 24 hour basis, there are a whole host of other measures that have been put in place that will be available to provide emergency care should the need arise, and those matters were dealt with in exhibit 3, the notice of Mr Blanning to the workforce.

PN285

They were also matters dealt with by Mr Gerard more formally today, and I have taken instructions from Mr Gerard that prior to any direction for employees to return to work or indeed should an order be issued, the company would be advising employees of the additional measures that the company has been able to come up with the assistance of other parties, of course, put in place in respect of helicopter assistance from Emerald.

PN286

But, where that comes down to again, Commissioner, is that in my view nothing that arises out of the staffing issues at the Blackwater Hospital can be said to bring into play section 274 of the Coal Mining Safety and Health Act.

PN287

Now, there is a similar exercise, if I can put it that way, in relation to the definition of industrial action in the Workplace Relations Act, and that, in my submission, is what the Commission must turn its attention to now, because that founds, as I say, the jurisdiction as to whether or not the Commission can issue orders.

PN288

Now, the definition has, as the Commission will be familiar, the what I would call the safety and health caveat, and the first part of that is action based on a reasonable concern by the employee about an imminent risk to his or her health or safety.

PN289

Is the lack of 24 hour coverage at the Blackwater Hospital a basis upon which an employee can have a reasonable concern about an imminent risk to his or her safety, in my submission, it simply cannot. That being the case, employees and the evidence for this have been directed to perform the work to which they were employed to perform, they have refused to perform that work, that then gives the conduct the flavour of industrial action within the meaning of the Act, which then gives the Commissioner the jurisdiction to issue the orders should be the Commissioner be so minded.

PN290

The other matters in my submission if I can encapsulate it then there are industrial actions as defined in the Act are currently happening. Ms Cheyne gave direct evidence about that. The question then becomes if it is happening what matters affect the Commission's discretion as to whether or not to issue orders.

PN291

And the matters that, in my submission, affect the discretion are first of all the measures that have been put in place dealt with in the correspondence by Mr Blanning, the additional measures that have been put in place today, and that will be communicated to the workforce prior to any resumption of work.

PN292

Employees have been directed under, and Mr Vickers took us to that, 6.1 of the certified agreement to perform work. They have refused to do so which then leads us to in broad terms a breach by each and every employee to comply with a lawful and reasonable direction by BHP Coal.

PN293

A further obligation is dealt with in respect of the disputes resolution procedure in the certified agreement. That procedure which is relevantly 32.2 deals with a dispute out of the interpretation of the agreement or in the cause of employment. Very broad coverage.

PN294

In my submission the capability of the Blackwater Hospital to provide 24 hour coverage, although not strictly speaking a matter that would ordinarily be one that concerns BHP Coal, it is nonetheless a dispute arises in the course of employment. Now, that being the case, the parties have an obligation under the disputes resolution procedure to progress the dispute through the procedure, and particularly to not engage in any industrial action in relation to a dispute captured by the clause unless a member of the Australian Industrial Relations Commission has certified in writing that employees have exhausted the steps contained in this clause and the dispute remains unresolved.

PN295

Now, there was no evidence about such a certificate issued by the Commission. In my submission the employees have failed to comply with their obligations under the disputes resolution procedure and that then is another matter which affects the discretion of the Commission as to issue the orders.

PN296

Other matters of discretion concern effectively the quantum of the loss, if I can put it that way, I don't want to go into too much detail there. Ms Cheyne gave us estimates of loss of revenue et cetera. Ultimately, we are dealing with mattes of health and safety, I accept that, but we are dealing with what is effectively a dispute about staffing levels at Queensland Health.

PN297

Now, in all of those circumstances, Commissioner, clearly you have jurisdiction to issue orders, and very cogent and persuasive reasons as to why that discretion should be exercised. They are my submissions.

PN298

Just finally, Commissioner, a question of timing, the letter that Ms Cheyne referred to as being handed to her this morning as I understand was dated the 20th, handed to her at some stage this morning where employees in a practical sense had already engaged in the industrial action by refusing to perform other work.

PN299

Now, I guess the timing issue then is particularly relevant to how the disputes resolution procedure is kicked in, and particularly there was, as I say, a dispute raised, people taking in a practical sense, if I put it this way, people taking industrial action and then issuing the dispute pursuant to the disputes procedure, either way you cut the cake, I guess it doesn't so much matter because in any event whether you raise the dispute before or after you have got an obligation under the disputes procedure not to engage in industrial action while that matter is being progressed.

PN300

What it all boils down to, I guess, is in broad terms, failure by employees to comply with their obligations under the disputes procedure in the certified agreement.

PN301

THE COMMISSIONER: Thank you. Mr Vickers?

PN302

MR VICKERS: Commissioner, this submission will be a little disjointed because of the amount of preparation time I haven't had, and it will be in a number of parts.

PN303

I want to first address what I think is a fundamental issue, and that is whether what is happening at Blackwater mine by members of the CFMEU and others is in fact industrial action as envisaged by the Act, and as a consequence then whether the necessary jurisdictional prerequisites for the Commission to act pursuant to section 127 have been met.

PN304

Mr Le Mare has taken you to the definition of industrial action, at least in part, in section 4 of the Act, and relevantly paragraph (g) of that definition says, and this is one of the general exemptions:

PN305

The preceding definition does not include action by an employee if:

PN306

(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety.

PN307

And it goes on about unreasonably failing to comply, in my submission, the second leg of that is not necessary.

PN308

Commissioner, Mr Le Mare on behalf of BHP seems to characterise the issue of Blackwater as some sort of a demonstration of inadequate employment levels by Queensland Health at the Blackwater Hospital. Of course, he has to do that, because to do anything else fails in his endeavour to challenge the legitimate concern of employees, members of the CFMEU and other unions at Blackwater, that they do in fact have a reasonable concern about in imminent risk to their health or safety.

PN309

Commissioner, it is my submission that the definition is not as narrow as Mr Le Mare would have you believe. That for an employee to legitimately refuse to perform their normal duties, they must be in danger of being thumped by something at the mine, and that is the end of it, because that is really the basis of his submission.

PN310

The fact that society, or Queensland Health, or the government or the company's own procedures is incapable of providing an adequate and that wonderful term "best practice" medical assistance to an employee seriously injured at work does mean, does mean, obviously, as plain as the nose on your face, that the employee is entitled to have a reasonable concern about an imminent risk to his or her health, because if you are injured at the mine, and seriously injured at the mine, and you require medical treatment in proper accident and emergency facilities, then that is what you need. You don't need the Queensland Ambulance Service officer, you don't need the triage nurse no matter how well qualified she might be, what you need is a properly medically qualified doctor with access to all of the emergency facilities. I am terribly sorry to have to point this out, but this is not an air conditioned office across the road where these people are working. This is a coal mine with massive pieces of equipment, where tragically things as little as a power cable falling off a boat can kill an employee, can at least fracture their skull. These are not Tonka toys out there that people are operating, these are not sand pits that they are operating in. This is some of the biggest and largest earthmoving equipment on the face of the earth where people have been killed, where people have had limbs removed and have been equally seriously traumatised.

PN311

Now, somebody recognised, even Queensland Health recognised that in an environment such as that there ought to be a properly staffed accident and emergency facility at the public hospital in Blackwater. So the hospital was built, the emergency facility was fitted out and a medical superintendent appointed who was accredited by Queensland Health to use those facilities. Queensland Health in its media release recognises that the current arrangements in place in Blackwater are unacceptable. If they were acceptable, then Queensland Health wouldn't be doing all these things that they say that they are doing in that media release, which is BHP2.

PN312

Let me just remind you, starting at the second paragraph:

PN313

We have approached Queensland Health Southern Rural Coordination, other Queensland health districts, medical employment agencies and past locums.

PN314

So they recognise it is unacceptable. It is not just a luxury, they recognise that it is important, so they are going out of their way to try and get a locum in place.

PN315

The district will continue to seek a relief locum as a priority.

PN316

Not if the opportunity arises, as a priority -

PN317

- and has a number of interim strategies in place to continue appropriate public health care services for the Blackwater community.

PN318

But they are interim strategies:

PN319

Where staffing levels allow.

PN320

So when other things are permitted, then they will provide part or whole day medical relief for Blackwater Hospital and to Dr Brown's private practice. Now, frankly, that is for general run of the mill medical conditions, it is not for emergency treatment as a result of a serious industrial accident at a coal mine.

PN321

Now, of course, it goes on, and I don't suggest for one second that they are not important, but they will attempt to schedule regular ante-natal clinics at the hospital. We are not talking about a facility for a kid who has fallen over and broken their arm, not that that is not important to be treated, we are not talking about the local pregnant women to be able to go to an ante-natal class, we are talking about people who have been seriously or potentially seriously injured in an accident at a coal mine, and god knows, they do occur, unfortunately. We are not making them up. A very serious accident occurred at this mine less than 10 days ago, and it wasn't a cut finger, it was an extremely serious accident.

PN322

The temporary service arrangement goes on in BHP3, it talks about patients being triaged according to their condition. Now, with all due respect to the triage nurse, and I am quite confident that this nurse is a highly qualified individual, and I have the utmost respect for their profession, what the media release confirms is that at best it is a triage situation. Not somebody who can actually treat a serious bodily injury.

PN323

It goes on then in this media release to say that they are:

PN324

Contacting the local mines to alert them to make temporary changes to their disaster planning.

PN325

Notwithstanding that, the human resources manager from the mine gives evidence that she doesn't know whether there has been any alteration, updating or amendment to the disaster plan, the emergency evacuation procedures or otherwise at Blackwater Mine. She assumes there might be, but she doesn't know, but notwithstanding that, and notwithstanding her knowledge of this direction, she then proceeds to pass on to the supervisors a direction that she got out of Brisbane, tell these employees to get back to work, and don't forget to tell them that they are breaching a lawful direction of the company, they are in breach of their contractual obligations to BHP, and frankly anything else that you can attempt to scare them with, but don't even check out the fundamentals that she has been aware of since 12 May.

PN326

Now, frankly, that is not the position one would reasonably expect from a kind, caring employer. Frighten the employees about their industrial employment without even checking out whether you as the employer have done the things that Queensland Health have asked you to do, yet, in her view, and indeed Mr Gerard's view, requiring people to perform their normal duties at a coal mine, expose themselves to all the risks that we know exist at coal mines, expose themselves to all the horrendous injuries which we know unfortunately occur from time to time in coal mines, all without having something as fundamental as 24 hours a day, 7 days a week medical attention available in an accident an emergency facility at a hospital, we aren't talking Wickham Terrace specialists, we are not talking the emergency department at St Andrews Hospital up here on Spring Hill, for heaven's sake, we are talking about an accident an emergency facility staffed by a GP with appropriate accreditation in a rural hospital. It is not much to ask for, it is not much to expect, and it is all very well for us down here, as I said before, in our environments, to not understand what goes through the minds of these employees. Why would they have a reasonable concern about their safety? Gee, if I walked across the road and got hit by a city council bus there would be an ambulance here in two and a half minutes and I will be in Royal Brisbane Hospital, Princess Alexandra, Greenslopes, St Andrews or any one of another half or dozen or more private or public hospitals within a short ambulance ride from here. Get hit by a truck at Blackwater under the current arrangements, and if you are really badly injured, we will transport you in the back of an ambulance to Emerald.

PN327

Frankly, Commissioner, it ain't good enough. It ain't good enough. And in 2005 it is totally unacceptable for any company, but particularly one who, through their evidence, sought to convince you of how terrible this action of the employees is that is taking place, and how costly it will be, this is a mine that on
Ms Cheyne's figures is estimated a gross of nearly $1.5 billion in revenue this year, and I will stand corrected, it might by $100 million either way, based on the maths, but she provided you with the figures, multiply them out, nearly $1.5 billion, and it is acceptable to them, and it is reasonable to them to provide their employees with second-rate accident and emergency facilities. Well, quite frankly, it is not acceptable to us in any way shape or form, and it is not acceptable to the employees.

PN328

It is not industrial action, what is taking place. There is a reasonable concern. That is a requirement under the definition, a reasonable concern, and there is imminent risk, all they have to do is going about their normal duties for something to occur which has occurred at the mine, and will continue unfortunately to occur at mines and be seriously injured, and their health is seriously at imminent risk. It doesn't matter whose fault it is, it is irrelevant whose fault it is, but it is not a dispute that the employees have with Queensland Health, not at all.

PN329

Mr Le Mare has also sought to paint this as an issue where the employees are in breach of the disputes procedure in the certified agreement. Commissioner, clause 32.2.5 is a relevant, I would submit, provision in terms of that submission. Mr Le Mare would has us believe, or have you believe more correctly, that there is an obligation on the employees to go through all of these steps that are contained within this procedure to settle this so-called dispute they have with their employees. 32.2.5 makes it quite clear, and I read it:

PN330

Nothing in this procedure reduces or eliminates the common law or employment law rights of either the company or the employee. This is particularly so in circumstances of a company taking disciplinary action against an employee, for example, suspension or dismissal -

PN331

I read that for completeness, but it is not relevant, and then the sentence goes on:

PN332

or in circumstances of an employee refusing to perform work if exposed to imminent danger. Any dispute arising over the action taken will be processed in accordance with this procedure.

PN333

That is if BHP Coal has a problem with what the employees are doing, then that clause says that it is incumbent on them they process that in accordance with this procedure.

PN334

What have they done? The only thing I have in writing is a fax received from Blake Dawson Waldron and a notification from the Commission. I don't have any requests from BHP to sit down and debate this. There is ..... that the procedure has been invoked by BHP. BHP can sack people, BHP can take disciplinary action against people, and they can rely upon clause 32.2.5 to not process that issue through the disputes procedure, but the employees can't refuse to perform work because they believe that they face imminent danger, they have got to process that through the disputes procedure. Well, they don't. They are not required to, and that clause is quite specific and it is quite specifically put in there for that very purpose. If it is good enough for BHP not to have to go through a procedure before they terminate the services of someone or stand someone down for misconduct, or refuse to pay them which is currently taking place without going through the disputes procedure, then it is acceptable for the employees to say, no I am not performing my normal duties, because it is unreasonable and I will be exposed to imminent danger if I do so. And that is the whole reason for the clause being there.

PN335

THE COMMISSIONER: Sorry, which clause was that?

PN336

MR VICKERS: 32.2.5, Commissioner.

PN337

THE COMMISSIONER: Thank you.

PN338

MR VICKERS: We say that the directions from the company for the employees to perform work in the circumstances are neither reasonable nor lawful, we say that they are in fact arguably in breach of clause 6.1, certainly the employees refusing to perform work in circumstances where it is unreasonable for them to be expected to perform that work because of their circumstances means that the company should never have asked them to perform that work, certainly not ask to perform that work in the manner in which they have been.

PN339

Commissioner, if however notwithstanding all those submissions you are of a mind to issue an order, then we would oppose it being issued in the form that is sought by the company, and we oppose it for a number of reasons, and I will take you to them.

PN340

Not the least of which, Commissioner, is from the evidence itself it can be confirmed that prior to the company ascertaining whether or not there are any new arrangements in place which might address the concerns of the employees they set about badgering the employees with threats and indeed took a decision and a determination that employees will not be paid. That is before the human resources manager at the mine who one would assume would have a reasonable handle on what is going on around the place conceded under cross-examination that she is not fully aware of the alternative arrangements that Mr Gerard has put before the Commission by way of his evidence.

PN341

So notwithstanding all of that, that hasn't even been put to the employees, they don't know if there are any alternative arrangements which may in fact overcome wholly or in part what are otherwise in my submission their quite reasonable concerns.

PN342

THE COMMISSIONER: Mr Vickers, I am not expecting you to speak on behalf of the lodge unless you have spoken to them about the specific issue, but as I understand it the arrangements that Mr Gerard refers to are that there are arrangements with Queensland Health and some helicopter service to provide a doctor by helicopter during the daylight hours to Blackwater in the event of an emergency at the Blackwater Mine, and I am aware that the employees, at least we don't know whether the employees have been advised of that changed circumstance, but it is a significant issue as far as I am concerned in my deliberation about this matter in the event of if I am satisfied jurisdiction exists about whether or not to exercise the discretion, and I would be interested in your view about that which I am sure as is usually the case the lodge might find persuasive.

PN343

MR VICKERS: Commissioner, as you know, it is not a magic wand that I have in my top draw.

PN344

THE COMMISSIONER: If I could bend your mind, but I think it is worn out.

PN345

MR VICKERS: I can't get replacement batteries. The circumstances that I understand were approaching at least being finalised at one stage during the course of the day which would have seen arrangements whereby a helicopter was on standby to fly at the shortest possible notice a doctor from Emerald who would be made available by Queensland Health at equally short notice as near as possible to the Blackwater Hospital would given the timeframes as I understand them about the availability would probably see a doctor in Blackwater at the emergency accident department at or about the same time the injured employee would arrive from the mine given travel time for helicopters, and given travel time from the mine in an ambulance which may or may not include some degree of recovery of an injured employee.

PN346

My position is that my members would have a great deal of difficulty convincing me that they could argue then that they had a reasonable concern about an imminent risk to their health as a consequence of that arrangement being in place, and I would advise them so quite forcefully.

PN347

Similarly, with what I understand an arrangement attempting to be finalised, and which with Ms Cheyne's evidence at least appears not to have been finalised as yet, notwithstanding the fact that the suggestion about its availability was made as long ago as Tuesday of last week, and that concerns apparently a Royal Flying Doctor Service accredited doctor to make herself available in Blackwater on certain occasions.

PN348

Equally, Commissioner, an appropriately qualified doctor accredited by Queensland Health to use the facilities at Blackwater Hospital puts the employees in exactly the same position as they were in before 12 May when Dr Brown was available, and equally I trust that commonsense would prevail and that there would no question that employees would perform their normal work whilst that arrangement was in place.

PN349

There are other issues which I am aware of that were being discussed at one time until unfortunately they all went more then a tad pear-shaped, but when the employees, and this is the advice they would received from me, they can't reasonably expect that their argument that, or their position, that they have a genuine and reasonable concern about in imminent threat to their safety or health remains in place when exactly the same procedure or arrangements are in place as they were before 12 May and Dr Brown was available.

PN350

Now, the problem with all of this is that how long such an arrangement is available is a matter for at this point in time people other than me. What was available was on call. I am certain that Dr Brown didn't stay awake 24 hours a day, 7 days a week waiting for something to happen. I am sure there was an on call arrangement in place, and it seems to me from including the evidence from Ms Cheyne based on admittedly second and third hand information what employees have said to supervisors when they are asked to form questions that were provided to them, that there seems to be little or no debate at least by Ms Cheyne that the employees are refusing the perform work because there is not 24 hours a day, 7 days a week coverage at the hospital. If there is such coverage at the hospital, then they will perform their normal duties. If it is 12 hours a day, then they will probably perform their duties for 12 hours a day and that would certainly be my very clear recommendation if not instruction to them. If it is
10 hours a day, likewise, if it is 16 hours a day, likewise, because that is what they had before, they had 24 hours a day, 7 days a week. They didn't have three doctors or four doctors rostered on, they had one medical superintendent who provided that necessary and essential coverage.

PN351

Now, if somebody somehow - and I can assure you they will now do so without my assistance - puts that availability of a doctor in the accident and emergency department at Blackwater Hospital available, within the sort of time frame that has been talked about, then it seems to me I would prefer not to be here arguing that you don't have jurisdiction because the employees are refusing to work for some other reason other than a genuine or reasonable concern about their safety.

PN352

We say at the present time, Commissioner, and as for them having been advised of any last minute developments, then they are not on strike. They are not performing their work, but they are doing so because they do have a reasonable concern about imminent danger to their health and safety. I reiterate there is no jurisdiction.

PN353

Commissioner, if however you disagree with my submission about jurisdiction, and you are minded to issue a formal order, and as I said I do have a number of problems and concerns with the actual form of the order that is being proposed. 3(a) in the order makes it clear that it is at least industrial action in respect of a grievance concerning staffing levels at the Blackwater Hospital. The employees are not refusing to work because of staffing levels at the Blackwater Hospital, they are refusing to work because of the reasonable concern about the imminent danger.

PN354

That may arise as a consequence of the unavailability of an appropriately qualified medical practitioner to staff the accident emergency facilities at Blackwater Hospital, and or the inability for whatever reason for Queensland Health to accredit another general practitioner resident in Blackwater to utilise those facilities, but what the employees are doing is not for a global purpose of concerns about staffing levels at the Blackwater Hospital. There is no suggestion that they don't think there is enough cleaners for example or nurses or otherwise, it is a very clear issue that there is not an accident and emergency facility staffed by a doctor available to them.

PN355

In point 5, Commissioner, I would make the point that any order should you consider issuing one must have an immediate effective date. Mr Le Mare was at pains in his submission earlier seeking leave to intervene about how important 127 applications are that they are the first step on the rocky road to the jurisdiction of the Federal Court. The minute you put your signature on such a thing effectively employees are in breach of it before they are even notified of it. So we would respectfully suggest that clause 5 needs to be amended.

PN356

I guess in terms of a final order the grounds won't be repeated as a consequence. I need to say no more about the submissions that I have already made in respect of the submissions put to you by Mr Le Mare about what is going on at Blackwater. Without being overly repetitive, Commissioner, they are my submissions.

PN357

THE COMMISSIONER: Thank you, Mr Vickers. Mr Moorhead.

PN358

MR MOORHEAD: Thank you, Commissioner. Commissioner, we support those submissions and do not intend to repeat anything. In respect of the definition of industrial action of the Act and the exemption at paragraph (g) of that definition, we have two submissions.

PN359

One is that the reasonable concern is that of the employee, and that reasonable concern must be based on the information they have to hand, and the information that they are provided by their employer about the safety or otherwise of their work.

PN360

Now, we say that what the employees know at the moment is that the Blackwater Hospital is not staffed by a doctor, and those facilities at the Blackwater Hospital cannot be used.

PN361

Secondly, the employees are aware that the Blackwater Hospital is a key part of the evacuation procedure or emergency treatment procedure for the mine, and that there has been no change to that process.

PN362

THE COMMISSIONER: Do we know that?

PN363

MR MOORHEAD: Well, Commissioner, one would expect that the key part of an emergency procedure is that the employees actually know what it is, and that would have been communicated to the employees that there has been some change to that process. We would expect in a situation like that that the risk analysis process would be undertaken, that there would a review of the procedure and that employees would be informed of the change, but the employees don't know of that. Mr Gerard and Ms Cheyne both gave evidence that there wasn't any communication to employees about changed procedures. They didn't know about any changes to the procedures at all, and neither Ms Cheyne who gave the direction to the supervisors or Mr Gerard were actually aware of the contents of that policy.

PN364

THE COMMISSIONER: And it is not before the Commission and I don't know whether (a) there is a document that has attendance at the Blackwater Hospital in it as part of an emergency response. I accept that there is no evidence that it has been changed.

PN365

MR MOORHEAD: And had it been changed employees should have been informed, but the employees don't know of that change, and we would say that even if the policy doesn't expressly say go to the Blackwater Hospital, the employees understanding would be that the employees were to go to the Blackwater Hospital, because that seems to be the process with the prior incident with the employee with the fractured skull.

PN366

So the question for the Commission is given the information that the employees had, was their concern reasonable, and for the reasons outlined by Mr Vickers, we say that they are.

PN367

The second is that a response to an emergency is as important as the prevention of that injury occurring in the first place. The provision of emergency response procedures is an important part of minimising injuries that may result from workplace accidents or other causes of injuries.

PN368

In that case it is not about a risk of injury, but it also about a risk of further injury that may result from insufficient or inadequate processes for minimising the consequences of workplace accidents.

PN369

I think the submission of Mr Le Mare what he describes as the fundamental point is what we say a fundamental flaw. Mr Le Mare says that the employees are refusing to work because of the situation with Queensland Health and that is issues Queensland Health has to deal with. Well, it is not a Queensland Health issue when the employees are at work. The employee's obligation to work is a BHP issue and the obligation of BHP to provide a safe system for responding to emergencies is a BHP issue.

PN370

BHP relies on that Blackwater Hospital for treatment of persons with injuries. It is part of their plan to respond to injuries. There is the link between Queensland Health and the issues of staffing, and the safety of the employees. They are not two separate issues. This isn't an issue of politics, an issue of demanding government services, this is an issue of, well, those government services are a necessary part of performing work safely at this mine, and with the absence of the doctor is not the case.

PN371

We say should happen is that there should be a risk analysis done on the evacuation procedure, that there should be a review of those procedures and that any changes or interim measures should be communicated to the employees before the employees can be satisfied that the continuance of their work in this safety critical industry is safe.

PN372

THE COMMISSIONER: Do you have a different position to the CFMEU? What I am hearing you saying is you need to change these emergency arrangements because as a result if the current emergency arrangement response is to transport the injured worker to the Blackwater Hospital that needs to be changed because there is no point in taking them there to attend an ante-natal class or to be attended to by a triage nurse if no doctor is going to attend. So, therefore, you say they need to be changed so they are taken to the airport and transported to Rockhampton or to Emerald or put in the back of the ambulance and transported to Emerald. But my understanding of the CFMEU is there is no need to change the emergency response because as I understand what Mr Vickers has said if there is no ability to have a doctor attend the Blackwater Hospital the employees won't undertake their normal duties because they believe themselves to be in imminent risk of danger.

PN373

MR MOORHEAD: We agree with the CFMEUs submissions in that regard. The submission I am making is that the employees don't know about the alternative arrangement at this point in time and it is in the forming of that reasonable concern that the knowledge that they have. We would agree with the position put by the CFMEU in that regard.

PN374

THE COMMISSIONER: Thank you. I note Ms Rogers has left.

PN375

MR HALL: If it pleases the Commission.

PN376

THE COMMISSIONER: Yes, Mr Hall.

PN377

MR HALL: Ms Rogers has had to go on personal responsibilities. One thing I would like to just try and clarify through in the submissions is that it was mentioned that the Royal Flying Doctor Service doctor was available for two days a week. My information relayed to me this morning that came from the hospital said that that was only from last week. He is not available this week. Having said that, submissions already put forward by the CFMEU was quite adequate.

PN378

THE COMMISSIONER: Thank you. Mr Le Mare?

PN379

MR LE MARE: Perhaps if I could deal with a few points in reply. I guess the "don't know" point, I thought we dealt with, in saying certainly an undertaking given by myself on behalf of the client to advise employees about the alternative arrangement - the additional arrangements put in place today prior to any further direction to perform work or indeed prior to the issuing of orders, that is something that we will attend to immediately, if it hasn't been done already.

PN380

The payment point about the company, should it or should it not be making payment for what is effectively the down time today, there is particular provision ..... relation to that, 187AA, but that really just begs the question, because what we come back to again is this issue of whether or not there is in fact industrial action? And where the parties, as I see it, are apart is whether or not action is based on a reasonable concern by an employee about the imminent risk to health and safety. From the companies perspective there is no evidence by any employees about direct evidence about that concern that they have. There was some questions put to Ms Cheyne and Mr Gerard during cross-examination about what the employees said, but I guess my point in relation to there is - - -

PN381

THE COMMISSIONER: Well, isn't that evidence?

PN382

MR LE MARE: Well, questions were put to Ms Cheyne about what were the reasons given to you or to other supervisors for employees not performing work, and then she recounted what employees had told their supervisors or should indeed have told her or she is reading off some notices. My point in relation to the evidence is there was no direct evidence by employees to start with, but in any event, the evidence that was there was evidence from Mr Gerard and Ms Cheyne was to the effect that again really what we are dealing with here is whether or not there is coverage, for want of a better word, by a medical practitioner at the Blackwater Hospital on a 24 hour basis.

PN383

The question then is, does that lack of 24 hour coverage amount to a reasonable concern by an employee about an imminent risk to his or her health and safety? In my submission is just does not because nothing that you can and cannot do at the Blackwater Hospital effects safe work practices effects the likelihood or otherwise or probability or otherwise of injuries at the Blackwater Mine. What we are dealing with is I guess management of that injury after it has occurred. That is not the work in my submission that the definition of an industrial action is aimed at, nor is it, sorry, paragraph (g) is aimed at, nor is it what 274 in the Coal Mining Safety and Health is aimed at. Now, if you accept that proposition then what flows in my submission is that there is clearly jurisdiction to issue orders, and then the question then becomes one of discretion, and I have gone through the reasons in broad terms for the exercise of discretion, I don't propose to look at those again.

PN384

THE COMMISSIONER: Mr Le Mare, can you confirm for me that the arrangements that Mr Gerard described in relation to the helicopter service and a doctor coming out of Emerald across to Blackwater in the event of an emergency will be put in place until the situation - a better proposal is put in place for ensuring that there is a GP or doctor of some description at Blackwater? Do you know the company's intention in relation to that?

PN385

MR LE MARE: I certainly know the company's - and I have discussed it with
Mr Gerard and I guess we are at one, by ensuring that if that communication to employees - well, first of all to clarify what exactly has occurred, I mean I understand there have been arrangements for flying doctors out, but I don't have a firm handle on exactly what the limitations are around that, but in any event, I am quite happy if we are able to have a short adjournment to find exactly what the arrangements are, and to find out whether or not that has been communicated to employees, and if not to do so.

PN386

THE COMMISSIONER: I am worried about whether it has been communicated to employees, but at this stage the evidence says nobody is sure about that.

PN387

MR LE MARE: I don't know the answer to that.

PN388

THE COMMISSIONER: I want to know that if I am going to tell people they have got to go back to work, I want to know the basis on which I am telling them to go to work, I want to know because it is a serious situation and we all have obligations and what I want to know is if I issue orders what arrangements have been put in place to provide coverage to the employees in the event of an accident at the mine. Now, I understand today there is a doctor who is the RFDS doctor who is going to attend Blackwater for at least two days a week, and I understand that there is some discussions being looked at which might extend that beyond two days a week. There is also a proposal for the helicopter service to be provided in the event of an emergency to get a doctor out of Emerald across to Blackwater, and there were some ideas being floated about having a doctor either drive down or be overnight in Blackwater, simply on a standby basis, not actually doing anything, but in the event of an emergency they would be able to obviously attend the hospital at short notice and then return back to Emerald the next morning.

PN389

I am just interested to know what the company's intention in relation to these, what has actually been crystallised and what the company intends to continue to do, if anything?

PN390

MR LE MARE: Well, I guess, the short answer is I am not in a position to be specific in my reply, and I guess in that context there are a couple of options available. One option would be to adjourn, I think it is a question of a couple of phone calls really the case would be, and if we are happy to advise the Commission that way. Alternatively, were you to want something in writing, we could make the phone calls now and provide it in writing to your associate and the others that are here today directly. It is entirely in your hands about that, Commissioner.

PN391

THE COMMISSIONER: I think the former. I mean, I am on a plane in an hour and a half.

PN392

MR LE MARE: Perhaps in that context give us a short adjournment, we will make some calls, and come back to you.

PN393

THE COMMISSIONER: Very well, thank you. We will adjourn to allow that to happen.

<SHORT ADJOURNMENT [5.20PM]
<RESUMED [5.39PM]

PN394

THE COMMISSIONER: Mr Le Mare?

PN395

MR LE MARE: By way of update, Commissioner, I can report some conversations Mr Gerard and I have had with others in the break. A helicopter from Emerald is on standby for the daylight hours only. Dr Louise Russell has agreed to be chartered into Blackwater three days per week commencing next week. She has the care of a diabetic child. Queensland Health is frantically looking for a locum to cover Blackwater in the interim, but as yet hasn't been able to secure one. Which leaves in a practical sense, if an incident occurs at the Blackwater Mine during nightshift tonight or other nights subject to the matters I have raised above which then brings into play the procedure as outlined in Mr Blanning's notice to employees, 13 May, which is effectively subject to royal flying doctors or all these other things, the diversion of that person to Emerald - as Mr Gerard says, unless a miracle happens in the interim, which we certainly hope for.

PN396

THE COMMISSIONER: Have there been any discussions about having a doctor from Emerald overnight in Blackwater?

PN397

MR LE MARE: There have been. I guess the concern that has been raised in relation to that is what it does is it takes somebody away from a bigger hospital in Emerald to Blackwater and it is seen by, certainly the medical people we spoke to, that that is not an appropriate thing to occur. So it is a question of taking one to provide at another. The people we spoke to were of the opinion that the better way for it to occur was to leave the existing capability at Emerald, and to deal with those people should they arise at Blackwater through Emerald.

PN398

THE COMMISSIONER: I have to say from what I have heard I am confident that the day shift is covered. I will reserve my decision in this matter, but nevertheless, given my travel commitment you can all expect a decision reasonably quickly. I will simply adjourn on that basis.

<ADJOURNED INDEFINITELY [5.46PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GREGORY WILLIAM GERARD, AFFIRMED PN43
EXAMINATION-IN-CHIEF BY MR LE MARE PN43
EXHIBIT #BPH1 BHP COAL PTY LTD ENTERPRISE AGREEMENT AND SCHEDULE G PN46
CROSS-EXAMINATION BY MR VICKERS PN57
EXHIBIT #BHP2 QLD HEALTH MEDIA RELEASE PN61
EXHIBIT #BHP3 NOTICE TO EMPLOYEES SIGNED BY MR BLANNING PN61
CROSS-EXAMINATION BY MR MOORHEAD PN115
RE-EXAMINATION BY MR LE MARE PN143
THE WITNESS WITHDREW PN147
DEBORAH MYA CHEYNE, AFFIRMED PN148
EXAMINATION-IN-CHIEF BY MR LE MARE PN148
CROSS-EXAMINATION BY MR VICKERS PN169
CROSS-EXAMINATION BY MR MOORHEAD PN232
THE WITNESS WITHDREW PN264