C2004/4824, Transcript of Proceedings [2005] AIRCTrans 1379 (24 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11883-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/4824

ENDEAVOUR COAL PTY LIMITED
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2004/4824)

SYDNEY

10.016AM, FRIDAY, 10 JUNE 2005

Continued from 10/12/2004

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. No changes in appearances?

PN2

MS GRAY: No, your Honour.

PN3

MR NETTLETON: No, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. On 10 December of last year I adjourned the company's application for an order under section 127 of the Act in order to enable the parties to have conferences to put in place procedures and protocols to enable them to give effect to their common intentions as expressed in clause 10.2 of their certified agreement. I indicated that Commissioner Bacon would be available to facilitate those discussions and adjourned the matter to today's date for a report back. Would anybody like to tell me what has happened in the last six months please?

PN5

MR NETTLETON: Perhaps I can your Honour as the applicants in the matter. As your Honour has indicated this matter was last listed before your Honour on 10 December of last year and as your Honour has outlined a procedure was put in place for there to be conciliation and discussions between the parties. I can report, your Honour, that there was a conciliation conference in Sydney before Commissioner Bacon on 2 February this year and then there was a further telephone conference with Commissioner Bacon on 7 March this year. There have been negotiations carried out in addition to those conferences chaired by Commissioner Bacon.

PN6

There have been negotiations carried out at the site and indeed there are further conciliation proceedings programmed to be before Commissioner Bacon here in Sydney again next week, your Honour, on Thursday 16 June. Your Honour, there has been a lot of effort channelled into the discussions that the parties have been having at site level and the parties, I think it would be true to say, your Honour, that the parties at this stage are close to reaching agreement. There is probably just some fine tuning type issues that need to be dealt with in relation to things like definition of industrial action and the like.

PN7

In terms of substantive issues, your Honour, there is only one real substantive issue between the parties and that involves whether or not the procedure should at an appropriate point provide for arbitration by the Commission. Commissioner Bacon will be able to assist the parties in relation to that issue next week and for our part, your Honour, we are optimistic that we should be able to reach agreement in relation to a revised set of dispute procedures and also some communication protocols that the parties have been working on and it is anticipated, your Honour, that if we are able to reach agreement in relation to revised dispute avoidance procedures the plan would be that the parties go through the steps to make an application to vary the certified agreement to include those newly revised and approved procedures in the certified agreement.

PN8

So your Honour, given where we are at the moment a lot of work has been done. There is still some more work to be done. As I say there is only one really substantive issue between the parties, we are confident we should be able to work our way through that. On that basis we would ask for an adjournment of these proceedings to allow the further conciliation to continue and I understand there is no objection to that course, your Honour, or indeed that it is supported by the union. That is the company's position, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Nettleton. Ms Gray?

PN10

MS GRAY: Thank you, your Honour. Your Honour, I don't know whether your Honour has had feedback from Commissioner Bacon in terms of the conciliation but - - -

PN11

THE SENIOR DEPUTY PRESIDENT: I spoke with him briefly in Brisbane yesterday and he indicated that there had been some conciliation and then there had been a hiatus and that he was going to deal with it again next week.

PN12

MS GRAY: Yes your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: But that is about the extent of my knowledge.

PN14

MS GRAY: Your Honour, you would be aware from the arbitration that was before you and the statement that your Honour made at the time of the adjournment of these proceedings that one of the major issues between the parties was communication and most of the stoppages relied on by the company were of a safety nature. Bearing that in mind, your Honour, the parties have put some effort following initial brief positive assistance from Commissioner Bacon to look at a revised disputes avoidance procedure which essentially is two stream.

PN15

One for normal run of the mill type industrial matters the other for matters of a safety type issue which would be progressed through levels including levels involving some specialists in safety areas in coal mining legislative terms. So that has been the path that has been followed by the parties initially through conciliation with the assistance of Commissioner Bacon substantially over the last number of months at a site level without the involvement of legal representation and as Mr Nettleton said a great deal of progress has been made. It is fair to say that there is one substantive issue on the disputes avoidance procedure although there are a number of smaller issues which we will be seeking the assistance of Commissioner Bacon with next Thursday.

PN16

The other thing is a protocol as Mr Nettleton has referred to for communication to ensure that safety issues are advised to the workforce in a very timely and consistent manner. So we feel that there has been a lot of positive work done, your Honour. We would certainly support an adjournment. At these proceedings we would be hopeful that when final agreement is reached on a revised disputes avoidance procedure and that matter is put to the workforce, hopefully endorsed and the certified agreement varied that the company would at that stage withdraw its application for a section 127 but that will also I would imagine form part of the discussions that we have before Commissioner Bacon in terms of tying up some of these issues.

PN17

So good work is being done, your Honour, we would support an adjournment and as to the timing of coming back before your Honour, I am not quite sure how long that would take. If we are successful next Thursday then the certified agreement should be able to be varied and in place within four to six weeks thereafter I would think.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Ms Gray. I am very pleased at the positive nature of the report back. As I indicated in December my concern was - my particular concern was the communication issue and that seems to be one of the primary matters that the parties are focussing on and I think that is very important and it is heartening to see that that is being dealt with. If agreement is reached and the certified agreement is sought to be varied I doubt that it would be necessary to have further proceedings before me.

PN19

I would ask that the parties keep me informed through my chambers and if either party wishes to have the matter relisted before me that will be done but if that is not necessary and the ultimate outcome is that the application for a 127 order is withdrawn, if you merely notify my chambers to that effect the file will be closed. Unless there is anything anybody wants to say about that proposed course of action I will adjourn the Commission and wish you both well, wish you all well.

<ADJOURNED INDEFINITELY [10.25AM]