C2005/1611, Transcript of Proceedings [2005] AIRCTrans 149 (20 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10005

COMMISSIONER BACON

C2005/1611

s.127(2) appln to stop or prevent industrial action

BHP Billiton Mitsubishi Alliance
and
Construction, Forestry, Mining and Energy Union
(C2005/1611)
BHP Coal Pty Ltd Enterprise Agreement 2004

BRISBANE

1.04PM, MONDAY, 10 JANUARY 2005

Adjourned sine die

PN1

THE COMMISSIONER: Can I take the appearances please?

PN2

MR G GERARD: I appear for BHP Coal Pty Ltd.

PN3

MR A VICKERS: Commissioner, with me I have MR J YVANOFF.

PN4

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

PN5

MR GERARD: Thank you, Commissioner. Firstly, welcome back to the new year Commissioner, from your break, and could I indicate the company's appreciation of the speedy matter in which this application made pursuant to section 127(2) of the Act has been made. The company, of course, is a party to industrial dispute and a person directly affected by the dispute.

PN6

Commissioner, I have forwarded to the parties a copy of a witness statement provided by Russell Harris, the HR manager, and I gather that Mr Vickers does have some brief cross-examination. Has the Commissioner had the opportunity to read that fairly brief witness statement?

PN7

THE COMMISSIONER: No, I haven't, but I'll do that while we're getting Mr Harris on the phone.

PN8

MR VICKERS: Commissioner, I just want to indicate that I have objections to a number of the elements of the affidavit. I don't know whether you want to deal with those prior to getting Mr Harris on the phone?

PN9

THE COMMISSIONER: Let's deal with them.

PN10

MR VICKERS: Commissioner, firstly I object to point two, particularly that part of point two following on from the date, on the basis that it's hearsay.

PN11

THE COMMISSIONER: Probably easiest if we deal with them one at a time, unless anyone has got an objection to that course?

PN12

MR VICKERS: Commissioner, I might point out that all of my objections, with the exception of an objection in relation to point nine, which is almost in the same vein, go to the point that Mr Harris is giving affidavit material about what other people said or what other people did, as opposed to direct conversations with him, which I have no objection to. If it's - Mr Gerard might like to consider this - if those parts of the witness statement that in fact deal with what other people said, and not directly to Mr Harris, if it's conceded that they be struck out from the record, then frankly I don't have a problem with the rest of it.

PN13

I'm not trying to find some grounds to say there is no strike. There is a strike taking place, it is ostensibly over the lack of the cleaning of facilities at the mine. If we leave it at that, not who said what to whom, and Mr Harris's view of what might have occurred at the Federal Court, given that he wasn't there and I was, that's in point nine, then at least the thrust, the purpose it would seem to me of the witness statement being entered into proceedings is done, confirming that there is a strike and as I said, I wasn't going to take any truck with that in any event.
But that's the basics, I can go to the specifics of it, Commissioner, but you'll note from the quick reading of it that there are a number of parts of the affidavit where Mr Harris is saying what other people said to someone else, which frankly simply isn't on. That's the basis of the objection.

PN14

THE COMMISSIONER: What do you say to that, Mr Gerard?

PN15

MR GERARD: I don't have a great deal of problem with that Commissioner, assuming that point four is not disputed.

PN16

MR VICKERS: Not objected to Commissioner.

PN17

MR GERARD: And point six.

PN18

MR VICKERS: I don't have a problem with Mr Harris as a sole member of management, but if he's going to purport to speak on behalf of every other member of management, which is about 100 odd people at the mine, then I have a difficulty. But if it is that he received no calls complaining about it that's fine by me. I don't think he's in a position to attest to what Mr Blanning or Mr Viero or any of other 40 other senior management people may have had contact.

PN19

MR GERARD: And at point nine, I gather Mr Vickers' objection is the last sentence in point nine.

PN20

MR VICKERS: It's also part of the preceding sentence. I don't have a difficulty with the first sentence up to:

PN21

request to drive a truck

PN22

It's not my recollection that the purpose of driving the truck was for testing purposes or that it had previously been declared safe by a tradesperson. I do struggle with the fact that the Federal Court allegedly brokered a return to work. I have a different recollection of what was said by the barrister on behalf of the company in those proceedings, so would the transcript.

PN23

THE COMMISSIONER: The issue is not whether the Federal Court brokered, encouraged or did whatever, it's the fact that Mr Harris wasn't there so he can't give direct evidence about that.

PN24

MR VICKERS: Correct, he can't give direct evidence of that at Commission. Mr Gerard could, but that's going to be a struggle- - -

PN25

THE COMMISSIONER: Conform views about, based on what he was told, happened at the Federal Court.

PN26

MR VICKERS: Well, he can do that, but that's more than - I form the view, it's what the Federal Court did. I struggle with that.

PN27

THE COMMISSIONER: So the last sentence is:

PN28

the cause of the concern

PN29

I mean the rest of it is opinion about opinion evidence. I'm sorry, it's not opinion evidence, its factual evidence. Evidence of fact about there's been one indefinite stoppage since a certain time.

PN30

MR VICKERS: And that part of it Commissioner, I don't have a problem with, that's all fine. It's the following on from:

PN31

request to drive a truck

PN32

If the sentence finished then, that's fine. The balance of that sentence, I object to.

PN33

THE COMMISSIONER: But the objection in relation to the balance of the sentence is - - -

PN34

MR VICKERS: It's accuracy. If it's- - -

PN35

THE COMMISSIONER: Which is a matter for cross-examination - - -

PN36

MR VICKERS: If it's taken out, I don't have to cross-examine. If I have to cross-examine then it delays the day, and I don't feel like delaying the day for the purpose of delaying the day, I'm lazy.

PN37

MR GERARD: I'm happy for that to come out Commissioner.

PN38

THE COMMISSIONER: Okay, so it - the sentence - the first sentence in paragraph nine finishes:

PN39

after 6 April 2004

PN40

Is that what we've agreed?

PN41

MR VICKERS: It can go on as far as:

PN42

to drive a truck

PN43

THE COMMISSIONER:

PN44

wish to drive a truck

PN45

And the rest comes out.

PN46

MR GERARD: Could I just ask the question in relation to the second sentence in point five, Commissioner, if Mr Vickers has an objection to that? And the third turn, sorry.

PN47

THE COMMISSIONER: We just need to be a bit precise about this. Can we go to paragraph one, there's no objection with paragraph one?

PN48

MR VICKERS: No, Commissioner.

PN49

THE COMMISSIONER: Paragraph two is objected to, at least in part.

PN50

MR VICKERS: I withdraw that objection Commissioner, my apologies.

PN51

THE COMMISSIONER: Paragraph two is evidence that he received a phone call and was told something. Whether that happened or is true is not, is something he can't attest to. That you agree with that?

PN52

MR VICKERS: Yes, I do.

PN53

THE COMMISSIONER: In any event, the objection is withdrawn so the paragraph stays in full. Paragraph three?

PN54

MR GERARD: Well, the objection with paragraph three, Commissioner, is that Mr Harris is telling us what Mr Taylor says to other people, told him, and that's hearsay. So it seems to me that the purpose of three is to confirm that there's a strike and I'm not going to contest that, there is a strike.

PN55

THE COMMISSIONER: So you want three struck entirely. Mr Gerard?

PN56

MR GERARD: No, I don't have an objection Commissioner.

PN57

THE COMMISSIONER: There's no objection to paragraph four.

PN58

MR GERARD: No Commissioner.

PN59

THE COMMISSIONER: Paragraph five.

PN60

MR VICKERS: I'll withdraw that objection, Commissioner. I'll deal with that in cross-examination in respect to five.

PN61

THE COMMISSIONER: Very well, thank you. Same with paragraph six. For all we know, he's spoken to every one of the management team

PN62

MR VICKERS: Well I'll ask him whether he has, Commissioner.

PN63

THE COMMISSIONER: But the sentence can stay in the affidavit. What about seven?

PN64

MR VICKERS: No objection to seven.

PN65

THE COMMISSIONER: Fair enough thank you. And eight?

PN66

MR VICKERS: Eight's .....

PN67

THE COMMISSIONER: Sorry, is there - - -

PN68

MR VICKERS: I have no objection.

PN69

THE COMMISSIONER: Fair enough thank you. Okay, well having struck the various sentences from Mr Russell's - sorry, Mr Russell Lawrence Harris's witness statement, we should now get him on the phone to allow him to be
cross-examined. We might have a brief adjournment to allow that to happen.

<SHORT ADJOURNMENT [1.15PM]
<RESUMED [1.20PM]
<MR RUSSELL LAWRENCE HARRIS, AFFIRMED [1.21PM]
<EXAMINATION-IN-CHIEF BY MR GERARD

THE FOLLOWING EVIDENCE WAS CONDUCTED BY TELEPHONE LINK UP

PN70

THE COMMISSIONER: Now I understand that we have Mr Harris on the phone and that Mr Harris has been affirmed.

PN71

MR GERARD: Mr Harris, could you please provide the Commission with your full name and residential address?---It's Russell Lawrence Harris (address supplied).

PN72

And in what capacity are you employed at the Saraji mine?---I'm the Human Resources Manager.

PN73

Mr Harris, in your affidavit at point four you ask, you advise that you telephoned Mr Cuthel at home. Did you ask Mr Cuthel if the union were on strike?---I think I may have mentioned that I'd had a call from Steve Taylor to say they were on strike.

PN74

And what did he say to that?---I think I then went on - I was more specifically interested in the areas where the alleged lack of cleaning had occurred so - I mean that was the text - that was the reason for calling him, more so than anything else.

PN75

Right thanks. No further questions, Commissioner.

PN76

THE COMMISSIONER: Mr Gerard, have you advised Mr Harris of the- - -

PN77

MR GERARD: No, I haven't, but I can do that now.

PN78

THE COMMISSIONER: - - - changes that have been made by the Commission to his- - -

PN79

MR GERARD: Mr Harris, if I could just indicate to you there's been some objection to your witness statement and effectively the Commission has ruled that paragraph three has been deleted on the basis of hearsay?---Right.

PN80

And if you go to paragraph nine?---Yes.

**** RUSSELL LAWRENCE HARRIS XN MR GERARD
PN81

That paragraph now stops at the words:

to drive a truck

And the subsequent - the balance of that sentence and the next sentence have been deleted?---Okay, no, that's fine.

PN82

THE COMMISSIONER: Thank you, Mr Gerard.

<CROSS-EXAMINATION BY MR VICKERS [1.23PM]

PN83

MR VICKERS: Thank you Commissioner. Mr Harris, good afternoon?---Good afternoon.

PN84

At point four of your affidavit, Mr Harris, you say that you telephoned Mr Cuthel at home?---Correct.

PN85

What time was that?---It was a bit after 6.30.

PN86

Am I right in saying that was a Sunday - yesterday?---Correct, yes.

PN87

Now, you go on at point five, then to say that supervisors have visited all crib areas?---Yes.

PN88

How do you know that?---When I called the supervisor, Steve Taylor, and he advised, and again I was trying to ascertain which areas specifically had not been cleaned or inadequately cleaned, and he and another supervisor were going to
get - to tour the entire mine site, including the industrial area, to photograph all of the crib rooms, toilets and bath houses, and he then left a message on my mobile telephone at 10.30 pm last night to say that he'd done so and that they would be sitting on my computer this morning.

PN89

And are they?---Yes they were.

PN90

Do they include pictures of the bathroom?---Yes, they do.

PN91

You don't mention the bathroom in point five of our affidavit, do you notice that?---Yes, I guess at that point in time I didn't know what they were going to take photos of, as I say, he didn't phone me until 10.30.

PN92

So that was 10.30 last night?---Yes.

PN93

Okay. But your affidavit is that the bathroom - is that the crib rooms were in good condition?---Yes, correct.

PN94

Okay. But you are not aware of the state of the bathroom?---I saw the photos this morning of the bathrooms and I am now aware of the status of them.

**** RUSSELL LAWRENCE HARRIS XXN MR VICKERS
PN95

And what's that?---Well, I guess it's unfortunate, so I don't know whether - what I'm going - about to say is admissible in any event, but there was something like 56 megaphotos, there were 64 photographs across the mine site. The main bathhouse area was excellent and the other toilets, I guess ranged from excellent to good. In my view there was nothing sort of horrible or disgusting about them.

PN96

So from the photographs they would appear clean?---Yes, sir.

PN97

And are you certain when those photographs were taken?---I can only go by the fact that the supervisor said he was going to take them and leave them on my computer this morning, that's all that was there.

PN98

There's no way of knowing from the photograph when they were in fact taken?
---No, not that there was no times or, you know, like little printout on the bottom of them.

PN99

Now you say at point six that no calls were received by management from employees, supervisors or union concerning a cleaning issue, you see that? You've spoken to every member of management?---I've spoken to the managers that are on site today which include Richard Collier, whose the acting SSE, I myself received none. I also spoke to Steve Riddell, the commercial manager, and Jim Viero and Murray Williamson, the respective mining and maintenance managers. They're the only people that are on site today and none of those had any telephone calls.

PN100

So your reference to management at point six is restricted to those - is it five people that you've in fact spoken to?---No, there are other managers, but the-some people were off site during the course of the weekend.

PN101

Were those people on site on the weekend?---No, they were off site. The other people that I didn't name were off site.

PN102

So have you spoken to every member of management?---I've spoken to the management team people who were on site on the weekend.

PN103

That's those five people whose names you've just given?---That's correct.

PN104

Okay. So that's what you mean is it, by the comment at point six?---Yes.

**** RUSSELL LAWRENCE HARRIS XXN MR VICKERS
PN105

Now at point seven you deal with the CEPU?---Yes.

PN106

And they have not expressed any concerns in relation to crib rooms?---Yes.

PN107

Is that, express any concerns to you?---To me, yes.

PN108

That's fine. Now, can I ask you how is the cleaning of the crib rooms and the bathrooms performed at Saraji mine, Mr Harris?---They're performed by employees of a company called Spotless, I guess that's their abbreviated name, I don't know the full title of the company, and with predominantly females who are based in Dysart. The cleaning is done a couple of times a day. It's done on day shift between the hours of 5 am and 10 am and then there's another clean done that includes offices which is done 5 pm to 10.45.

PN109

You were advised of the strike when? Or when did the strike commence?---Beg your pardon?

PN110

When did the strike commence?---Well, I guess it effectively commenced when they got called in for a meeting, so that would have been the start of night shift yesterday, or 5.45 pm. So they must have met for sometime in the car park before then proceeding further.

PN111

Okay, so work had ceased what, approximately, five?---5.45.

PN112

At 5.45?---5.45. That would be your shift handover.

PN113

Okay. So then there were cleaners on duty from 5 pm until 10.45 pm?---Yes, as I understand it none of the cleaners are on strike, they continued working and were in fact here at work today.

PN114

Now, what time was it you spoke to - did Mr Taylor was it - advise you that he was going to take photographs?---It was some time after 6.30. I had the initial conversation around 6.30 in which he told me there was a strike. In trying to identify what the issues were I asked several questions of him that he couldn't respond to and then I had another conversation with him suggesting that he ought to get interested and go out and take some photographs.

PN115

Okay. Do you know what time he finished taking the photographs?---No, I don't.

**** RUSSELL LAWRENCE HARRIS XXN MR VICKERS
PN116

But it is a fact, isn't it, that he was taking photographs at a time when there were no employees on site?---Yes.

PN117

And there was a cleaning crew on site?---Yes.

PN118

Is it possible that the bathroom, for example, was cleaned after the employees went on strike and before Mr Taylor took the photographs?---It's possible, Mr Vickers. Some of the photographs that I was privy to this morning, it was fairly obvious that they had just been cleaned because there is a blue liquid that they spray in the bottom of toilet bowls, for example, and a couple of the photos you could see that quite clearly. So some of them may have just had a clean, others they probably hadn't got to, so it would be a bit of both.

PN119

Do you know for certain when the bathroom was cleaned, Mr Harris, on yesterday afternoon?---No, not exactly, no.

PN120

Okay, thank you. Mr Harris, are you familiar with the Coal Mining Safety and Health Regulation 2001 at all?---In part.

PN121

Are you familiar with that part, part 12 of the regulation that deals with the work and environment section?---Yes, not verbatim, Mr Vickers.

PN122

No, no no, I'm not - do you know?---Yes, aware of it.

PN123

Aware of it - you know that there's a section 87 that says that the Site Senior Executive must ensure the mine has sufficient potable water, bathrooms, toilets and other personal hygiene facilities and dining facilities etc?---Yes, yes.

PN124

So you know that's a - you accept that that's an obligation?---Yes, I accept that, yes.

PN125

Are you also familiar with, or are you familiar with regulation 95, and I'll quote it to you, it says:

PN126

a coal mine must have a standard operating procedure for maintaining the facilities mentioned in section 87 and other areas of the work environment in a hygienic condition

PN127

Are you aware of that?---Yes. I'd take your word for it.

**** RUSSELL LAWRENCE HARRIS XXN MR VICKERS
PN128

Do you know what the mine's standard operating procedure is, for-for example cleaning the bathroom facilities and the crib rooms?---No, not off the top of my head. I mean I'd have to go the - the - I should explain, I guess. The cleaning contractors come under the Commercial Manager as a - as a reporting role, if you like, so I'm not privy to the specifics of that.

PN129

Okay. That's the contractual arrangements, but the-the standard operating procedures and their requirements of the regulation, are you aware or do you agree, are the primary obligation of the site Senior Executive?---Yes.

PN130

And you don't know whether the mine - you don't know for certain whether the mine has a standard operating procedure for cleaning bathrooms and crib rooms?
---(a) I don't know whether there is one, but if there is one I just don't know the detail of it .....

PN131

I accept that Mr Harris, I'm not, I'm not - that's fine. Now Mr Harris, and I accept again that the arrangements with the contract cleaners are not necessarily your ..... , they're that of the Commercial Manager. Is Spotless a newish contract at the moment or has it been in place for sometime?---No, Spotless took over from their predecessors, who were Archive Cleaning or Archive Cleaners, that would have been in or around - I'm just guessing here, July last year, something like that. I presume the previous contract expired at the end of the fiscal year.

PN132

Okay. Now those hours that you mentioned previously that the, that the contract cleaners work, 5 to 10 on day shift and 5 to 10.45 in the evening?---Yes.

PN133

Is that the same as the hours that were being done by Archive?---I'm fairly sure that they're less, but by how much I'm not sure. You know, there had been-there had been rumblings if you like, or comments from the cleaners, when the contract was changed, that there were slightly less hours, but I honestly can't tell you by how much less. Other than what I'd heard at and around the time that they were introduced.

PN134

Okay. Can you say for certain that there was a reduction in the hours?---I guess if the comments that I were hearing were correct then I'd say that there must have been.

**** RUSSELL LAWRENCE HARRIS XXN MR VICKERS
PN135

Now have you received any complaints from any of the employees, or perhaps more particularly from the lodge officials, about that reduction in hours and the-and problems with cleaning that might flow from it?---Yes. There have on a couple of occasions, but again, they were referred - or the comments referred and the people referred to go and talk to the Commercial Manager. We've had a change there as well, but it could have been one of two people, and I understand that on several occasions that Spotless were then talked to as well. Or the new management group of Spotless.

PN136

It has been suggested to me, Mr Harris, and perhaps you can confirm it, that, that the issue of the cleaning - cleaning not being done to a satisfactory level as a consequence of the cleaners reductions in hours has been specifically raised with yourself, Mr Blanning and a Mr Tate?---Yes - yes, no, that's correct - by - like I say, I would have then referred them back to the Commercial Manager who was then Mr Tate.

PN137

They were raised by Lodge officials do you recall?---Yes, yes, I've just - I can't remember who it was, but certainly as I say, when the change over occurred that there - there were some conversations.

PN138

Thank you Mr Harris, I've no further questions.

PN139

THE COMMISSIONER: Yes.

PN140

MR GERARD: Just a couple of arising questions.

<RE-EXAMINATION BY MR GERARD [1.35PM]

PN141

MR GERARD: Mr Harris, Mr Vickers took you through some questions in relation to the photographs that you had taken and you advise that the photos were taken after the employees had left the mine, something to that effect?---Yes.

PN142

Are you aware the last - did Spotless clean the crib rooms and bathrooms on the Sunday at all?---On - well, I guess there would have been two occasions, that that was possible because they do the, as I understand it, they do the crib rooms - well, you've got a morning clean on Sunday, so that would have been possible, then you would have an evening clean from 5 to 10.45 on the Sunday as well. So I guess there's - there's two occasions there.

PN143

Right?---But specifically, which crib rooms they do at which times, I'm sorry, I just don't have that detail.

PN144

Okay, thanks. Mr Vickers also took you to the coal mine's Health and Safety Act with relation to - especially regulation 49, safe operating procedures, and you advise that that contract came under the control of the Commercial Manager?
---Correct.

PN145

And further, he asked you some questions in relation to complaints that were raised with yourself, Mr Blanning and Mr Tate, to which you said that you referred to Mr Tate. Are you aware, in both of those circumstances, if there are any issues raised under the Coal Mining Safety and Health Act, firstly?---I mean, my recollection is that they were just verbal conversations, there was nothing put in writing, so I just - I can't answer that, whether the Act was referred to.

PN146

Right. So from that, if I went to an industrial nature, was there anything put in writing, in conformity with clause 32 of the enterprise agreement?---No, I don't think it got to the disputes, you know, written disputes notification. As I say, most of the comments were sort of, just verbal conversations.

PN147

Good, thanks Mr Harris. Nothing further.

PN148

THE COMMISSIONER: Mr Harris, it's Ken Bacon speaking. I just want to ask you a question. Can you go to paragraph five please of your witness statement?
---Yes.

PN149

And in paragraph five I just want to make sure I understand it?---Mm mm.

PN150

You say that, due to rain, the cleaners missed because of lack of access, missed a clean on Friday day shift at ramp 17 crib hut?---Correct.

**** RUSSELL LAWRENCE HARRIS RXN MR GERARD
PN151

Do you know if that crib hut was cleaned later in the day?---On that - well, I wouldn't have thought so, and again I'm just surmising. I'm sorry I lack a bit of - a bit of detail here, but it's difficult when you've got other parties involved. It did rain here fairly heavily and in town on Thursday, and again on Friday. And my conversation with the Commercial Manager this morning was that the reason it didn't get a clean at that point in time, because there was in fact water across the road, and they just couldn't get there. And then the Friday, there was just the mud and slush left again, but with some more rain, and they didn't get there for a second time. So I don't know whether it got a clean in the evening of the, of the Friday.

PN152

And you then go on and say:

the normal schedule returned with all areas cleaned on Sunday

?---Correct.

PN153

What happened to Saturday?---Sorry?

PN154

What happened on Saturday?---On Saturday? Where are we here, just let me re-read it:

PN155

Missed a clean on Friday day shift, following Thursday

PN156

I would suspect the third last line in that paragraph, where I say:

PN157

again, with further rain on Friday

PN158

That would have affected the Saturday, I have the wrong date there, the wrong day, I'm sorry.

PN159

Well the rain - the rain occurred on Friday, but it?---Friday, but it affected the Saturday clean, yes, my apologies for that.

PN160

Thank you. Does anyone have anything arising from that?

PN161

MR GERARD: Just a question, Commissioner.

PN162

Mr Harris, arising from the questions that Commissioner Bacon put to you, were you, for example, contacted on Saturday in relation to crib rooms not being cleaned?---No.

PN163

Right, thank you.

PN164

THE COMMISSIONER: Very well. Thank you Mr Harris.

PN165

THE WITNESS: Okay, thanks very much.

<THE WITNESS WITHDREW [1.40PM]

PN166

THE COMMISSIONER: Does that complete your - - -

PN167

MR GERARD: Yes, it does Commissioner.

PN168

THE COMMISSIONER: Very well, thank you. Are you calling your new witness?

PN169

MR VICKERS: No, Commissioner.

PN170

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

PN171

MR GERARD: Thank you Commissioner. Commissioner, if I could firstly take you to the disputes procedure which is attached to the application forwarded this morning. If I could take you to 32.2.3 Commissioner. That section of the ..... procedure says, and I quote:

PN172

Employers of the company whose work is regulated by this agreement shall refrain from engaging in any industrial action in relation to any dispute captured by this clause unless a member of the Australian Industrial Relations Commission has certified in writing that the employees have exhausted the steps contained in this clause and the dispute remains unresolved.

PN173

And those words might appear familiar to you, Commissioner, from some earlier decisions that you made, and the parties to this agreement at a state level in what's called a central document, were more than enamoured with that approach, with a view of trying to stop wild cat stoppages at work and require our employees and our delegates and our management to follow the disputes procedure.

PN174

And, of course, then following that at 32.3 there are various steps set out in fairly - detail - if I could take you firstly to 32.3.1 where there's discussion between the employee and the immediate supervisor involved. Then to 32.3.3, obviously if that issue is not resolved it's then raised in writing. We've also added to the previous clause that you should have been reasonably familiar with, at 32.3.5, another clause which might be also appropriate in this particular case, that matters of a general nature affecting more than one employee across departments of the whole mine might be raised by the union and progress at the relevant management level, depending on the issue.

PN175

Now Mr Harris has given evidence that there may have been some issues of a verbal nature, but as to whether they were put in dispute - put in writing, sorry, in accordance with 32.3.3, we're unaware if issues aren't resolved at that particular level, there's facility in 32.4 to involve the mine manager, or his representative. Further, at 32.5 the discussion involving more senior nominated company officials, which we commonly refer to as a state level conference, whereby the district officials of the union together with a senior officer of the company not employed at a site, and that person is normally me, to attend to try and resolve the issue.

PN176

There's also procedures in 32.5.3 that - where a party believes that a conference has been delayed, that nothing stops either party from by-passing a state level conference, for example, and immediately referring to the - the issue to the Commission. 32.6 gives the Commission power to determine any matter raised by either party and 32.7 also provides for procedures to allow any of the steps to be by-passed in the interests of a speedy resolution of the dispute. 32.8, which is probably irrelevant in this particular case, Commissioner, also makes a provision that where there's a possibility of industrial action occurring that a union official whose a member of the central negotiating committee, for example, Mr Vickers, learning of the possibility of action, intervenes to attempt to ensure compliance with the disputes procedure.

PN177

Now obviously that's not relevant in this particular case as the action had already taken before Mr Vickers, or myself, or anybody was aware of it. So that didn't come into play. So from that, Commissioner, and the evidence, and we've heard nothing to the contrary, the disputes procedure has not been complied with. The fact that the employees at Siraji went on strike, there were numerous opportunities from Friday on, through til Sunday afternoon, where they could have raised this issue with a number of people including a supervisor, as the disputes procedure sets out, or a manager, or the HR manager or the mine manager, that there was an issue with cleaning at Siraji mine, which we acknowledge did occur, because of rain and wet conditions.

PN178

It appears, Commissioner, that the employees, in hearing about certain crib rooms and possibly a bathroom may have not been cleaned over the weekend, and rather than raise an issue at the appropriate time, or even raise an issue on Sunday afternoon to say, you know, there is a problem here, let's fix it, just decided to go on strike. And didn't comply with a number of the steps of the procedure, particularly 32.2.3 which says that they're not to go on strike unless this Commission is issued a certificate in writing to say that the employees had just exhausted the steps contained in the disputes procedure and the dispute remains unresolved. But they simply went on strike, they didn't process this issue through any of the steps.

PN179

Commissioner, if I can refer you to an earlier decision that you made in December 2003, which I have a copy. And it says, for the record, Print PR941573 BHP Coal and the CFMEU in relation to a decision you issued on 4 December 2003 in relation to industrial action at Siraji mine. And to use the vernacular, Commissioner, it is in this particular decision that you issued what's now termed a life of agreement section 127 order against the CFMEU at Siraji mine. And that arose, Commissioner, as you'll well recall, from the detailed evidence in submissions that were made at the time, due to a number of stoppages where the lodge at Siraji had not complied with the disputes procedure and had just simply gone on strike.

PN180

And I don't expect to go right through the entire decision, Commissioner, but if I could take you to page four at paragraph 22, the last line on that page where it says, and I quote:

PN181

The disputes procedure is specifically designed and intended to preclude such industrial action until the steps of the disputes procedure have been exhausted.

PN182

There is nothing controversial about that and it is not new information of the CFMEU Siraji lodge. And if I can interpolate there, the disputes procedure that existed in 2001 didn't have that step which, in fact, is now - was contained in a copy of the order that's attached to this particular decision, it didn't have that in there. And that was actually added to the disputes procedure in the current agreement to reflect the order that was put in place as a consequence of this decision at Siraji.

PN183

When you looked at the jurisdiction at page five about two-thirds of the way down the page, you said this:

PN184

On the evidence the Commission is of the view that the CFMEU at Siraji has developed a pattern of intermittent and continual industrial action. The Commission is also of the view that such industrial action relied upon by BHP with one exception.

PN185

And if I could refresh your memory, Commissioner, there was an issue across the state involving mines' rescue:

PN186

This is inconsistent with the disputes procedure and the certified agreement to which the CFMEU is bound.

PN187

Commissioner, in my submission it's even further inconsistent with the new disputes procedure which requires that you issue a certificate before any industrial action can take place. You then go on to say in the last sentence in that large paragraph:

PN188

Given that industrial action of that character has continued after the Star Chamber of January 2002, the Commission's decision of 1 October 2002 and the recommendation of Commissioner Richards on the 29 August 2003, the Commissioner has formed the view that it is probable that such industrial action will occur in the future.

PN189

Then over the page, at discretion Commissioner, you said that after determining that an order should be made, this, in the second sentence, and I quote:

PN190

There are no submissions which in any credible way attempt to explain why it is that the CFMEU of Siraji continues to take industrial action in a way that is inconsistent with the disputes procedure. Nor is there any reasonable explanation why it is that the Siraji lodges decided to ignore the advice and recommendations of the Commission and the Star Chamber.

PN191

That being the clause that I will come to shortly, Commissioner:

PN192

Whilst there is no evidence on this and the Commission is satisfied from its knowledge of both the industry and the Siraji lodge that almost 100 per cent of the lodge membership are over 18 years old. The attendance and undertakings of the Star Chamber and the lack of evidence to the contrary, together with the Commission's knowledge of the Siraji lodge, leaves the Commission satisfied that lodge understands its obligations under the disputes procedure. These factors lead the Commission to conclude that in relation to each of the strikes referred to earlier, that the lodge members have taken a conscious decision to take industrial action knowing that such a decision was inconsistent with their obligations under the disputes procedure.

PN193

In paragraph 31 of this second sentence you said:

PN194

The Commission cannot find any reason to conclude that the lodge's behaviour is likely to change. Indeed, it is the Commission's judgment that the behaviour will continue.

PN195

Commissioner, in our submission it has continued. The evidence of Mr Harris is that there've been two, all be it short stop work meetings, without approval in November and December of last year. Under the new agreement, which requires that no industrial action should take place, and further, a strike back in April 2004, where an employee was stood down for refusing to drive a truck, that was actually under the old agreement. So that actually occurred during the life of the
section 127 order that you had put in place, and we made the decision to go to the Federal Court given that there was an order in place and, in retrospect, maybe we should have come back to the Commission, but that's another story.

PN196

But I think it all points out, Commissioner, in our view that this behaviour is continuing. Yesterday's stoppage, or the stoppage that is currently in place is an example that nothing has really changed since December 2003. Then when you went to the issue of duration at the last page of that decision you put in place an order that came into effect from the date of this decision, and that it ceased operating on the 18 September 2004, which was the nominal expiry date of the certified agreement.

PN197

You then went on to say that Siraji lodge has reached an agreement with BHP that it would not take industrial action in relation to matters caught by the disputes procedure until the steps of that procedure have been exhausted. Again, if I interpolate Commissioner, that hasn't occurred again, in this particular case. There's no record of any issues being raised in the various steps of the disputes procedure and contrary to that part of the disputes procedure which precludes industrial action unless the Commission issues a certificate, they haven't done it.

PN198

You then went on to say the Commission has already noted the steps taken to try and have the Siraji lodge behave in a way that is inconsistent with the obligations in to which it is freely entered, those steps failed. The Commission believes that it is therefore appropriate to take steps to have the Siraji lodge honour its certified agreement obligations for the balance of the nominal life of the agreement. And you did so.

PN199

Now as I said, Commissioner, after this particular decision came down in December 2003, four months later there was an indefinite stoppage. The Commission wasn't asked to exercise jurisdiction, but I don't think there's any argument that a strike contrary to disputes procedure took place. In August of this year a new certified agreement was put in place with an even more, I'm not sure of the word, stringent, but certainly a more, comprehensive is probably a better word, disputes procedure which picked up the words that you'd put in place in the section 127 order at Siraji and also at another mine, Crinum, where in fact it did work. And subsequent to that agreement being certified by yourself in August of this year there have been two short stoppages and now a further 24 hour stoppage.

PN200

What all that leads me to put, Commissioner, you'll notice, and I emailed to your associate a draft order which I'd now like to hand up in case Mr Vickers hasn't had a chance to - and the order simply reflects the order that was contained in the application, was a duration of 12 months. And the reason we've gone for 12 months is simply the sad history that I've just put to you, this Commission issued a life of agreement, section 127 order, the Commission has expressed a number of views on a number of occasions about the past behaviour at Siraji. Subsequently to that decision there have been further strikes, and our submission, you're within your rights to still share the concerns that you expressed in December 2003 in January 2005. And therefore we think it appropriate that this agreement have a fairly lengthy duration, that is, 12 months.

PN201

Commissioner, the other point that I would like to take you to is 32.11 of the disputes procedure, which is the old Star Chamber, to use its vernacular that was given to it, where it says:

PN202

Where a stoppage of work occurs contrary to this procedure.

PN203

And in my submission that's occurred:

PN204

The company and the relevant union representatives at the site concerned will be required to attend a meeting arranged as soon as possible after the stoppage with available company and officers of the relevant union who are members of the CNC, that being the Central Negotiating Committee, to explain there reasons for their failure to comply with the disputes procedure and to advise the CNC members how the disputes procedure could be improved to prevent an occurrence.

PN205

Commissioner, we've already had a Star Chamber, all be it sometime ago. If you'd read the decision that I handed up to you, you'll note during that particular decision we were to have a further Star Chamber in, I think it was August 2003 - I can assist you - in September 2003, but they went on strike the day before we were due to have the meeting.

PN206

We're also probably remiss in not having one for the April stoppage, but we were busy in negotiations for about four months. So the Company's of the view, Commissioner, that we've been to the Star Chamber, we've been to the Commission, we've got life of agreement orders, we're now seeking a longer order. There is an obligation on the parties to meet under 32.11. The company is quite prepared to invite the Commission to be involved, and on this basis, given your expressed view as the Commission that was constituted in Print 941573, we certainly from the company's perspective, and I can't speak from the union, see some benefit with the Commission participating in a meeting under 32.11, may we suggest even chairing that meeting, otherwise Commissioner the history shows that we will be back here again before you - we think it's timely that - well, put it this way Commissioner, from our - the Company's perspective, the Star Chamber is not working.

PN207

The delegates at Siraji are effectively taking the employees out on strike, contrary to orders, and contrary to commitments they'd given in the various Star Chambers. We believe that - again Commissioner it's at your discretion - that your participation in a meeting of that nature would be of great benefit because, frankly Commissioner, I think you have a vested interest as much as the parties in the outcome of presentings like that, given your long involvement with disputes at Siraji mine since September 2001 when the last agreement was put in place.

PN208

Commissioner, in conclusion it's our submission that you should grant the orders in the form that they've been tendered, and also we invite you to participate in that conference and, subject to hearing the union, we probably would be prepared to briefly go into private conference to discuss whether that is a valid alternative to the parties to try and get things on track at Siraji.

PN209

Commissioner, if I could just - something that I'd omitted to do - if I could just ask for the witness statement of Mr Harris to be marked.

EXHIBIT #BHP 1

PN210

And on that basis, unless you've got any questions of me Commissioner, there are my submissions.

PN211

THE COMMISSIONER: Thank you, Mr Gerard.

PN212

MR VICKERS: Thank you, Commissioner. Commissioner, first and foremost let me say that I'm not going to argue or put any submissions to you that the Commission lacks any jurisdiction or otherwise to deal with this application. It is clear that stoppage is taking place - a stoppage of work is taking place at Siraji mine by members of the CFMEU, employees of BHP. It is clear that that stoppage of work is industrial action as defined by the Work Place Relations Act, so I'm not going to go there. It's a matter of whether or not the Commission ought to exercise its discretion which is a well established part of the process of issuing section 127 orders - or orders pursuant to section 127 of the Act.

PN213

Commissioner, firstly I'd want to talk about the disputes procedure which is contained in the new certified agreement. Mr Gerard has taken you to substantial parts of that disputes procedure. Arguably it is the most comprehensive disputes procedure that is contained in a certified agreement, probably in the country, but most certainly, and this is inarguable, it is the most comprehensive disputes procedure contained in a certified agreement covering the coal mining industry in Queensland. That I know from personal experience.

PN214

It is a deliberate and genuine attempt by the parties to the agreement to put in place a mechanism and a process to avoid what's taking place in Saraji at the present time. And, unfortunately, it's either not good enough or there is some other reason for it not to be working. It is most comprehensive, it is a generous disputes procedure and the CFMEU acknowledges that. It's generous in that it provides the capacity for the Commission pursuant to section 170 of the Act to determine any matter which is the cause of a dispute at the mine, over anything including interpretations of the agreement. So the parties have vested considerable authority and right on the Commission to be the final arbiter on just about any matter which can possibly arise in the course of employment.

PN215

And the CFMEU, at least at the state level, recognises the importance and the significance of that. It may well be lost on, further down the track, but at the state level it is recognised as being an extremely important provision in this disputes procedure. There is no question but that the issues at Saraji which have given rise to the strike are capable of being processed in accordance with this disputes procedure. Absolutely no question about that. I'd like to be in a position where I could say it's not capable, it's a mistake that we made in drafting the disputes procedure, we didn't capture the possibility of a lot of rain at Saraji and muddy boots tramping through crib rooms and bathrooms, we didn't address that specific issue, but I can't not argue that there is not a capacity under this procedure for that issue to have been dealt with.

PN216

Perhaps we failed as parties to this agreement in having constructed an extraordinarily comprehensive agreement in not making all of our relative constituencies aware and trained them in its proper application. I'm not certain, but that - the wonderful words on paper or the good and effective words on paper certainly have failed to deliver what BHP wanted out of this process. BHP wanted out of this process three years of guaranteed consistent coal production without being subject to wildcat strikes, they made that very clear and upfront about it. And I have to say, on paper at least, they should have achieve that, but in practise they haven't.

PN217

I've spoken to sections of the lodge executive at Saraji mine today. Unfortunately the speaking was done after the event, that is after the stoppage took place, and I've explained it to that small group of people who was my audience, unfortunately over a telephone line, how clause 32 of this certified agreement could have worked and should have worked. Clearly that message - firstly it's too late and it's obviously too small of an audience at this particular point in time. Because it's not just the delegates who had this responsibility, it's every member of the lodge at Saraji who unquestionably has that responsibility.

PN218

Having said that, Commissioner, I also want to make it clear that I am equally personally disappointed that in this day and age, in 2005, we can still get to a situation where the - and notwithstanding the fact that there is a clear obligation under the occupational health and safety legislation that applies in this industry - we can still in 2005 get to a situation where crib rooms aren't fit to eat in because of some reason. I mean, if a crib room is not fit to be eat in, then people shouldn't be allowed to eat in it, they shouldn't be expected to use it. The evidence is that the crib rooms weren't cleaned. And I accept they weren't cleaned because perhaps the cleaners couldn't get there, but if the cleaners couldn't get to crib room then the crib room shouldn't have been used. It is as simple as that.

PN219

Alternative arrangements should have been put in place. In fact, alternative arrangements, I would argue, the company is obliged to have those alternative arrangements in place as a consequence of regulation 95 of the Coal Mining Safety and Health Regulation, because it is an obligation. And that regulation that I quoted, the coal mine must have, not should have, must have, a standard operating procedure for maintaining the facilities mentioned in section 87 and other areas of the work environment in a hygienic condition. Now, it is conceded in Mr Harris's affidavit, clarified in examination and cross-examination and questioning from the bench for that matter, that we had crib rooms that were being - expected to be used by employees, and were used by employees, that weren't cleaned for 48 hours at least. At least 48 hours, and possibly longer.

PN220

We have evidence from Mr Harris that he's seen some photographs which showed that the bathroom is bright and shiny. He's uncertain as to when those photographs were taken, but the evidence is that they were capable of being cleaned at least after the employees stopped worked. Mr Harris, as the only witness in these proceedings, and I acknowledge that the CFMEU could have brought witnesses, but it's always a little difficult to track people down at the short notice that the Commissions expeditiously deals with employer applications for 127 orders, which I know that the Commission is required to do - I'm not complaining about that - but certainly I don't accept, and don't believe, even with the Saraji lodge's history of not complying with the disputes procedure, that they'd go on strike because the bathroom was clean.

PN221

I think it ought to be accepted that they went on strike because the bathroom was dirty. And the circumstances quite clearly are that it was possible to have been cleaned after they stopped work and for photographs to have been taken. I don't think that Mr Taylor, as the officer responsible at the mine, would have gone and taken photographs of the bathroom, for example, before the employees stopped work on Sunday afternoon. He would, in fact, have obviously no reason to. As I understand it he was directed, if I recall Mr Harris's evidence correctly, it was Mr Harris who either suggested to him or directed to him, after the employees were on strike, because it was after Mr Taylor advised Mr Harris that the employees were on strike that he was directed or suggested that he go and take photographs. But it's also acknowledged on the evidence that that was at a time when the areas of concerned could have been cleaned.

PN222

Notwithstanding that, Commissioner, I accept that that doesn't give the employees a right to walk away from their obligations that exist under the disputes procedure. But I make the point that simply issuing an order pursuant to section 127 of the Act, the employees don't take industrial action if crib rooms haven't been cleaned for 72 hours, there's something deeper that needs to be addressed at the mine if, in 2005, we can't get crib rooms cleaned. Which, as a normal arrangement ought to take place, but in any event which is a clear obligation contained under the legislation that applies in any event.

PN223

If the Commission is of the mind, and it unquestionably has the jurisdiction - I've conceded that - to issue the order, then I would certainly implore the Commission to take up the suggestion that Mr Gerard has made, and that is perhaps for the Commission to become involved in a minor variation of the process which is contained in the dispute settlement procedure in the certified agreement. And Mr Gerard has taken you to clause, subclause 32.11. Because, Commissioner, it's not just the fact that the disputes procedure may not have been followed, it's why it wasn't followed. And someone needs to attempt to get to the bottom of that. And quite frankly, the parties on their own, given the history which I am not going to debate the historical fact that Mr Gerard has put in front you, the parties haven't been all that successful at the present time.

PN224

But there are mutual obligations that exist as well, in this particular matter, and I'm not asking the Commission to perform an investigation into a dispute at the mine after the disputes procedure hasn't been complied with, but as part of a process of trying to get to the bottom of it all, then perhaps all the facts and information can be brought out and if there is a failing, if there is no standard operating procedure as the Act requires, for example, then after such a meeting which Mr Gerard has foreshadowed, which the CFMEU would support, then there may well be an opportunity, and I think there ought to be an opportunity, if an order is put in place, particularly one which would last for 12 months, as is sought by BHP, if there is in fact fault, serious fault, failure to comply with the legislation on the hands of management, then perhaps that order could be revisited, for example, at an appropriate time, subsequent to the sort of meeting which Mr Gerard has suggested. And as I said, which the CFMEU would indeed support.

PN225

The CFMEU can undertake further education programs with or without the direct involvement of BHP, Brisbane office-based people or otherwise, we can have our Star Chamber, but frankly I think it needs a further tweaking, and it's for that basis that I would support the proposal that's been put to you by Mr Gerard, seeking the further involvement and assistance of the Commission. But I would want to go a step further and take a broader look at a more detailed dissection of this dispute rather than just a simple, why didn't you follow the disputes procedure? Because I think there are issues, and those issues need to be addressed and then some education and assistance for people as to how they can progress their issues, real or perceived, by utilising the terms of the disputes procedure which might be of significant benefit to all involved, including management at the Saraji mine.

PN226

Because much has been made - or some has been made - not much has been made of the stoppage which occurred contrary to the previous order, which in my recollection died on or about - in or about - September of last year, the exact date escapes me, with the certification of the new agreement. But the realities of that are that the company did exercise its rights and did make application to the Federal Court of Australia, and there was no penalty imposed. In fact, the court was - made it very clear - that it wasn't going to get itself involved in a set of circumstances where it was a bit of a tit for tat, with the employees on strike because another employee was stood down.

PN227

And I make the point that in respect of the disputes notwithstanding the order that was put in place by the Commission, that what's been termed the life of agreement, 127 order, under the previous agreement that was put in place, that doesn't remove the employers obligation at Saraji or the management's obligation at Saraji, to comply with the disputes procedure either. Because it's designed to avoid industrial action by both parties. And there is no question that there was an employee who was stood down at Saraji. There are other ways and means of pursuing those rights as well. And I leave my comments at that.

PN228

I should say, I suppose, that I oppose - formerly oppose the making of the order. But if the Commission is of a mind to issue an order then I would hope that the Commission would also accept the invitation issued by Mr Gerard, which I support, for some further involvement of the Commission.

PN229

THE COMMISSIONER: Mr Vickers, that further involvement, is that because Mr Gerard made the - offered the invitation to the Commission to involve itself in the Star Chamber step, that is 32.11.

PN230

MR VICKERS: Yes.

PN231

THE COMMISSIONER: Are you at one with him on that point. If I understand what you're saying, it seems to be that you don't think it should happen in accordance with 32.11.

PN232

MR VICKERS: I say it shouldn't be restricted to what 32.11 proposes. 32.11 proposes to explain their reasons for their failure to comply with the disputes procedure and to advise the CNC members how the disputes procedure could be improved to prevent a recurrence. My view is it's not a failure with the disputes procedures. And I don't think, with all due respect to both the CFMEU members and management members at Saraji that they could in fact tell the negotiating group how to improve the words that are here. It's a matter of getting to the bottom of why they didn't and what impact in that decision-making process did the state of the crib rooms and the bathroom, and some advice and education as to if - it's back to the employees in particular, but with some assistance to management, that if you've got a problem because it's raining and people can't get to clean crib rooms or if they're muddy and filthy, what you do in those circumstances. No-one's suggesting that there be a strike, but what do you do. And some commonsense should prevail and how you might go about that.

PN233

THE COMMISSIONER: You mean just an old-fashioned - get a whole bunch of people in a room and nut through the problem.

PN234

MR GERARD: And have a good chat about all the problems, not just, you know, why didn't you go 32.3, 32.4, because the issue is, in my view, bigger than that. And in fact, if there is a failure in this disputes procedure it's that the Star Chamber tends not to address the issues for the stoppage, it addresses the procedure. I don't think there's anything wrong with the procedure, it's why people don't follow the procedure and why are these other issues there, what are the other factors which lead to people to jump.

PN235

THE COMMISSIONER: One of the things that seems to scream out for me, and the limited evidence there is in relation to this matter, is that if there is a problem, why no-one even bothered to phone Mr Harris, just to say, look, there's a problem. Anyway, maybe that might be something we can discuss in more detail.

PN236

MR VICKERS: Lodge officials could find my phone number at ten to 7 this morning, Commissioner, they couldn't find it at ten to 6 last night apparently, as well.

PN237

THE COMMISSIONER: Thank you.

PN238

MR GERARD: Briefly Commissioner, I pressed the order as you would expect, and unusually I agree with Mr Vickers in what he said the Star Chamber should look at because, like you, the dispute procedure wasn't complied with, they went on strike. I'm at a loss to understand why someone, and we still don't really know whether they were terribly dirty or not, but I am still at a loss understanding why someone didn't raise something Friday or Saturday or Sunday morning, why leave it until Sunday night and go on strike? Plenty of opportunities under this procedure to do something, that's the purpose of the Star Chamber. You went on strike - why? What broke down in this disputes procedure - and ask them, to try and work through it with them to find out what they should have done - if the Commissioner pleases.

PN239

THE COMMISSIONER: Let me say firstly that I do intend to make an order in relation to this matter. The order will generally be along the lines that is contained in the draft that's been tendered by BHP. I'm going to have a think about the duration. There are two parts to the duration, one is that material is relied on, of which there is no evidential basis in the Commission, that is, what's happened on these other days and whether or not the Commission should take the view that those - that industrial action was illegitimate Et cetera. I'm not satisfied with the extent of material that it justifies - that I have the evidential basis to make an order of such duration.

PN240

But nevertheless what I do want to do is put it in place at least until we can all get together with the people at Saraji and try and get to the bottom of why it is the disputes procedure seems to be not working at that mine. Obviously the parties can see that I intend to take up the invitation to sit with them and the people at Saraji to try and resolve that issue because this activity needs to come to an end and it's my preference that it needs to come to an end by a proper relationship or a proper working of the disputes procedure by the people of their own volition at the mine, rather than the Commission, as it were, making an order. There are obvious advantages in the former and there are disadvantages in the latter.

PN241

Those various issues will be dealt with in writing in a decision that we'll issue in due course, just dealing with each of those issues that have been raised specifically by the parties, but the orders that we'll issue shortly, with a view to try and get a resumption of normal work at the mine as soon as is possible.

PN242

Unless there's anything further, I adjourn the Commission.

<ADJOURNED INDEFINITELY [2.23PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MR RUSSELL LAWRENCE HARRIS, AFFIRMED PN69
EXAMINATION-IN-CHIEF BY MR GERARD PN69
CROSS-EXAMINATION BY MR VICKERS PN82
RE-EXAMINATION BY MR GERARD PN140
THE WITNESS WITHDREW PN165
EXHIBIT #BHP 1 PN209