C2005/4794, Transcript of Proceedings [2005] AIRCTrans 2095 (7 October 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13024-1

COMMISSIONER BACON

C2005/4794

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
ANGLO COAL (CALLIDE MANAGEMENT) PTY LTD
s.127(2) - Appln to stop or prevent industrial action
(C2005/4794)

BRISBANE

2.38PM, THURSDAY, 22 SEPTEMBER 2005

PN1

MR T CONROY: I appear on behalf of the CFMEU.

PN2

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

PN3

THE COMMISSIONER: Thank you. Any objection?

PN4

MR CONROY: No objection, Commissioner.

PN5

THE COMMISSIONER: Leave is granted, Mr Le Mare. Mr Conroy.

PN6

MR CONROY: Thanks, Commissioner. This application concerns a CFMEU member, Mr Doug Johnson, who is employed by Anglo Coal (Callide Management) Pty Ltd at their Callide Mine. To speak broadly, there has been an ongoing dispute with respect to Mr Johnson about his fitness for work. It's been the subject of a number of conferences before the Commission, involving both Commissioner Spencer and yourself on a number of occasions, if my memory is correct. More recently it's been the subject of litigation in the Supreme Court of Queensland. It's the view of the CFMEU that the company is engaging in industrial action at the present time by refusing to allow Mr Johnson to return to work.

PN7

Commissioner, it was not my intention today to call any witnesses with respect to this matter, but to provide evidence by way of documents that I would hand up during the course of my submissions. Commissioner, looking at section 127(1) and dealing with the requirements of that section, I will deal firstly for the requirement for there to be a certified agreement in place, and I don't think there is any contest about that. I seek to hand up a copy of the certified agreement.

PN8

THE COMMISSIONER: I have a copy, Mr Conroy.

PN9

MR CONROY: Commissioner, what I might do is move onto the substantive issue here and whether or not industrial action is occurring. In the first instance what I will do is hand up a copy of the Supreme Court decision that's relevant to this matter. That is the Supreme Court decision for citation, Johnson v Anglo Coal (Callide Management) Pty Ltd (2005) QSE 255 that was delivered on 14 September 2005. Commissioner, if I could direct you to paragraphs 14 through to 28 of that decision. It provides background with respect to the facts that have occurred in this matter to date. I think it might be pertinent if I pause for a moment and give you the opportunity to read those paragraphs.

PN10

Thanks Commissioner. I should state that that does not outline every event that's occurred between the parties, those being Mr Johnson and the company and the CFMEU. But it provides an accurate summary of events to date. Commissioner, you will see that the issue between the parties by the end of 2004 was whether the Dr Adam health assessment from 16 July 2004 indicated that Mr Johnson was unable to carry out his tasks at the Callide mine without creating an unacceptable level of risk. The site senior executive of the company at the time, Mr Wells, held the view that the health assessment report showed that Mr Johnson was unable to carry out his tasks without creating an unacceptable level of risk.

PN11

Mr Johnson disputed this conclusion, as did his union, and as a result the matter progressed to the Supreme Court where it was held by Mullins J who, following the hearing, brought down a decision that contained an order I might just read for the record. Mullins J stated:

PN12

It is declared that upon the proper construction of section 48(1) of the Coal Mining Safety and Health Regulation 2001, Dr Adams's health assessment report, dated 16 July 2004, about the applicant was not a health assessment report that shows the applicant is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk.

PN13

Following that decision I, on behalf of the CFMEU and Mr Johnson, wrote a letter to the general manager of Callide mine and I will just hand a copy of that letter up. Commissioner, I might seek to tender that as an exhibit.

EXHIBIT #CFMEU1 LETTER FROM MR CONROY TO THE GENERAL MANAGER, CALLIDE MINE

PN14

MR CONROY: For the purposes of today, the most relevant part of the letter are the final two paragraphs where it says:

PN15

Given the decision we believe Anglo Coal has no legitimate basis to continue to refuse to allow Mr Johnson to return to work. The making of the declaration resolves the dispute that existed between the company and Mr Johnson. Accordingly, I seek your confirmation that you will immediately allow Mr Johnson to return to work. Should you not have provided this confirmation by 4 pm Friday 16 September 205 we will take any and all action we consider appropriate to protect our member.

PN16

Commissioner, attached to that letter is a letter of the same date from Mr Mark Heaton to Mr Johnson and you will see from that letter that he has indicated that he is reviewing the matter and will contact Mr Johnson after he has made a decision. He also states in that letter that Mr Johnson will continue to receive the special paid leave arrangements that currently apply. Subsequent to my letter dated 14 September to Mr Heaton, there has been no response from the company at this stage and I can advise the Commission that I did telephone Mr Heaton on Monday of this week. I have not received a return phone call at this stage and I understand from Mr Le Mare that Mr Heaton is on annual leave so that may have something to do with that fact.

PN17

As a result of this, Commissioner, and the events of the last week or so, subsequent to the Supreme Court decision, it's our belief that it's the company's position for Mr Johnson to remain away from work. As a result, Commissioner, we submit that the company is engaging in industrial action. From the letter from Mr Heaton it's clear that Mr Johnson's presently being paid by the company, what the company calls special paid leave. However, we say the current situation, regardless of this payment, is industrial action as it is a ban, limitation or restriction on the performance of work or on the acceptance of, or of offering for work in accordance with the terms and conditions described by an award or an order of the Commission or by a certified agreement. Further, Commissioner, it's not action by an employer, in this case Callide, that has been authorised or agreed to by or on behalf of employees of the employer.

PN18

To put it simply, Commissioner, our view is by not allowing Mr Johnson to return to work at the mine, the company is causing a ban, limitation or restriction on the performance and offering of work. Because special leave is not offering work. As a result, Commissioner, we say the requirements for a 127 order do exist in this case and we request that an order be issued to this effect. Commissioner, my apologies. I had to bring down a copy of a draft order and I have not done that but the order we would be seeking is consistent with that contained within our application. Commissioner, unless you had any specific questions at this stage, that’s all I had intended to say.

PN19

THE COMMISSIONER: No. Thank you. Mr Le Mare.

PN20

MR LE MARE: Thank you, Commissioner. I intend to cover a fair bit of material from the company's perspective and I will do my best to present that as coherent a form as I can. I guess by way of overview, the company's position is twofold. First of all the company's position is that there is no industrial action currently occurring, such that there is no jurisdiction for the Commission to make an order in this matter. Even if we are wrong about the jurisdictional point, Commissioner, the company's position is that there are very cogent reasons as to why you would not exercise your discretion to issue an order in any event. That's really an overview.

PN21

What I would like to do first, as this was dealt with by Mr Conroy, is just deal with in an introductory sense the Supreme Court decision which Mr Conroy has referred you to. In particular, what that decision says and does not say. By way of background to the decision, Commissioner, the decision related purely to the application of regulation 48 of the Commonwealth Health and Safety Regulations to Mr Johnson, as instructed to just look at that regulation first. Regulation 48 - indeed I have not actually brought another copy of the regulation. I can just read it out to you by give you a backdrop - - -

PN22

THE COMMISSIONER: I am reasonably familiar with it.

PN23

MR LE MARE:

PN24

The section applies if an employer is given a health assessment report about a coalmine worker showing the worker is unable to carry out the worker's tasks at the mine without creating an unacceptable level of risk.

PN25

What is critical in that first paragraph, in my submission, are two things. The first is whether the employer is given a health assessment report. What is a health assessment report? You then go to the schedule to the regulation which defines it as that approved form. So what you are dealing with in regulation 48 is whether that approved form shows a worker is unable to carry out their task without creating an unacceptable level of risk. That's a very important point to make in the context of the Supreme Court decision. So what the Supreme Court deals with is, in actual fact, a very narrow point; whether or not that approved form shows what it's supposed to show to trigger the rest of the obligations in 48; or whether it doesn't show it. Ultimately the decision from the court was it doesn't show it.

PN26

There are a number of other matters, I guess by way of illustration, in the Supreme Court decision that I would like to draw your attention to. Mr Conroy, I note that you did not actually mark one of the decisions as an exhibit. I can hand up another one or use the one that Mr Conroy's already given to you but I just wanted to draw your attention to a couple of pertinent paragraphs in that decision.

PN27

THE COMMISSIONER: I can mark the decision as CFMEU2.

PN28

MR LE MARE: I don't see a need, necessarily, to provide two decisions, Commissioner.

PN29

THE COMMISSIONER: No, no.

EXHIBIT #CFMEU2 SUPREME COURT DECISION JOHNSON V ANGLO COAL (CALLIDE MANAGEMENT) PTY LTD (2005)

PN30

MR LE MARE: The first part I draw the Commission's attention to is at paragraph 33 which begins at page 10 and this is really just an introductory remark. What her Honour, Mullins J deals with in paragraph 33 is the approach of the Full Bench of this Commission in Hale Creek v CFMEU and dealing with the construction of the form. In particular, the NMA's responsibility or role, if you like, in the context of the health scheme. What Mullins J does is she says, for reasons which were explained in 33, that she declines to follow the approach of the Full Bench in Hale Creek. I will just leave that point for a moment and come back to it later because it is important.

PN31

The next paragraph I draw to your attention is paragraph 39 which is at page 12. Halfway through that paragraph is a sentence which reads:

PN32

All that section 48.1 of the regulation provides for is a review process of a health assessment report in the limited circumstance that is set out in 48.1.

PN33

That picks up on that earlier point, Commissioner, about what 48.1 is only targeting is what is contained in that health assessment report for the employer's perspective, which is the one pager they get after somebody attends a health assessment. The second point, and this comes out at paragraph 40, halfway through paragraph 40, is a sentence:

PN34

Section 48 of the regulation dose not deal with any decision making by the employer or the site senior executive or any other person.

PN35

That's dealt with again at paragraph 4 - sorry, 44 on page 14, again about halfway through:

PN36

If the nominated medical adviser considers - - -

PN37

THE COMMISSIONER: I am sorry, Mr Le Mare. Paragraph 44 did you say?

PN38

MR LE MARE: Paragraph 44.

PN39

THE COMMISSIONER: Yes.

PN40

MR LE MARE: Again about halfway through. The sentence which begins:

PN41

If a nominated medical adviser considers a coalmine worker has a condition which makes the worker unfit for duty, the nominated medical adviser is obliged to include that in the report.

PN42

That comes back to that point of differentiation I referred you to earlier, Commissioner, about the Hale Creek decision. What Mullins J is saying, I guess, a fundamental shift if I put it that way, in the way that we look at these health assessment reports. Previously, as per the Full Bench, if I put it this way, it's not the role of the NMA to make a decision about somebody's being fit or unfit for work. That, I guess role, if you like, is given to the SSE or the employer. Mullins J says that's not right. The NMA is obliged, if they form that view, to put that in the report. That's, again, I guess important in the context of the way we look at these reports.

PN43

The other point - I'm backtracking again, I'm sorry, Commissioner - is looking then at the context of what happened with Mr Johnson and in the context of this report and Mullins J deals with this at paragraph 45, succinctly again at page 14. Probably two-thirds of the way through that paragraph, Mullins J is looking at what is there in that one-page report which shows that Mr Johnson is unable to carry out the worker's task without creating an unacceptable level of risk. Mullins J says:

PN44

It is not clear from the report -

PN45

Again, that is that one-pager:

PN46

- that the applicant will be required to undertake tasks involving prolonged walking et cetera -

PN47

Which is, I guess, part of the decision making that the SSE had. The evidence before the court was this person is employed as a production miner, he's required to walk over an uneven ground, climb stairs, work in cramped conditions, those sort of things. When I read the report, it shows to me that he cannot carry out his work without an unacceptable level of risk. Mulllins J says, well it doesn't matter what you, as SSE or employer, decide. It's whether or not that report shows it or not. Mullins J concludes that it's not clear on the face of the report that Mr Johnson is required to perform those tasks or that, effectively, Dr Adam has prepared this, these are the restrictions that apply. Dr Adam doesn't turn his mind to whether Mr Johnson is required to actually perform those tasks.

PN48

THE COMMISSIONER: He is though, as an NMA.

PN49

MR LE MARE: Well, perhaps that's an issue for whether or not Dr Adam has filled out the form as Mullins J would - - -

PN50

THE COMMISSIONER: The form 4 - sorry, the approved form has the employee's classification in it or the classification being applied for.

PN51

MR LE MARE: Yes.

PN52

THE COMMISSIONER: And the NMA, supposedly, has a risk assessment of all those tasks, one presumes that - perhaps one should not presume anything, but ordinarily the material that is provided to an NMA about a position includes - - -

PN53

MR LE MARE: What they are required to do.

PN54

THE COMMISSIONER: Well, more than that. It is beyond that. It is not just what they are required to do. It is for how long they are required to do it and what the risks are associated with that position.

PN55

MR LE MARE: Indeed, but when you then have a look at the one-page form, which is what Mullins J has before her, it's whether or not on the face of that form it shows that Mr Johnson is required to perform those tasks. If he does so, that he performs them with an unacceptable level of risk. Mullins's decision was on the bassi of that one-page form, I cannot say that conclusively therefore the form doesn't meet the requirements of section 48. Because it's got to show in order to trigger the obligation for the second opinion, which is the rest of 48.

PN56

THE COMMISSIONER: That is right. What her Honour said, as I understand the decision, is that it is up to the NMA to indicate on the form that the worker cannot perform that or other tasks, because to do so would create an unacceptable level of risk.

PN57

MR LE MARE: Yes.

PN58

THE COMMISSIONER: That is, as has been the practice in the past, to somehow indicate on the form that they are unfit for that task or they are unfit for any task at the mine.

PN59

MR LE MARE: I guess the conclusion was, in this context, that Dr Adams's one-page form falls short of that.

PN60

THE COMMISSIONER: Correct. Yes, it did not - the NMA did not declare or certify or place on the approved form that the person was unfit for that task or others at the mine.

PN61

MR LE MARE: That's right. Listed restrictions and I guess that's stated.

PN62

THE COMMISSIONER: Yes.

PN63

MR LE MARE: The points that we take, in my submission, from Mullins J's decision is that it deals with first of all a very discrete issue and it deals with whether or not this one-page form shows it or not and the answer was no. The correspondence that Mr Conroy has referred you to as exhibit 1 seeks to tie, then, with the declaration that Mullins J made in relation to this particular form, as if[sic] effect justifying or giving the basis as to why Mr Johnson should return to work. In my submission that proposition is fundamentally flawed because, the respondent, in exercising its obligations under Commonwealth health and safety legislation, looks at a whole range of things in determining whether or not somebody is fit or unfit for a particular task. The respondent in this matter is not restricted to looking at that particular form.

PN64

There are a whole lot of other problems associated in terms of what other cases say the SSE or the coalmine operator can have a look at. But for the purposes of the discussion on the Supreme Court decision, is to be[sic] very clear about what in fact it is dealing with. Finally, in relation to the Supreme Court matter, what I would like to hand up is a copy of the transcript of the hearing. I would seek, Commissioner, if I could have that formally marked as an exhibit.

EXHIBIT #CALLIDE1 TRANSCRIPT OF SUPREME COURT CASE

PN65

MR LE MARE: By way of background there was a whole lot of evidence put in relation to the Supreme Court matter. There was a whole lot of evidence given by the site senior executive and other people at the mine. Indeed, there was evidence on behalf of the applicant given from the applicant himself, Mr Conroy and others. The only person who was required for cross-examination during the hearing of the Supreme Court matter was Mr Johnson. So that is the only cross-examination that occurs in the hearing and what I would like to draw the Commission's attention to is what begins at the top of paragraph 8 of the transcript which I have just handed up. This is a little way through -page 8, so the bottom - the top of page 8 and this is Anglo's or Callide's counsel cross-examining Mr Johnson, and he says at the top of page 8:

PN66

I suggest to you that you told Mr Leavin that you didn't feel safe in relation to this EH450?---Yes. That's correct.

PN67

A little bit further down the page:

PN68

And these problems you told Mr Leavin was in discussions -

PN69

So by way of background, involving Mr Leavin about this issue about whether or not his knees lock up:

PN70

- I suggest you concluded they could lock up at any time?---Well, that's right ..... mean they lock up.

PN71

Yes, yes. All right.

PN72

Again at the bottom of the page, the third paragraph at the bottom of page 8:

PN73

And you don't feel safe at a higher speed?---I prefer not to drive at high speed.

PN74

The paragraph below that:

PN75

And you told Mr Leavin?---Yes.

PN76

That on occasions you had to push through the pain barrier of your knees.

PN77

Going over on page 9, two paragraphs - three paragraphs down:

PN78

?---No.

PN79

Right. Now Mr Leaving told you at the time that he had real concerns about the fact that your knees lock up?---Yes.

PN80

Continuing on, Commissioner, at about line 30 on page 10 and what Mr Johnson is being asked about is the occupational therapist's report which I will bring to the Commission's attention shortly. He says:

PN81

Okay. So now you will see there in the second sentence that there is Ms Balcock -

PN82

who is the occupational therapist

PN83

- records you telling her during the assessment that you had been diagnosed with osteoarthritis in your knee, your right - left knee; yes, that's true, isn't it
?---That's true.

PN84

Next paragraph:

PN85

Yes, and you reported to her that you had injured your right knee about 28 years ago and your left knee function had also deteriorated over time; that's true, isn't it?---That's true.

PN86

And that you had had arthroscopy surgery on both knees?---Is that - yes, both knees.

PN87

At paragraph 50:

PN88

You told Ms Balcock that because of your knees you had difficulty walking on uneven ground, and that 's true, isn't it?

PN89

The response is:

PN90

That's true.

PN91

And that you had difficulty standing and walking for more than 10 or 15 minutes?---That's true. Yes.

PN92

It's true -

PN93

And again, this is a question to Mr Johnson:

PN94

It's true. Not only true that you told her, it's true as a matter of fact, isn't it?
---Yeah, yeah. At times it is. That's correct.

PN95

That you're unable to squat or kneel?

PN96

Answer "true".

PN97

You did tell her that it's true?---That's right.

PN98

You can't do it?---Yes. That's true.

PN99

That your knees stiffen and lock up and maintain a static position of knee flexion?---True.

PN100

That's true in both cases, isn't it?

PN101

The cross-examination goes on an d on and on about it's true as in fact that you told the OT about these sort of things about your limited capacity to do certain things. It's not even true that you told her but it's true in fact that they are the consequences, I guess the impairments that you suffer when you do those things. In respect of each item that Mr Johnson is taken through in respect of the occupational therapist's report he acknowledges that yes, it's true he told the OT about those things and yes it's true as a matter of fact he suffers from those disabilities.

PN102

In a technical sense, and this is a point I talk to about what the decision means, we then come to the conclusion of the cross-examination and we then come to submissions about what all that evidence means. At paragraph 44 of the submissions there is an exchange between both counsel, that's counsel for Mr Johnson and counsel for the respondent, that all of that evidence that Mr Johnson gave was irrelevant to the matter to be decided by the court, because the court is only looking at an interpretation of 48 and what the form means. The court does not have any regard to the substance that sits outside of that form. That's absolutely critical, in our submission, as to the proposition that's put on behalf of the CFMEU in this matter, that in some way the Supreme Court decision justifies a return to work by Mr Johnson. In our submission nothing can be further from the fact because of the Supreme Court decision and in fact Mr Johnson's own evidence in the hearing in the Supreme Court matter is absolutely contrary to that.

PN103

That is all I want to say in relation to the Supreme Court matter. What I would like to deal with now in two very broad terms is the two points I referred to before. The first was the jurisdictional basis and the second was the reasons why your discretion ought not - even if there was jurisdiction - be exercised.

PN104

THE COMMISSIONER: Mr Le Mare, before we go onto that. Dare I say it, before some employer s make a bigger mess than all of this than what it already is, where we now have a Supreme Court decision which says that the assessment of what is an acceptable level of risk does no longer lies, at least in respect to a five year medical under regulation 46, with the SSE but in fact now lies with an NMA. There is a simple solution to all of this. It lies in what is the fundamental scheme of the Act and I know there are some employers who, for whatever reason, do not want to accept this but it is just so obvious and so patently clear in the legislative scheme that it just - I do not know what drives some employers.

PN105

Right from the very start it was conceded, as I understand it, in this and many other cases that pursuing this matter on a five year medical - a REC 46 medical - was not the way to go. It is clear that regulation 46 provides a medical scheme that is five year medicals. The employer or specifically the SSE is also required by regulation 42 to provide, as part of the safety and health management system at the mine, a means of controlling risks at the mine associated with a number of things. One includes physical impairment. That is that if an NMA certified - or failed to certify as it now turns out - fails to certify someone as unfit for duty today, and they turn up for work tomorrow and the SSE has some concern that they present an unacceptable level of risk, all the SSE need to do is go to the safety and health management system and have that person, consistent with the safety and health management system, referred to whoever it is agreed, in accordance with reg 42(7) will assess the person for fitness for duty; or at least give a report which would allow the SSE to determine whether or not they present as an unacceptable level of risk.

PN106

I do not know what could be easier, to be blunt about it. I do not know what could be easier. The SSE has that right. In fact, the Parliament, through the executive - not only does it have the right, it has an obligation under the Act. It could not be clearer that even if an NMA certifies someone as fit today and they turn up at the coal mine and there is good reason for the SSE to believe that they present as an unacceptable level of risk, the SSE, as he or she is entitled to do, just invokes the processes that are contained in the safety and health management system; and refers them off for further assessment. This is all a storm in a - - -

PN107

MR LE MARE: I am pleased the Commission has raised that because we couldn't agree with you more, that the process in terms of periodic health assessments is one way. In following that process, the company has come up with a report which the Supreme Court says does not meet the requirements to trigger 48. The first point in relation to that is so what? But leave that aside. The second point - - -

PN108

THE COMMISSIONER: Well, the evidence is at this stage the person has gone through their 5-year medical and an NMA has said that they are fit for work at the coalmine. That is, that they are not unfit for work, which means on her Honour's view that they present as an acceptable level of risk.

PN109

MR LE MARE: With respect , Commissioner, I would not agree with that analysis that there has necessarily been a declaration that he is fit for work. But for present purposes - sorry, and the reason for that is that all Mullins J has said is that the terms of this one-page form do not meet what is required to trigger the second opinion, if you like, under 48. Nothing more or less than that. But dealing with the point that you have raised with me and really from the company's perspective, could not agree with you more. That there is, theoretically - and that is the point here - another process that is available. In a practical sense it is not as easy as just referring somebody to an NMA or another health practitioner under a 42 protocol. Because in a practical sense, in order to get a 42 protocol up and running, a thorn in that side is 42(7) which says:

PN110

If the fitness provisions provide for the assessment of workers for a matter mentioned in subsection (1) -

PN111

Which they really invariably must:

PN112

- the senior site executive must establish the criteria for the assessment in agreement with a majority of workers at the mine.

PN113

My instructions are that this particular company has been bending over backwards trying to get a 42 protocol up and running, in earnest, since September of last year and they have repeatedly run up against stumbling blocks, where the workers, on advice from whoever the workers are getting to, and the site safety and health representatives and the lodge delegates are saying we will not agree to these things and keep referring it up the line to the state officials of the union. There remains at Callide an inability to reach agreement about the very protocol which could deal with this issue. I have not put on evidence about all of that.

PN114

THE COMMISSIONER: No, no.

PN115

MR LE MARE: No doubt this evidence - - -

PN116

THE COMMISSIONER: I have little doubt that you are right. I mean, you are about the third person at the third mine for three consecutive days who have told me exactly the same thing.

PN117

MR LE MARE: I guess I raise it because you are absolutely right. They are obliged to put these protocols in place and that, in a practical sense, very few mines as I understand them actually have them. But my instructions also are that the reasons they don't have them is because they can't reach agreement and you can't - - -

PN118

THE COMMISSIONER: What have they done about that?

PN119

MR LE MARE: So that is - - -

PN120

THE COMMISSIONER: No, no. What have they done about that? Because what you are telling me is that there is at this mine - and I know there is more than one - an SSE who does not believe that he or she has a safety and health management system that complies with the legislation. That legislation or that regulation has been in existence for 4 years and what I would like to know is, what has happened in 4 years to try and resolve this impasse? There is, after all, an overriding safety and health committee or somebody who is supposed to make recommendations to the Minister. There is chief inspectors, there is mediators, there is the Commission.

PN121

I have not had one party make an application to this place - not that I am saying it should come here - or been told of any mine where this problem has been reached, where they have gone and said, "We ought to do acts to try and break this impasse". It is all like, "Oh, yeah, okay. Well let's just not worry about the fact that there's probably people presenting as an unacceptable level of risk but we can't get an agreement so I guess it doesn't matter". It does matter.

PN122

MR LE MARE: In the context of Callide, I can't be more specific. I have not got the detail of everything that they have done but my instructions are they have been certainly trying, in absolute earnest, since September of last year. They have been unable to do so but in a practical sense how then, where you have a concern, do you deal with the issue? That is really the position that Callide finds itself in here, where the 48 or the periodic assessment has come up with a form which does not trigger the obligations. But we have got all these other concerns based upon all this other material and what can we do about it?

PN123

Up until this point in time what Callide has done to manage, if you like, that risk is to say in substance we can't accept Mr Johnson on the mine doing the job that he was employed to perform, because we're not satisfied that we can prevent his exposure to an unacceptable level of risk. While we sort this awful mess out, Mr Johnson, you sit at home on full pay and that's been the status for a very long period of time. It's really the status which, in essence, Mr Conroy is seeking to agitate today; where Mr Johnson remains at home on full pay until Callide can work out what on earth, if anything, they can do in respect of Mr Johnson.

PN124

But in the interim he cannot, for the safety perspective, be permitted to come to site to perform his ordinary work. But rather than put Mr Johnson at a disadvantage, he sits at home on full pay without winding down any of his entitlements. In a round about way we have got to - I did not get started on the jurisdictional point.

PN125

THE COMMISSIONER: I am sure you will get to it.

PN126

MR LE MARE: Perhaps I can do that, unless there is something else arising out of the 42 process, I can do that now.

PN127

THE COMMISSIONER: No.

PN128

MR LE MARE: What I would like to hand up, Commissioner - rather than spend an awful lot of time dealing with the jurisdictional point, I have prepared some written submissions on the jurisdiction. Attached to those written submissions are the cases referred to in it. What I would like to do is just very briefly talk to the submissions on the jurisdictional point. In very broad terms, the position is this: we don't dispute that the work, were Mr Johnson to be at the site, is regulated by certified agreement. Absolutely no question about that. The question is whether or not it is industrial action within the meaning of that term in the Act. The substance of the submission is that you have got to give work or weight, something to do in relation to the term "industrial" in industrial action.

PN129

There are cases which I refer the Commission to. In particular, a case of the Full Bench and perhaps what I will do is just very briefly take you to some relevant paragraphs of that decision. That is the first paragraph behind the written submissions. It's The Age Company Ltd, a Full Bench decision, Giudice J, Harrison SDP and Commissioner Simmonds on 11 May last year. The case deals in a very comprehensive way with a whole lot of decisions dealing with the very point that I am talking about. Really where I draw the Commission's attention to is at page 8 of that bundle - sorry, page 8 of that decision at paragraph 41. The last sentence at 41:

PN130

It can be seen that the court looked at the purpose of the employer's conduct in order to decide whether it could be characterised as a lockout. This supports the approach adopted by The Age.

PN131

We then go from that paragraph onwards to an example about an employee being sick from work and whether or not that can amount to industrial action but the crux of the point comes at 46, and I will read:

PN132

It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving weight to the word industrial.

PN133

That's really the authority and it's dealt with at length in the Full Bench decision but what that means in a practical sense is really one of two things. There has got to be an industrial character or flavour to the action. Ordinarily where there is action by employees in support of claims for a replacement agreement or something else, there is an industrial character or flavour to that because it's in support of those claims. That is not the case where you have, effectively, a business or a safety decision by an employer in respect of an individual. It does not have an industrial character or flavour to it. What you are concerned with - and I guess I haven't heard anything to the contrary from Mr Conroy - you have got to have some industrial character and in our submission there is nothing in here.

PN134

The second point is that as part of the industrial, there is inherent with that the issue of it being collective ie. you can have - and this is the example of the person on sick leave in the paragraph that I referred you to earlier, and it's dealt with in submissions - where if somebody sleeps in and turn up for work 2 hours late, that's not industrial action (a) because it's not directed at an industrial purpose or motive and (b) because it's not collective. To be distinguished with that is when five people don't turn up for work because they're pursuing a claim. That one does meet the industrial character test and it's collective.

PN135

The essence of the jurisdictional point is that there is no industrial character to the action or conduct by Callide in this instance. It is directed purely at an individual without an industrial character or purpose. They are my submissions, in broad terms, in relation to the jurisdictional point, very broadly. The other submission I make in relation to jurisdiction is what does that mean, in terms of what type of conduct by an employer can amount to industrial action? The submission there is that in practical terms the only real conduct by an employer that can amount to industrial action within the meaning of the Act is lockout action. There is some authority for that proposition, again in that Age case and in the other materials that I refer you to.

PN136

In broad terms, the logic for that approach is if it is capable of being industrial action, then it must also be capable of being protected industrial action and that, I guess, the argument goes if you can't take protected industrial action to prevent an employee from coming to work, if you like, for a safety or business reason, then it also can't be industrial action. That's a very round about and very broad synopsis but as I say, I will leave the Commission to go through the written submissions in their entirety. But from the company's perspective, what is occurring cannot be industrial action and therefore the Commission does not have jurisdiction in this matter to do anything, certainly with respect to making orders.

PN137

The second point then, assuming that we are wrong about the jurisdictional point, is what then are the matters that weigh towards, one way or another, the exercise of the discretion. In that context, what I would like to hand up, Commissioner, is a chronology. This is a very truncated version of events as concerns Mr Johnson, but I will just go - sorry, by way of explanation. We refer to a number, but by no means all, of the documents referred to in the chronology. Those documents are then annexed at tabulated in that document. I would seek for the chronology to be formally marked as an exhibit.

PN138

THE COMMISSIONER: I will mark the outline of submissions as well,
Mr Le Mare.

PN139

MR LE MARE: Thank you.

EXHIBIT #CALLIDE2 OUTLINE OF SUBMISSIONS
EXHIBIT #CALLIDE3 CHRONOLOGY OF EVENTS CONCERNING MR JOHNSON

PN140

MR LE MARE: What the chronology does is deal in a sequential way with all this other material that is currently out there, relating to Mr Johnson, and which in our submission forms part of - ought form part of the Commission's deliberations as to discretion. The first document is referred to as 25 July 2003 and that's attachment 1, which is the occupational therapist's report, which we have talked about previously. We then summarise, in a very brief sense, the contents of the occupational therapist's report and what that had to say about Mr Johnson's functional capacity. As I say, probably the safest way, other than just the summary, is to have a look at the content of the report itself.

PN141

Then over the page, a third of the way down the page, the second attachment is the Woodward assessment, attachment 2. This assessment was not the subject of determination in the Supreme Court matter. This is the one that preceded it but again, the substance of that assessment would be something that the Commission ought take into account. The next attachment, attachment 3, is the Adam assessment. We have talked at length about that; I won't go further with that. Perhaps I will just say one thing about the Adam assessment; certainly if you take into account what the Supreme Court have said about what that shows or does not show in relation to triggering the obligations in 48, that's one matter. But as I put to the Commission earlier, in my submission that does not - it's not authority or it's not a declaration or words to that effect from the NMA, declaring that this person is fit for work. It is a form from the NMA saying that this person has certain restrictions as at 16 July 2004 and that quite relevantly that assessment also includes wording that those restrictions are permanent and that there is gradual deterioration anticipated.

PN142

So the position in July 2004 was restrictions which are permanent and gradual deteriorating and we now find ourselves in September 2005 18 months on, well not quite 18 months on, with having to rely on a whole lot of other material as well as that assessment. The next attachment is attachment 4 and 4, 5, 6 and 7 is a series of correspondence that goes between Callide and Dr Adam, clarifying what on earth he meant in relation to that form and Dr Adam writing back. All of this was copied in to Mr Johnson and his representatives, providing copies of functional capacity assessments as to what the details of the job were and asking Dr Adam to clarify what he meant by what he put in the form. All of that is relevant, as is a meeting that occurs subsequent to this exchange of correspondence between Mr Johnson, his representatives, Callide and its representatives, dealing with what the form means.

PN143

But of course all of that is irrelevant for the Supreme Court, because it's only concerned with what the one-page form shows. But it is not irrelevant in terms of the company's position and, particularly in relation to this matter, it is not irrelevant in terms of what the Commission ought take into account as to whether or not Mr Johnson is fit to return to work. As I say, that's the series of correspondence which takes us up to attachment 8, the notes of the meeting with Dr Adam. We then have at attachment 9 the decision, if you like, from the site senior executive at the time - general manager at the time, Andrew Wells, saying in substance "I formed the view that you can't perform your work without an unacceptable level of risk and I'm giving you the opportunity for a further health assessment under 48". A bit of a war of correspondence - - -

PN144

THE COMMISSIONER: I am not sure he said that, has he?

PN145

MR LE MARE: Well, let's go to it.

PN146

THE COMMISSIONER: He cannot be sure of that because if what[sic] he wants is further information to make a decision as to whether or not Mr Johnson presents as an unacceptable level of risk.

PN147

MR LE MARE: You're right.

PN148

As a result of considering this information I remain concerned that ...(reads)... before I take action to terminate or demote, you've got the opportunity under 48.

PN149

Absolutely right. That then, I guess, is the state of play which leads to a bit of war of correspondence between the parties as to whether or not the form shows these things and that ultimately leads to a refusal, if you like, by Mr Johnson to attend another NMA for the purposes of the review assessment. That then is the dispute which goes into the Supreme Court and is ultimately determined by the Supreme Court. The last two letters in the batch of correspondence to the chronology is a letter, first of all, of 15 November 2004 which is shortly before the Supreme Court proceedings were commenced under the hand of John Hughes, the human resources manager. He says effectively, you go home, receive full pay and we're not going to have any deduction to your accrued leave entitlements. Really, that is the position that has remained ever since that time.

PN150

The last letter is a letter dated 14 September, which is the date the decision comes out. This time it's by Mark Heaton, the replacement general manager SSE at Callide. Mr Heaton is new to the job. The decision is issued from the Supreme Court. Mr Heaton has not had an opportunity to consider all this wealth of information and reports, OT's reports and everything else about Mr Johnson and he says, in substance, hang on a minute. I need time to have a look at all of this and make a decision about what I'm going to do, but in the meantime you please stay at home on full pay, under the same arrangements, until we sort all this out.

PN151

That's now where we find ourselves in relation to Mr Johnson. That the application before you is effectively an application to CPU to issue an order directing the respondent to allow Mr Johnson back to work. In our submissions, even if you had jurisdiction, it's absolutely very cogent reasons[sic] as to why you ought not exercise that discretion. First of all, in light of the wealth of material which I have drawn to your attention very briefly in this chronology and which a lot of it is attached, the Commission would in a sense have to form the view that returning Mr Johnson to his ordinary work - that's what they are after - at the Callide mine will not expose him to an unacceptable level of risk. You would have to form t view in order to issue the order. In our submission there is absolutely no basis upon which you could confidently form that view, having regard to all of this material which is currently before Mr Heaton.

PN152

I guess that is the fundamental point about the discretion; is that you would have to form the view about returning him to work is not an unacceptable level of risk and our submission is you could not form that view having regard to this very detailed history.

PN153

THE COMMISSIONER: You see, I ought be able to. I ought be able to say that Mr Johnson needs to go back to work and if the SSE has the concerns you refer to, he is entitled to invoke regulation 42 safety and health management system protocols. It all becomes circular and everybody is flapping around the edges at this and no one is getting into the core of the problem and fixing the 42(7) issue. It has been going on for years. I know I keep harping on it, but it is starting to actually drive me nuts. It will be the same here. We will, no doubt, if I do not grant an order - I do not know what happens to Mr Johnson. I mean, he has already been off for over 2 years. I mean, there are people who have spent less time on Naru. It just is frustrating that nothing - the company does not deserve this and certainly Mr Johnson does not deserve this.

PN154

MR LE MARE: Absolutely right, Commissioner. But in a practical sense we remain in the situation, as absolutely frustrating as it must be, where in a practical sense we still do not have agreement about the section 42 protocol.

PN155

THE COMMISSIONER: My concern is that if we leave aside the fact that there is an application here pursuant to section 127, but look at the fact that this is actually a coal mine and there is actually people involved here and leave the law aside - we never can do that, I know, but let us just pretend for a while - something ought be done to try and decide. What ought be done is that some process should be put in place to get the reg 42(7) thing resolved.

PN156

MR LE MARE: I could not agree with you more.

PN157

THE COMMISSIONER: Then there is the safety and health management system. Mr Johnson comes back to work and is dealt with in accordance with the regulation-required safety and health management system protocols. Mr Le Mare, I know a lot of all of this - and I know you have not been involved in all of it and so perhaps I will direct the question to both of you, but has anyone ever gone to Mr Johnson with the CFMEU and seen if there cannot be some arrangements made? I know most of the argument was about what you could do and what you could not do under regulation 46. In fact a significant amount of this whole debate has been about what 46 means.

PN158

Mr Conroy, are you aware whether a proposal has been put as "Forget reg 46, is there some arrangement we can come to, to test?"

PN159

MR CONROY: No, Commissioner, and I have been involved with this issue for a fair bit longer than Mr Le Mare. I can't recall such a meeting.

PN160

THE COMMISSIONER: It has all been about reg 46

PN161

MR CONROY: Yes, it has been, Commissioner.

PN162

THE COMMISSIONER: Whether we can send additional material to the NMA and whether there was a valid NMA certificate and blah blah.

PN163

MR CONROY: Commissioner, you recall it's been very adversarial throughout the whole process and that the parties have had very different views on what the appropriate action and what was provided for by the statute et cetera. But to answer your question, no. I don't believe there has been any such discussions about this and Commissioner, I have got to say - no, actually, I won't take that any further.

PN164

MR LE MARE: I take issue with that synopsis. I think the company has been doing its absolute utmost to try to (a) give Mr Johnson the opportunity to put whatever material he can put forward to justify why he ought be able to return to work and (b) seek - - -

PN165

MR CONROY: Commissioner - - -

PN166

MR LE MARE: I haven't finished yet - seek information about which it can properly make a decision about what to do with him. As a matter of practicality, the 42 process isn't in place, take an issue with the direction to obtain alternative opinion, can't rely on all this other material that Dr Adam has given us in explanation of his form; the company has been doing its absolute utmost to try and deal with this matter in a very fair and reasonable way. We keep getting - put it this way, snookered, so to speak, because we can't go down the 42 route, we can't go down the 48 route, we can't take into account the OT's report, we can't do all these other things. We keep dealing with the technical points and we cannot deal with the substance. The company is trying to deal with the substance.

PN167

THE COMMISSIONER: Can I say this, Mr Le Mare, having heard all of this. If this reg 42 issue, which the company has not been able to resolve in four years, was something that affected coal production, I bet it would be fixed today. I bet it would be resolved. There would be nothing that would stop the coal company resolving a problem that had the likely impact of impairing coal production. But because it does not impair coal production, it is just left. I do not need you to comment about that. They are my comments. I cannot say anything more than what I have already said about the problems that stem from - I am not saying that it is the company's fault that you have not got an agreement under 42(7). I am not saying that for an instant.

PN168

What I am saying, though, is that when there is an impasse in any sort of discussions, it takes someone with some initiative to drive the discussions. I do not care what you get; whether you get a private arbitrator, whether you get a private mediator, whether you get the Commission, whether you get the chief inspector of coal mines, whether you get someone from the department, I really do not care. But there has never been anyone that has come and said, "Look we've had this you beaut idea about how we can resolve this impasse". It is always just left. Just left, and mines remain in this position.

PN169

What I would like to do is have some discussions off the record for a moment. Is there any objection to that?

PN170

MR CONROY: No, not from me, Commissioner. In fact that is what I was trying to suggest a moment ago because - no, I would just like to make a brief comment. Mr Le Mare has had the opportunity to clearly put on the record, without evidence - and look, I don't necessarily have an objection to that - how much the company has tried to facilitate this process and try and resolve the process. I don't want there to be any false illusion here. The company are not an innocent bystander, okay?

PN171

This is from the CFMEUs point of view and we feel strongly and passionately about this; the company - and I could start citing examples, but I have a fair history of this process - of the company taking steps to, what I will say, coerce an outcome from a medical practitioner. But from my point of view, that is just garbage, that the company have done their utmost here. The company have formed a view about Mr Johnson and I say, and the CFMEU says, they have taken steps to try and terminate his employment. That is why every step of the way there has been disputation because we say our member hasn't had a fair go.

PN172

We say the law has not been complied with here and that's all we have asked, for the law to be complied with. If that is seen as not doing anything to facilitate an outcome, we so be it, because our job is to protect our member particularly when we see companies are doing the wrong thing.

PN173

Mr Le Mare hasn't been involved in this process since day one. There has been a number of other individuals so I don't think he's across the full history. I am making no personal criticism of his statement here today but the CFMEU feels very strongly about this matter, Commissioner.

PN174

THE COMMISSIONER: Very well. Thank you. What I might do is adjourn these proceedings for the purpose of holding some discussions with the parties.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 LETTER FROM MR CONROY TO THE GENERAL MANAGER, CALLIDE MINE PN13
EXHIBIT #CFMEU2 SUPREME COURT DECISION JOHNSON V ANGLO COAL (CALLIDE MANAGEMENT) PTY LTD (2005) PN29
EXHIBIT #CALLIDE1 TRANSCRIPT OF SUPREME COURT CASE PN64
EXHIBIT #CALLIDE2 OUTLINE OF SUBMISSIONS PN139
EXHIBIT #CALLIDE3 CHRONOLOGY OF EVENTS CONCERNING MR JOHNSON PN139