C2005/2428, Transcript of Proceedings [2005] AIRCTrans 717 (22 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10889

COMMISSIONER ROBERTS

C2005/2428

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

Oceanic Coal Australia Limited
and
Construction, Forestry, Mining and Energy Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/2428)
West Wallsend Enterprise Agreement, 2003

SYDNEY

3.02PM, FRIDAY, 11 MARCH 2005

PN1

MR J WHALE: I seek leave to appear before the Commission pursuant to section 42(3)(c) of the Act. With me I have MR S BIKOFF who is the technical services manager.

PN2

MR J SLEVIN: I seek leave to appear as counsel on behalf of the CFMEU.

PN3

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union in this matter.

PN4

MS N KASTOUN: I appear on behalf of the Communications, Electrical, Plumbing Union.

PN5

THE COMMISSIONER: Thank you. Do either of the CEPU or AMWU representatives object to leave for Mr Slevin and/or Mr Whale?

PN6

MR MORRISON: No, we don't, Commissioner.

PN7

MS KASTOUN: No, Commissioner.

PN8

THE COMMISSIONER: Leave is granted in both cases. Mr Whale.

PN9

MR WHALE: Thank you, Commissioner. On behalf of the applicant we appreciate the Commission hearing this matter at a fairly late hour of the day on a Friday and it is a pretty rare occasion where the CFMEU and myself are on the same footing in terms of representation. In terms of seeking leave I don't have a problem with the - - -

PN10

THE COMMISSIONER: Let's not go there.

PN11

MR WHALE: I will let that lie. Commissioner, the company has served on the parties and the Commission an application together with a draft order. Does the Commission have both those documents?

PN12

THE COMMISSIONER: I do.

PN13

MR WHALE: Also relevant in these proceedings is the West Wallsend Enterprise Agreement 2003. Does the Commission have a copy of that agreement?

PN14

THE COMMISSIONER: I don't.

PN15

MR WHALE: We can conjure up one spare from our side.

PN16

THE COMMISSIONER: Yes.

PN17

MR WHALE: The other parties hopefully can do likewise.

PN18

THE COMMISSIONER: Yes, I have it, Mr Whale.

PN19

MR WHALE: Commissioner, the grounds and reasons in support of the order as contained in the application refer to strike action taking place from 11 pm Thursday, 10 March, that's 11 o'clock last night. The reason for the stoppage is related to - or is stated to relate to the state of travelling roads into the development panel. If I could just hand up to the Commission, this Commissioner, is a grievance form that's been completed by the AMWU and ETU lodge officials and countersigned by the company official acknowledging receipt of the grievance.

PN20

THE COMMISSIONER: Is this document tendered?

PN21

MR WHALE: Yes.

PN22

THE COMMISSIONER: Does anybody object to the tender?

EXHIBIT #A1 GRIEVANCE APPLICATION SHEET

PN23

MR WHALE: I will just take you briefly to it. What it is essentially saying is that the ETU and AMWU believe that the company had filed to provide a safe travelling road into MG32, which is the main gate 32. That is a designated road. It says that the company promised to the OH & S committee and the local check inspector to repair this road - - -

PN24

MR MORRISON: Commissioner, can I just object at the moment. It seems, and this is for a point of clarity, I am assuming from what Mr Whale is making submissions that he intends not to call any witnesses in this matter?

PN25

THE COMMISSIONER: I think Mr Whale is making his opening remarks which I am sure - - -

PN26

MR MORRISON: It's a bit more than an opening remark I would suggest.

PN27

THE COMMISSIONER: I am sure again it will finish as soon as they're
briefed - - -

PN28

MR WHALE: We don't intend to call any evidence in relation to this matter and if I might explain why. Mr Ireland who is the operations manager has remained at the site in an endeavour to get the afternoon shift employees not to take strike action. Those employees, Commissioner, were scheduled to start work at 2.30 this afternoon and Mr Ireland has stayed on the site to meet with the lodge president and other lodge officials to see if he could circumvent the continuation of industrial action. Mr Ireland advised us at 10 minutes to three that indeed the afternoon shift employees had voted to remain on strike and hence he is not here, Commissioner, for that purpose.

PN29

Mr Bikoff, Commissioner, is not involved directly in a supervisory role in relation to this work and apart from being able to establish, we would say that the employees are on strike, no other evidence - we are not able to bring any other evidence in relation to settling this application.

PN30

THE COMMISSIONER: Well, if there is any dispute as to the factual matrix of this matter, evidence attesting to whether the employees are actually on strike would be helpful I think to proceedings.

PN31

MR WHALE: I think, Commissioner, at the very foot of exhibit A1 it says that we withdraw our labour over our safety concerns and we assert, Commissioner, that indeed the employees did withdraw their labour and continue to withdraw their labour.

PN32

THE COMMISSIONER: Okay.

PN33

MR WHALE: How would the Commissioner propose to proceed because we were going to simply give a submission in relation to this matter?

PN34

THE COMMISSIONER: I think if you are not calling evidence you can launch into your submissions.

PN35

MR WHALE: Very well.

PN36

MR SLEVIN: Before my friend does, if he is concluding his evidential case with simply exhibit A1, Commissioner, I simply put on the record on behalf of my client that we don't accept evidence from the bar table as to what is going on at the site. If the only evidence is exhibit A1 it appears to us - well, it's quite clear on the document that there is no evidence before you that there is strike action being taken by any members of the CFMEU.

PN37

THE COMMISSIONER: Mr Whale.

PN38

MR WHALE: Commissioner, I am happy to call Mr Bikoff to establish what is the current situation.

PN39

THE COMMISSIONER: Mr Bikoff, I know he can attest to the strike action from 11 pm roughly last night. Can he attest that there is strike action going on now?

PN40

MR WHALE: I believe so. In which case I will call Steve Bikoff.

<STEVEN CLIVE BIKOFF, SWORN [3.11PM]
<EXAMINATION-IN-CHIEF BY MR WHALE

PN41

MR WHALE: Witness, would you state your name?---Steven Clive Bikoff.

PN42

By whom are you employed?---Oceanic Coal Australia Limited.

PN43

And in what capacity?---As a technical services manager.

PN44

Mr Bikoff, have you attended the West Wallsend Colliery today?---Yes.

PN45

What was the state of the mine in relation to the employees at work when you attend the mine today?---The mine was not in normal operations. The operators and trades unions were on strike. There was limited labour made available to prepare the main gate 32 roadway and then at about 10 to three I received a telephone call from the operations manager to say that the afternoon shift had gone home and they had provided limited labour but not as much as the previous shifts.

PN46

If I could just take you to this concept of limited labour, what employees were present and in what classifications at the commencement of day shift?---I believe it was four CFMEU and I think a fitter and electrician.

PN47

And do you know how those employees came to be at work?---They were allowed to start work for the purpose of repairing the main gate 32 roadway.

PN48

What was the situation with the other employees, were they - - - ?---They went home on strike.

PN49

Do you know from when?---That would have been from the start of the day shift, from the start of their shift, from 6.30 their shift starts.

PN50

And what time did you attend the mine site?---At approximately 7.30.

PN51

What time did you leave the mine site?---Approximately 11.50 am.

PN52

You have said that you took a phone call at about 10 to three this afternoon. Who did you talk to?---I spoke to the operations manager, Mr Lorry Ireland.

PN53

And what did Mr Ireland tell you?---He told me that he had met with the afternoon shift and the union guys and that they had gone home, that they had supplied some labour. Their local check inspector was very upset that they hadn't supplied as much labour as the other shifts. In fact they had only supplied two operators and a fitter and electrician and that that normal operations would commence from approximately midnight tonight.

PN54

That's all the evidence I wish to take.

**** STEVEN CLIVE BIKOFF XN MR WHALE
PN55

THE COMMISSIONER: Who wishes to start? Mr Slevin?

<CROSS-EXAMINATION BY MR SLEVIN [3.14PM]

PN56

MR SLEVIN: Yes, thank you, Commissioner.

PN57

You say you were at the site between 10.30 and 11.50 today, was it?---7.30 am.

PN58

Did you have any discussions with any of the CFMEU workers who were on site?---No. I believe they would have been underground repairing the roadway.

PN59

Did you have any discussions with any other CFMEU officials?---No, I didn't.

PN60

You had a phone call from Mr Ireland at 10 to three and you say Mr Ireland told you he met with the afternoon shift and that they had gone home. They're the words that he used?---I don't recall that they're the exact the words. That was the meaning that he conveyed to me.

PN61

Did he tell you anything about the meeting that he had with the afternoon shift?
---No.

PN62

Now, you mentioned in the evidence that you gave that there were employees working at the mine repairing a roadway. What roadway were they repairing?
---I'm told that it was the main gate 32 roadway.

PN63

And the main gate 32 roadway, am I right in saying that all of the employees would have to pass over that roadway to get to work on each shift?---No, that's incorrect. It's an in-by area of the mine that could have been isolated to allow the rest of the mine to continue working.

PN64

And do you know if it was isolated?---At what stage?

PN65

At any stage?---Well, by the lack of labour being there, yes, it was isolated and also by the fact that these guys would have been repairing the roadway.

PN66

Are you aware of complaints about the state of the roadways in your mine?
---Only second hand through Mr Ireland at the pit.

PN67

Second hand or otherwise, are you suggesting though that you are aware that there have been complaints about the state of the roadways in the mine?---Only what I was told this morning.

PN68

Only this morning?---Yes.

**** STEVEN CLIVE BIKOFF XXN MR SLEVIN
PN69

Did Mr Ireland tell you that the employees have been complaining for some time about the state of the roadway?---There's been discussions about it and there was to be a union meeting today, not about that particular point, but there was opportunity to raise that at that meeting.

PN70

I am not talking about opportunities to raise that point. I am talking to you about the fact that it has been raised in the past, the state of the roadways as an occupational health and safety concern. Are you aware that that's occurred?---I believe that there's been discussions between the union and the officials at the mine.

PN71

Your particular mine has a poor occupational health and safety record compared to other mines in the Extrata group, is that correct?

PN72

MR WHALE: Objection. If Mr Slevin wishes to put statistics to the witness perhaps he may provide those statistics so each of the parties can vet them, unless he chooses not to rely upon that.

PN73

THE COMMISSIONER: I think your question, Mr Slevin, falls on the witness to make an observation which is very broad.

PN74

MR SLEVIN: Yes, at this stage that's right, Commission.

PN75

THE COMMISSIONER: And in that case I wouldn't allow your question.

PN76

MR SLEVIN: In the case that the question is too broad, Commissioner.

PN77

Do you have any knowledge of statistics collected in relation to the occupational health and safety record of your mine?---No.

PN78

So you can't assist the Commission as to any knowledge as to the occupational health and safety records at your site or any other Extrata site?---Not that I recall.

PN79

Have you attended any meetings with Mr Ireland about the occupational health and safety performance of your mine site?---No, I haven't.

PN80

I have no further questions, Commissioner.

**** STEVEN CLIVE BIKOFF XXN MR SLEVIN
PN81

THE COMMISSIONER: Mr Morrison.

<CROSS-EXAMINATION BY MR MORRISON [3.20PM]

PN82

MR MORRISON: Yes, thank you, Commissioner.

PN83

Mr Bikoff, were you aware that your employer actually gave a commitment in early January to dedicate two people per shift to the repair and maintenance of the main gate 32 roadway?---No, I'm not aware of that.

PN84

You are not aware of that. Are you aware of workers compensation claims as a result of workers being injured by driving on that roadway?---No, I'm not.

PN85

Would you surprise you if I told you that in fact there are workers currently under workers compensation because of injuries they sustained by travelling on that roadway? I am over here?---Yes, I don't know how to relate that to being surprised or not. I don't know of it.

PN86

You have never heard of any workers being injured travelling on that roadway?
---Not personally.

PN87

Do you work at that colliery, Mr Bikoff?---Yes.

PN88

And you are there every day working?---Yes.

PN89

And your role would mean that you would not be made aware of any injuries that occur at the workplace?---Not anything what I'm required to do.

PN90

What are you required to do?---I provide technical support and do forward planning and - - -

PN91

Okay. So not the day to day people management of the site?---That's correct.

PN92

So it is your evidence that the workers resolve not to resume work at the workplace this afternoon with the afternoon shift, is that correct?---That's correct.

PN93

How many AMWU members are required to work on the afternoon shift?---I don't know.

PN94

Would you like to speculate on how many AMWU members are required to work on the afternoon shift to your knowledge and a technical manager?

PN95

THE COMMISSIONER: Mr Morrison, you can invite him to estimate. You cannot invite him to speculate.

**** STEVEN CLIVE BIKOFF XXN MR MORRISON
PN96

MR MORRISON: Could you estimate how many - thank you, Commissioner - how many AMWU members are required?---No, I wouldn't be able to.

PN97

If I put to you that there is one AMWU fitter required to work in the afternoon shift would you say that that is about right?---No, I wouldn't say. It would be more than one.

PN98

It would be more than one. Would it be two?---It would be more than two.

PN99

How many would you say it would be?---I couldn't estimate any higher than that.

PN100

So you couldn't even get us around a figure, three, four, five?---No.

PN101

If I put it to you that I am advised by the AMWU delegate, Peter Mayer at the site, that there is only one AMWU fitter scheduled for work on the afternoon shift, would you agree with that?---I couldn't agree or disagree because I don't know.

PN102

You don't know?---That's correct.

PN103

It is your evidence that there is to your knowledge one AMWU fitter currently at work in the afternoon shift?---As far as I'm aware from being told by Mr Ireland.

PN104

That there is one?---That's what I have heard over my recollection of the telephone call.

PN105

No further questions.

PN106

THE COMMISSIONER: Ms Kastoun.

<CROSS-EXAMINATION BY MS KASTOUN [3.24PM]

PN107

MS KASTOUN: Mr Bikoff, are you aware of any ETU members or electricians being on strike at the moment?---As far as I am aware they are, except they have supplied Wayne to work on the afternoon shift.

PN108

No further questions.

PN109

THE COMMISSIONER: Any re-examination?

PN110

MR WHALE: No re-examination, Commissioner.

**** STEVEN CLIVE BIKOFF XXN MS KASTOUN
PN111

THE COMMISSIONER: You may step down, Mr Bikoff.

<THE WITNESS WITHDREW [3.24PM]

PN112

THE COMMISSIONER: Mr Morrison, before Mr Whale launches into his submission again, do I take it reading between the rather thick lines there, that you allege there are no AMWU members on strike?

PN113

MR MORRISON: Commissioner, I am advised by the AMWU delegate who I have managed to contact prior to attending the Commission this afternoon that there is one AMWU member required to work in the afternoon shift and he is attending work this afternoon, mainly because part of his role is to assist to repair of the work.

PN114

THE COMMISSIONER: My question really invited a yes or no.

PN115

MR MORRISON: It is a yes, there is an AMWU member. Members that are required to work are attending work this afternoon.

PN116

THE COMMISSIONER: So it's a no to my question?

PN117

MR MORRISON: It's a no to your question, a yes to AMWU involvement.

PN118

THE COMMISSIONER: The same question for you, Ms Kastoun?

PN119

MS KASTOUN: Commissioner, we are in the same position. I believe there is one member there who has resumed work.

PN120

THE COMMISSIONER: I will ask you the question again. The question is, are there any, to the best of your knowledge representing the union here today, are there any members of the CEPU who are currently on strike at the West Wallsend Colliery?

PN121

MS KASTOUN: No, Commissioner, that's my understanding.

PN122

THE COMMISSIONER: Good, thank you. Mr Whale.

PN123

MR SLEVIN: Well, Commissioner - - -

PN124

THE COMMISSIONER: I suppose I can ask you the same question?

PN125

MR SLEVIN: My instructions are limited, Commissioner, and before Mr Whale, I understood you were about to invite him to make submissions, there's a question of whether the unions wish to bring any evidence.

PN126

THE COMMISSIONER: Yes.

PN127

MR SLEVIN: Some evidence has now been given by the other unions from the bar table as to the state of their members. I received instructions very late in the piece with brief instructions, Commissioner. The employees who are members of the CFMEU are not attending work due to an apprehension of an occupational health and safety threat associated with the status of the roads at the mine. In the circumstances the union would like to bring evidence as to the state of the mines. We believe that the industrial action may well on investigation fall into the exception of the definition of industrial action under section 4(1) that travelling on those roads give rise to an imminent risk to their health and safety.

PN128

THE COMMISSIONER: It is a road, isn't it?

PN129

MR SLEVIN: It is a road.

PN130

THE COMMISSIONER: The problem concerns a road?

PN131

MR SLEVIN: Well, the evidence is that the problem is associated with a road from one witness.

PN132

THE COMMISSIONER: Well, the grievance - - -

PN133

MR SLEVIN: Exhibit A1 refers to a road as well but it certainly talks about the fact that the grader on site has not worked more than 30 hours and one would assume that in a coal mine that - - -

PN134

THE COMMISSIONER: Yes. But then that sentence goes on and relates to travelling on this road, which appears to relate to MG32. There's nothing about other roads.

PN135

MR SLEVIN: Look, the state of the evidence is such that it refers to one road, Commissioner. My client wishes to bring to your attention the state of the roads in a general sense and there's been evidence on that point and on that basis we seek an adjournment to allow the Commission to take inspections at the mine to see the state of the mines and to hear evidence on the agitation of the employees and the union in relation to those roads and to consider whether indeed the exception to industrial action in the definition section of clause 1 applies in these circumstances.

PN136

Now, Commissioner, the state of the evidence is very poor in these proceedings from Mr Whale. His witness has been unable to give any indication other than that the employees are not at work. He gives an indication that there was a meeting with the afternoon shift but can't tell us what occurred in that meeting. It may well be that the other exception of industrial action about agreement of the employer may apply, well, one may assume - - -

PN137

MR WHALE: I can assure Mr Slevin that isn't the case.

PN138

THE COMMISSIONER: Yes. I have a feeling that fully does - - -

PN139

MR SLEVIN: Yes. Well, I was about to say, Commissioner, that it may well be that the assumption can be made given the application is pressed that that's not the case, but no-one knows what has occurred at that meeting, whether there were discussions about the employees working or not working. The matters as to the state of the roads no doubt were mentioned at that meeting, although we don't know because we have so little evidence about it.

PN140

THE COMMISSIONER: One thing remains clear, there is evidence before me as to what the genesis of the dispute was. I accept that on the face of it the afternoon shift doesn't appear to be at work. They have gone on strike. There's certainly nothing before me about roads plural, if I can come back to that point. I mean A1 is a document produced by two members respectively of the AMWU and ETU which says:

PN141

We withdrew our labour over our safety concerns after several lines -

PN142

Referring specifically to the road known as MG32. Now, under the grievance procedure which I had a quick look at, it appears that where is a safety concern, and I am paraphrasing of course, the company is obligated to isolate that safety concern and if the safety concern is able to be isolated then work should continue as normal while the grievance is processed. I hope that's a fair summary of what it says. The company says through Mr Bikoff on oath that the road can be isolated, that it's not, in respect to a question from Mr Morrison if I recall correctly, that it is not the only entrance to the mine, that people can get in by other means.

PN143

Now, if the company isolates the road and the road is the source of the safety concern, well, where is the safety concern?

PN144

MR SLEVIN: There are two ifs there, Commissioner.

PN145

THE COMMISSIONER: Two what?

PN146

MR SLEVIN: Two ifs. The first if, if they isolate the road. The witness said to his knowledge the road wasn't isolated and that in response to questions I asked, if isolation has occurred because there's no-one working - - -

PN147

THE COMMISSIONER: He did make that point.

PN148

MR SLEVIN: And so the assumption that can be made from that, Commissioner, is that the employer hasn't taken steps to isolate the road according to the disputes procedure and that's the first question, the first if. The second if, Commissioner, and this was the point I was making, is that if it's simply the one road you have evidence that the one road is definitely in the mix. I have instructions that the state of all the roads is in the mix. The reason I rise is to seek an adjournment so that we can have the opportunity to bring evidence before you that it's the case that all of the roads are in the mix.

PN149

THE COMMISSIONER: And while we are doing that what happens to the strike action?

PN150

MR SLEVIN: Well, the industrial action will - there's the question as to whether it is industrial action. It goes to your jurisdiction, Commissioner. It's not a straight forward case where someone can say, well, it's over hours of work and it has nothing to do with health and safety and we couldn't raise the exception to the definition of industrial action if that were the case. But in this case the indications from the evidence being led by the employer is that there are safety concerns and which should alert you that there is a real concern over the jurisdiction of the Commission to be satisfied there is industrial action as defined in the Act.

PN151

In those circumstances it's incumbent upon my friend to bring evidence upon that point. He has not. Indeed his evidence has raised this question and so given that he has not his application should not succeed. What happens in the meantime happens and the employer in a sense will have to deal with that and if it wanted to deal with it by pressing this application it should have brought proper evidence on which to base the Commission's jurisdiction to make the orders sought and they have failed to do that. We say that we want to raise a number of issues, we don't think you don't have jurisdiction because of these safety concerns and would like to ventilate those issues and bring evidence on those points. That's the reason I rise and I make the application for the adjournment on that basis.

PN152

THE COMMISSIONER: As I have said to you before, the two matters which appear clear are that strike action started last night and continues as of this moment. The second matter which appears clear is the strike action relates to a grievance lodged with the company on 10 March this year concerning a specific road at the mine site. Now, dwelling on the world of if again just for a moment, if Mr Whale sought instructions from the company and for argument sake he was advised the company would isolate that road to take account of any possible safety concerns and he was able to make that undertaking on behalf of the company, what happens then to the argument about safety concern? You can sit down again for a moment, Mr Whale?

PN153

MR SLEVIN: Commissioner, I have no instructions to say what would arise from that but it seems to follow that you have changed circumstances in the matter of the half an hour it's been before you and in those circumstances to then proceed getting assurances on the run from the employer that they will patch up the errors that they may have made up to this point so far as their disputes procedure is concerned, all you have done is, with respect, Commissioner, all you have done is allow the employer to come along and say, well look, we will do something about the safety concerns that gave rise to this strike and hopefully that will convince you that you now have jurisdiction because we are assuring that we will isolate the roads - - -

PN154

THE COMMISSIONER: It could also be seen in a much kinder light, couldn't it, that I have heard the concerns put forward by the union and the employer has heard my concern over them and has possibly moved to alleviate the problem? Is that kinder interpretation also open?

PN155

MR SLEVIN: I understand what you say, Commissioner, but you only deal with one road. The point I was making is that in the mix is all of the roads.

PN156

THE COMMISSIONER: There's absolutely no evidence about any road except MG32.

PN157

MR SLEVIN: And I am asking for the opportunity to bring evidence, an adjournment so that evidence can be brought about the safety concerns, Commissioner. We are not at final submissions at this stage. I understand what you are suggesting, Commissioner, in terms of some sort of practical outcome but certainly a - - -

PN158

THE COMMISSIONER: You seem to be suggesting that to do that would be some sort of bushwhack on your client?

PN159

MR SLEVIN: Well, it would, Commissioner. I am not sure I would use the word bushwhack, but it would change the circumstances and in the circumstances and you are dealing with the current industrial action. The current industrial action we say to you it doesn't fall within the definition. It's an apprehension the employees have. If something is said here in Sydney this afternoon the apprehension still remains in the minds of the employees because they won't be aware of what's said. It's going to be a case of just a practical point of view. We have had evidence that they're going back to work at 11 o'clock tonight.

PN160

It's this last shift it's a case of the Commission gets the assurance from the company, the Commission is satisfied with that assurance. The opportunity should be given to the employees to say whether that removes the apprehension and wish to return to work. I think if what I read what you are saying, Commissioner, is perhaps looking at - and then making the order. There would be no basis for then making the order and so the employees should certainly be given the opportunity to say yes, that was our concern about our health and safety and we will go ahead, if that's removed then we will return to work and our apprehension all disappears.

PN161

It may well be, and as I say, my instructions are the apprehension is about the state of the roads generally, it may well be the employees say, well look, just that road doesn't do it, our concern is with all of the roads, they're in such a state that we put ourselves at risk by working on them.

PN162

THE COMMISSIONER: Mr Whale, firstly before you go onto matters, do you accept that the AMWU and the CEPU are not on strike?

PN163

MR WHALE: No, Commissioner.

PN164

THE COMMISSIONER: I think we should adjourn while you seek instructions on that point.

PN165

MR WHALE: My friend is indeed ascertaining the number of employees on this current shift and are on strike. My instructions, Commissioner, were that in accordance with exhibit A1 all employees took strike action on the night shift. On the day shift all employees, with the exclusion of six production employees, two fitters and one electrician on the day shift, volunteered to remain at work. The six production employees were allocated by the company to MG32 to do road maintenance work in accordance with the concerns of the employees and likewise this afternoon all employees with the exclusion of two production employees, one fitter and one electrician, and those employees again volunteered for doing work doing the same sort of work.

PN166

THE COMMISSIONER: So your answer is that you say that there are AMWU and CEPU members on strike?

PN167

MR WHALE: Indeed, and Mr Bikoff is ascertaining those numbers as we speak. If I might address my friend's submissions to you.

PN168

THE COMMISSIONER: Well, I actually want an answer about the CEPU and the AMWU first because if they're not on strike now then they're free to go.

PN169

MR WHALE: Very well. If you take a short adjournment - - -

PN170

THE COMMISSIONER: There's no action against - - -

PN171

MR WHALE: If you take a short adjournment.

PN172

THE COMMISSIONER: But if you can take some time to find out from
Mr Bikoff if there is a dispute over that particular matter, so we will adjourn and you will advise my associate when you know?

PN173

MR WHALE: Yes.

<SHORT ADJOURNMENT [3.40PM]
<RESUMED [3.40PM]

PN174

THE COMMISSIONER: Mr Whale.

PN175

MR WHALE: Thank you, Commissioner. In the break, Commissioner, we haven spoken to Mr Ireland and Mr Ireland is unable to give us the breakdown of which unions the mechanical and electrical tradesmen belong to. There are seven electricians allocated to the afternoon shift and six fitters allocated to the afternoon shift but we don't have the break up, Commissioner, of whether they are CFMEU or CEPU in relation to the electricians, or CFMEU or AMWU in relation to the fitters. There are 25 production workers who are members of the CFMEU of which two at work, as we have previously said.

PN176

THE COMMISSIONER: Now, just go back a step. Of the seven electricians you say how many are at work?

PN177

MR WHALE: One.

PN178

THE COMMISSIONER: So one is definitely at work and one fitter?

PN179

MR WHALE: Yes. One of seven and one six and two of 25.

PN180

THE COMMISSIONER: So what is the total workforce, 38?

PN181

MR WHALE: On the afternoon shift?

PN182

THE COMMISSIONER: 38?

PN183

MR WHALE: Yes, 38.

PN184

THE COMMISSIONER: Of whom four are at work?

PN185

MR WHALE: Four are at work, yes.

PN186

THE COMMISSIONER: Okay. So do you persist with seeking an order against the AMWU and the CEPU?

PN187

MR WHALE: We do, Commissioner, on the basis that the industrial action in exhibit A1 is certainly triggered in part by the actions of those two unions. In the absence of having that number of electricians and AMWU, Commissioner, we have no alternative than to press the application in relation to those two unions.

PN188

THE COMMISSIONER: Thank you.

PN189

MR WHALE: Commissioner, if I might return to our submission. We
didn't - - -

PN190

MR SLEVIN: Commissioner, my application for an adjournment was being considered at the moment. I think my friend is being a bit presumptuous in terms of his submissions.

PN191

MR WHALE: In which case, Commissioner, I intend to deal with the application for an adjournment as well.

PN192

MR MORRISON: Can I just interrupt. Will the AMWU be able to be heard in the application for an adjournment following Mr Whale's submission?

PN193

THE COMMISSIONER: Certainly in that the application is being pressed against you.

PN194

MR MORRISON: Thank you.

PN195

MR WHALE: Commissioner, my instructions from Mr Ireland at 7 o'clock this morning were that at the commencement of the night shift on the Thursday night the employees commenced industrial action at 11 pm and that the shift under manager contacted the delegates and put to them clause 25 of the certified agreement and in particular at paragraph 25.1.3.

PN196

MR SLEVIN: Commissioner, I object to Mr Whale referring to matters that are not in evidence in his submissions. I made the point that we don't accept evidence from the bar table from the advocate. He is not entitled to put evidence before you of facts of what occurred in discussions or meetings with Mr Ireland simply based on his instructions. If he is going to run his case he has got to do it properly and he has got to bring evidence.

PN197

THE COMMISSIONER: He is correct, Mr Whale.

PN198

MR WHALE: I am recounting my discussion with Mr Ireland, Commissioner. If you wish me to give it in evidence in these proceedings I am happy to do so.

PN199

THE COMMISSIONER: Well, that might be best. If you wish to do it I think that's probably the best way to proceed. Yes, I know it's missing but - - -

PN200

MR SLEVIN: Well, I object to that as well. Mr Whale can't give evidence in these proceedings.

PN201

THE COMMISSIONER: He can in relation to his conversation with Mr Ireland.

PN202

MR SLEVIN: He is going to get in the witness box and tell you what his instructions are from Mr Ireland.

PN203

THE COMMISSIONER: No, he is going to tell me, I think, as to what the factual situation is based on his conversation with Mr Ireland.

PN204

MR SLEVIN: Commissioner, that's not evidence.

PN205

THE COMMISSIONER: I will allow Mr Whale to give the evidence. You can object at a later stage.

PN206

MR SLEVIN: I have objected at this point, Commissioner.

PN207

THE COMMISSIONER: Well, I am overruling your objection. Mr Whale, do you wish to give evidence?

PN208

MR WHALE: Yes, Commissioner.

<JOHN HART WHALE, SWORN [3.57PM]

PN209

THE COMMISSIONER: You make your statement?---My name is John Hart Whale. I am the principal of Whale Corp Pty Ltd which is an industrial relations consultancy company. At 7 o'clock this morning I received a telephone call from Mr Lorry Ireland, the Operations Manager of West Wallsend Colliery. He informed me that the day shift employees had commenced strike action at 6.30 am today and that the night shift employees who commenced work at 11 pm on Thursday night, Thursday, 10 March, had in fact taken strike action. He informed me that the employees had taken that strike action in relation to the state of the travelling roads and he read to me a grievance form which had been completed by two delegates, an AMWU and ETU delegate at the colliery. I asked Mr Ireland whether in fact the employees on day shift had been given a copy of or shown a copy of the disputes procedure and in particular paragraph 25.1.3. Mr Ireland informed me that the delegates had been given a copy of, or shown a copy of clause 25.1.3 and that they had not complied with it. I asked Mr Ireland whether he had spoken to the lodge president in relation to the dispute, CFMEU lodge president, and the lodge president's name I believe is Warren Payne. Mr Ireland indicated that he had not and I requested that he do so. At about 7.45 Mr Ireland rang me to tell me that he had spoken with Mr Payne and that Mr Payne had indicated that the employees had shit on liver in relation to the travelling road, the particular travelling road MG32, and that the employees were not going to attend for work whilst that road was in the state that they said ti was. I put to him that the options available to the company were to seek to have a meeting with the delegates and sort out the matter, or indeed make an application before this Commission. I suggested that Mr Ireland pursue the first of those avenues in lieu of proceedings before the Commission. He undertook to arrange to have a meeting but would be unable to talk to any of the officials until the afternoon shift commenced at approximately 2.30 this afternoon, or at 2.30 this afternoon. I had said to Mr Ireland that in talking to Mr Payne he should seek an assurance from Mr Payne that the employees return to work no later than the commencement of afternoon shift today and therefore avoid proceedings before this Commission and when he did ring me back, I omitted to say when he did ring me back, Mr Payne indicated that he could not give such an assurance. I spoke again with Mr Ireland several times this afternoon, the most recent of which, excluding the break we have just had in these proceedings, was at 10 to three. Mr Ireland informed me that he had met with Mr Payne. He had shown Mr Payne a copy of the application which is before this Commission and a copy of the proposed orders in this matter. I asked Mr Ireland what did Mr Payne say in response to seeing those two documents and - - -

PN210

MR SLEVIN: I object to this. The witness is proposing to give third hand hearsay at this point, Commissioner. He has given an account of what Mr Ireland said and now he is going to give you an account of what Mr Ireland said that
Mr Payne said. It is getting - - -

**** JOHN HART WHALE XN
PN211

THE COMMISSIONER: It is going a little far, Mr Whale. I will certainly allow you to give evidence in relation to your conversation with Mr Ireland?---I am simply recounting what Mr Ireland told me, Commissioner. He told me that he showed the application and the draft order to Mr Payne. I had asked him what
Mr Payne's response was and Mr Ireland said to me that, referring to the order, it won't matter, the blokes won't be here anyway. That is what Mr Ireland said to me. That is all I wish to say.

PN212

Mr Slevin?

PN213

MR SLEVIN: Nothing.

PN214

MR MORRISON: If you wouldn't mind, Commissioner?

<CROSS-EXAMINATION BY MR MORRISON [4.03PM]

PN215

MR MORRISON: Mr Whale, in your discussions with Mr Ireland did he tell you how many members of the AMWU are taking industrial action on the afternoon shift?---No, he didn't.

PN216

No further questions.

PN217

THE COMMISSIONER: Ms Kastoun?

PN218

MS KASTOUN: No further questions, Commissioner.

PN219

THE COMMISSIONER: You may step down.

<THE WITNESS WITHDREW [4.04PM]

PN220

THE COMMISSIONER: At this point it is my intention to adjourn into conference with the parties. We will go back on the record if required. We will adjourn.

<SHORT ADJOURNMENT [4.04PM]
<RESUMED [4.38PM]

PN221

THE COMMISSIONER: This matter has been the subject of discussions between myself and each of the two sides separately and I think a resolution has arisen. Mr Slevin.

PN222

MR SLEVIN: Yes, thank you, Commissioner. I can give undertakings on behalf of my client, the CFMEU, that normal work patterns will resume from 11 pm this evening, that the concerns about the state of the roads will be progressed by way of an application made by the CFMEU under section 99 of the Act and that there will be no industrial action in relation to the roads while that section 99 is being dealt with. If the Commission pleases.

PN223

THE COMMISSIONER: Good, thank you. Mr Morrison.

PN224

MR MORRISON: Yes, Commissioner. The AMWU is also prepared to give submissions that normal work patterns will resume from 11 pm this evening and the AMWU are prepared to participate in the hearings under section 99 of the Act regarding concerns over the state of the road.

PN225

THE COMMISSIONER: Thank you, Mr Morrison. Ms Kastoun.

PN226

MS KASTOUN: The CEPU also gives the same undertaking.

PN227

THE COMMISSIONER: Good, thank you. Mr Whale, your response?

PN228

MR WHALE: Thank you, Commissioner. On the basis of the undertakings that have been given by each of the unions we accept those undertakings. We seek that the application be adjourned for re-listing if indeed the need arises.

PN229

THE COMMISSIONER: Yes. I don't anticipate the need will arise in relation to this specific matter but if it does the applicant will be afforded a speedy hearing of the matter and also any application which comes by way of section 99, if it is allocated to me, will also be given a priority hearing to settle this matter. We are adjourned.

<ADJOURNED INDEFINITELY [4.40PM

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 GRIEVANCE APPLICATION SHEET PN22
STEVEN CLIVE BIKOFF, SWORN PN40
EXAMINATION-IN-CHIEF BY MR WHALE PN40
CROSS-EXAMINATION BY MR SLEVIN PN55
CROSS-EXAMINATION BY MR MORRISON PN81
CROSS-EXAMINATION BY MS KASTOUN PN106
THE WITNESS WITHDREW PN111
JOHN HART WHALE, SWORN PN208
CROSS-EXAMINATION BY MR MORRISON PN214
THE WITNESS WITHDREW PN219