C2004/5407, Transcript of Proceedings [2005] AIRCTrans 806 (1 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 11003-1

SENIOR DEPUTY PRESIDENT HARRISON

C2004/5407

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
TIWEST PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2004/5407)

MELBOURNE

12.04PM, WEDNESDAY, 23 MARCH 2005

Continued from 16/3/2005

PN2559

THE SENIOR DEPUTY PRESIDENT: Appearances remain the same?

PN2560

MS GRAY: They do your Honour.

PN2561

MR PARRY: If the Commission pleases, I call Barry Richards.

PN2562

MS GRAY: Your Honour, just before Mr Parry's witness is - - -

PN2563

THE SENIOR DEPUTY PRESIDENT: Ms Gray.

PN2564

MS GRAY: Your Honour we have with us today Mr Brian Manly who is our delegate from Energy Brix. We anticipate that I make application to call him from the evidence in rebuttal depending on what falls from Mr Richards. If that happens, your Honour, then.....we just wish to advise the Commission that he is here and that we would be asking him to wait outside during Mr Richard's evidence.

PN2565

THE SENIOR DEPUTY PRESIDENT: All right. One housekeeping matter. I commenced marking exhibits when this matter was in Perth with CFMEU1, I think. I have overlooked that on an earlier occasion, 2 September 2004 that two documents had been marked. They were the statement of service and the log of claims. What I have now done is marked those first two exhibits tendered back in September last year 1A and 2A, and then that should not interfere at all with the exhibits numbering I gave to the CFMEU documents last week. And at the close of today's hearing I can attend to the matters contained in a written letter from your instructing solicitor Mr Parry.

EXHIBIT #CFMEU1A STATEMENT OF SERVICE
EXHIBIT #CFMEU2A LOG OF CLAIMS

PN2566

MR PARRY: If it pleases I call Barry Richards.

<BARRY JOHN RICHARDS, SWORN [12.06PM]
<EXAMINATION-IN-CHIEF BY MR PARRY

PN2567

MR PARRY: Mr Richards for the record what is your full name and address?
---Barry John Richards of (address supplied).

PN2568

Where is your employment?---A company called Necrus Pty Ltd, based out of an office in Mulgrave.

PN2569

What is your position?---Managing director.

PN2570

How long have you held that position for Mr Richards?---Almost six years.

PN2571

How old is Necrus as a company?---Almost six years.

PN2572

Are you familiar with the involvement of Necrus with the manufacture of briquettes in Yallourn?---Morwell.

PN2573

Morwell I am sorry?---And that I am, yes.

PN2574

How are you so familiar?---I manage the company that produces the briquettes. I was involved in the reinstatement of that factory when it was - after it had been damaged by fire.

PN2575

When was it that the damage by fire as you say?---Boxing Day 2004. So 26 - - -

PN2576

2003 perhaps?---Yes, it might be. Let me just do my sums.

PN2577

At that time when it was damaged who was operating it do you know?---Energy Brix. A company called Energy Brix, or Energy Brix Australia Corporation.

PN2578

Do they have any corporate link with Necrus?---No.

PN2579

After the factory was burnt down how long was it shut for?---We recommenced, or commenced the reinstatement works, the physical works, on about 2 July, and you are right it was 2003.

PN2580

What restoration works did you do, broadly?---Basically the materials handling plant had been damaged and a lot of the electrical work associated with installation associated with the factory. So we reinstalled all that.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2581

Did you purchase the land and plant?---No.

PN2582

Or lease it?---The plant is leased.

PN2583

And the property as well?---And the property as well, yes.

PN2584

What is the period of the lease?---Five years with two five year options.

PN2585

When did you commence to manufacture briquettes at it?---Around about 8 August.

PN2586

What plant and equipment, major pieces, is on the site that manufactures the briquettes? If you could just take us very roughly, not in great detail, but through the process from the beginning?---Right from the beginning? There is a coal handling plant which is basically just a series of conveyors, screens and crushers. That is operated and maintained by us but under a separate contract to the briquette factory. And that basically reduces to a fairly consistent particle size the coal, the raw material for the briquettes. It then travels into the factory which is the part we actually lease and look after, and operate. And in there the coal is basically bunkered then it is dropped through dryers that are rotating cylinders, effectively, and utilising steam to remove a fair portion of the moisture from the coal. It comes in at about 65 per cent moisture and goes out at the end of the dryers at somewhere around about 14 per cent moisture. From there it travels through a series of screens and conveyors to the presses. The presses are simply reciprocating presses the compress the coal into a solid form called a briquette. That is then travelled out through at the present time what is called launders which are effectively just a cooling mechanism. From there they are split into individual components and stockpiled. From that they are loaded into trucks and transported throughout the state. Our responsibility ends when they are loaded in the truck.

PN2587

You mentioned that the coal has moisture in it. Is it at any time in any liquid form?---No.

PN2588

Who else in Australia makes briquettes and competes with you ?---No one.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2589

The coal handling plant you referred to I think you said that conveyors, screens and crushers. Where does the coal come from to get into that plant?---The coal now? While we have been operating the plant is excavated from the Loy Yang mine by Loy Yang power effectively. Transported by road to what is called a ditch bunker loader, or a ditch, and is dropped into that ditch out of the trucks. From there we reclaim it, if you like, and put it onto the conveyor system.

PN2590

How do you put it onto the conveyor system?---It is just with a chain elevator if you like. It is what is called the ditch bunker loader. It is simply a loading mechanism that just picks it up and drops it onto a conveyor system.

PN2591

How many employees does Necrus have at the Morwell site?---At the Morwell site in total, around about between 50 and 60, plus some casuals at the moment.

PN2592

The 50 or 60 are some of them white collar management admin?---Yes.

PN2593

Approximately how many?---Somewhere around about 10, eight to 10.

PN2594

The remainder work under the enterprise agreement do they?---Yes.

PN2595

That is about 40 or 50?---Somewhere about that figures, yes. There is two areas of course. There is the briquette factory and there is the coal handling area. And the briquette factory has about 32 and a number of casuals at the moment, just for workload. Then there is another 12 or 14 I think in the wet section, or the coal handling area.

PN2596

In the briquette factory is there a roster worked?---Yes.

PN2597

What roster is that?---We work 24 hours a day based on a 12 hour shift rotation. We work at the moment what we call a limited production roster. That means that we don't need to run the plant the whole year round to meet our demand for our product. So we have a flexibility arrangement where we work, it could be a month, it could be six weeks of 12 hour shifts on a rotating basis. Then we might have eight days off where we shut the factory and that will take accumulated rostered time off.

PN2598

Still staying with the briquette factory, how many of the 32 are on this roster?
---On the 12 hours five per roster and there is four rosters. So there is 20. The other 12 are split across a one by seven which is - they work about 10 hours and eight minutes a day I think, seven days a week.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2599

Those 20 on the roster do you call them something, do you have a title for them?
---Operator maintainers. That is about it.

PN2600

What are their duties, broadly?---Basically the manufacture of briquettes. Operating the equipment, but operating and maintaining the equipment that manufactures the briquettes. So we are not specific in having - there is one nominated team leader, but we are not specific in having people related to each individual caste that is around the place. So they basically work out between themselves as a team the duties they undertake.

PN2601

What particular background do these employees - what do you look for as a background for these employees?---I suppose our first criteria is probably attitude, and working in the team environment. We have - quite a number of them have come from trades backgrounds and have been skilled in the operation of the plant, and we have a number that have non-trades background and we have skilled those up with levels of maintenance.

PN2602

You mentioned skilling up, what training do you give to the staff that are working on that 20 roster, and that you call operator maintainers?---We have a training program with some modules associated with that. They are really designed about specific parts of the plant. So it might be the operation of the dryers or it might be the operation of the process, and we have got training packages for each of those to run our people through.

PN2603

Do the employees rotate through positions?---Yes.

PN2604

You mentioned the other 12, what do the other 12 on the one by seven ten hours a day approximately, what do they do?---They probably tend to be what we call maintainer operators as opposed to operator maintainers. They spend most of their time through the days doing form changes which are a physical activity of changing the actual form in the press. That is something that is a high wear component so we change those out. So that crew does that, they do some of the more specialised maintenance where, you know, the operators through the night are reasonably busy and don't have time to do a lot of the general sort of maintenance.

PN2605

What proportion of those would have a trades background?---At a guess probably half.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2606

The others are trained up?---Yes.

PN2607

What about the other section, the coal handling section? You have got about
15 employees there?---That is about right. I think there is about four on the one by seven roster and they will do - they might be doing cutting of coal or waste product called grous, which is effectively dry coal, and some general maintenance activities. Like they might repair chutes and things like that. Then the balance of them work the roster, which is 24 hours a day.

PN2608

What do you call them?---Operator maintainers.

PN2609

You have an enterprise agreement that you have entered with the CFMEU?---Yes.

PN2610

How did that come about?---When we looked at establishing, or re-establishing the briquette business, because it had been closed, we believed that it would be advantageous to our organisation to have an enterprise agreement in the Latrobe Valley area. Traditionally there had been a number of unions involved in the sites. We selected the CFMEU to negotiate and work with to establish an enterprise agreement. That was prior to starting the plant. Because we had to
- basically there was a considerable amount of money invested in re-establishing this plant so we needed to make sure that the business case was solid.

PN2611

So around what time did you approach the CFMEU in 2004?---Probably originally, I think, in May 2004.

PN2612

If I could hand you a copy of the CFMEU Necrus Australia Briquette Agreement 2004 and you are probably more familiar with it than I, but clause 4 of that has a three year period of operation and a period - there is a reference to a five year period?---Yes.

PN2613

Then that the intention is the agreement continues for at least two years after that. Why, given that that is a little unusual, why did you go down that track?---Again, it is purely related to having to - there is a lot of borrowed money in this venture. We had to establish a solid business case to go and borrow the money and that meant that we had to take out as many variable financial costs of the business as we could. And labour is obviously a variable cost so we wanted to secure that.

PN2614

Was this part of the negotiations and advice to the union?---Yes.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2615

There was an agreement certified in late June and I think you swore a statutory declaration and the union swore statutory declarations. Perhaps you just need to see what I am handing to you. It is a copy of the statutory declaration in respect of the application. I think the top one is yours. Do you recognise that statutory declaration?---Yes.

PN2616

The attached document is from the union and you recognise that, presumably, as well?---I don't actually have that one.

PN2617

Sorry?---Yes that seems - - -

PN2618

I tender both those statutory declarations.

EXHIBIT #TIWEST 20 STATUTORY DECLARATIONS OF
B J RICHARDS AND CFMEU

PN2619

I assume that when you swore this, I think in June, and I think on the first page you ticked the box that said it is a new business and agreement is made before the employment of any persons whose agreement will be subject to the agreement. Can we take it from that any people you employed were employed after this date, after 1 June?---Yes effectively so. On a full time capacity.

PN2620

Was - - - ?---I will just clarify that. At that site. I mean I think some of our people have come from other sites and have relocated there but they work under that agreement.

PN2621

Yes, people that are covered by the agreement?---Mm.

PN2622

I think you appeared in the Industrial Commission in late June, some three or four weeks later, and the agreement was certified. Did you employ anyone under that agreement before you appeared in the Commission?---Not under that agreement, no, I don't think so.

PN2623

After you had the agreement certified how soon after that did you start employing people? Was it in July or - - - ?---Look I would suggest probably, in a full time capacity and without looking at records, I wouldn't be sure. But it would be some - the appointments were probably made late June I suppose. That would have to be because we were actually reinstating the plant which a lot of that was just done by contractors that we had used, not our people. And we took some people on and trained them in specific operations and that. But the plant started, I think, around - in August. So they probably were in July that we actually made the appointments.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2624

In the certified agreement there is reference to the parties not making, and I am paraphrasing this in 4(e), the parties not making demands on each other in respect of claims. And it also is said:

PN2625

By agreement in writing of each and every party a step or action prohibited by (e) that is making claims and demands may be taken by a particular party.

PN2626

Is there any agreement in existence that allows the making of claims between you and the union?---Not to my knowledge.

PN2627

After you commenced hiring, I think you appeared in the Commission in September in these proceedings I think. You might remember being on video conference Mr Richards?---Yes.

PN2628

And you told the Commission at that time, and it is at paragraph 56, and I quote:

PN2629

Our belief is simply we don't have a dispute. We have an agreement in place for our staff in Melbourne that has been ratified in the Commission here in Victoria and we are operating under that and we don't believe we have any sort of dispute with any union.

PN2630

Why did you have that belief?---Basically our site doesn't have an issue with our people or the union that represents them.

PN2631

Had there been any industrial action on the site?---No.

PN2632

Has there been any claims or demands by the CFMEU?---No.

PN2633

The enterprise agreement has a skills matrix in it which has, I think, some - you would know better than I, eight or nine levels?---Ten levels I think it indicates.

PN2634

How does one progress through those limits?---We have developed on the site with our people some skill levels. The agreement actually does say that our people will be paid at five when they are on a 12 hour shift of Necrus five, and operating the plant. Unless we prove that they are not skilful enough, if you like, to do that. So we have worked through with our people, developed what sort of a skills level arrangement that reflects our business.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2635

Mr Greg Hardy has given evidence in these proceedings. Do you know Mr Hardy?---Yes.

PN2636

If I could hand you a copy of his statement, at paragraph 18. You see paragraph 18 has to:

PN2637

Main roles currently performed by CFMEU members at the briquette factory include operators/attendants at steam plant.

PN2638

What steam plant do you have at the factory?---We don't actually have a steam plant, we have the steam dryers component of it. But we don't generate steam ourselves. The facility, to understand the facility it is a K-generation facility. The power station across the fence, if you like, actually use the dryer, or the capacity of the dryers to condense the steam from high pressure to low pressure, to go through their low pressure turbines. So that is supplied to us effectively free of charge, in our lease arrangement.

PN2639

That comes through a pipe through the fence?---Yes. And we return the condensate from that as it is C-pressurised if you like.

PN2640

So what do your operator maintainers do with that, with the piping of the steam?
---Nothing basically. I suppose all we would do is monitor that the pressures are right as they come into our process, because we need certain levels of pressure to maintain our required levels of dryer. But that is about it.

PN2641

What about the valving systems Mr Hardy is referring to? What valving systems would you have?---There would be an isolation valve, so we can isolate the plant from the supplier of the steam.

PN2642

How much attending would that need?---You would hope never. Very limited.

PN2643

He also refers, in that first dot point, to steam dryers?---Yes. Effectively that is the process we use for drying the coal.

PN2644

There is reference to pumps. What pumps do you have?---There is pumps that are associated with the condensate, where we pump the condensate after it has been through the dryers back over to the power station. We have a lot of ground water associated with the site so we pump that, which is waste water effectively, into the dams and into trade waste. That is probably about it.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2645

Now, the pumps that pump the condensate back to the power station, how much operating or what operation do they need?---They are automatically controlled, so very little. They need monitoring to make sure we are not getting lost condensate.

PN2646

One of the maintainer operators perform that monitoring role?---Yes.

PN2647

How much sort of time each day would be taken up with that?---I wouldn't really be sure of that. I wouldn't have thought too much, it would be part of the routine checks to just check the plant.

PN2648

What about this pumping of the ground water into the dams? Is that something the operator maintainers do as part of their range of duties?---Again it is automated, on level controls. So we monitor it via closed circuit TV but again that would form part of the daily checks or the shift checks to ensure that they are, you know, in a proper order.

PN2649

Conveyors. You have conveyors?---Yes.

PN2650

Heat exchangers?---No. Not to my knowledge.

PN2651

Presses?---Yes.

PN2652

The second dot point refers to storage and handling of finished product?---Yes, stockpile.

PN2653

You have a stockpile?---Yes.

PN2654

Bagging and truck loading?---No.

PN2655

When you say no, what?---Well, sorry. We do the truck loading. The bagging part of it is no longer - it is done on the site but it is done by somebody else. They basically buy the briquettes at the site and they come in and just physically bag them there and pallet them up, and load them up and cart them out. The truck loading bit we do. That is simply done by a conveyance system. We load the briquettes onto the conveyor system and it just goes out to the truck loading facility. They go out in bulk.

PN2656

I think you have mentioned team leaders in respect of supervisors?---Yes.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2657

You have mentioned maintainer operators, what about laboratory testing for quality control?---Very, very limited. There is no actual laboratory now. We simply do a couple of simple checks, a compression check an ash content check.

PN2658

Who does those?---Just the team that is on site on the shift. They just do it probably about three times a shift.

PN2659

There is, finally, reference to mobile plant operation, bobcats?---Yes.

PN2660

You have a bobcat?---We have a bobcat yes.

PN2661

What does it do?---Clean up duties basically.

PN2662

Who would operate the bobcat?---Just the crew that is in.

PN2663

What sort of time would they spend on the bobcat, for any individual employee?
---It depends on how bad a night you are having. But generally fairly low hours I would think. You are talking one hour a night maybe.

PN2664

There is reference to the forklifts?---We have one forklift on the site. That is really only used for, you know, to eliminate manual handling type issues and unloading the occasional delivery we might get for maintenance equipment and that sort of stuff.

PN2665

That is driven by the maintainer operators?---Yes.

PN2666

Front end loaders, do you have a front end loader?---We have two.

PN2667

What are they used for?---One is used effectively for reclaiming out of the stockpile and putting onto the truck loading system. That probably works, on average, around 12 hours a day. Most of our loading of trucks is done between the hours of, I think, seven in the morning and six in the evening, with the odd exception after that. And the other one is usually used in the coal handling area, reclaiming grous. So that is only used - at the moment we running it a lot, we are doing 24 hours a day with it. But that will taper off because the large stockpile of grous collected from years gone by. So we are getting rid of that. So that will drop down to very limited and the loader will basically be just become a site spare.

**** BARRY JOHN RICHARDS XN MR PARRY
PN2668

Who operates the front end loaders?---Just the operators that are in on the day basically. Usually that is part of the one by seven that I talked about earlier. They are usually the people that do the truck loading. The guys that work the 24 hour shift don't much get involved in loading, it is only if there is an exception. A truck in after hours or something, they will go and load that.

PN2669

What sort of time would be spent on the front end loaders by the maintainer operators?---The maintainer operators, referring to the one by seven?

PN2670

Yes, I am sorry, referring to the one by seven?---The whole shift basically, pretty much.

PN2671

At present?---Yes.

PN2672

How much longer do you think that will continue for?---Well probably forever with one loader, because that is - our reclaiming out of the stockpile is done by a loader. The second loader that will only continue for another couple of weeks.

PN2673

Do you sell your product to, the briquettes?---A company called Industrial Energy. It is owned by HRL, it is a subsidiary of HRL.

PN2674

Do you have any commercial, or contractual, relationship that you are aware of with Tiwest?---No.

PN2675

In fact you have probably never heard of them before these proceedings?---No.

PN2676

Probably don't want to again. If the Commission pleases, I have nothing further.

PN2677

THE SENIOR DEPUTY PRESIDENT: Ms Gray.

<CROSS-EXAMINATION BY MS GRAY [12.39PM]

PN2678

MS GRAY: Thank you your Honour. Mr Richards in your examination in chief you agreed with Mr Parry that it would have been Boxing Day 2003 that the fire happened?---That's correct.

PN2679

Then you went on to say that Necrus commenced operations on 2/07/2003. That would then be 2004 would it?---That's correct, yes.

**** BARRY JOHN RICHARDS XXN MS GRAY
PN2680

You described the process from beginning to end and at the end you said that the briquettes were loaded into trucks and transported. It is also the case, is it not, that there are conveyors to the char plant?---Yes, that is true, yes.

PN2681

Probably the bulk of the product goes there?---I could actually tell you a rough percentage. At the moment about 70,000 tonnes. So that is about probably
40 per cent of our production this year.

PN2682

You have described two positions of your employees, being operator maintainers and maintainer operators. It would be true to say, would it not, that an operator maintainer does very little maintaining and a maintainer operator does very little operating?---In the sense, yes, that's correct.

PN2683

You had a month period, essentially, between making the certified agreement and taking on the employees commencing operation. You said that you had a training program for the employees?---At that stage a very rudimentary program, yes.

PN2684

How many of those employees had previously been employed, some for many years, at the briquette factory before it burned down?---I would suggest somewhere about 50 per cent.

PN2685

So you are taking on a very experienced crew?---Yes that's right.

PN2686

Do you still have Mr Hardy's witness statement in front of you?---Yes.

PN2687

With paragraph 18 that Mr Parry took you to, I think you disagreed that you had steam plant and valving systems. How is the steam taken from - brought onto the property and taken to the steam dryers without steam plant and valving system?
---Basically just a pipe. The valving system I think would - there would be a major isolation valve. Well I know there is a major isolation valve, and then probably I would suggest each dryer has an isolation valve. But it is not something you can sort of control much.

PN2688

But nonetheless your operators would, for example, make sure that the piping was warm before commencing operation, things of that sort, or don't you know - - - ?
---Sorry, the, the what was warm?

PN2689

The operators would check that the pipe was warm before commencing the operation, or aren't you aware of the detail?---I am not probably - basically they would have to ensure there was steam there, yes. That is a critical factor.

**** BARRY JOHN RICHARDS XXN MS GRAY
PN2690

When you referred to pumps you outlined a number of pumps, and particularly waste water and so on. You would agree with me that there is also oil pumps to the presses?---Yes.

PN2691

When you say that there is heat exchangers, you would agree with me that there are coolers?---Not to my knowledge.

PN2692

The ones on the oil system I am advised are called heat exchangers?---They could be, I am not familiar with that level of detail.

PN2693

Mr Hardy added to this paragraph of his witness statement, and I don't think it is marked on the copy that you have, but he also had in the first dot point:

PN2694

Plus storage tanks and vessels.

PN2695

So you would agree that you also have storage tanks and vessels such as bunkers and so on?---We certainly have bunkers, yes.

PN2696

There was also a further dot point added during Mr Hardy's evidence which referred to isolation and restoration of plant, both electrically and mechanically, in order to render it safe for access by maintenance personnel and tag and issue permits. That work also done?---Yes.

PN2697

Would you mind going to paragraph 28 please. Mr Richards, the third dot point in paragraph 28 starts to outline the process at the briquette factory. Would you please read from that third dot point, just to yourself would be fine, all the way down to paragraph 36 and then if you could identify any part of that with which you take issue, that you disagree with?---I can mark this copy can I?

PN2698

Yes. Sorry, with the exception of paragraph 29?---Okay. Probably a couple I couldn't - I wouldn't be sure on whether it is low pressure steam from the power station or whether it is classed as high pressure steam, and I am not sure of the degrees of temperature that the coal is raised to. Clause 31, we do not use the cooling house. That was - there is a cooling house installed in the factory but part of bringing the factory back on we actually bypass that cooling house. It is not part of the process any more. So that is - - -

PN2699

Is that a temporary thing?---No.

**** BARRY JOHN RICHARDS XXN MS GRAY
PN2700

So there isn't any difficulty - - - ?---I am sorry?

PN2701

Would you agree that that bypassing is on trial at the moment?---No.

PN2702

With paragraph 29 I know I asked you to ignore it, but would the return of condensate fall within the general description in paragraph 29?---I am not sure about the series of heaters but the rest of it is right, yes. Then on point 33, we no longer make the three strings of briquettes, they are all six stringers. That is just a technical issue, but we have limited the product we produce now to be what is called industrials. But other than that - - -

PN2703

There is something that Mr Hardy, it was a presumption of Mr Hardy's and we have had evidence from the company that it is not the case. In paragraph 35 Mr Hardy said:

PN2704

I presume that this char plant supplies char products to Tiwest for its processes.

PN2705

Do you know if that is true or false?---No idea. We have no relationship with Australian Char. So, no, I don't know.

PN2706

If I could ask you to go to paragraph 39. In this paragraph Mr Hardy was referring to similarities between his understanding of what happened at Tiwest and what happens at not only the briquette factory, but also the power plant. So if I could just take you through each dot point, and ask you about the things which are relevant to the briquette factory. The first dot point you have said that there is the working of a 12 hour day and night shifts?---That's correct.

PN2707

The second dot point you said remote monitoring of plant and processes from a control room?---Yes.

PN2708

The third dot point. The importance of communication between different plant operators and the need to react quickly to changing circumstances or plant faults?
---Mm.

PN2709

The next dot point. Local operation and attendance to pumps, heat exchangers, coolers, dryers, crushers, screens, pressure vessels, conveyors, steam systems and by that I meaning the pipe and the valves. Take out cooling house, and various fluid systems?---Yes.

**** BARRY JOHN RICHARDS XXN MS GRAY
PN2710

The next dot point. The constant monitoring of such parameters as pressure, temperature, vessel levels, flow rate, purity and emissions?---Yes.

PN2711

Do you agree?---Yes.

PN2712

The next dot point. Response to alarm system?---Most certainly.

PN2713

The next dot point. Product sampling and quality checking?---Yes.

PN2714

Not the next dot point, but the one after, the performance of certain maintenance work?---Yes.

PN2715

Not the next dot point. I am sorry. There is pumping of sludge?---There is, yes.

PN2716

The next dot point. The management of ponds and dams?---No, not really, no.

PN2717

You have a - - - ?---No, that is basically the landlord's responsibility. That is
- under our lease we don't have responsibility for that.

PN2718

Once it is pumped into it?---Yes.

PN2719

The use of various gases and by that I am only referring to steam and air?---Yes.

PN2720

Bagging, storage and handling of manufactured product?---Not bagging, as I explained before, but - - -

PN2721

The bulk?---Yes.

PN2722

Stockpiling and reclaiming?---Yes.

PN2723

Use of mobile plant?---Yes.

PN2724

Hand over of information between shifts and the logging of events?---Yes.

PN2725

Reporting of plant defects?---Mm.

PN2726

That was a yes?---Yes, sorry.

**** BARRY JOHN RICHARDS XXN MS GRAY
PN2727

Isolation of plant from electrical and mechanical sources of supply, tagging of isolations and the issue of permits to maintenance personnel to make it safe for maintenance work?---Yes.

PN2728

Mr Richards you have been taken to the certified agreement and clause 4, I think it was. It has the extra provisions. On the second page of clause 4 it says, at the bottom of the dot points, the diamond dot points:

PN2729

If, after the nominal expiry date the union takes any step which is prohibited by paragraph (e) any employer may take action lawfully available to it.

PN2730

What do you understand to be the action that you could lawfully take in response to that?---I wouldn't be sure, I would need to read that in the context of the whole paragraph. I would sort of read that basically as saying that if the union didn't abide those points in point (e) that we would have recourse legally.

PN2731

You are unaware of what that might be?---No, not in detail. I would have to take advice on that.

PN2732

Thank you, Mr Richards. Thank you, your Honour.

PN2733

THE SENIOR DEPUTY PRESIDENT: Mr Parry.

<RE-EXAMINATION BY MR PARRY [12.56PM]

PN2734

MR PARRY: If the Commission pleases. Mr Richards you were I think taken to - you mentioned, in respect of Mr Hardy's evidence, his reference to storage tanks and vessels and you said, well we have bunkers. What would you store in tanks?
---We do store some oil.

PN2735

That is for use in the plant?---Lubrication oil. We also make what we call an oil coal which is - effectively we use waste oil and mix it with raw coal. That is for the start up and shut down process of the process.

PN2736

You were taken through a number of dot points and I think in paragraph 39, and you mentioned that you have a control room and I think the third dot point in paragraph 39 refers to different - the importance of communication between different plant operators. Do you have designated plant operators, or is there rotation through the operation of the various bits of plant you have described?
---The intent is to have various plant operators.

**** BARRY JOHN RICHARDS RXN MR PARRY
PN2737

When you say various plant operators, are they designed to one particular plant, or do they rotate through the various pieces of plant you have described?---No, they rotate through the factory and - as in the briquetting factory, there is a number of tasks in there and they will rotate through that as the need takes them.

PN2738

I have nothing further of Mr Richards.

PN2739

THE SENIOR DEPUTY PRESIDENT: Thanks for coming in Mr Richards, you are not free to leave the court room if you wish, or remain within the body of it.

<THE WITNESS WITHDREW [12.58PM]

PN2740

THE SENIOR DEPUTY PRESIDENT: What else do we do today? Nothing from your side Mr Parry?

PN2741

MR PARRY: Your Honour did ask a question at the very end of the proceedings about amendments. I will distribute this to the Commission and describe it. This is from the Chandala site. It is an extract from the synthetic rutile plant operator's manual. I make it clear that it is not the full manual. The manual is some hundreds of pages. And this is available, I am instructed, on the intranet. But perhaps if I can explain it to the Commission. Your Honour will note on the second page of the sections, and on the fourth page and introduction, and your Honour will note that:

PN2742

This manual has been produced to allow you, the operator, to become familiar with the synthetic rutile plant to enable you to operate within it safely and competently.

PN2743

The manual can be used as a reference. Then on the following page there is contents and, your Honour, the contents start off with using the manual and then a general description of Tiwest's operations. Then your Honour will see the synthetic rutile plant, number two. Then your Honour will see equipment overview number three. And over the page is process overview, which goes through the various steps in the reduction of the ore. The index is, of course, set out fully. And everything that is within the manual is obviously referred to in the index. Your Honour then following the index is a general description of Tiwest's operations which your Honour has heard about. The Cooljarloo and Chandala plant.

PN2744

Then following that your Honour will have a picture of the synthetic rutile plant. This then goes through a general description of the circuit in the synthetic rutile plant and I don't - in fact I will move on a bit. It goes through the various circuits, evidence of which has been placed before your Honour. On page 211, at the bottom, your Honour will see, at 2.8, the waste management plants referred to there. And it says:

PN2745

This plant is physically separate to the synthetic rutile plant but it is an integral part of the process.

PN2746

There is a complete manual similar to this one for the waste management plant. I will get to that shortly. Then you get to page 3.1 your Honour, and that is headed equipment overview and there this section provides an overview of the major equipment in the plant. Then, your Honour, it moves through the screens and your Honour was shown an extra which contained exhibit, I think, CFMEU9. That is on page 3.4. So what is in evidence now, a picture of a crusher is on page 3.4 and thereabouts. Ms Gray just showed me the screw classifiers. I had them as exhibit CFMEU8, and they appear on page 3.11.

PN2747

THE SENIOR DEPUTY PRESIDENT: Let's all make sure that - CFMEU9 is an extract from the manual, at 3.7, screw classifiers. What did you have? My CFMEU8 I can't immediately identify the exact document because it is in this folder as opposed to loose, but my list describes it as the statement of
Mr McCann.

PN2748

MR PARRY: That's right that is what I am told, too. But I understand there were three exhibits that were tendered. One being a copy of the extract regarding the crusher, one being the screw classifier, and one being a process overview. And that is on page 4.3, which is a bit further on. So the structure of the manual is to go through the major pieces of equipment. That is section 3. Then on page - most of the way through the document there is a section 4.1 on the bottom, which is a process overview which then goes through the various processes and your Honour will note on page 4.3, is the raw materials processing circuit. Then, your Honour, we have gone through to 4.17. There is absolutely no science in where we ceased. It is just where the printout occurred.

PN2749

THE SENIOR DEPUTY PRESIDENT: Thank you for that, and the only other comment I will make then at this stage is the other extracts that appear to have come from this document, including some from part 4, I have in a bundle as CFMEU1. But in any event I will ensure those instructing you and my associate liaise. So at least when we come to submissions we are all working on the same documents.

PN2750

MR PARRY: We would want to tender this document. We would want to rely on it and tender it.

PN2751

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have any objection - - -

PN2752

MS GRAY: No objection your Honour.

EXHIBIT #TIWEST21 EXTRACT FROM SYNTHETIC RUTILE PLANT OPERATOR'S MANUAL

PN2753

MR PARRY: Now, your Honour, there is a waste management manual which is in similar form, and without going into the fine detail, it follows a similar set out. That is a contents section, which is on page 1.2, which sets out various, or what is included in the total manual. Your Honour there is then a general description of the area as set out. Then on page 3.1 your Honour will again have an equipment overview with the section dealing with the major equipment used in the waste management plant. Thereafter there is a range of equipment which is used in that area. Then, again, we have continued into the fourth section, a process overview. But that terminates in - I think that goes through to 4.3.1. Again, there is no science in where it finishes. Again, we would want to rely on that, and I will tender that document.

PN2754

MS GRAY: Your Honour is that a full copy of the waste management plant manual, or once again an extract?

PN2755

MR PARRY: No, that is an extract, as is, we would say fairly clear from the index, there is many more - what happens is it just into more detail about the operation of the equipment.

PN2756

MS GRAY: We have no objection to the extract manual.

EXHIBIT #TIWEST22 EXTRACT FROM WASTE MANAGEMENT PLANT OPERATOR'S MANUAL

PN2757

MR PARRY: Your Honour, as you will recall there is, at Chandala, a dry mill, and we have another manual. Again, I emphasise that these are extracts and not complete versions of these documents. Again this doesn't have a front page but again follows a similar structure. It has - your Honour will note on the contents section there is again an introduction, a section 2 which deals with the dry separation plant in a major equipment overview. Your Honour will note that that major equipment overview section gives an overview of the major equipment used in the separation process in the plant, in more detail, that these pieces of equipment are found in section 5, which is not included. I would tender that as well.

PN2758

THE SENIOR DEPUTY PRESIDENT: Ms Gray.

PN2759

MS GRAY: No objection.

EXHIBIT #TIWEST23 EXTRACT FROM DRY MILL OPERATOR'S MANUAL

PN2760

MR PARRY: Your Honour, at Cooljarloo there are not - that is the mine, there are not the equivalent of operating manuals as I am instructed. It something that I am still making enquiries about. At Kwinana there are, I am told, some 60 to 70 operating manuals of some 30 to 60 pages each. They are not in the sort of compact form. What I am investigating is simply getting a list of those operating manuals. Hopefully that can be arranged. So that is the course I would propose following, and providing that to the Commission.

PN2761

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2762

MR PARRY: So that is, hopefully, addressed as far as we can at this stage, the position with regard to operating manuals. Your Honour we did refer to Commissioner Lang's decision in Print M0863 and I might hand a copy of that to the Commission. And save for those further matters to which I have referred that is essentially the evidentiary material. It leaves the position of submissions. There have been exchanges of correspondence but no agreement. The matter returns on 15 April in Sydney, which is a Friday. We propose that we provide written submissions by Monday 11 April, and the CFMEU a couple of days later, which would both give us a period of time in which to prepare.

PN2763

I understand that is not acceptable for the CFMEU who would want us to have six working days from today's date and six working days of their own. Now, we do take the position that all the issues in this have been fairly well articulated. Our case has been outlined. I beg your pardon, would presumably know the case they have to meet. We don't oppose going first, but we do seek to have as much time as we can. That is why we have proposed the timeframes we have. If the Commission pleases.

PN2764

THE SENIOR DEPUTY PRESIDENT: Thanks. Ms Gray.

PN2765

MS GRAY: Just on that our response to Mr Parry's instructing solicitors was that their proposal gave them essentially 15 days, the company 15 days for their submissions from when we finished in Perth, 10 days from when we are finished today, and us two days. So we thought that was incredibly unbalanced. Our proposal was that if the company had their material in by close of business on 4 April and we had it in by close of business on 12 April that that would give both sides, taking into account Easter and all the rest of it, both sides six working days, and we believe that that is a fair and equitable proposal your Honour, and we would seek that by directions.

PN2766

THE SENIOR DEPUTY PRESIDENT: So it really relates to whether this should be seen as both of you addressing known issues. Or, alternatively, the respondent going first, because it has to establish it's position and you having an opportunity to reply.

PN2767

MS GRAY: Yes, your Honour.

PN2768

THE SENIOR DEPUTY PRESIDENT: I must say when I saw the period of time between the employer filing and you filing it seemed short, but I assumed at the time it was because the matters that you both will be addressing are largely known to each of you. You know what the evidence is and you know what the case is that you both purport to, or are to avoid. So I have some sympathy for there being a slightly longer lead time but I have no strong view about the wisdom of Solomon in splitting the two days. Let's go off transcript and talk about this. Do we need to talk about the 15th? At least you are both available for that day, the 15th. Did you tell me where that was going to be? Did I say to you where that was going to be? My preference would be Sydney. Is that what I said?

PN2769

MS GRAY: Yes, your Honour.

PN2770

THE SENIOR DEPUTY PRESIDENT: Let's go off transcript.

<SHORT ADJOURNMENT [1.15PM]
<RESUMED [1.19PM]

PN2771

THE SENIOR DEPUTY PRESIDENT: - - - returned to Sydney Friday, 15 April at 10am. The Commission now adjourns.

<ADJOURNED UNTIL FRIDAY 15 APRIL 2005 [1.19PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1A STATEMENT OF SERVICE PN2565
EXHIBIT #CFMEU2A LOG OF CLAIMS PN2565
BARRY JOHN RICHARDS, SWORN PN2566
EXAMINATION-IN-CHIEF BY MR PARRY PN2566
EXHIBIT #TIWEST 20 STATUTORY DECLARATIONS OF
B.J. RICHARDS AND CFMEU PN2618
CROSS-EXAMINATION BY MS GRAY PN2677
RE-EXAMINATION BY MR PARRY PN2733
THE WITNESS WITHDREW PN2739
EXHIBIT #TIWEST21 EXTRACT FROM SYNTHETIC RUTILE PLANT OPERATOR'S MANUAL PN2752
EXHIBIT #TIWEST22 EXTRACT FROM WASTE MANAGEMENT PLANT OPERATOR'S MANUAL PN2756
EXHIBIT #TIWEST23 EXTRACT FROM DRY MILL OPERATOR'S MANUAL PN2759