C2003/2289, Transcript of Proceedings [2005] AIRCTrans 891 (11 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11116-1

COMMISSIONER ROBERTS

C2003/2289

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
BENGALLA OPEN CUT MINE
s.99 - Notification of an industrial dispute
(C2003/2289)

SYDNEY

11.00AM, FRIDAY, 01 APRIL 2005

Continued from 3/3/2005

Hearing continuing

PN211

THE COMMISSIONER: Appearances remain the same I take it. Who is going to speak to me first?

PN212

MR ENDACOTT: I can give a report. There was a meeting between the parties and the meeting actually occurred yesterday. It was attended by various personnel including the mine manager, in which the union spent some time going over the concerns with respect to consultation and how we believe consultation hadn't occurred as required by the Act and the development and implementation of the fatigue management policy as well as aspects of the policy, we believe should be changed. I report to the Commission, as I said, I report to the company the meeting was very, I felt, constructive. Certainly in the main the feedback from the company questioning and sort of discussion of issues certainly was positive, and I say that in the main and certainly I think, even though the company hasn't formally responded with respect to agreeing to any particular approach or variation, from the feedback that we received I think, I was a bit, I thought we were expecting some opposition to be raised and some issues that they would, were worth looking at by the company.

PN213

So to that end the meeting, certainly one day of detailed discussion has achieved a considerable amount we believe, but the detail of the outcome will be the final response we receive from the company about that. So to that end, we indicate we are going to request that the Commission give us a further day, which would enable the company to put in a response to all of the issues raised. I think that
Mr Kibble can speak to this because Mr Longland wasn't there. I think the company's preferred position was one of not giving a response at the time but consider and discuss any issues and then making a response later to discuss. So that is how the meeting concluded.

PN214

The question was the day of the response, and I think if there was an agreement on when the company would respond. The company indicated that it wanted a month to respond and we indicated that a month is a long time away and felt would require an earlier response. And certainly what we are going to do is just discuss that with the Commission today. The Commission may be able to assist the parties either by giving some sort of recommendation about what might be an appropriate time frame to respond. So I think that is a general reflection of the meeting without going into the detail of issues discussed which - it went for about four hours so I don't think we would actually be able to go into the detail of what the meeting, all the issues discussed.

PN215

There is one other point, and that was the point that was briefly referred to on record and was also referred to in the off record discussions about the allegation that was made in the material provided by the company, about the people that signed the petition and certainly there was a lot of material we disagree with and I understand that there is not going to be a hearing about the material but there was, what I would call an allegation of serious - well misconduct of the highest order of the person that it was made against, and it was the one at which was referred to in the submissions but goes to the evidence of Mr, sorry the statement of
Mr Kibble. At paragraph 13, in part reads:

PN216

At least two technicians said that they record that the document they signed did not have the writing on it which appeared on the CFMEU petition, pages as attached to 10 February letter.

PN217

And the 10 February letter, the Commission may well recall, was the one at which a whole series of people signed a document. There is multiple documents but all the documents are to the same effect other than the signatures on them. Just so I get the wording correct, to the effect that we, the undersigned request Bengalla management to work with our CFMEU representative to discuss the OH and S issues at Bengalla especially the issues related to management of fatigue in the workplace.

PN218

I won't read the rest of it but my specific concern is if people have said they signed a different document, and I am acting on the basis that these people have expected me to do something for them, then I need to know the people that believe they signed a different document because I checked this with Mr Calov. Mr Calov who is an organiser says that he actually only got a couple of people to sign the document and in fact it was other employees so, that got them to sign it. Now..... are between the employees.

PN219

THE COMMISSIONER: Where does that leave us?

PN220

MR ENDACOTT: Well, it leaves us with the basis that we really need to know. It's on the basis that people that have signed are identified in representing and two people have said they signed a different document. And certainly if people have been signing different documents then we want to know about it so it can be investigated. Mr Kibble's response was that the names of those two persons wouldn't be provided, and therefore I asked him to remove the assertion and he said he would respond back to you today I think or would respond at a later date.

PN221

THE COMMISSIONER: Well I might save Mr Kibble any time about this. If that assertion is to be pressed then you will have to name the persons. If you withdraw it unreservedly then the issue won't arise. If that helps you at all.

PN222

MR LONGLAND: The matters that you assisted us with on the last occasion have been the subject of discussions with Mr Quar, the senior managers and indeed some of the technicians, and the company's position is that the names won't be divulged and the material will be unreservedly withdrawn and not pressed or otherwise relied upon in these proceedings.

PN223

THE COMMISSIONER: Well, my view now is that issue is dead.

PN224

MR LONGLAND: Yes I agree.

PN225

THE COMMISSIONER: Let us move on with the report then.

PN226

MR LONGLAND: Yes, there is only a couple of other issues I want to add to what my friend said. The first is that the transcript records at paragraph 206 the agreement that we reached on the last occasion. A component of that agreement concerned the attendees at the meeting, and we gained the assistance of the Commission in brokering as it were, that part of the agreement. I just wanted to report that when we hadn't heard from the union, Mr Kibble wrote on 10 March requesting that a date be set, and that the names of those persons be advised so arrangements could be made for them to be absent from their shift if that was to be necessary.

PN227

On 30 March, the union advised that the four employees who would be attending were Mr Sunderland, Mr Watts, Mr Crowshaw and a Mr Kerr. Now it was indicated Mr Kerr may not be able to attend. At the meeting indeed yesterday, we were advised that Mr Watts was an apology, he was too tired from working night shift, that Mr Kerr was unable to attend because something had cropped up, and that the union wasn't sure where Mr Crowshaw was, so there was only one employee as it turns out at the meeting.

PN228

THE COMMISSIONER: Well that is the union's problem.

PN229

MR LONGLAND: Indeed. But given the matter was dealt with on transcript, less there be any issue in the future, I just wanted to record that. We don't have a strong view indeed a view either way about whether the matter needs to be allocated to another date before the Commission.

PN230

THE COMMISSIONER: Well I suppose it does if one party thinks it should, in my view.

PN231

MR LONGLAND: Well, the Commission needs to be satisfied it should, but, and as I say, we have no view either way. We are happy to attend and report back again.

PN232

THE COMMISSIONER: Given the long and tortured history of this matter, if one party wishes a report back, that application will be granted.

PN233

MR LONGLAND: We have got no objection to that, Commissioner. The issues for us in terms of the timing however are that as my friend indicated, the meeting only occurred yesterday and it was a lengthy meeting and many of the issues my friend raised on transcript on the last occasion were fleshed out in some detail. Mr Kibble, the general manager to the mine, Mr Gagler, the mine safety manager Mr Caslick, each of those three gentlemen are taking a week's leave in the next month. In addition to that the site wide safety steering committee meeting is scheduled to occur on 20 April, and following that there are departmental safety meetings, as the company's consultation framework provides, to occur on 15 May so in terms of a - - -

PN234

THE COMMISSIONER: But you are not seeking to push it off beyond the 15 May are you?

PN235

MR LONGLAND: Yes. What is being requested, Commissioner, is that the fatigue management policy be varied, and further that significant changes be made to those consultation arrangements. In circumstances where Mr Sunderland was the only employee at the meeting yesterday, now the company wants to take those matters seriously and respond to them in a bona fide way and that means that those matters will need to be raised at those consultation forums as all safety related matters are and Mr Kibble and Mr Gagler and Mr Caslick are the three central managers. Now they will be unable to properly address those before then.

PN236

THE COMMISSIONER: When is before then? We have got - I mean that is fairly vague.

PN237

MR LONGLAND: Sorry, the absences on leave occur in April, the month of April. They are only one week each but there are three of them so I guess it spans three weeks commencing on 7 or 8 April. And the second issue is that we do want to raise these issues with our employees in these consultation forums because that is what the consultation forums are established for and so that when we respond to the union it will be a response which is a bona fide and a full response.

PN238

THE COMMISSIONER: Well for Mr Endacott's benefit I will say this, that I am not all that happy that it would have to be after mid May, but as I will grant in the application for a report back by either party, I must take the view that if you genuinely need that time to make an informed response and given that this dates back to 19 May 2003 when it was first heard, then I suppose I will have to be sympathetic to that request as well.

PN239

MR LONGLAND: Yes. We are grateful, Commissioner and simply point out for the record that we have changed our position in relation to this matter and the documents record that so the company has got some genuine - - -

PN240

THE COMMISSIONER: Look, I am just taking your word for this. In the sense that I can't see much point in forcing a hearing if nothing is going to actually substantively happen.

PN241

MR LONGLAND: Yes.

PN242

THE COMMISSIONER: Right. So, and I will consult with Mr Endacott as well.

PN243

MR ENDACOTT: I will say a couple of things, I mean.

PN244

THE COMMISSIONER: I am just thinking off the top of my head about this one.

PN245

MR ENDACOTT: Yes there certainly is the question of well, when the next report back is and when the company is intending to respond. Four to six weeks is a long time. I mean, I not so regulary, but on many occasions required to actually prepare a case within hours before this Commission, And so an organisation of Mr Megallis' you would think would be able to respond to the issues in a certain
- a quicker timeframe. You don't - just because one person is away doesn't mean you can't do anything in an organisation that has a safety - - -

PN246

MR LONGLAND: I can help my friend. I am instructed that we can respond to the union shortly after 20 April, say at the steering committee meeting and then we can meet with the union shortly after that. So that there will be a written response and a meeting to go through that.

PN247

THE COMMISSIONER: Well there might well be something to talk about,
well - - -

PN248

MR ENDACOTT: Well that time frame may be suitable. I mean, one of the issues that were raised was that one of the details was about consultative processes under the Act and how the steering committee would operate, and I will put no more than that. There was a lot more detailed submission than that point.

PN249

THE COMMISSIONER: Could we just go off the record for a moment.

<OFF THE RECORD

PN250

THE COMMISSIONER: So perhaps now the parties can confer between themselves and we will try and reach some agreed date?

PN251

MR LONGLAND: Yes.

PN252

THE COMMISSIONER: If there have to be more than one report back that is okay with me also.

PN253

MR ENDACOTT: No. That is right, Commissioner, it is just when we spoke yesterday we were speaking about a date in May.

PN254

MR LONGLAND: Well, I think there are three issues. There is the written response. There is a meeting with the union and then there is a report back in the Commission. Now we would like the report back in the Commission to be after 15th so these departmental safety meetings can at least - the employees can have a chance to know what is going on. But the other two things can occur between
20 April and 15th.

PN255

THE COMMISSIONER: Without recourse for the Commission?

PN256

MR LONGLAND: Well, we don't see that that is necessary but as I said, we don't object to it.

PN257

THE COMMISSIONER: Mr Endacott?

PN258

MR LONGLAND: I am just having a quick look at my diary.

PN259

THE COMMISSIONER: We will go off the record again.

<OFF THE RECORD

PN260

THE COMMISSIONER: I have conferred with the parties together about the progress of this matter, and the parties have set up a programme of consultation between them and there will be, following that, the completion of that process, a report back on Tuesday 17 May 2005 at 10 am in Sydney. Do the parties wish to put anything on the record about their programme that they have set down?

PN261

MR ENDACOTT: No, only to say that the company was going to respond on 26 April. No later than 26 April and there was a meeting, we would be hopeful to have a meeting on the morning of 28 April which is a Friday.

PN262

THE COMMISSIONER: All right. Well, I will see you all on 17 May.

<ADJOURNED UNTIL TUESDAY 17 MAY 2005 [11.21AM]