BP2005/1974, Transcript of Proceedings [2005] AIRCTrans 913 (14 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11131-1

DEPUTY PRESIDENT MCCARTHY

BP2005/1974, BP2005/1975, BP2005/1976, BP2005/1977

WESFARMERS PREMIER COAL LIMITED
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170MW - Power of the Commission to suspend or terminate bargaining period
(BP2005/1974)
WESFARMERS PREMIER COAL LIMITED
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170MW - Power of the Commission to suspend or terminate bargaining period
(BP2005/1975)
WESFARMERS PREMIER COAL LIMITED
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170MW - Power of the Commission to suspend or terminate bargaining period
(BP2005/1976)
WESFARMERS PREMIER COAL LIMITED
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170MW - Power of the Commission to suspend or terminate bargaining period
(BP2005/1977)

PERTH

2.50PM, TUESDAY, 05 APRIL 2005

Hearing continuing

PN1

THE DEPUTY PRESIDENT: These applications all appear to relate to the same issues were lodged in the registry earlier this morning. They were allocated to me just before 10 o'clock and I have listed them at short notice today at 2.30 pm as it appears that these issues were fairly urgent. Can I have appearances pleases.

PN2

MR G BARTLETT: I appear on behalf of the applicant, together with MS N AITKEN.

PN3

MR M LOUREY: I appear on behalf of Australian Manufacturing Workers Union, together with MS K GROVE.

PN4

THE DEPUTY PRESIDENT: Leave is granted, thank you. Yes, Mr Bartlett?

PN5

MR BARTLETT: Thank you for listing the matter urgently. The matter has reached a critical stage where at the moment coal production has ceased as of yesterday and coal delivery has stopped. Sir, to expedite the matter, we do have an affidavit sworn today from Mr Patrick Warren which I have provided to Mr Lourey just prior to commencing this afternoon.

PN6

THE DEPUTY PRESIDENT: Perhaps Mr Bartlett and Mr Lourey what I would like to address first is how you both envisage I will class it as this matter proceeds procedurally with respect to this application. I have listed it, I have no predisposition as to how the matter should proceed, but I will be guided by what you and Mr Lourey say with respect to how it should proceed.

PN7

MR BARTLETT: Thank you, your Honour. Of course we would say the matter should proceed expeditiously. We have provided an affidavit to the respondent. Perhaps a pragmatic way of approaching it is if the responder can indicate to us paragraphs of that affidavit that they do not contest and those which they would contest. That would assist and may minimise the time needed for hearing. In fact, a lot of the matters we would suggest the responder would be unable to contest or in fact matters that are not contentious.

PN8

Sir, my instructions are that there is no prospect of the parties reaching agreement so, therefore, as you are aware in relation to the 170A application you dealt with, we are of the view there is no further use in conciliation between the parties so, sir, we would in terms of expediting the matter seek the matter be listed as early as it can for full hearing. We have Mr Warren present.

PN9

THE DEPUTY PRESIDENT: So you are not envisaging that the formal hearing take place now?

PN10

MR BARTLETT: Well, sir, we are ready but in fairness to the respondent they have received the affidavit just prior to commencement. We are ready to proceed this afternoon if you wish to proceed, sir, we are ready to make our arguments and submissions and call Mr Warren.

PN11

THE DEPUTY PRESIDENT: What evidence do you intend calling?

PN12

MR BARTLETT: Sir, I would propose to call Mr Warren. However, as I say perhaps a way of shortening proceedings if the respondent can indicate which paragraphs they contest which ones they don't.

PN13

THE DEPUTY PRESIDENT: Well, they have only just received this affidavit have they? Well they are probably not in a position to comment on that at this point. But perhaps if I hear from you Mr Lourey, do you have any views as to how this matter should proceed?

PN14

MR LOUREY: Not really at this stage, your Honour. We have in fact just received the affidavit. I note that the applicant's letter to the Commission of earlier yesterday which foreshadowed the action ended up taking later in the day, in fact, anticipated that an affidavit would be lodged with the application. My firm in fact was only instructed on this matter at approximately noon today. My first question upon being shown the letter well, where is the accompanying affidavit that is eluded to in that letter and my friend as he points out in fact handed it to us just as we arrived for these proceedings a few minutes before 2.30pm. I understand sir that you have in fact been provided with a copy of that? You have a copy of that affidavit sir?

PN15

THE DEPUTY PRESIDENT: No, I don't appear to have.

PN16

MR LOUREY: It doesn't matter, sir, it was for the purpose of just enquiring whether you were familiar with the scale of it.

PN17

THE DEPUTY PRESIDENT: No. I have got the application and the grounds upon which the application are made and that is really all I have got.

PN18

MR LOUREY: I have got here with me the affidavit of Mr Warren that my friend provided us. The affidavit itself goes to 119 paragraphs and some
15 pages. They are something in the vicinity of 47 annexures there all of which are a document eluded to in the content of the affidavit. My friend may well be right, there may well be things that the respondent does not contest. There most likely will be matters the respondent does contest, there may even be matters that the respondent is not in a position to contest, but until we have got the opportunity to actually analyse the document thoroughly, certainly to take instructions from relevant people in terms of the content, I can't really see us proceeding very far, and I certainly accept that the applicant is ready willing and able to proceed now.

PN19

But I note my friend concedes that it is perhaps not practicable to do so given the short notice that the respondent has had not merely of the proceedings but of the substance of the applicant's position. In fact there is effectively no notice of the substance. We take from the actual application that the 170MW orders are made under toolings of that particular provision being subsection (3) and subsection (7) really require some analysis of the evidence that the applicant proposed to lead in relation to the matter.

PN20

Now, I certainly haven't analysed Mr Warren's affidavit to assess the extent to which that affidavit goes to the sufficient evidence that is necessary for the Commission to take the drastic action, and that is what is, sir, of suspending or terminating the bargaining period which, of course, is the provision that provides the statutory protection for the rights of the respondent's members to take the protected action available under section 170MO of the Act having regard to the Act and pursuant to the Act, sir. So without more, and without understanding more of what is argued, and the evidentiary basis upon which the applicant argues in support of its claims that 170MW(3) and or (7) are enlivened, I am not in a position really to be of much assistance at the moment, sir. That's not to say within a period of time we couldn't be but, sir, there is a volume of material, sir, there that really requires some analysis.

PN21

THE DEPUTY PRESIDENT: What you are saying is you are not in a position to put anything as to whether there is any capacity to suspend or terminate the bargaining period at all let alone whether they should be terminated or suspended?

PN22

MR LOUREY: That's correct, sir. My instructions are to oppose the suspension or the cancellation of the bargaining period, but in terms of the process - - -

PN23

THE DEPUTY PRESIDENT: On both the jurisdictional and discretion ground? Am I putting words in your mouth there?

PN24

MR LOUREY: Possibly, sir. I don't know about jurisdictional, we concede that the jurisdiction does provide for the Commission subject to being satisfied as to the appropriate matters the jurisdiction does exist to allow but subject to evidentiary matters.

PN25

THE DEPUTY PRESIDENT: What I am getting at there is whether you are contesting the circumstances that enliven that jurisdiction?

PN26

MR LOUREY: Well, we certainly don't concede any matters of evidence, sir, and will be interested to analyse what the applicant seeks to put before the Commission to substantiate its claims pursuant to subsections (3) and or (8) of section 170MW.

PN27

THE DEPUTY PRESIDENT: There is industrial action occurring at the moment is there, Mr Lourey, you can concede that I take it, but I would assume if it is occurring you would be asserting that it is protected action, is that the circumstance?

PN28

MR LOUREY: I understand, your Honour, that there is action taking place that is protected action pursuant to section 170MO of the Act.

PN29

THE DEPUTY PRESIDENT: So you are not disputing that industrial action is taking place, but in conceding that, you are asserting that it is protected action?

PN30

MR LOUREY: That is correct, your Honour.

PN31

THE DEPUTY PRESIDENT: Yes, thank you, Mr Lourey. Mr Bartlett, it is still I suppose in your hands as to how you wish this to proceed. It is your application and ..... Mr Lourey said, the position that he is in.

PN32

MR BARTLETT: I understand Mr Lourey's position, your Honour. The first point I make is that our letter yesterday foreshadowed this application being made, indeed, the application filed and served late yesterday is a very detailed application, and it is fair to say the affidavit is in more detail. I am happy to hand that up, sir, if that assists, but the matter has had a long history. I don't believe the facts - - -

PN33

THE DEPUTY PRESIDENT: I am aware of that and as you aware I am conscious of some of that history but not all the explicits and details of it.

PN34

MR BARTLETT: Sir, I can take some instructions. I don't envisage that we oppose a short adjournment to allow Mr Lourey to consider the affidavit and get some instructions, but at the moment we have got a situation where the maintenance employees have been on strike since 1 March. There is a whole range of community issues that we raise including some matters of property damage and violence. There is community issues that we say have drawn the miners into the dispute in support of the maintenance employees and we have got coal production and coal delivery stopped.

PN35

THE DEPUTY PRESIDENT: So you are asserting that industrial action is taking place with the production employees, are you?

PN36

MR BARTLETT: Yes. Since yesterday they walked off the job and production ceased at around about, I am instructed, 9.50am yesterday.

PN37

THE DEPUTY PRESIDENT: Is there any indication or expectation when production employees will return to work? Has there been any indication from them that you are aware of?

PN38

MR BARTLETT: No, sir, if I perhaps can summarise the position. We understand that the company has engaged a small number of maintenance contractors to carry out essential repair and maintenance work to enable the miners to keep working and production to continue. These maintenance contractors have been labelled scabs, and we understand the position of the miners is that whilst maintenance contractors if they are going to be required to work in a pit which they are, the miners will not work with them. That is the latest position that has been put to me. There is a whole range of issues and options that have been considered.

PN39

THE DEPUTY PRESIDENT: The mine is being represented by which organisation and governed by what instruments?

PN40

MR BARTLETT: They are represented by the Coal Miner's Industrial Union of Workers which is registered pursuant to the Industrial Relations Act 1979, and they are governed by a new enterprise agreement registered by the Coal Industry Tribunal in December last year to operate for a period of 3 years. This dispute is not their dispute, but they for a variety of reasons have been dragged into it.

PN41

THE DEPUTY PRESIDENT: Have there been any applications of any nature with respect to the coal miners?

PN42

MR BARTLETT: Yes, sir. There were orders issued on 8 March by the Coal Industry Tribunal that they not engage in any industrial action including bans.

PN43

THE DEPUTY PRESIDENT: In or around that these applications have been made and since the asserted industrial action has been taken by the coal miners, has there been any - - -

PN44

MR BARTLETT: No, there hasn't, sir. What there is is there are currently now enforcement proceedings underway to enforce the orders issued by the Coal Industry Tribunal.

PN45

THE DEPUTY PRESIDENT: Where are they enforced?

PN46

MR BARTLETT: Magistrates' Court. And there is also a threat of Supreme Court proceedings that has been made.

PN47

THE DEPUTY PRESIDENT: What I might do Mr Bartlett, is to adjourn for a few moments so at least to give Mr Lourey some time to peruse the documentation and the affidavit that has been provided to you. If you wish to address me following that on how the matter should proceed, you will be given that opportunity. Similarly, Mr Bartlett, you will be given that opportunity. I will adjourn until 3.30pm at this stage Mr Bartlett. I should have alerted you both, I have brought to the attention of the Chairman of the Coal Industry Tribunal that these applications have been lodged and I am dealing with them.

PN48

MR BARTLETT: Sorry, sir, would it assist if we provide a copy of the affidavit?

PN49

THE DEPUTY PRESIDENT: You have no objection to that do you Mr Lourey if I have a copy of that affidavit and documentation?

PN50

MR LOUREY: We have no objection to that at all.

PN51

THE DEPUTY PRESIDENT: Yes, thank you. I will adjourn until 3.30pm.

<SHORT ADJOURNMENT [3.06PM]
<RESUMED [3.40PM]

PN52

THE DEPUTY PRESIDENT: Mr Bartlett, I had a chance to read that affidavit albeit very quickly so I probably missed the significance of a lot of its content. Can I ask you this? There seems to be two strings to your application. One being 170MW(3) the other being 170MW(7). With respect to 170MW(3), are you aware of any intention by Western Power or the government of Western Australia to be involved in these proceedings?

PN53

MR BARTLETT: No, I'm not, sir. In terms of seeking leave to intervene?

PN54

THE DEPUTY PRESIDENT: In whatever way that would the obvious way. Can I come back to the question I asked you with respect to the asserted industrial action or whatever action by the Coal Miner's Union. What applications or otherwise has your client taken with respect to that action? This most recent action, that is the action asserted in the affidavit to have commenced in the last week.

PN55

MR BARTLETT: Sir, I am instructed that Supreme Court proceedings have been filed this afternoon. The background to this particular action relates to bans on the maintenance contractors going into the pit area. There was also bans on particular equipment for a period of time that the contractors worked on. Now, these matters were we say subject to orders issued by the Tribunal on 8 March which there was a further conference before Chairman Kenner on 10 March in relation to the bans and non-compliance with those orders.

PN56

THE DEPUTY PRESIDENT: Yes, I have read that in the affidavit.

PN57

MR BARTLETT: So we say, sir, that there are orders in place in relation to these issues that there be no industrial action or bans by the miners in relation to this dispute.

PN58

THE DEPUTY PRESIDENT: So what is being sought in the Supreme Court?

PN59

MR BARTLETT: Sir, the writ that has been filed is seeking damages and also injunctive relief, but at this stage, there has not been an application for urgent injunctive relief at this stage, and we will take instructions in relation to that matter depending on how events unfold from here.

PN60

THE DEPUTY PRESIDENT: I see. Mr Lourey, have you had a chance to form any views following that brief adjournment as to how we should proceed?

PN61

MR LOUREY: Sir, I thank you for that opportunity and I apologise for any inconvenience caused by us taking a few minutes longer then the time you had allocated.

PN62

THE DEPUTY PRESIDENT: These are important issues, and important people get a handle on to the extent that they can in the timeframe.

PN63

MR LOUREY: We agree with that, sir. Sir, we are surprised by the applicant's reference to urgency in the context with which it seeks that the Commission deal with the incident application. A Full Bench of this Commission considered an application by this respondent some weeks ago pursuant to section 128 of the Act where a member of the Full Bench asked the application, the respondent in the matter of the section 128 application, whether it had in fact considered a section 170MW application and I am advised, and I wasn't present, sir, my instructions are that the applicant today, then the respondent, advised that that was not an option and so we are bemused to some extent, sir, by the extent to which now some almost three weeks after that, the applicant makes this application and urges the Commission to deal with it as early as this afternoon.

PN64

THE DEPUTY PRESIDENT: Well, they didn't specifically say this afternoon as I understand it.

PN65

MR LOUREY: My friend's submissions were that they were ready to proceed as early as this afternoon and that is with an application filed late yesterday, as I understand it, and I think you mentioned earlier, sir, allocated to you only earlier today. So in terms of the applicant coming here and citing the urgency of the matters, we are somewhat bemused by that when they have had the opportunity and the suggestion indeed was made to them by the Commission as to whether they had considered that opportunity.

PN66

Now, in terms of the matters discussed within the adjournment, sir, the respondent rejects, out of hand, any contention by the applicant that it is acting in concert with the production union or any other. We understand that the production union has raised with the applicant safety concerns or our information on the ground, and I must say, sir, it is third hand, is that safety issues have been raised, but we note the applicant provides in it's affidavit annexured to Mr Warren's affidavit, annexure PDW 42 which is a copy of a letter from the CMFEUs Mining and Energy Division to Mr Warren. And it identifies there under five dot points that unions concerns on numerous grounds not limited to duty of care, the refusal by the company to identify the contractors, the contractors' hours of work, the competency of the contractors and the impact of safety of mine workers and equipment. And it would appear at least, without knowing more, sir, that there is at least a safety complexion on the matters that trouble the production union that on the applicant's own say so brings it here with this application.

PN67

I note also, sir, PDW45 also annexured is an excerpt of an article that appears to have been in today's West Australian newspaper, where there is reference to at least, a quote in the newspaper by Construction, Forestry, Mining and Energy Union official, Mr Wood, about concerns at not being provided any particulars about the people it has proposed to put into the pit, skill wise, training wise and competency wise and the resultant view that it would be irresponsible to work with them without that degree of knowledge being met. So on the face of it, sir, it would appear at least that the production union has some concern about those aspects or matters of that complexion.

PN68

Now, again, sir, I reiterate the respondent rejects out of hand any contention that it has been acting or that there is any acting in concert in respect of the bargaining period, the protected action undertaken. In relation to the dealing with the substantive mattes, sir, and with respect, a brief adjournment we do thank you for that, was insufficient for the purposes of going with any rigour through the contentions that are put forward by the applicant. We would need, sir, sufficient time to analyse that with a view to extracting from the content of the affidavit matters that relate particularly to the alternative limbs the applicant relies on, subsection (3) and subsection (7).

PN69

And then following that, what might be conceded, what might be contentious, and then particularly where the applicant asserts particular facts and assuming that matters or evidence are or are not contained fully within the affidavit of
Mr Warren, and we don't know that until we analyse it, sir, what further evidence the applicant might be putting forward in support of some of its contentions, and some of its contentions appear to be quite extraordinary on the face of it, but the point, sir, is that we need to analyse that further to know precisely what it is that the applicant contends, and it's not enough as my friend does to say these matters have a long history. There is not question about that, sir, in the context that there has been an elongated period between the parties where there has been sought to be put in place a new enterprise agreement of one form or another.

PN70

THE DEPUTY PRESIDENT: Well there is no contention or at least there doesn't appear to be in the application that the bargaining period should be terminated because of not genuinely trying to reach agreement. It doesn't appear to be a limb of their argument unless it's in the context of an element of 170MW(7), but it doesn't appear to be.

PN71

MR LOUREY: Sir, we acknowledge that the history of the negotiations has been elongated and my instructions are that there have been many and frequent and ongoing attempts to genuinely reach agreement. But in terms of this application, which my friend submits was brought about and the urgency is said to arise from the cessation of production yesterday, I think 9.50am is the time suggested, that that has resulted in the making of this application and suggesting that the facts asserted or a number of events that have been the result of the negotiations for the agreement and the processes in place pursuant to the Act to bring that about are then said to take on a different complexion with respect to this particular application, and that is not something that we readily concede, that we concede at all.

PN72

So we do need an opportunity to go through the applicant's application in detail and certainly to prepare so far as can be done the respondent's defence to the application. Sir, I think it is beyond dispute to say that it is an extremely serious proceeding to be attempting to terminate a bargaining period given that that is the vehicle that the Act provides that the Commonwealth government sets in place a statute to provide the mechanism whereby and I think a decision of the Full Bench referred to it as the citizens of the civilised community go about negotiating or advancing their claims for the enterprise agreement. So those provisions are there, there is - - -

PN73

THE DEPUTY PRESIDENT: Well, the urgency arises more out of the 170MW(3) link to their argument more so then the MW(7) I would think Mr Lourey.

PN74

MR LOUREY: We have no doubt about that, sir, and there appears to be substantial material in the affidavit that is said to be in support of that contention. Now, at a very quick glance, and that is all we have had the opportunity for, it would appear that what is in fact been pleaded there is the potential for impact on the applicant's commercial operations and viability.

PN75

THE DEPUTY PRESIDENT: Well, it is a question of whether the circumstance exists or the circumstance does not exist, and if the circumstance exists as to whether it is the industrial action that is causing that circumstance to exist.

PN76

MR LOUREY: That circumstance being and there are two links to subsection (3), the endangerment of life or personal safety or health or the welfare of the population or part of it. We are yet to extract that from the applicant's material.

PN77

THE DEPUTY PRESIDENT: If I could just interrupt you again, sorry, Mr Lourey but so you and Mr Bartlett get a feel for the way that I would be intending to look at this. Firstly, I would be looking at the terms of whether the circumstance exists or not. To ascertain whether the jurisdictional basis for a suspension or termination of the bargaining period should occur extend all that background material of the circumstances of the behaviour of the parties and all of those other circumstances that might or would influence whether a discretion should be applied to suspend or terminate the bargaining period. But the first thing that I would need to be satisfied of is that the circumstance exists.

PN78

MR LOUREY: And that circumstance being either the endangerment of life and personal safety et cetera or the potential to cause significant damage to the Australian economy or an important part of it.

PN79

THE DEPUTY PRESIDENT: That is correct. That is the initial thing I think I would need to be looking at

PN80

MR LOUREY: We accept that, sir, but we are unsure the extent to which the applicant's affidavit supports that finding. On the face of it, it appears to suggest that it has a significant commercial effect on the applicant, and your Honour raised with my friend, and perhaps it is not in dispute that in terms of the applicant's place in the economy, it is one of the two operators in Western Australia in effect a domestic coal producer for mainly domestic purposes, the main customer of which is Western Power for the generation of electricity et cetera. Now, I don't know that if there is any evidence there that suggests that there is any threat to the generation of electricity, and that is what we suspect the tenure of section 170MW(3). It is insufficient to demonstrate that what is occurring has the potential to have a significant commercial or economic impact on the applicant, it's about the impact on the economy.

PN81

THE DEPUTY PRESIDENT: For what it is worth, the urgency that I have brought this on with is because of that issue that you raise as being one that needs to be addressed. The commercial issue is being secondary to the communities and the interests of the public.

PN82

MR LOUREY: It is for the applicant to establish that there is evidence that supports a finding that that circumstance does exist. We are not sure, and we need an opportunity for an analysis to be done of this information - - -

PN83

THE DEPUTY PRESIDENT: Not only that it exists Mr Lourey, but it exists as a result of the industrial action that your client is involved in.

PN84

MR LOUREY: I accept that, sir.

PN85

THE DEPUTY PRESIDENT: And I will turn to Mr Bartlett in a moment, but some question in my mind as to whether the affidavit actually asserts what this application is based on.

PN86

MR LOUREY: We are of the view that it doesn't, sir. Certainly the content appears to focus on the production circumstances, and we say that that has occurred irrespective of the bargaining period that is sought to be now terminated.

PN87

THE DEPUTY PRESIDENT: It might be a consequence of it.

PN88

MR LOUREY: That is right, sir. At best they may share the factual matrix as it were, but to predicate as a matter of causation the protected action that the respondent's members are undertaking, I don't know that - - -

PN89

THE DEPUTY PRESIDENT: And you would be asserting then that there has to be that causative link between your client's industrial action and the circumstances existing.

PN90

MR LOUREY: Absolutely, sir. Because the mere fact that the respondent's members are undertaking or exercising the rights that the legislation provides them. The contention from there that they are exercising those rights has caused matters such as subsection (3) envisages, we don't concede at all. There is a significant amount of material in there the extent to which that flows. So my instructions, sir, and - - -

PN91

THE DEPUTY PRESIDENT: Well, even if it is a consequence whether that indeed would provide the jurisdiction here.

PN92

MR LOUREY: Absolutely, sir. Now, in terms of how it might be processed, we would seek that the matter be adjourned at least until Monday the 11th, so that matters can properly be considered and, if necessary, instructions obtained as to potential witnesses and those preparations be made and you will be aware, sir, that the particular people involved are in the main in the south west, so there are factors there must be considered. The other thing, sir, is in terms of the actual processes, we do not have any suggestions as to directions that might issue, but we would certainly see the need potentially for, for example, the applicant to provide further particulars of how it claims and the mere assertion by Mr Warren of matters within an affidavit unsupported by evidence as such would not be sufficient, sir.

PN93

THE DEPUTY PRESIDENT: Well, there would have to be grounds for me to form a view.

PN94

MR LOUREY: Yes, but the belief expressed by Mr Warren in his affidavit might.

PN95

THE DEPUTY PRESIDENT: They may or they may not, but there would have to be grounds there to satisfy me that the circumstances of three exist.

PN96

MR LOUREY: I accept all that, sir, but to the extent that some of the contentions of the applicant, and Mr Warren in particular, are challengeable.

PN97

THE DEPUTY PRESIDENT: I see what you are saying, yes.

PN98

MR LOUREY: It is difficult to be specific, sir, because we haven't had the opportunity to analyse this in any depth, but to the extent that there are contentions and it strikes me that a significant part of the - there is a lot of contention and allegation within Mr Warren's affidavit that there simply needs to be further particulars so that it is better understood, and I suspect that - - -

PN99

THE DEPUTY PRESIDENT: Well, I will come back to the linkage between the circumstance existing and the industrial action that your client is undertaking, I would certainly need Mr Bartlett a more closely established link in that regard if that is what you are alluding to Mr Lourey.

PN100

MR LOUREY: It is the potential to have provided more by way of information. That is not necessarily going to be the case, I mean we don't know until we have had a thorough examination, but certainly, sir, this is a significant matter, the events have had an 18 month history, the respondent and its members have undertaken to effect a bargaining period for the purposes of advancing their claims for certain terms and conditions to be encapsulated in an agreement of this Commission, and for the applicant to come here as suddenly as it does, citing all manner of things in support for suspension or termination of the bargaining period requires an adequate time to prepare, and essentially defend the rights that the applicant's members have vested in the Federal legislation to continue with that course of action.

PN101

THE DEPUTY PRESIDENT: So your suggesting an adjournment until next Monday?

PN102

MR LOUREY: Not before next Monday, sir.

PN103

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Lourey, I might just hear from Mr Bartlett. Mr Bartlett you have heard some of the comments that I have made in respect to those linkages and the way I would view this matter in a sort of sequential manner. Firstly, whether there is the urgency arises out of the 170MW(3) limb of your argument more so in my preliminary view then 170MW(7), and what I would be intending to do is firstly ascertain whether the jurisdiction exists with respect to 170MW(3) for an order terminating or suspending the bargaining period.

PN104

That goes more to the circumstances existing not the history of the negotiations, and I raise that with you because a lot of the affidavit, whilst the background information is useful, and might be critical in exercising a discretion if the jurisdiction exists, my first task is to establish that a jurisdiction does indeed exist. That is the way I would be intending to approach it. Now, the concern I have over the content of the affidavit, if this was the primary and the nature of the evidence you are intending to lead is the role of the CMU that aren't here and aren't party to these proceedings, and whether your real target is the CMU rather than the AMWU, and if it is the real target, then is the right vehicle.

PN105

MR BARTLETT: Sir, it's not about targets. What I say in response to that, your Honour, is that MW(3) obviously provides for a wide range of circumstances that also relate to the welfare of parts of the population. I can take you to particular parts of the affidavit which support the application under MW(3). It's a moving feast in terms of Western Power. My instructions - - -

PN106

THE DEPUTY PRESIDENT: The first step, Mr Bartlett, is in MW(3) is whether the industrial action that the AMWU is involved in is the action that is threatening in the nature of those paragraph (a) and (b). That is the issue I raise. Now, you might establish it or you might establish that it is consequential to that industrial action and that is sufficient, I don't know, but that's what I am saying you will need to address me on, and I will need to be satisfied that a jurisdiction exists on that before there is any need to go into the long history of the negotiations.

PN107

MR BARTLETT: Sir, we say clearly this jurisdiction in the affidavit paragraphs, and perhaps I can assist and I appreciate the time constraints, but paragraphs 106 through to 114 deal with some of the direct consequences of the action, and we say in relation to - - -

PN108

THE DEPUTY PRESIDENT: But, what action? The CMUs action?

PN109

MR BARTLETT: The action by the maintenance employees.

PN110

THE DEPUTY PRESIDENT: I see, yes.

PN111

MR BARTLETT: Absolutely, and we say in fact the CMU action yesterday, sir, is a direct consequence of the AMWU action. The reality is the maintenance employees are on strike and have been since 1 March, the company has needed to therefore engage maintenance contractors and the CMU are out on strike over that, the use of maintenance contractors in the pit. We say it is a consequence of that.

PN112

THE DEPUTY PRESIDENT: That is what I will need to be addressed on Mr Bartlett, and evidence relating to that so that the jurisdictional prerequisites are not established.

PN113

MR BARTLETT: Sir, what I should disclose to you as well, sir, is that you raised a question of Western Powers involvement. It is true to say that there are, I understand, stockpiles but I understand if we get into Wednesday, Thursday of this week, particularly Thursday, and the miner's action is continuing, that we will be instructed to take whatever steps we can to stop that because that is at a stage where I understand, and I can confirm this, that there will be a very serious threat of interruption to - - -

PN114

MR LOUREY: Sir, these are matters that are evidence I would have thought rather than contention from the bar table to say that Western Power's
stockpiles - - -

PN115

THE DEPUTY PRESIDENT: Well, Mr Lourey, if it's any comfort to you I won't be taking any contested or uncontested assertions from the bar table as fact.

PN116

MR BARTLETT: Sir, I make that point and I stand to be corrected but I was unable in flicking through as quickly as I could through the affidavit to see any reference to that sort of material.

PN117

THE DEPUTY PRESIDENT: Well, bear in mind that Mr Bartlett is probably responding to my question as to whether there was any knowledge of any intention or involvement, and the reason I raise that question is because if the circumstances of paragraph (a) or (b) of 170MW(3) are to be or not to be established then there may be an interest either to be exercised or decided not to be exercised by those parties to participate in these proceedings to convince me one way or the other. That is the reason I raised it and I take Mr Bartlett's really responding to my question of his earlier.

PN118

MR BARTLETT: I understand, I am not trying to give evidence from the bar table, and I thank my friend for that assistance.

PN119

THE DEPUTY PRESIDENT: I think all he was alerting me to and you too, Mr Bartlett, is that there is nothing that he will be conceding or agreeing to as accepted as of fact from what you are submitting from the bar table.

PN120

MR LOUREY: Absolutely, sir.

PN121

MR BARTLETT: Sir, we also focus on subsection (3) in terms of the threat to the welfare of various groups which we say is in fact now a matter that needs to be dealt with, with some urgency, and enlivens the jurisdiction of the Commission. For example, and there is many authorities on this, sir, which you would be aware of. I would take you to those authorities, but there are a number of parties been affected we say by the action of the maintenance employees including the group of maintenance employees themselves that we say at this stage, March, April, they have suffered two months of no pay from Premier Coal, in relation to we say again as a consequence of the action and the events there is five individual misconduct charges, there is significant damages claims and penalties exposure which is growing in relation to officials and the union.

PN122

We say that the welfare of the miners who we say are being dragged into this dispute again as a direct consequence of the maintenance contractors going on strike. There is also, sir, and we would accept that we would need to lead evidence in relation to this, but there is the Collie bus contractor who buses the maintenance employees and miners to work that since 1 March have not been able to perform their contract in terms of providing their bus services for maintenance employees and on occasions in relation to the miners as well. We say that is a part of the community whose welfare has been affected, sir, we say that the other staff of Premier Coal.

PN123

There is much evidence, for example, at paragraph 111 of threats to the future in terms of the effect this action is now having at a critical time of the tender process of the business on job security in terms of other staff and miners and they need to be taken into account, they are a part of the Collie community. There is the welfare of customers particularly Western Power who are being affected by, we say, directly by the action. I appreciate, sir, there may need to be more detailed argument and evidence about some of these matters, but that is dealt with at paragraph 114 and it is quite simple in relation to that aspect, no coal will equal interrupted power and significant consequences on the community and business and it is just of time.

PN124

THE DEPUTY PRESIDENT: Mr Bartlett, for what it is worth, if there is a risk to the generation of power by Western Power being unable to meet the requirements of the public of Western Australia, you will have very little difficulty in convincing me that the welfare of the community is endangered or the personal safety or health of the community is endangered or that there would be significant damage to the Australian economy or part there of it.

PN125

If it can be established or if you do establish that that risk one exists and two the cause of that risk existing is the industrial action being undertaken by the AMWU. It is those linkages that you will need to establish, but what you are now submitting is that in order to background I guess convince me that disruption to the generation and supply of power is a circumstance that would trigger (a) and or (b) of 170MW(3), I will need very little convincing of that, but there is a lot more convincing that is needed before one reaches that point.

PN126

MR BARTLETT: I appreciate that, sir, and we submit that it is the thread of that, I guess at what stage and at what point is that a serious threat. The evidence, and as I say, that will depend upon as well, at the point in time that witnesses giving evidence because these matters, and depending what happens in terms of the action, that the circumstances changed over. The affidavit has been updated daily.

PN127

THE DEPUTY PRESIDENT: So how do you suggest that this proceed, Mr Bartlett?

PN128

MR BARTLETT: Sir, while given the nature of the matter and I guess just before I deal with it, my friend referred to the 128 proceedings and it is incorrect. It is always a danger if you are not there to say what occurred and there is a transcript of these proceedings. It was never, and I was there, submitted that a section 170MW was not an option. There was submissions in relation to the union being able to make an application themselves to terminate MW and there was a question to our client about whether that was an available option and it was acknowledged that, yes it was but there was no instructions at that stage to make an MW application. So it was never said that MW was not an option.

PN129

In terms of acting in concert, that will be dealt with elsewhere. We say there is plenty of evidence about the union acting in concert with an unprotected party, but that is a matter that will be resolved, with respect, somewhere else. In terms of how this gets dealt with, we say we strongly oppose an adjournment until next Monday. We would seek, sir, the matter be listed before then. If my friend needs further particulars we can provide those early tomorrow and we suggest the matter be listed either late tomorrow or early Thursday for full on proper hearing of the matters.

PN130

THE DEPUTY PRESIDENT: Do you think it is worthwhile cementing this Mr Bartlett in a sequence of MW(3) and then MW(7) and deal with the MW(3) first?

PN131

MR BARTLETT: No, sir. We would seek to deal with both. The MW(7) evidence and submissions we say given the history and the argument is in fact the way to short circuit this matter, and should not - - -

PN132

THE DEPUTY PRESIDENT: Well, the reason I raise it in that way Mr Bartlett is because the urgency of dealing with this application arises more out of MW(3) then it does out of MW(7) in my mind and that is why I float that not as a suggestion but as a possibility whether it would be more practical to deal with your application in that separated manner. Perhaps while I am speaking, and secondly in dealing with it in that manner to deal with that in two stages as well, firstly the jurisdictional prerequisites and then the consideration of whether an order terminating or suspending the bargaining period should be issued which a lot of the background material or the history and negotiations I would think would be important. Do you have any views of that sort of segmentation?

PN133

MR BARTLETT: I would have thought a lot of the discretionary factors once you have been satisfied in relation to jurisdiction would be the same, and so we would seek on that basis both matters be dealt with together. The MW(7) matter given the history, sir, and the history of conciliation, we would submit is very much a legal argument in terms of where that matter has reached in terms of whether MW(7) is enlivened or not, and so on that basis we would seek that it be dealt with at the same time as the MW(3) application. And as I say, a lot of the discretionary matters that go to or whether you would exercise your jurisdiction or not, once satisfied there is jurisdiction and in our submission there would certainly be an strong overlap and would be more expeditious to deal with it that way.

PN134

THE DEPUTY PRESIDENT: I am not sure that I agree with you, but Mr Lourey, do you have any view on a segmentation of any nature?

PN135

MR LOUREY: I have not had the opportunity to think that through, sir, or to seek instructions, but on the face of it the larger matter to be litigated more preparation would be needed so we would suggest that - - -

PN136

THE DEPUTY PRESIDENT: And the longer it will take.

PN137

MR LOUREY: And the longer it will take, but certainly the more preparation would be required, sir, so we reiterate that the matter just not be progressed at all. Probably not start until at least Monday the 11th, sir.

PN138

THE DEPUTY PRESIDENT: Yes. Mr Bartlett can I come back to you again. Sorry to take so much time on these preliminaries, but it might be time better spent now then regret it not having being spent later. To come back to the CMUs involvement in this, again I have had a very quick read of the affidavit, the paragraph 114, 115 and 117, I suppose, whilst one or two of those paragraphs address the conjunctivity of the industrial action, or asserted conjunctivity, there is an impression one could gain from paragraph 115 and particularly 117 that it is the CMUs action that is a critical element of the circumstances you assert your client is in.

PN139

If I heard you correctly, the tension the sequence of approaching this, and it is entirely up to you and your client as to what avenues you use and they are available to you, but I take it that the Supreme Court actions will take some time in the manner and the nature of what you have sought there, take some time to be heard or dealt with. Is that accurate?

PN140

MR BARTLETT: Well, sir, in terms of the action that has been filed today, that is correct, but I cannot give you a guarantee that there wouldn't be an application for an urgent injunction come Thursday or Friday if that action continues and indeed it causes the harm that at this point is anticipated.

PN141

THE DEPUTY PRESIDENT: What I am getting at if the circumstances of 170MW(3) are found to exist if the underlying cause of those circumstances existing is found to be the AMW but the direct cause of those circumstances is the CMU and orders issue against the AMWU suspending or terminating the bargaining period, then that is no guarantee or otherwise that the circumstances might continue to exist whether or not the bargaining periods or suspended or terminated or not. That is what I am raising Mr Bartlett.

PN142

MR BARTLETT: Sir, what we say in terms of CMU involvement that is certainly one of the key elements, but the MW application does not rise and fall on that. In terms of the urgency of dealing with it, it has an impact on that front.

PN143

THE DEPUTY PRESIDENT: But one of the issues in terms of the circuit and how I deal with it bearing in mind my obligations under 110 and 98A of the Act, if there is such an urgency then why is the urgency directed solely at the AMWU? Shouldn't that affect my judgement as to how this matter should proceed?

PN144

MR BARTLETT: Sir, we say it is because the AMWU what we say is unlawful industrial action that is at the heart of a range of circumstances that we say bringing a 170MW(3) into play.

PN145

THE DEPUTY PRESIDENT: That might be the case.

PN146

MR BARTLETT: And at the end of day the rise and fall on the evidence and the submissions, but there are a range of things happening that are covered in the affidavit that we say have a significant effect on welfare and threatened welfare of various parts of the population. Not to mention a significant part of the economy that is being caused by the AMWU industrial campaign and enough is enough. You bring an end to that you bring an end we say to the action. We say it is the end of the miner's issues because there won't be if you use their terminology, scabs in the pit, and we say that, sir, as I should emphasise - - -

PN147

THE DEPUTY PRESIDENT: Just a moment Mr Bartlett. Yes, continue.
MR BARTLETT: The action is not solely directed at the AMWU either. There has been orders issued by the CIT, those orders are being enforced and I have informed you, sir, that there has been proceedings filed in the Supreme Court and we are waiting to see what we need to do with those proceedings and that depends on as well happens in these proceedings. Well, I am being straight and to the point of it, there is an avenue we say the cause of the issues is this protracted industrial campaign that is causing significant harm to various parts of the population and threatening a number of parts of the population in terms of personal safety health and welfare and that needs to be brought to an end.

PN148

THE DEPUTY PRESIDENT: Well, it's a question of whose action is what I am really raising. Mr Bartlett, do you have anything further as to how they should proceed?

PN149

MR BARTLETT: No, sir, other than to reinforce that at the moment a day is a long time in this dispute as you can tell from the detailed affidavit and I can appreciate you have not had much time to review it, but we would seek this hearing be brought on we would say within 24 hours, but certainly before the end of the week, and that the situation is likely to deteriorate in our view are my instructions. I have nothing else, sir.

PN150

THE DEPUTY PRESIDENT: Do you want anything further at this stage, Mr Lourey, how this proceeds? I must say my inclination is to segment this application and deal with the jurisdiction with respect to 170MW(3) firstly then any discretion as to if it does exist whether an order and what nature of order should issue, whether it be suspension or termination or neither to then deal with the 170MW(7) component of it to the extent that it may or may not be necessary. That is my inclination at this point.

PN151

MR LOUREY: Sir, I can understand the Commission's rationale for deciding upon that process. Sir, we would still need sufficient time to wade through this material to find precisely what it is. I myself are back in this place on a higher floor at 8 am tomorrow morning in relation to an unrelated matter, so it is not merely a question of devoting every available resource to the task at hand, but certainly these are pressing matters, sir, and that will be done as best that it can be.

PN152

THE DEPUTY PRESIDENT: It might be, unless there is an objection from Mr Bartlett, depending on what he says, but it might be that the evidence needs to be segmented as well to have the applicant put their evidence in and get it there and you have face having to examine both the evidence and any counter evidence following it being given.

PN153

MR LOUREY: There is certainly merit in that, sir, yes.

PN154

THE DEPUTY PRESIDENT: Mr Bartlett might not like that, but we will hear what he says.

PN155

MR LOUREY: Well, it's the applicant's application, sir, and to the extent that several hundred pages have been produced at short notice to support whatever it is that is being claimed, it is not necessarily helpful, sir. My reaction to my friend's last comment that urging the Commission act with urgency because the situation is likely to deteriorate, again this is a matter that has had a long history and
to - - -

PN156

THE DEPUTY PRESIDENT: I have got nothing before me to know what the intentions of the CMU are. They might be back at work if they are off work at the moment or there might be production resumed tomorrow. I have got nothing before me that would satisfy me of anything that may or may not occur with respect to the CMU.

PN157

MR LOUREY: I accept all that, sir, yes. I concur. I have got nothing further to add, sir, unless you have got any questions of me.

PN158

THE DEPUTY PRESIDENT: No, thank you, Mr Lourey. Mr Bartlett, that second last question I posed to Mr Lourey with respect to you presenting your evidence then him having in effect an adjournment that is what I was alluding to prior to him responding either by cross-examination or whatever, do you have any view on that?

PN159

MR BARTLETT: It is a bit unusual. I mean we have obviously provided an affidavit to expedite the matter and what would assist would be if the responder advises by a certain time what paragraphs they accept, what paragraphs they contend, we are ready to proceed and we are happy to provide, for example, an outline of particulars and submissions highlighting what paragraphs in particular relate to what sections and I think it would be untoward for the respondent union to provide a response to that within a timeframe if that expedites things, but when evidence is dealt with, sir, we say that the respondent if it has evidence that it wishes to challenge, what has already been provided to them, they ought to call witnesses at that point. There is no requirement unless directed, sir, to file an affidavit or provide evidence like we have in writing. We have done that to expedite.

PN160

THE DEPUTY PRESIDENT: What is the extent of the evidence you are intending to lead Mr Bartlett.

PN161

MR BARTLETT: Well, sir, at this stage we say what is contained in Mr Warren's evidence - - -

PN162

THE DEPUTY PRESIDENT: It is Mr Warren you will be putting in the witness box?

PN163

MR BARTLETT: Giving evidence, yes. But what would assist us would be if the respondent is planning to raise particular contentions or object to certain parts of the affidavit, they let us know that by, for example, some time tomorrow, and that if we then - - -

PN164

THE DEPUTY PRESIDENT: Well, if I segment it in the way I have indicated I am inclined to, it would only be initially those elements that are directed towards the jurisdictional prerequisites component.

PN165

MR BARTLETT: Correct.

PN166

THE DEPUTY PRESIDENT: Mr Lourey, sorry to come back to you again, but I want to try and ensure that we don't have impediments to the proceedings procedurally by deciding on what they should be now rather then later. That is why I am spending so much time on it now. Would you be in a position some time tomorrow to deal with those elements or indicate rather those elements of the applicant's affidavit that go to the jurisdictional elements of 170MW(3)(a) and (b) that you would be contesting?

PN167

MR LOUREY: As I understand it, sir - - -

PN168

THE DEPUTY PRESIDENT: I know you are on the spot because you haven't had much of an opportunity.

PN169

MR LOUREY: If I could just seek some clarification. I take it that the applicant is objecting to segmenting its evidence as you have indicated.

PN170

THE DEPUTY PRESIDENT: I don't think so. I think what they are objecting to is them leading evidence and then having an adjournment and then you cross-examining on that evidence at some later stage. That is what I think they are objecting to. I think they are saying that you should be ready to go when the evidence is lead.

PN171

MR LOUREY: The question really, sir, is when is the earliest we might have been able to go through the entire affidavit to date, identifying - - -

PN172

THE DEPUTY PRESIDENT: It is not the entire affidavit if I segment it.

PN173

MR LOUREY: Well, it depends on who does the segmenting, sir. I understood the applicant to be saying, well this is it, they can object or contend to concede any point within that, but your suggestion, sir, is to confine it to the jurisdictional prerequisite as to subsection (3) and I certainly see the value in doing that, sir, but for us there may well be some inherent structure to how the affidavit is set out, but that will require us to go through the entire affidavit to see which matters go or even partly to matters within the subsection (3) context and then get instructions on each of those. Now, what you seek that we do if that is the Commission's decision is to do that by the earliest possible time without seeking instructions and as to certainly my own availability within that period of time is problematic, but I would probably need an opportunity to seek some instructions, sir, just on how that process might be undergone. As I mentioned I am in this place on another floor at 8am tomorrow and then the unfortunate reality, sir, is that tomorrow is spoken for to a large extent.

PN174

THE DEPUTY PRESIDENT: Well, look what I will do is this, I will deal with the application in a number of stages. I will firstly deal with whether there is jurisdiction pursuant to section 170MW(1) with respect to circumstances existing or not existing under 170MW(3)(a) and (b). Then I will deal with whether a jurisdiction does exist whether it should be exercised by suspending or terminating bargaining periods. If the parties have any views as to whether that can be or cannot be done in an interim manner if the jurisdiction is found to exist, I would require them and request that they make submissions in that respect should they wish to.

PN175

The third stage would be if it is necessary to deal with section 170MW(7) at some later stage and I would think it would be appropriate to deal with all of 170MW(7) both the jurisdiction and to the extent that there is any discretionary elements all in one hit. So that is the elements that I intend to proceed. How I proceed I will list in a preliminary way for tomorrow afternoon at 4 pm. Not Mr Bartlett for you to present any evidence or otherwise, but more so Mr Lourey to the extent that you have been able to having had some further opportunity to examine the affidavit and the background material as to whether you wish to address me any further on how the matter should proceed. If you don't wish to avail yourself of that opportunity, then you should inform my associate as soon as you can, but obviously before 4 pm tomorrow in a time the other parties won't be put to any inconvenience.

PN176

I would then further list the matter for that first stage I spoke of for Thursday, 7 April at 11.30 am so it will be listed at 11.30 am but I am only available until 1.30 pm unless this other matter is changed, I won't put that beyond the realms of possibility and I will reserve all of Friday this week.

PN177

Mr Lourey, given I have misread my availability on Thursday, if you would prefer that 4 pm opportunity tomorrow to be 11.30 am on Thursday, I will consider any request in that regard. Mr Bartlett, if there is a request by Mr Lourey to use the
4 pm slot tomorrow at 11.30 am on Thursday, if you have any views on that following any advice from him in that regard, I will hear you in writing in that respect as well.

PN178

MR BARTLETT: Thank you, sir.

PN179

THE DEPUTY PRESIDENT: Mr Lourey? I hope I haven't confused anyone in all that.

PN180

MR LOUREY: I don't think so, sir. I wonder if the applicant might be prevailed upon to identify from its affidavit which of those paragraphs go to jurisdiction.

PN181

THE DEPUTY PRESIDENT: That is a good suggestion. If you assent you can do that at the earliest convenience you can Mr Bartlett, I think that would expedite Mr Lourey's capacity to identify and respond.

PN182

MR BARTLETT: Precisely, sir, yes.

PN183

THE DEPUTY PRESIDENT: Thank you. I will adjourn on that basis.

<ADJOURNED UNTIL WEDNESDAY 6 APRIL 2005 [4.44PM]