C2014/6428, Transcript of Proceedings [2015] FWCTrans 106 (10 March 2015)

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MT ARTHUR COAL PTY LTD
and
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
(C2014/6428)

Mt Arthur Coal Enterprise Agreement 2011

(ODN AG2011/1004)
[AE885861 Print PR509945]

PN1.

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2.

MR WARREN: If the Commission pleases, I appear for the applicant in both matters. With me is Mr RAUF, and at the Bar table also is my instructing solicitor, Mr Morris.

PN3.

THE SENIOR DEPUTY PRESIDENT: Mr Warren.

PN4.

MR K ENDACOTT: If it pleases the Commission, ENDACOTT, initial K, appearing for the respondent union, CFMEU, Mining and Energy Union, New South Wales Energy and all the district branches. With me at the Bar table is Mr HOWARD, initial M, who is the lodge secretary, if the Commission pleases.

PN5.

THE SENIOR DEPUTY PRESIDENT: Any difficulty with permission being granted to Mr Warren and to Mr Rauf, and if necessary also to Mr Morris?

PN6.

MR ENDACOTT: No. Well, there's no issue raised by the respondent.

PN7.

MR WARREN: Sorry, your Honour. I thought I'd applied for permission earlier, but formally we further apply.

PN8.

THE SENIOR DEPUTY PRESIDENT: You might have. Having considered the documents filed in this matter I form the view consistent with section 596 of the Act that the matter would be able to be dealt with more efficiently, taking into account the complexity of the issues raised, should the company be represented by a lawyer or the counsel and solicitors that have been identified earlier by me.

PN9.

MR WARREN: If the Commission pleases.

PN10.

THE SENIOR DEPUTY PRESIDENT: Well, at some stage I'd like there to be a bit of a call about what you think I have or should have before me in terms of the statements and outlines and agreed facts, if we can do that. And then an indication as to how you see the matters proceeding, presumably you might start but I'm not too sure whether you've reached some other agreement. Mr Warren?

PN11.

MR WARREN: Your Honour, there hasn't been any formal discussion with respect to the order. We have assumed that we would start and that's entirely consistent with the brief we had with Mr Endacott this morning when inquiring as to our order of witnesses. We will be opening the proceedings. Can I indicate this, Commissioner, your Honour, there has been filed with respect to the applicant's case, an outline of submissions on behalf of the applicant. It is some 28 paragraphs and nine pages, I believe it was filed Tuesday of last week. Your Honour has that?

PN12.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13.

MR WARREN: I'll come back to that in a moment. I won't deal with my friend's case. Also, there has been filed a statement of agreed facts, that's been filed in the last several days, it's of some 15 paragraphs and two pages, does your Honour have that?

PN14.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15.

MR WARREN: There has been, with respect to the applicant's case, six witness statements filed, five of them, including Mr Wagner, Mr Wood, Mr Sears, Mr Jones and Mr Kelly, and a statement filed of Mr Murrie, that's spelt M‑u‑r‑r‑i‑e, Mr Murrie recently, and that is in response to the statements filed on behalf of the union.

PN16.

THE SENIOR DEPUTY PRESIDENT: I have all of those.

PN17.

MR WARREN: Does your Honour have all of those?

PN18.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19.

MR WARREN: Your Honour, could I take you briefly to the statement of agreed facts. Your Honour will see that the matter involves two dispute notifications, the employees who are members of the union, parties to this dispute, and the industrial agreement is - or enterprise agreement that is referred to in paragraph 4. The agreement is the Mt Arthur Coal Enterprise Agreement 2011, it's an agreement which has been ratified by this Commission. The agreement is referred to in paragraph 5 as being ratified on 26 May 2011, it had an operative date of 2 June 2011, and the agreement passed its nominal expiry date on 28 April 2014 and is the subject of ongoing negotiations.

PN20.

In paragraph 7 it is indicated that - and this relates to the first dispute, being 6428, the dispute involves 14 boilermaker positions, the positions being made redundant by the company and are subject to that notification. And those are the positions that are in dispute with respect to - it's not the position per se but who would be retrenched as a result of those positions being declared redundant, that is the essence of that dispute. And the same essence occurs, and it's related to an interpretation and application of clause 21.1 of the agreement, and I'll come to that shortly.

PN21.

The second dispute involves a dispute with respect to the retrenchment or declaring of those position as being redundant of nine high voltage electricians, six auto electricians and four service persons, and that's referred to in paragraph 10 of the statement of agreed facts. Once again, it is clear that that is all to do with an interpretation of clause 21.1 of the agreement, similarly with the first dispute, the second dispute being numbered 7835.

PN22.

It is clear that the respondent has contended that - noted a distinction should be made between, for example, in the second dispute between auto electricians and high voltage electricians for the purpose of applying clause 21.1. And a similar situation occurs with respect to the four service persons, the four service persons being persons who are driving service vehicles as opposed to haul vehicles, which persons who are driving those haul vehicles would be affected by the redundancies should the position that the union takes be adopted, that position being the seniority list for production and move up from the bottom as opposed to identifying and making redundant those persons who occupy the actual roles and functions that the company has identified as being no longer required in that number.

PN23.

Your Honour, with respect to the submissions filed, the outline of submissions filed on behalf of the applicant, can I take you firstly - before I take you to slightly more detail, but I take you firstly to clause 25, or paragraph 25 of those submissions and I refer particularly to the second sentence. Can I indicate to the Commission that that sentence is no longer put, the facts contained - I'm corrected, it's the third sentence, starting "Furthermore," down to "provisions". That sentence is no longer put and the content of that sentence is no longer put particularly in light of the statement and evidence that will be given by Mr Murrie, and that will become ‑ ‑ ‑

PN24.

THE SENIOR DEPUTY PRESIDENT: Sorry, so it's just the sentence "Furthermore," down to "its provisions"?

PN25.

MR WARREN: "Furthermore," down to "its provisions". Would you please delete it from the submissions. I take the Commission briefly to a couple of points we wish to highlight with respect to those submissions. Can I indicate, at paragraph 5, there is repeated clause 21.1 of the enterprise agreement. The enterprise agreement in full is found in Mr Drayton's statement, behind JND4. And the wording of clause 21.1 is extracted in full in clause 5, or paragraph 5 of the applicant's submissions.

PN26.

What is apparent when one looks at the reference to streams being production stream, and I quote the words specifically:

The respective production stream, mechanical and electrical engineering streams according to the length of service at the Mt Arthur Coal Operation.

PN27.

What is apparent, and what is apparent when one considers the evidence and submissions put on by the union is that the reference to production stream, mechanical and electrical engineering streams is drawn from the words, heading in appendix 1 to the agreement. It is put by the applicant, and this will be developed during the course of the case, that appendix 1 deals with the need for an operational efficiency to be negotiated and to be put within the agreement as to the way the operations at the coal mine will be conducted. If one looks to appendix 1, and that, I earlier referred, is found in Mr Drayton's statement behind JND4, does your Honour have that?

PN28.

THE SENIOR DEPUTY PRESIDENT: Well, I have my own copy.

PN29.

MR WARREN: I could hand up a copy of the agreement.

PN30.

THE SENIOR DEPUTY PRESIDENT: No, I've got a copy of the agreement here, as approved.

PN31.

MR WARREN: Thank you. Your Honour will see under the heading of "core and ancillary skills, example of relevant skills" and it's an example of relevant skills applying at commencement of agreement.

PN32.

THE SENIOR DEPUTY PRESIDENT: Where are you?

PN33.

MR WARREN: Sorry. I'm at appendix 1, training and development and then there's a table, your Honour.

PN34.

THE SENIOR DEPUTY PRESIDENT: Yes, on the second - the table, I have that.

PN35.

MR WARREN: Yes, thank you. And your Honour will see that there is a list down the left‑hand side of core skills and ancillary skills, and reading across the page there are mining core skills, CHPP core skills, that's the coal handling and prep plant core skills, the service, the mechanical and the electrical. It will be put, and it is pressed by the applicant, that the words "production, mechanical and electrical streams" that have been drawn from that skill set have been drawn without regard to the way those words would be applied in practice come the event of a reduction in hands.

PN36.

The stream concept was clearly developed for operational purposes, it is the absolute antithesis of operational purposes, the reduction in hands. And it will be put by the applicant, quite clearly, that your Honour must look at and must interpret the document in terms of its context, and if indeed you will look to the document, we'll take you to the document and describe the clear ambiguities that are present and the need for your Honour to look to the whole document and its context, both to identify the ambiguity and see the lack of capacity that would be in applying that reduction in hands clause in a practical sense, and I'll come to that shortly.

PN37.

So, we say clearly the wording in the clause 21.1, the concept of streams has been drawn from an operational context and is entirely inappropriate to apply it, the operational context and the operational meaning, when one is then looking to reduce hands. We have set out in our submissions, and I'll come to it shortly, the clear ambiguities that occur when one looks at the words in 21.1. We note in paragraph 7 of our submissions that clause 21.1 of the agreement has not been previously utilised during the life of the agreement, nor indeed have counterpart or previous provisions in predecessor enterprise agreements ever been used. There has not been a redundancy of an agreement covered employee since the applicant commenced operating the mine.

PN38.

In clause 9 we state and we press that clearly, when read literally, it could be said that the clause which is 21.1 operates on the basis that management decides a certain number of employees will be made redundant and is not concerned whether they are from one stream or another, it only regulates how the last to come, first to go principle would be applied, that's if you read the clause literally. We say that the clause 21.1 must be construed having regard to the words in the subclause and the context, purpose and origins of the clause.

PN39.

We then, in paragraphs 12 through to 17 highlight seven jurisprudence which is developed with respect to the interpretation of industrial instruments. And we highlight indeed the Kucks case in paragraph 12 with its citation, and the words of

Madgwick J when he said:

Meanings which avoid inconvenience or injustice may reasonably be strained for.

PN40.

And that:

A narrow and pedantic approach is misplaced.

PN41.

Furthermore, it is noted that his Honour said:

Its words must not be interpreted in a vacuum divorced from industrial realities.

PN42.

And those being the words of French J as he then was, in the City of Wanneroo case, and we've given the citation.

PN43.

We rely upon the judgment of his Honour Tracey J, and we've given the appropriate citation there with respect to the Australian Meat Industry Employees Union case where Northrop J agreed with Madgwick J’s observations. And where his Honour Tracey J in the same case indicated that:

An interpretation which accords with business commonsense would be preferred to one which does not.

PN44.

That's fundamentally at the heart of the applicant's case here. It makes no sense, no sense to retrench persons who can do a particular function which continues to be required, and yet retain in employment persons who cannot do that function. One only has to look to, and your Honour will be taken at some length to the position of electricians. And I'll be referring your Honour shortly to the statute and the regulations that the applicant is obliged to comply with respect to employing only qualified persons to do particular work, it must employ a qualified high voltage electrician to do high voltage electrical work.

PN45.

Just because, through some operational discussion or operational negotiation, auto electricians are included in the same stream as high voltage electricians, and it doesn't mean, when it comes to the company determining whether it needs or doesn't need certain persons, that it then needs to retrench qualified high voltage electricians and retain auto electricians who simply cannot do the work, should not do the work and are, indeed in terms of the statute and the company's obligations, prohibited from doing the work.

PN46.

Similar circumstances and considerations occur with respect to the employment of boilermakers and the employment of boilermakers on function and in functions that a qualified plant mechanic can do, is obliged to do under his or her employment contract, and which the company is obliged to employ such a qualified person in accordance with the regulations and statute, and is not permitted to engage a boilermaker to do fitting work, which fitting work is required to be done by a qualified person. Yet that is the consequences of the literal interpretation of this clause when one also looks to the other parts of the agreement, and in particular clause 2:

The agreement purpose must provide a framework which will maintain a healthy and safe working environment, increase the operational efficiency of Mt Arthur Coal operation and reduce the overall cost of production.

PN47.

When one looks at continuing clause 2, at the last paragraph:

In achieving greater efficiency so that there is a clear indication and concentration of reducing overall cost of production, operational efficiency and achieving greater efficiency.

PN48.

And then in effectiveness of the agreement, in 5.1:

Committed to a continuing, seeking and vigorously pursuing all avenues or practices which will bring improvements of safety of welfare and real reduction of operating costs. Implementation of such changes are fundamental while remaining competitive in selling coal from Mt Arthur Coal, both locally and on the overseas markets.

PN49.

We say it is clear that in the context in which the reduction in hands clause has to operate, it has to operate in a practical sense, within an agreement which is emphasising the need for operational efficiencies and productivity, it's in the context of a statute and regulations which requires the employer to only employ qualified persons to do particular functions. And we say those are the type of matters which when one looks at, and we don't demur at all from the case indeed that my friend has put in his respondent's outline of submissions, that being The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447 case that my friend refers to in paragraph 7, and in particular at paragraph 41 of that judgment, or that decision, in sub 3:

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

PN50.

We say with respect to 21.1, the words are indefinite, the words are subject to or are capable of clearly more than one meaning, we say clearly that leads us to the circumstance of an ambiguity. It is also ambiguous to have such a clause with such restrictions operating in a circumstance where the employer is obliged by statute to do certain things and to employ certain qualified persons, and indeed, within the context of the enterprise agreement itself, its emphasis on productivity and efficiencies.

PN51.

Your Honour will hear and no doubt consider a large amount of evidence with respect to the making of the agreement in 2011. And we have merely highlighted, and you will hear more of these circumstances, but we've highlighted in paragraph 25 of our submissions at the bottom, the intended evidence drawn from the statement of Mr Prosser where in instancing the finality of the negotiations on this point in the 2011 negotiations he says:

The CFMEU's site lodge negotiating committee said to the applicant "Look, there is no point talking about it, it's going to be a stalemate issue, why don't we spend more time talking about the issues we can resolve".

PN52.

In other words, your Honour, it will be put, and we say it is clear from the statements and the evidence that you will hear, that it clearly became a difficult issue, the parties said, well, look, we're not going to get anywhere at all. There was no agreement from either party with respect to any changes to the clause. The employer was concerned as to the whole concept of seniority and the inclusion of the concept of seniority in an instrument governing the employment at the mine, and it was put aside. The union were insisting on the clause to remain and the employer said, well, we can't agree, let's move on to something that we can agree to. And that was in the context of there being no apprehension, and you will hear evidence to this effect, no apprehension at the time of potential for the clause ever being used.

PN53.

THE SENIOR DEPUTY PRESIDENT: Why was the company seeking the changes to the clause in those circumstances to identify specifically that, what, you contend it is the interpretation of the clause to identify specifically, in detail, the identification of trades or skills within streams are just ‑ ‑ ‑

PN54.

MR WARREN: Your Honour will see, as part of the ‑ ‑ ‑

PN55.

THE SENIOR DEPUTY PRESIDENT: If that is so it is inexplicable as to why so much time and energy was put into having a significantly reworded clause.

PN56.

MR WARREN: And in an attempt to have something that would - well, indeed, your Honour, if I could just take you to - in response to that. Your Honour, we have witnesses in the room who will be giving evidence, would you prefer - certainly as far as our ‑ ‑ ‑

PN57.

THE SENIOR DEPUTY PRESIDENT: Whilst the openings ‑ ‑ ‑

PN58.

MR WARREN: I'm going to Mr Wagner's evidence in response to what your Honour has said in response to what your Honour is saying. It's a matter for your Honour.

PN59.

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I'm generally not concerned during opening submissions, but if anyone else is concerned?

PN60.

MR WARREN: Well, I merely raise it in case at a later stage there is some suggestion made.

PN61.

THE SENIOR DEPUTY PRESIDENT: I just made the observation when you were saying, well, look, because no one had in mind that there would be any need for retrenchments, redundancies, reduction in hands during the life of the agreement, we really can't read anything into the clause at all. Whatever it meant, it's meant the same thing since, I don't know, 2008, maybe 2004, but we just didn't move on with it. And then it was in that context, given there was no expectation of the need for a reduction in hands, why was the tone and energy being spent by the company to ensure that the sort of interpretation it now contends 21.1 should hold was made express in its redrafting of the clause?

PN62.

MR WARREN: The seniority considerations going back years - and your Honour hasn't got evidence of this, but going back years the seniority at a mine used to have a lot to do with allocation of overtime, movement of shifts, taking of annual leave, et cetera, et cetera, and that has all gone by the wayside. And what we're left with in this agreement is a seniority and it only has - the only reference it has is when one looks at the reduction in hands, the only reference it has. So, historically, seniority used to be an integral part of the way the mine, any mine operated. Now, as we have taken your Honour to appendix 1, there was this concept of we need to be much more flexible and the consideration of working within streams or across streams, provided a person was working within their skill base, broke down the old demarcation levels of persons who drove a particular item of equipment only ever drove that particular item of equipment and didn't do anything else, et cetera.

PN63.

Now, this concept therefore of seniority and streams is then found in the reduction of hands clause. Yes, the company spent considerable time during - it was part of the negotiating process, it wasn't the only part of the negotiating process, it was part of the negotiating process, and it was a firm and clear stumbling block. And the company formed the view that, well, look, we're not going to use this clause, and when you look to the evidence of Mr Wagner and the way the projections were going vertical, or certainly trending significantly upward so far as employment was concerned, it wasn't within consideration.

PN64.

So, look, the company wanted to get rid of this concept, this mental concept of if you're senior you're right. There's a seniority entrenchment and concept within the employment mentality or mindset of the employees and that was central to the way they - or the company was concerned it became an important issue as to the way they approached their work, so the company wanted to get rid of this concept of seniority. And your Honour will see from the statement of Mr Wagner, and I'm referring particularly - your Honour has it there, in fact Mr Wagner - if one looks at page - there's page numbers and they're little numbers down the bottom of the page, your Honour, page 96 I'm taking your Honour to.

PN65.

THE SENIOR DEPUTY PRESIDENT: Page 6?

PN66.

MR WARREN: Page 96. And this was a screen dump from a ‑ ‑ ‑

PN67.

THE SENIOR DEPUTY PRESIDENT: 96, I see, that side. Just a minute, I'm trying to find that.

PN68.

MR WARREN: Sorry, your Honour.

PN69.

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN70.

MR WARREN: Now, this is part of a presentation and the negotiations that was occurring in July last year. And your Honour will see that one of the propositions that was put by the company in this negotiating process was apply seniority per trade, i.e. fitters, boilermakers, auto electricians and electricians. And that was not an acceptance per se that seniority was the gospel, but an acceptance of, well, let's see if we can work something out here and apply seniority on that basis, and that was rejected by the union.

PN71.

One then moves to the negotiations, the next time the parties are negotiating, and this is found behind XW8, yes, at page 97. And your Honour will see and your Honour will be taken in some detail later to - here's the agenda, the company's overall position, the proposed approach to production streams is set out there, the selection criteria comes at page 100, skills, crew balance, qualifications, individual preferences. Then these words which are relied upon, your Honour will see in the evidence of the union, occur at page 101:

Contractors can be considered to train our own people. Consider to offer VRs across the board.

PN72.

This is the proposal from the union for the company's consideration. The union wanted voluntary redundancies across the board. They wanted to redeploy people from the electrical and mechanical streams and the production stream - come down a few dot points. The company responds to that, at page 103 and following, and for the purposes of these negotiations ‑ ‑ ‑

PN73.

THE SENIOR DEPUTY PRESIDENT: Just a minute, Mr Warren.

PN74.

MR WARREN: Sorry, your Honour.

PN75.

THE SENIOR DEPUTY PRESIDENT: I just realised that I don't have page 103.

PN76.

MR WARREN: Don't you?

PN77.

THE SENIOR DEPUTY PRESIDENT: No. Hang on, it just didn't occur to me when I was reading this.

PN78.

MR WARREN: It's headed "company proposed revised approach".

PN79.

THE SENIOR DEPUTY PRESIDENT: So I was with you right up to - well, I have 102, headed "contractors".

PN80.

MR WARREN: 101, 102.

PN81.

THE SENIOR DEPUTY PRESIDENT: And the next document I have is 107, and I only just realised it now that I don't have 103 to 106.

PN82.

MR WARREN: Yes, I'll hand that up. That's indeed ‑ we've got spare ones.

PN83.

THE SENIOR DEPUTY PRESIDENT: We can - you've got it, thank you. Otherwise we can sort out why that has happened.

PN84.

MR WARREN: Indeed that part is somewhat central to the union's case and it's been left out, but not by the employer I would add.

PN85.

THE SENIOR DEPUTY PRESIDENT: Well, I know the union attached documents in its statements.

PN86.

MR WARREN: The company proposed revised approach.

PN87.

THE SENIOR DEPUTY PRESIDENT: And pointed out what no doubt it will say was maybe concessions or at least acknowledgements at that time of what the correct construction is of 21.

PN88.

MR WARREN: Yes. And indeed that's precisely what I'm going to address now, your Honour.

PN89.

THE SENIOR DEPUTY PRESIDENT: But let me just have a quick look at that, sorry. I think I know the argument of the union, I just hadn't seen these - yes, I've seen this before but not at this place.

PN90.

MR WARREN: It would have been attached to the statements I think of various union witnesses.

PN91.

THE SENIOR DEPUTY PRESIDENT: Precisely. I'm now putting it in Mr Wagner's statement.

PN92.

MR WARREN: So, you will see firstly that it is a company proposed revised approach and they said, okay, right, the purposes of trying to sort - and this is back in July I might add, we accept the union interpretation on the employment agreement, not based on trade within each stream. And it says:

As a consequence, no issues arise in terms of the electrical work stream.

PN93.

Now, that is as at that time, that circumstance quite changes in November when there is the need for further reduction of electrical personnel. And then they go on to say:

Accepting that position does not create a challenge within the mechanical stream.

PN94.

And then a proposal is put that voluntary redundancies process for boilermakers, not across the board as the union were demanding, and then once that VR process for boilermakers had been completed, that the company then were proposing to make up the balance of 36 affected employees in the mechanical stream, and then they would utilise boilermakers as the company requires, i.e. the company would be bringing in contractors as boilermakers.

PN95.

Now, that was the company's position, the union came back with a further proposal and we ran on the rocks. Now, that is entirely consistent with the same circumstance, although not with the same practical application that was attempted in July and in November, that was a similar process. And your Honour will see from the statement of Mr Murrie, and I'll be taking your Honour to that or your Honour will hear Mr Murrie later, that the company was consistently saying during the negotiations of 2011, look, our major problem, our fundamental problem is the concept of seniority, we want to get rid of it. So they put up at one stage even a grandfathering of the seniority, a grandfathering to those current employees, and that was rejected by the union.

PN96.

So they said, well, look, we're not getting anywhere, our concern is seniority and that's our fundamental problem, and the union were insisting on seniority as a fundamental issue. The company took the view that, well, look, this isn't going to have an operation, let's move on, get agreement and move on with mining coal. And that, you will see from the statement of Mr Murrie, was the context within which the company was putting forward proposals to try and resolve, and getting knocked back.

PN97.

So, your Honour must see, we say, with respect, that the provision of any amending clause in its wording to 21.1 during the negotiations in 2011, that that was put forward in an attempt to, look, let's resolve the thing and move on against the background of it never being in fact operational or in operation during the life of that agreement. And we say that the reliance by the union on what occurs during negotiations, during negotiations, is not something the Commission can or should rely upon in interpreting the clause unless the Commission takes into account the whole of the concept and the provisions during that negotiation. And the whole of the whole of the provision during those negotiations was not that the company will accept X and you exclude all of the rest of the reasoning, or words behind that X.

PN98.

It is not, with respect to my friend's case, available or appropriate that some words are pulled out of a negotiating process and then used at a later stage to say, well, that is the position of the company, that was a negotiating position, part of the negotiating position and does not properly express what the company's reasoning and attitude was. And because of that, the process of negotiation and the steps in negotiation should not and cannot be used, with respect, we say, to a final interpretation of the document. The context in which that document occurs is far more broad than just stages in negotiating process where step one might be X, step two might be X plus 2, step three might be X plus 4, and then nothing is agreed so the whole lot is thrown out, the baby with the bathwater, and it is what is not agreed is not agreed.

PN99.

That's our fundamental point, with respect, your Honour, in response to any suggestion that a draft clause which is put up during a negotiating process, in some way the company is bound by the words of that clause. That is not, we say, with respect, the way to interpret what ultimately becomes the document. Because nothing changed to that document during the course of those negotiations, or indeed at the end of those negotiations. So, your Honour ‑ ‑ ‑

PN100.

THE SENIOR DEPUTY PRESIDENT: So, the upshot of that, if I accept that, is whatever clause 21.1 meant in 2008, that's what it continued to mean in 2011?

PN101.

MR WARREN: And indeed what the clause meant in 2004 or ‑ ‑ ‑

PN102.

THE SENIOR DEPUTY PRESIDENT: Yes, I was just trying to remember whether it had remained unchanged since 2004.

PN103.

MR WARREN: Once again, your Honour, in the context of Mr Murrie's evidence of saying since this company has been mining coal we've been going in that direction. And the clause is what the clause is, the clause speaks of seniority, we've always been speaking against seniority and we have never been of the belief that during the operation of those various industrial instruments that were made, would that clause be utilised.

PN104.

THE SENIOR DEPUTY PRESIDENT: I don't know how persuaded I am by an argument that - happily we've never had to worry about retrenchments so therefore we never turned our mind to how we would apply that clause in a practical way. I just don't know that it then follows the interpretation for which you contend is the right one rather than it wouldn't follow that the interpretation for which the union contends is right. I don't think that anyone can say that the union's interpretation does not provide significant practical issues for your client, well, Mr Endacott might say it but I'll be interested to hear why he would say that, but I'm not entirely sure that the fact that it gives rise to practical and maybe very significant practical difficulties, is the occasion to reinterpret the clause and write words into it, that's what I'm struggling with, Mr Warren.

PN105.

MR WARREN: I understand that struggle, your Honour. With respect, we do understand that struggle, and hence why we put in our outline of submissions the judicial approach to the interpretation of industrial instruments.

PN106.

THE SENIOR DEPUTY PRESIDENT: There's something in those cases for everyone, Mr Warren.

PN107.

MR WARREN: And we're comforted by that, your Honour.

PN108.

THE SENIOR DEPUTY PRESIDENT: But, really, everybody takes, depending on what they're contending for, one sentence from one or other at the stable, about eight cases get run and rerun, there's something in it for all of us.

PN109.

MR WARREN: We recognise that, your Honour.

PN110.

THE SENIOR DEPUTY PRESIDENT: Which it makes my job hard.

PN111.

MR WARREN: And indeed what that means is, particularly so, isn't it, with industrial instruments if you look at the interpretation, and there is something for everyone. But when one looks at a black letter law if one could say, of a black letter contract, there really isn't something in it for everyone, the law is far more clearly defined when one gets to that, and one goes back to the words of various justices and indeed this Commission when they sort of say, well, you've got to interpret this in terms of in a practical sense, and we say that is available to your Honour.

PN112.

We recognise, as we have done so in our outline of submissions, we recognise that the literal approach can lead to a certain interpretation. But the literal approach could also lead to a different interpretation, what do the words "streams" mean, what are the meanings of those words, what are the surrounding meanings of those words. I've taken your Honour to the meaning or the concept of streams in an operational sense, and then one looks at wording of what do respective streams mean, where does the comma sit, et cetera. And one is left with a situation where you've got a - could be a camel of a clause and it's got to be applied in a practical sense we say, if it's not applied in a practical sense you get an impractical and an impossible result.

PN113.

THE SENIOR DEPUTY PRESIDENT: But that might be the bargain, unwise in retrospect, that was done. One can easily apply the reverse when the union finds itself in a not dissimilar position. And again, it might be the bargain that it did, not thinking for a moment that the factual circumstances that now pertain were going to arise, and it really wishes it hadn't agreed to a particular clause saying this is ‑ ‑ ‑

PN114.

MR WARREN: Your Honour, I was responding ‑ ‑ ‑

PN115.

THE SENIOR DEPUTY PRESIDENT: It's not as if the clause can't apply as contended for by the union, it has practical implications, it has cost considerations, it requires persons to be retained whose skills you do not have the capacity any more to fully utilise. That might be the bargain you did. That might be the bargain you did, and in retrospect it's a most unfortunate bargain. Happily, the agreement's time expired, but in retrospect it's most unfortunate.

PN116.

MR WARREN: If one is to look at - sorry, your Honour.

PN117.

THE SENIOR DEPUTY PRESIDENT: You see, it seems to me that the cases allow for that interpretation; seems. Not that one would come up with it if you were arbitrating from scratch, it would be highly unlikely one would come up with it, but it might be the proper application of the cases to clause 21.1.

PN118.

MR WARREN: And then, your Honour, one has to give consideration to the words of the full bench when they say:

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

PN119.

So when one looks at the surrounding circumstances one says, well, this can't be right. The surrounding circumstance, if your Honour was not permitted to look to the surrounding circumstances to establish whether an ambiguity exists, then that's clearly one thing. But your Honour is clearly permitted to do so, and we say properly so, with respect, to look to the surrounding circumstances. And the surrounding circumstances are that they keep an auto electrician on who can't do high voltage ‑ ‑ ‑

PN120.

THE SENIOR DEPUTY PRESIDENT: Well, that's the surrounding circumstances now.

PN121.

MR WARREN: Yes.

PN122.

THE SENIOR DEPUTY PRESIDENT: That wasn't the surrounding circumstances when the agreement was negotiated and a decision was put in by both parties that we all have a clause in the terms of 21.1.

PN123.

MR WARREN: Well, the surrounding circumstances were still then that the 2006 act and regulations were in place and which required the employer to employ qualified people to do certain tasks, and that requires the employer to employ a qualified electrician to do electrical work and a qualified mechanical tradesperson to do mechanical trades work.

PN124.

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that's another aspect of this argument.

PN125.

MR WARREN: Your Honour has to consider all of these aspects quite clearly. But we understand the force of your Honour's comment but we say when you peel the onion there's far more to it than that, than just you've got the words, apply the words, but ignore the surrounding circumstances that were indeed in place in 2011 and continue in place now. So, your Honour, can I just, on that point of statutory and regulatory concerns, can we hand up, please - your Honour's associate has handed up to you, there are in essence three documents in the one area.

PN126.

Firstly, there's an extract from Part 9 of Division 1 of the Coal Mine Health and Safety Act 2002, and particularly we refer to section 125, that:

The regulations may specify a function as one to which this part applies.

PN127.

And then 126(1):

The operator of a coal operation must not employ a person at the coal operation to perform a specified function unless the person holds a specified evidence of competence to perform that function.

PN128.

That's the use we use of that particular part. We then move through to the next document which is the Coal Mine Health and Safety Regulation 2006, and 19(1)(a) or 19(1):

The electrical engineering management plan for a coal operation must make provision for the following: the installation, commissioning maintenance and repair of electrical plant and installations being undertaken only by a qualified electrical engineer or qualified electrical tradesperson, or people under supervision of a qualified electrical engineer or qualified electrical tradesperson.

PN129.

And then at 19(1)(e):

The overhaul and repair of electrical plant and installations, including the following: the overhaul and repair of explosion protected plant being carried out only by a person licensed to carry out that work.

PN130.

And it deals generally in a number of areas with the persons who are required to repair and the type of repair work or maintenance work that is to be done by electricians. And then furthermore under the regulations, regulation 20, mechanical engineering and management plan, once again, similar situations with respect to that. 20(a)(iv):

The competence of people who may deal with plant and installations during the life cycle of the plant and installations at the coal operation, arrangements for the supervision of people installing, commissioning, maintaining, repairing ‑

PN131.

et cetera -

with appropriate mechanical engineering competence or qualified mechanical tradespersons.

PN132.

And then moving through to regulation 162, functions to which Part 9 of the Act applies. 162(1):

For the purposes of section 125, the functions to which Part 9 of the Act - are the functions specified in the table to this clause.

PN133.

And one moves over to the next page and the table, left‑hand side:

Functions of a qualified electrical tradesperson.

PN134.

Right‑hand column:

Both an electrical trades certificate and a Qualified Supervisor Certificate.

PN135.

THE SENIOR DEPUTY PRESIDENT: Just a minute.

PN136.

MR WARREN: Sorry, your Honour.

PN137.

THE SENIOR DEPUTY PRESIDENT: I have "functions of a qualified electrical".

PN138.

MR WARREN: I'm sorry, your Honour?

PN139.

THE SENIOR DEPUTY PRESIDENT: Where are you, "functions of" in the table?

PN140.

MR WARREN: I'm actually the last two pages of the bundle of documents.

PN141.

THE SENIOR DEPUTY PRESIDENT: Yes, I'm there too. I just lost you in the left‑hand side table.

PN142.

MR WARREN: Sorry. The table runs over two pages, the heading of "specified function" and the heading of "specified evidence of competence". Then one moves over the page to:

Functions of a qualified electrical tradesperson.

PN143.

Under the heading of the "function". And then on the right‑hand column:

Both an electrical trades certificate and a Qualified Supervisor Certificate.

PN144.

Or then there was an arrangement done for people who had been employed so far as the need for the supervisory certificate if they had been employed prior to 2006, which isn't relevant for the purpose of these proceedings. Then the next one down:

Functions of a qualified mechanical tradesperson. A relevant mechanical trade certificate or -

PN145.

And then it details certain things with respect to that 2006 operation. And then underneath that, again:

A person who supervises the loading and detonation of explosives.

PN146.

This is with respect to the position posited via the applicant with respect to shot firers and on the production stream and service personnel:

A person who supervises the loading and detonation of explosives on the surface part of a coal operation. A licence under the Explosives Act 2003 that are authorised to handle that type of explosive.

PN147.

What we say with respect to the legislation, and you will see more of this during the course of these proceedings, is that the Act is specific, the regulations are specific and the applicant's obligations are specific, and that's particularly relevant when one considers the work of plant mechanics versus boilermakers and you will see evidence with respect to that, and the work of automotive electricians versus electricians or high voltage electricians, and you'll see evidence of that.

PN148.

THE SENIOR DEPUTY PRESIDENT: Now, in this context may I raise this issue. The crews that are identified in the employer's witness statements and who is the makeup of the crew as existed previously and was proposed, the crews that existed previously identify the trades or classes of workers, boilermakers and fitters expressly.

PN149.

MR WARREN: Yes.

PN150.

THE SENIOR DEPUTY PRESIDENT: The proposed crews nowhere identify fitters but identify plant mechanics. Throughout the documents there seems to be an interchangeability between fitters and pump mechanics, and then other places not. At some stage someone in the witness box is going to be asked to assist me on that.

PN151.

MR WARREN: We will ensure that occurs. I think the short answer is they are interchangeable but a fitter is not necessarily a plant mechanic.

PN152.

THE SENIOR DEPUTY PRESIDENT: That's what I was - well, the plant mechanics, fitters may be a class of work where the plant mechanics - but it may not be the only class of work or trade.

PN153.

MR WARREN: Exactly.

PN154.

THE SENIOR DEPUTY PRESIDENT: And I will need to sort of understand that.

PN155.

MR WARREN: I think Mr Kelly takes your Honour there, but in the additional pneumatics, et cetera, a plant mechanic has to as opposed to an ordinary fitter, and I don't use the word "ordinary" fitter in any derogatory terms.

PN156.

THE SENIOR DEPUTY PRESIDENT: Now, there was something else I thought you were reading from when taking me to the Part 6, the last of these regulations, the last document where one has the table. And in relation to qualified electrical persons on the right‑hand side, when you took me to the specific certificate or alternatively the period of employment.

PN157.

MR WARREN: Yes, two years.

PN158.

THE SENIOR DEPUTY PRESIDENT: Was there something else that you said then too? It seemed to me you said something else and I couldn't see it on the document.

PN159.

MR WARREN: Sorry, your Honour. No, your Honour, in the 2006 regulations a person who was doing electrical trades work and checking other people's work was then formally obliged to have a qualified supervisory certificate, and that was introduced in 2006. Your Honour will see the difference between the first item opposite:

Functions of a qualified electrical tradesperson.

PN160.

It says:

The supervisor certificate, or employment as an electrical tradesperson at a coal operation for a period of not less than two years prior to the commencement of this clause.

PN161.

In other words, you didn't need to have the supervisory certificate if you were employed before 2006 for a period of two years.

PN162.

THE SENIOR DEPUTY PRESIDENT: Yes. So everything you were saying is in that, yes.

PN163.

MR WARREN: It was a transitional provision, in essence.

PN164.

THE SENIOR DEPUTY PRESIDENT: Am I going to mark these?

PN165.

MR WARREN: Yes, your Honour, if you wouldn't mind.

PN166.

THE SENIOR DEPUTY PRESIDENT: Will I mark them as a bundle?

PN167.

MR WARREN: Please.

PN168.

THE SENIOR DEPUTY PRESIDENT: Mr Endacott, you've got copies of all of these, have you?

PN169.

MR ENDACOTT: Yes, I do, your Honour.

PN170.

THE SENIOR DEPUTY PRESIDENT: Maybe I'll go back to some earlier so I can try and keep this in some sort of order.

PN171.

MR WARREN: In some order.

PN172.

THE SENIOR DEPUTY PRESIDENT: So, what I'll start with is - maybe I'll start with - are you happy for the agreed facts to be marked as one of your documents?

PN173.

MR WARREN: Absolutely, your Honour. Certainly.

PN174.

THE SENIOR DEPUTY PRESIDENT: Now, I'm going to call them Mt Arthur, and that will be 1.

EXHIBIT #MT ARTHUR 1 STATEMENT OF AGREED FACTS

PN175.

MR WARREN: Thank you, your Honour.

PN176.

THE SENIOR DEPUTY PRESIDENT: Your outline of submissions, Mt Arthur 2.

EXHIBIT #MT ARTHUR 2 OUTLINE OF SUBMISSIONS

PN177.

THE SENIOR DEPUTY PRESIDENT: Probably I'll then mark these regulations, this bundle, Mt Arthur 3.

EXHIBIT #MT ARTHUR 3 REGULATIONS

PN178.

MR WARREN: Thank you, your Honour.

PN179.

THE SENIOR DEPUTY PRESIDENT: From time to time my associate will provide each of you with a table of the exhibits marked as we understand it, and I ask you to raise with me promptly if there seems to be any inconsistency with that table and what you've marked or thought you've marked.

PN180.

MR WARREN: Thank you, your Honour. Your Honour, that is our opening. Can I indicate that our first witness will be Mr Wagner, and I don't know whether your Honour wishes to hear from my friend or not, or whether you wish us to go straight to our evidence, we're in your Honour's hands.

PN181.

THE SENIOR DEPUTY PRESIDENT: Just a second. Not unless there's something significantly different that you're going to be putting, Mr Endacott, that is not contained within your outline of submissions?

PN182.

MR ENDACOTT: No, I wasn't going to, your Honour. I thought you might want to - we may just want to check that all the material, all the statements that we've filed you have a copy of.

PN183.

THE SENIOR DEPUTY PRESIDENT: Yes, that's a good idea. Just pause a moment, would you.

PN184.

MR ENDACOTT: Now, the statement of Geoff Drayton.

PN185.

THE SENIOR DEPUTY PRESIDENT: Your submissions, obviously.

PN186.

MR ENDACOTT: Yes, the respondent's outline of submissions.

PN187.

THE SENIOR DEPUTY PRESIDENT: Statement of Drayton, yes.

PN188.

MR ENDACOTT: The statement of Steven Meckham.

PN189.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN190.

MR ENDACOTT: The statement of Andrew Carey.

PN191.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN192.

MR ENDACOTT: The statement of Luke Turner. The statement of Steven Prosser. I've listed the agreed statement of facts here which have already now been marked. And in addition to that, we only referred to the one decision and we provided a copy of that in our outline of submissions, which was the decision of The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited.

PN193.

THE SENIOR DEPUTY PRESIDENT: I have that. Was there any direction or agreement about the filing of listed authorities, I've overlooked it if there had been?

PN194.

MR WARREN: There hadn't been. But we have, similar to my friend, we have a bundle of authorities for your assistance, your Honour.

PN195.

THE SENIOR DEPUTY PRESIDENT: But, look, I'm assuming that they're the ones that each of you have referred to in your outlines?

PN196.

MR WARREN: They are.

PN197.

THE SENIOR DEPUTY PRESIDENT: So I've probably got some working copies of those in my chambers, marked up, I might have to mark up some new clauses in the decisions.

PN198.

MR ENDACOTT: That's all our material that we file in the proceedings.

PN199.

THE SENIOR DEPUTY PRESIDENT: Shall I mark it later? Well, I suppose it's only your submissions I should mark now, shall I do that?

PN200.

MR ENDACOTT: Yes.

PN201.

THE SENIOR DEPUTY PRESIDENT: Maybe that's a start. CFMEU 1 will be your submissions.

EXHIBIT #CFMEU 1 OUTLINE OF SUBMISSIONS

PN202.

MR ENDACOTT: Thank you, your Honour.

PN203.

THE SENIOR DEPUTY PRESIDENT: I'm going to take a five minute break. Now, what I was trying to develop yesterday and wasn't able to do so was whether I had got to a position that I was wondering how much of certain parts of the evidence was going to assist me, and that really goes more to the issue to how much cross‑examination on certain parts. So, all of the evidence‑in‑chief, subject to any objections at an appropriate time of course is before me, but I then started to wonder about cross‑examination, about some aspects, and I didn't get very far.

PN204.

But I'm going to rely on your to see if you can reach some agreement in relation to using the time as efficiently as you can on cross‑examination and maybe we might view some aspects as to whether they're going to be of greater or lesser weight might develop through the day or tomorrow. I'm just a bit - well, whatever happens I want all the evidence this week, obviously I'd like to finish the case, but I'd like all the evidence in this week. May I just go off transcript for a short time.

OFF THE RECORD [11.10 AM]

ON THE RECORD [11.24 AM]

PN205.

MR WARREN: Thank you, your Honour. We call Xavier Wagner.

PN206.

THE ASSOCIATE: Could you please state your full name and address for the record.

PN207.

MR WAGNER: Xavier Wagner, Thomas Mitchell Drive, Muswellbrook, New South Wales.

<XAVIER WAGNER, AFFIRMED [11.24 AM]

<EXAMINATION-IN-CHIEF BY MR WARREN [11.25 AM]

PN208.

MR WARREN: You are Mr Xavier Wagner?---That's correct.

PN209.

Your work address is Thomas Mitchell Drive, Muswellbrook?---Correct.

PN210.

Mr Wagner, by whom are you employed and in what capacity?---I'm employed by BHP Billiton in the capacity of general manager operations at Mt Arthur Coal.

PN211.

Have you made a statement for the purposes of these proceedings?---I have.

PN212.

Do you have it with you in the witness box?---I do.

PN213.

Is it a statement of some 43 paragraphs and 10 attachments that you signed and dated 15 December 2014?---It is.

PN214.

Mr Wagner, is it your evidence that the statement is true and correct to the best of your knowledge and belief?---It is.

PN215.

I tender the statement of Xavier Wagner.

PN216.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN217.

MR WARREN: I think we're up to 4.

PN218.

THE SENIOR DEPUTY PRESIDENT: I have been marking the documents, but not keeping a running - you think this is 4, do you?

PN219.

MR WARREN: Yes.

PN220.

THE SENIOR DEPUTY PRESIDENT: Mt Arthur 4.

EXHIBIT #MT ARTHUR 4 STATEMENT OF XAVIER WAGNER DATED 15/12/2014 PLUS ATTACHMENTS

PN221.

MR WARREN: That's the evidence of Mr Wagner.

**** XAVIER WAGNER XN MR WARREN

<CROSS-EXAMINATION BY MR ENDACOTT [11.26 AM]

PN222.

MR ENDACOTT: Mr Wagner, my name is Mr Endacott. I work for the CFMEU. I know we've met many times. I'll be asking you some questions in cross‑examination. At paragraph 1 of your statement, you indicate that you commenced employed in August 2013?---That's correct.

PN223.

Did you have any involvement with the operation prior to that time?---No.

PN224.

Dealing with the issue of the boilermakers, you indicate in your statement that there was a desire to retrench 14 boilermakers and there were at least two consultation meetings that occurred on 8 July 2014 and 14 July 2014. Do you recall that and did you attend both of those?---I did.

PN225.

You're aware that the operation of the interpretation of clause 21 was an issue raised in those consultation meetings by the CFMEU?---Can you just repeat the question?

PN226.

Yes. An issue concerning the operation and interpretation of clause 21, which is the Reduction in Hands clause, was discussed at those meetings?---Yes, it was.

PN227.

If I can take you to your presentation at the 8 July meeting, which is XW7, Mr Wagner.

PN228.

THE SENIOR DEPUTY PRESIDENT: If you can give me the number at the bottom - - -

PN229.

MR ENDACOTT: Page 76.

PN230.

THE SENIOR DEPUTY PRESIDENT: That would be useful, thanks.

PN231.

MR ENDACOTT: You indicate in that presentation - and it's at slide 17, which is at 92 - that you wish to get rid of 14 boilermakers amongst the 51 employees to be got rid of?---That's correct.

PN232.

With respect to the 22 fitters which you also indicated you wished to get rid of, you agree, do you not, that the fitters and boilermakers all fall within the mechanical stream?---Yes.

PN233.

Of those fitters, are you aware of what trade qualification those fitters may have?
---Specifically the 22 or in general?

PN234.

Yes?---Sorry, what - - -

**** XAVIER WAGNER XXN MR ENDACOTT

PN235.

Just generally the fitters that you describe at 22, what trade qualifications they would have?---Yes, they have different sets of competencies. It's not one competency.

PN236.

Could you indicate what are the trades those 22 have?---There would be several. I couldn't say offhand for each of the 22 affected, but certainly they have different qualifications. Generally, a mechanical trade certificate.

PN237.

Some of them would be, for example, fitters and turners?---Yes.

PN238.

Light vehicle auto mechanics?---That's right.

PN239.

You agree that at this meeting the CFMEU raised that under the operation of clause 21 of the 2011 enterprise agreement, you select employees in seniority, not drawing a distinction between boilermakers and fitters?---Yes, that was the union's assertion, that we shouldn't make the distinction.

PN240.

The company, at the conclusion of that meeting, informed the CFMEU and the representatives that they would have a look at the interpretation of clause 21 and would come back with a view about how that clause would operate?---Yes. All the feedback that we gave was that we would consider it and that we would provide it at the next meeting.

PN241.

In addition to the presentations in the form of XW7, you also reported to each company of the employees what happened in those consultations?---Yes. In general, that was the case.

PN242.

That happened by a system called broadcast alerts?---Yes, amongst others.

PN243.

I might just show you AC1. This is Annexure 1 to the statement of Mr Andrew Carey. You'll see there it's a broadcast alert and it says, "8 July 1014"?---Yes, I see it.

PN244.

These documents are prepared by the company?---In this case I think there was agreement, but, yes, they are prepared by the company.

PN245.

Yes. It was a joint effort, yes. You'll see there that the agreed reporting to the employees was the CFMEU proposed - if you go down to the fifth paragraph, it says:

The CFMEU also proposed seniority based upon the employees' current work stream, e.g. mechanical trades and electrical trades.

**** XAVIER WAGNER XXN MR ENDACOTT

PN246.

?---Yes.

PN247.

That was the alert to all employees that reflected the discussions that had occurred at the 8 July meeting consultation about the company coming back with how clause 21 of the 2011 agreement operated. You agree with that?---Sorry, just repeat that.

PN248.

I'll take you back. The notation of the broadcast alert I read to you -

The CFMEU also proposed seniority based upon the employees' current work streams, e.g. mechanical trades and electrical trades -

PN249.

that was the area of the alert where the employees were informed that the company was going to go and have a look at how clause 21 of the enterprise agreement operated?---If you look further up in the same alert, you'll see it says:

In terms of the affected trade roles, Mt Arthur Coal propose that seniority be applied per trade -

PN250.

and then we reflected lower down what the CFMEU's position on the same issue was, so certainly I think if employees read that, they may have been alerted to the fact that there was a difference in how that was going to be interpreted.

PN251.

Yes, and at the consultation meeting that occurred on 8 July 2014, the company indicated they were going to go off and look at clause 21 to form a view about how that would correctly operate?---Yes.

PN252.

You said yes to that, did you?---Yes.

PN253.

Thank you. On 14 July, there was a further consultation meeting. If I take you to XV8, which is at page 97 of your statement - you've got that?---Yes, I have.

PN254.

Who prepared this document?---This would have been our management team.

PN255.

This was an overhead presentation given?---That's right.

PN256.

Between 8 July and 14 July, your management team went off and had a look at clause 21. Is that correct?---Yes, we did.

PN257.

Do you know who was assigned with doing that on behalf of the company?
---There would have been a number of people. Certainly I think Mark Stroppiana and Deidre Roos-Korf would have given us advice.

**** XAVIER WAGNER XXN MR ENDACOTT

PN258.

Mr Stroppiana is the human resources manager?---That's right.

PN259.

I believe the company employs legally qualified human resource personnel -does it?---I wouldn't know that as a rule per se, but certainly I suspect that Mr Stroppiana is legally qualified.

PN260.

Mr Stroppiana looked at that, or other members of the team, and they came back to you with their view?---They have.

PN261.

Then the team prepared this presentation?---As an extension of the view or as a proposed - this presentation represents a proposal to the union as a step in mitigating the impacts on redundancies, so it achieved a different end. Our view of 21 isn't necessarily reflected in that.

PN262.

You will agree on 8 July, the company said, "Look, we're going to go off and have a look at how that clause should be interpreted?" You agree with that?---What we did was we said that - we acknowledged we had a view that was different to the CFMEU.

PN263.

On 8 July, and you were going to have a look at it?---Because we had a difference of opinion, it presented a problem, which we said we would apply our mind to seeing how we could resolve or reconcile this difference in opinion, so this presentation would have been something that we may have come back with and said we can live with this or we can live with that, whatever it is. It doesn't necessarily reflect the position that we held with respect to the clause. It is in an attempt to reconcile what was an apparent difference of opinion of that interpretation.

PN264.

When you responded, I put to you, you responded to the effect, "We accept your interpretation of clause 21 in the EA mechanical, electrical and production work streams, not based on trades within each stream"?---Sorry, where are you - - -

PN265.

Page 103. I apologise?---If you can repeat the question at 103, please.

PN266.

I'll just take you back slightly. On 14 July, you came back with your position?
---We came back with a proposal which attempted to reconcile the difference in interpretation.

**** XAVIER WAGNER XXN MR ENDACOTT

PN267.

But it doesn't say "proposal" here, does it? If I take you to page 103, you're responding to the position. It says, "We accept the union's interpretation of clause 21 in the EA"?---Sorry, but if you read the heading of that slide immediately prior to the sentence you've read out, it does say that this is a company proposed revised approach. In the meeting, it was clearly put forward as an attempt to reconcile the difference between the two interpretations. Amongst other things, there were other considerations the union gave us. For example, voluntary redundancies and so on. This in totality represents a proposal which attempts to reconcile our differences.

PN268.

So what you say is the correct interpretation of clause 21 depends upon other factors?---No. 21 has - a back end of 21. I don't have it immediately in front of me now, but 21 certainly facilitates the parties coming to an agreement different to anything that may be expressed in the clause. So the purpose of this proposal in totality was in an attempt to come to an agreement which would facilitate, you know, mitigation in terms of the - - -

PN269.

I put to you the true circumstances of what occurred was that the employees' reps raised their view of the interpretation of clause 21 of the agreement. The company went and got it checked by its management team, came back and on 14 July indicated that they accepted the union's interpretation as the correct interpretation?---No, I reject that, because - I mean, I presented this, so it's quite clear to me what I was doing at the time.

PN270.

Do you recall if there was a further broadcast alert put out about what occurred at the meeting on 14 July?---I believe there would have been, yes.

PN271.

Do you check those broadcast alerts before they go out?---Not always, no.

PN272.

Do you still have before you the statement of Mr Andrew Carey?---I do.

PN273.

I take you to AC2?---Yes.

PN274.

You see that?---I have it, yes.

PN275.

You'll note that this broadcast alert does not have Mr Drayton's name appearing at the bottom of it?---Yes.

PN276.

Does that mean this wasn't an agreed alert?---In this instance, the meeting didn't end amicably and the meeting - they had left before we had been able to
conclude - - -

PN277.

So it wasn't an agreed alert. The company prepared this themselves?---No, we presented what was our view of what had happened at the meeting.

PN278.

This broadcast alert is distributed to all employees, is it not?---Yes, that's correct.

**** XAVIER WAGNER XXN MR ENDACOTT

PN279.

This broadcast alert would have been distributed to all the fitters and all the boilermakers, and this was informing them specifically about what had happened in the consultation. In that broadcast alert, the company informed the boilermakers and all the fitters, and every employee, what their position now was about the interpretation of the redundancy clause in the enterprise agreement?
---What the broadcast alert reflects is the proposal and I think it concludes the first, second - third section with the sentence, "The company is awaiting the CFMEU's response to this proposal."

PN280.

But you'll see there, if I just take you to the second heading that says "Mechanical and electrical stream employees", it says:

Mt Arthur has changed its original position and accepted the CFMEU interpretation of the redundancy clause in the enterprise agreement, which requires that redundancies will be based on length of service seniority per stream, i.e. mechanical, electrical and production.

PN281.

?---Yes.

PN282.

That's not coined as a proposal to the employees, is it?---Well, if you read the whole brief in full, it does state clearly that it's a proposal and it says, "The company is awaiting the CFMEU's response to this proposal." That quite expressly states a proposal.

PN283.

So the company never changed its position. You're saying all it did was it proposed to change the position?---Well, what it did was it accepted a different interpretation of 21 to which it held, for the purposes of achieving an agreement - a negotiated outcome - which 21 allows for us to negotiate a different outcome.

PN284.

I put to you that email - which is the broadcast alert of the company's - is reflective of the company having gone and looked at the clause and informing the employees that it had changed its interpretation, and that it agreed that that clause provided for length of service based on seniority. I put to you that wasn't a proposal you were informing employees of that. That's the company's now position?---No, I don't agree with that.

PN285.

Isn't it the case that the company only changed its position when the consultation negotiations weren't going well?---No, I think immediately after ending this meeting it wasn't going well already and certainly we stuck to this being our proposal, and in fact made it quite clear that we were still waiting to hear back from the CFMEU on this proposal.

PN286.

If I might just show the witness the statement of Mr Drayton - and I ask you to go to JMD4. Your Honour, that is the enterprise agreement 2011.

**** XAVIER WAGNER XXN MR ENDACOTT

PN287.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN288.

MR ENDACOTT: You'll see that's the 2011 enterprise agreement and you'll see that the nominal term has expired, on 28 April 2014?---Sorry, where is - - -

PN289.

It's the very last line. Point 4 of the - - -?---Yes, I see.

PN290.

The company is in the process of negotiating a new enterprise agreement and the company wishes to substantially amend the Reduction in Hands clause in the new enterprise agreement?---We are attempting to negotiate a different outcome, yes.

PN291.

That's because you're unhappy with the form of the clause?---That's correct.

PN292.

If I take you to clause 21.1, you agree this is the current clause in operation?
---Yes.

PN293.

You'll see there it indicates, "When a reduction of hands is decided upon by the company" - you see that? It's not in dispute here that there's a reduction of hands that is being decided upon it. It says "it shall be regulated by the principle 'the last to come the first to go' in the respective production stream" - and obviously "the last to come the first to go", you'll agree, means that the last person to be employed will be the first person to go. It says there "in the respective production stream, mechanical and engineering streams."

PN294.

MR WARREN: No, it says "electrical".

PN295.

MR ENDACOTT: Sorry - "mechanical and electrical engineering streams according to length of service." You see that?---Yes, I see that.

PN296.

You are aware, are you not, that there is a seniority list posted around the mine site?---No.

PN297.

You've never seen a list of all the employees?---No. I rely on a list kept by Mr Stroppiana.

PN298.

So you've never seen a list posted?---No.

PN299.

Do you go to the bath house?---No.

PN300.

You don't? Do you ever look at the noticeboards in the different areas?---In the different areas, I do.

**** XAVIER WAGNER XXN MR ENDACOTT

PN301.

You haven't seen the list?---I didn't - - -

PN302.

Have you seen any photographs that have been produced showing the noticeboards?---No, I haven't seen photographs.

PN303.

I might show you. Have you seen that posted around the mine site?---No, I haven't seen this around the mine site. I believe this is the bath house.

PN304.

Yes. You say it's not posted at the bath house?---No, I didn't say that at all. I said I haven't - I don't use the bath house, so I don't see this noticeboard.

PN305.

So you don't dispute the evidence that there has been a seniority list posted up at the mine for many, many years?---There may well have been. I notice that the sign is entitled UMFA Noticeboard, so I'm not sure what this noticeboard - who it serves and for what purpose.

PN306.

Do you dispute the evidence that has been filed saying there is a seniority list posted around the mine site in many locations?---I haven't seen that evidence, but I don't dispute that this is a picture representing what appears to be a list. Certainly in my walkabouts on the mine site, I haven't seen seniority lists on those noticeboards.

PN307.

If I take you to JMD5 and if you just turn over to the second page - - -

PN308.

THE SENIOR DEPUTY PRESIDENT: Where am I going to find that?

PN309.

MR ENDACOTT: It's the statement of Mr Drayton.

PN310.

THE SENIOR DEPUTY PRESIDENT: Yes. I'm trying to find JMD5. What is the annexure?

PN311.

MR ENDACOTT: JMD5.

PN312.

THE SENIOR DEPUTY PRESIDENT: Yes, but what is it? Describe it.

PN313.

MR ENDACOTT: It's a picture of a noticeboard and it's the second - - -

PN314.

THE SENIOR DEPUTY PRESIDENT: I'm still trying to find that. Is it the one that we raised the question that it might be illegible?

**** XAVIER WAGNER XXN MR ENDACOTT

PN315.

MR ENDACOTT: It may be, your Honour. There were two of them and there was one through glass and then posted on a brick wall. It's that one there.

PN316.

THE SENIOR DEPUTY PRESIDENT: Yes, well, I can't even find JMD5 at the moment. Maybe I just need to put flags on the exhibits.

PN317.

MR ENDACOTT: Yes.

PN318.

THE SENIOR DEPUTY PRESIDENT: I remember that in two places there were documents here said to be seniority lists which were not legible and I think we raised that.

PN319.

MR ENDACOTT: Yes. I do have some pictures here, but not of the ones that exist - - -

PN320.

THE SENIOR DEPUTY PRESIDENT: In any event, I have JMD5. Thank you.

PN321.

MR ENDACOTT: Do you recall seeing that posted on a wall at the mine site?
---No, I don't. Either of these.

PN322.

You don't dispute the evidence that that is posted at the mine site?---I have no way to qualify that and, since I haven't seen them, I am not in a position to confirm.

PN323.

Yes. I'll move on from that. If we return to JMD4 now and if I could take you to Annexure 1, which can be found on the enterprise agreement starting at page 32. I apologise for that, you'll need to turn it upside down. I spoke to my assistant, who said that's how the photocopy came out, unfortunately, when we do two pages a page. If we go to this document, you'll see there is a table that says, "Core and ancillary skills"?---I see it.

PN324.

It says, "Example of relevant skills applying at commencement of agreement"?
---Yes.

PN325.

You'll see there that that table is divided up into production and engineering?---I see that.

PN326.

You'll see there that engineering is divided into two further streams?---Yes.

PN327.

You'll see one is mechanical and one is electrical. You agree, do you not, that all the boilermakers - if you looked at this table - would fall under engineering mechanical?---That's not apparent to me, no.

**** XAVIER WAGNER XXN MR ENDACOTT

PN328.

It's not apparent to you?---No.

PN329.

Where do you say the boilermakers fall?---Well, I don't know what the purpose of this table is. This table presents an example of relevant skills. It doesn't necessarily represent an allocation of trade certificates into any of these categories listed on top.

PN330.

So you can't say whether boilermakers fall under "mechanical" or not?---Not from this table, no.

PN331.

Where do you say boilermakers fall under? Could you identify where boilermakers fall under this?---Well, I don't necessarily see that they should fit into any one of these columns or exclusively only one of those columns. Is that the question, that they should be inserted into only one of these columns?

PN332.

I'm just asking you to identify where they would fall under these core and ancillary skills?---Yes, they may fall in more than one place.

PN333.

Could you identify that?---Certainly they do work in mechanical things, as well, but certainly they do some other work, as well, depending on the specific competencies that they have. This table, I don't believe, is designed to slot people into streams. It's certainly not what it says over here in the wording in Appendix 1 and it does present itself as an example of relevant skills.

PN334.

In the way that you say clause 21 of the agreement should be interpreted, you shouldn't look at putting boilermakers in any one of these categories?---That's not what I'm saying, no. When I read 21, the question that I had was where are these production streams - mechanical, electrical and engineering streams - defined? What do they refer to?

PN335.

Yes?---They don't refer to anything in the agreement. Insofar as 21 asserts that there are mechanical, electrical and engineering streams - in 21 - then why doesn't it also assert that there are mining, CHPP and service streams in production? The two don't necessarily relate to each other, although they could be - they use similar words, but, for what purpose, I couldn't say.

PN336.

So if I've got this, your position is when it uses the words "production, mechanical, engineering and electrical engineering", that it's not referring to these streams here?---It may do, but when you say "it", what is "it" that you're referring to? 21?

PN337.

What is the stream? When it refers to the words "respective mechanical engineering stream - - -"?---Of 21?

**** XAVIER WAGNER XXN MR ENDACOTT

PN338.

- - - are you saying it refers to that stream or not?---No, I don't think there's anything in 21 that directs me to Appendix 1 and I don't think there's anything in Appendix 1 that directs me to 21. I think they serve different purposes and that was my contention with 21, is that it's not clear what these streams are.

PN339.

Electrical?---Yes.

PN340.

For the auto electricians and - for the electricians you wish to get rid of, where would you say they'd fall in this stream?---If I can just go back to the appendix, if you don't mind. The electricians again can sit in more than one stream in this table. I'll make the example of, for example, high voltage systems in the CHPP. Certainly in the electrical work stream there are also high voltage switching systems, so for all intents and purposes an electrician could be in the CHPP or in the electrical column in this table. Whether they are assigned to an electrical amorphous stream is anyone's guess, but certainly here in this table it doesn't support the argument that they belong in exclusively one column. That's my reading of it.

PN341.

So when the clause says "in the respective electrical engineering stream", again you don't say that's referring to that stream there?---Well, there's no word "stream" in Appendix 1 and certainly, in 21, the word "stream" is not a defined term in this agreement, so you could make up where you think it belongs. I mean, certainly "engineering streams" is plural. Perhaps it's plural because it's mechanical and electrical. I don't know.

PN342.

Thank you. Are you aware when the reference - when the words - - -?---Sorry, where are you going to now?

PN343.

When the words "respective production stream, mechanical and engineering stream" - those words that appear in 29 - first appeared in the agreement?---Sorry, in - - -

PN344.

In 21 - first appeared in the agreement?---Do I know when they - - -

PN345.

Yes?---No.

PN346.

If I could take you to JMD2. Do you have that annexure?---I do.

PN347.

If I could take you to page 38 of that. It's clause 22?---I have it.

PN348.

You see that?---Yes.

**** XAVIER WAGNER XXN MR ENDACOTT

PN349.

You see the Reduction in Hands clause?---I see it.

PN350.

You'll see it uses the same terminology "in the respective production, mechanical and engineering stream"?---I see that. Let me qualify that. It appears similar. I haven't obviously compared exactly.

PN351.

I beg your pardon?---It appears consistent. I mean, I haven't checked it verbatim.

PN352.

Yes. You'll agree those words are used there?---Yes.

PN353.

"In the respective production, mechanical and engineering stream"?---Yes.

PN354.

You see that?---I do.

PN355.

I now take you to page 48. You see that says, "Appendix 2"?---Yes.

PN356.

Which is the work model?---Mm-hm.

PN357.

If you go to Appendix 2, you'll see:

Aim. The aim of the work model is to improve efficiency, flexibility, cost‑effectiveness and to establish a simplified and consistent structure and, in doing so, provide a more rewarding work environment for all our employees.

PN358.

You see that?---Yes.

PN359.

If you go to Introduction, it says:

The work model is designed to provide site management with the appropriate mix of skills and flexibilities necessary to efficiently run the operation.

PN360.

You see that?---Yes.

PN361.

You'll see:

The work model is based on six levels of pay and production, and engineering employees are required to hold a minimum number of core skills at each level.

PN362.

You'll see there:

The parties acknowledge that staff employees of the company do not perform production and engineering work as defined in the work model.

**** XAVIER WAGNER XXN MR ENDACOTT

PN363.

You'll see here, if you go to the start, it says:

This model is shown in A1 and A2, and consistent of two streams.

PN364.

You'll see those two streams of production and engineering. You see that?---Yes.

PN365.

Also:

The production stream is further divided into mining, coal handling and preparation, CHPP, and services.

PN366.

?---Yes.

PN367.

Also:

The engineering sub-stream is divided into mechanical and electrical.

PN368.

You see that. If you now move on through that annexure to the last page of that appendix. It's still Appendix 2. That's found at page 55 of the agreement. You'll see there it has got the work model "Core and ancillary skills". You see that?
---Yes.

PN369.

You'll see it has got "Production" at the top and "Engineering"?---Yes.

PN370.

I put to you that the reference to production and engineering that appears in clause 21, and respectively in clause 22 in this agreement - it's quite clear that when it's referring to production it's referring to this model, isn't it?---No. The tables are different, insofar as the headings are also different. Certainly without going through each and every one of these line items, yes, I can see that they are a collection of skills under the each of these headings in the table.

PN371.

And you'll see when it says "Engineering", it's referring to mechanical and structural engineering. You see that?---No.

PN372.

Engineering is the stream - - -?---Yes.

PN373.

- - - and the sub-streams are mechanical and electrical?---Mechanical and electrical.

PN374.

I put to you again the reason for that is when the agreement makes reference to mechanical engineering streams and production and engineering streams, it's referring to people that worked within those streams within the work model.

**** XAVIER WAGNER XXN MR ENDACOTT

PN375.

MR WARREN: Your Honour, I object to this. This witness can only give evidence as to what he knows. This witness is being taken now to an agreement which is the 2008 agreement, for agreement. It's clear from his own evidence, he wasn't there. It's for your Honour to be aware or indeed to form an opinion as to what all these words mean. This witness can given evidence of facts known to him and all he can really do is say, "Well, that's what the words say." It appears to us as though he's being asked for an interpretation of the clause. That's what your Honour is, fortunately or unfortunately, tasked with. We object to this.

PN376.

We've let it go on the basis that the witness was being asked about the 2011 agreement and the application of that, and the way he applied it during his negotiations and it will be what it will be, but now going to the 2004 agreement and asking the witness to in some way interpret this document, is not for this witness to do, with respect.

PN377.

THE SENIOR DEPUTY PRESIDENT: I suspect this particular line in relation to 2004, maybe even 2008, has gone as far as it properly can, Mr Endacott.

PN378.

MR ENDACOTT: Yes. Thank you.

PN379.

You've set out in your evidence the inconvenience and difficulty the interpretation the CFMEU presses would cause the company should the company have to apply seniority in the way we propose?---Yes.

PN380.

For that, you've set out the difficulties?---Yes.

PN381.

You are aware that the 2011 enterprise agreement was an agreed document?
---Yes.

PN382.

It's the position of the company that parties should be required to honour things they agree to?---Yes.

PN383.

They should honour those agreements even if it's inconvenient to them?---Yes.

PN384.

I think it's fair to say from your position that you would not have agreed to the Reduction in Hands clause that appears in the 2011 agreement if you were managing an organisation?---That's correct.

PN385.

Unless you were forced to, of course, via negotiations?---Yes.

**** XAVIER WAGNER XXN MR ENDACOTT

PN386.

Are you aware of the existence of any documentation that the company has of notes or records produced contemporaneously with the negotiation of the 2004 agreement or the 2011 agreement that sets out your interpretation of the - clause 21 is the correct interpretation?---No, I wasn't around at the time. I'd imagine there would be notes and there may be notes in the company's possession. Certainly not in mine.

PN387.

Are you aware of any?---I assume that they exist somewhere. I'm not aware of them explicitly, no.

PN388.

I have no further questions.

<RE-EXAMINATION BY MR WARREN [12.14 PM]

PN389.

MR WARREN: Just a small point. You'll recall, Mr Wagner, that you were taken to clause 21.1 of the 2011 agreement. You were asked questions as to your negotiations that took place during July and, in particular, the negotiations that took place on 14 July. Do you recall that?---Yes.

PN390.

Indeed, you were taken to your own statement, page 103, which is headed "Company proposed advised approach redundancy selection process". Do you recall that?---I do see that, yes.

PN391.

Do you have clause 21.1 with you in the witness box?---I do. It's in Mr Drayton's statement.

PN392.

I think, in that case, it's behind tab 4 of Mr Drayton's statement?---Thank you. Where do you need me to go?

PN393.

Pardon?---Where do you want me to go in the agreement?

PN394.

Clause 21, please, the heading Reduction in Hands. You spoke of, when you were asked questions from my friend, the capacity to reach an agreement other than in terms of clause 21.1. What were you relying upon in that?---The second half of clause 21.1 states:

Provided that if an agreement is arrived at between the company and the appropriate employee representatives, such agreement will be binding notwithstanding that it may be inconsistent with the foregoing provisions of this section.

PN395.

Is it your evidence that you were relying upon that when you were putting the slide which appears at page 103?---That is correct.

PN396.

Thank you. That is the evidence.

**** XAVIER WAGNER RXN MR WARREN

PN397.

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wagner. You're free now to leave the witness box and remain within the body of the court or leave the courtroom, as you wish.

<THE WITNESS WITHDREW [12.17 PM]

PN398.

MR WARREN: Your Honour, I call Mr Murray. I think Mr Ralph has just gone to locate him. We are having difficulty locating Mr Murray at the moment. We might just change our order and call Mr Wood.

PN399.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN400.

MR WARREN: Sorry about that.

PN401.

THE ASSOCIATE: Could you please state your name and address for the record.

PN402.

MR WOOD: Russell Wood. Thomas Mitchell Drive, Muswellbrook.

<RUSSELL WOOD, SWORN [12.19 PM]

<EXAMINATION-IN-CHIEF BY MR WARREN [12.19 PM]

PN403.

MR WARREN: Mr Wood, your full name is Russell Wood?---Yes.

PN404.

Your work address is Thomas Mitchell Drive, Muswellbrook?---Yes.

PN405.

You're currently employed by Mt Arthur Coal Pty Ltd?---Yes.

PN406.

In the capacity of?---Qualified electrical engineer.

PN407.

I think in your statement you say senior electrical engineer. What is the exact position you're in at the moment?---It's, yes, senior electrical engineering, but the statutory title is qualified electrical engineer, yes.

PN408.

For the purpose of the statute?---Yes, sorry.

PN409.

Don't apologise, please. Have you prepared for the purpose of these proceedings a statement?---Yes.

PN410.

Is it a statement of some 24 paragraphs that you signed on 15 December 2014? I believe it has three attachments?---Yes.

**** RUSSELL WOOD XN MR WARREN

PN411.

Do you have that with you in the witness box?---Yes, I do.

PN412.

To the best of your knowledge and belief, is the evidence given in your statement true and correct?---Yes, it is.

PN413.

I tender that statement.

PN414.

THE SENIOR DEPUTY PRESIDENT: Yes, the statement of Russell Wood will become Mt Arthur 5.

EXHIBIT #MT ARTHUR 5 STATEMENT OF RUSSELL WOOD SIGNED 15/12/2014

PN415.

MR WARREN: That is the evidence of Mr Wood in-chief.

<CROSS-EXAMINATION BY MR ENDACOTT [12.21 PM]

PN416.

MR ENDACOTT: Thank you, Mr Wood. My name is Mr Endacott. I'm an employee of the CFMEU and am appearing for the union. I'll be asking you some questions in cross‑examination. You say at paragraph 1 of your statement that you've held the position since January 2011?---Yes.

PN417.

You describe the position as a senior electrical engineer, which you've now said the statutory position is a qualified - - -?---A qualified electrical engineer as per the coal mine - - -

PN418.

Just if I can get your exact role right, that's what would have formerly been called the electrical engineering charge?---It is, yes.

PN419.

When did you commence working at the mine?---I commenced - I did my apprenticeship at the old Bayswater. I went away for four or five years. I returned in 1995 and I've been there as an electrician, and then I progressed my way through.

PN420.

So in 1995 as an electrician?---Yes.

PN421.

That's 20 years, is it?---Yes.

PN422.

Thank you. My mathematics is not the best. When you were at the mine, there was a seniority list posted on the board?---Yes.

**** RUSSELL WOOD XXN MR ENDACOTT

PN423.

That seniority list was divided up into production, electrical and fitters, mechanical?---Mechanical, yes.

PN424.

That's still there?---I believe so, yes.

PN425.

You're aware that that list is displayed at more than one location?---Look, I'm familiar where it is actually located now.

PN426.

Okay, fair enough?---Yes.

PN427.

But when you were an electrician, everyone pretty well knew where they sat on the seniority list?---Yes, it was displayed in the bath house.

PN428.

When I say where they sat on the seniority list, I mean sat on the list in their respective category. What were those categories again?---As you mentioned, production, electrical, mechanical, yes.

PN429.

You're aware there is a dispute about the operation of the seniority clause as it applies to electrical stream employees?---I was made aware of it, yes.

PN430.

Are you aware how many electrical stream employees the company wishes to retrench?---I haven't officially been told. I have no influence or no involvement in that business decision.

PN431.

The agreed statement of facts says that the position of nine high volt electricians, six auto electricians and four service persons are subject to the dispute?---Yes.

PN432.

So I'd concentrate on high volt electricians, auto electricians?---Yes.

PN433.

Can you just briefly describe the difference between a high voltage electrician and an auto electrician?---Okay. An auto electrician works on extra low voltage circuits, so automotive-type arrangements; 12-volt DC, 24-volt DC. That's all they're limited to. A high voltage electrician can work from auto, right through to low voltage through to high voltage.

PN434.

If I have this right, a high voltage electrician can do all the work of an auto electrician, but not vice versa?---That's right.

PN435.

How much auto electric work is there?---There is a fair amount, yes.

PN436.

So you do require, don't you, high voltage electricians to do a lot of auto electrician work?---We do, yes.

**** RUSSELL WOOD XXN MR ENDACOTT

PN437.

If I take you to paragraph 22 of your statement, you'll see the heading there that says "No overlap between auto electricians and electricians". It's correct, isn't it, that there's a lot of overlap between auto electricians and electricians?---One direction, yes.

PN438.

Yes, okay?---Yes.

PN439.

In fact the overlap is the high voltage electricians having to do the auto electrician work?---Yes. They can do that, yes.

PN440.

They do a lot of that work, don't they?---They do - yes. They do some of that work, yes.

PN441.

That's because there is lots of auto electrician work to do and not much high voltage work to do in comparison?---No. It's on an as needs, required - there's a fair amount of high voltage or low voltage work to be done, as well, yes, so - - -

PN442.

When you were working as an electrician at the mine before you went to staff, how were your terms and conditions regulated - of employment?---Through the enterprise agreement.

PN443.

Do you recall what agreement was in place on the last occasion?---It would be the - I think the - is it the 2007, 2000 and - yes.

PN444.

There's a 2004 and 2008?---It would be 2008 then, yes.

PN445.

I show the witness the statement of Mr Drayton.

PN446.

If you go behind JMD3 - have you found that?---Yes.

PN447.

It's the 2008 agreement. Is that the agreement that covered you?---Yes. I believe it is, yes.

PN448.

Do you recall if you voted in your role as an electrician - you voted on the agreement?---Yes, I did.

PN449.

If I take you to that agreement, do you recall what stream you fell within?---The electrical.

PN450.

Are you familiar with the 2008 enterprise agreement?---Not specifically to specific clauses, no.

**** RUSSELL WOOD XXN MR ENDACOTT

PN451.

Are you aware where the work and the duties of an electrician, when you were performing that role, was included?---No. Look, I'll be honest with you. It has been that long since I've looked at it - yes.

PN452.

I might just take you to Appendix 1 of this document. Did you find Appendix 1?
---Yes.

PN453.

Page 37?---Yes.

PN454.

You'll see the work model there?---Yes.

PN455.

If I take you to point 1, just at the bottom it says, "The model is shown in table A1 and A2, and consists of two streams." You see that?---Yes, I do.

PN456.

Production and engineering?---Yes.

PN457.

When you were an electrician, what stream did you fall within?---Engineering.

PN458.

Then it says:

On the production stream, the production stream is further subdivided into mining, coal handling and preparation plant and service.

PN459.

Then it says:

The engineering stream is further divided into -

PN460.

and you'll see -

mechanical engineering.

PN461.

Do you recall what sub-stream - well, it doesn't use the word "sub-stream" - what engineering stream you were within?---Electrical.

PN462.

If I turn over the page to page 43, you'll see there is table A2?---Yes.

PN463.

THE SENIOR DEPUTY PRESIDENT: Can I just observe - because it's a term I have started to use - at the top of page 38, you'll see there's a reference to sub‑streams. That's why I started calling it "sub-streams" in my mind rather than "subdivisions".

**** RUSSELL WOOD XXN MR ENDACOTT

PN464.

MR ENDACOTT: Yes.

PN465.

THE SENIOR DEPUTY PRESIDENT: They both do seem to be used.

PN466.

MR ENDACOTT: Yes.

PN467.

THE SENIOR DEPUTY PRESIDENT: That's just an aside.

PN468.

MR ENDACOTT: I think "sub-stream" is the correct term, but I was concerned it wasn't in that line I took him to.

PN469.

THE SENIOR DEPUTY PRESIDENT: That is correct.

PN470.

MR ENDACOTT: I didn't want you to be thinking I'd put something in there that wasn't there, your Honour.

PN471.

THE SENIOR DEPUTY PRESIDENT: I understand, yes. Where were you taking the witness?

PN472.

MR ENDACOTT: To tab A2 - table A2. You'll see there it says, "Work model, core and ancillary skills." Could you indicate, when you performed the role of an electrician, what table you'd fall within there?---Engineering electrical.

PN473.

That's the table to the furthest right?---Yes.

PN474.

Would you have fallen within any other table?---No.

PN475.

If I take you to DJM4, which is the Mt Arthur Enterprise Agreement - - -?
---Sorry, whereabouts is that?

PN476.

It's JMD4. I apologise. I think I gave you the wrong code?---JMD4. Okay, yes.

PN477.

JMD4. If I take you to Appendix 1 of that document, which can be found at page 32, commencing - now, I do apologise. You are going to have to turn the statement upside down. This is the 2011 enterprise agreement, your Honour.

PN478.

I notice the words "high voltage" and "low voltage electrician" has been used somewhere in the statements?---Yes.

**** RUSSELL WOOD XXN MR ENDACOTT

PN479.

What does "low voltage electrician" mean?---A low voltage electrician is - it's defined by AS 3000. It's someone who can work up to a thousand volts AC and, beyond that, it becomes high voltage.

PN480.

The auto electricians, they can't do either high or - voltage?---No.

PN481.

Thank you for clarifying that. I assumed that was the case?---Yes.

PN482.

The auto electricians and the high voltage electricians, where do they fall in on this table that says, "Core and ancillary skills - example of relevant skills applying at commencement of agreement"?---The electricians fall into the engineering electrical. To be honest, I haven't looked where the auto electricians fell in. I don't even believe, when this was in place, we had auto electricians then - did we?

PN483.

If I just take you down to six, you'll see that in the engineering stream?---Yes.

PN484.

Auto electrician?---Sorry? Six, down under the - - -

PN485.

If you go to the engineering stream and if you go to electrical - - -?---Yes.

PN486.

- - - you'll see the sixth column - the sixth one down?---Yes.

PN487.

It says, "Auto electrics"?---Yes. So that means, yes, electricians would work on auto electrics.

PN488.

So would auto electricians?---Well, auto electricians do work on auto electrics, but I don't believe they were covered under this electrical - - -

PN489.

Okay?---That was just one of the core skills.

PN490.

Air-conditioning?---Yes.

PN491.

Electronic control systems?---Yes.

PN492.

Auto electricians would do that, as well?---No.

PN493.

Basic workshop technology?---Yes. They were training courses that were designed for the electricians, yes.

PN494.

They definitely wouldn't do the high voltage switching?---No.

**** RUSSELL WOOD XXN MR ENDACOTT

PN495.

Programmable logic controller?---No. Those first three there form the first part of your - what was the old advanced certificate in TAFE for electrical engineering.

PN496.

You agreed that the air-conditioning was auto electrics and also they will do auto electrics - - -?---No. The air-conditioning - you require a specific licence to do that air-conditioning. One of our core skills there was the company provided

us - - -

PN497.

Okay?---And trained us to obtain that licence.

PN498.

Auto electricians would have obtained that licence, as well as the high voltage - - -?---Yes, they can obtain that licence. It's a different qualification altogether.

PN499.

You'll agree, won't you, that the auto electricians definitely don't call in services, CHPP or mining?---True.

PN500.

THE SENIOR DEPUTY PRESIDENT: May I ask a question? You mentioned that you didn't know whether auto electricians were - did you say were even engaged at the time of this enterprise agreement or did I get that wrong?
---Your Honour, I honestly don't know their start date, but auto electricians only arrived on site - or were only employed in the last probably three to four years. I don't believe the intent of this electrical stream here was to cover auto electrics.

PN501.

Auto electricians, if one looks up these hundreds and hundreds of training package details published by - well, they're in more than one site, but, in any event, they're Vocational Education and Training packages. To your knowledge, would one find an auto electrician training package? Do you know?---Yes, I think it's one of the appendixes to my statement.

PN502.

Is that the mobile plant technology?---No.

PN503.

No? All right?---No.

PN504.

I'm going off on a tangent now, but I'm going to stay on it just for a short time?
---Yes.

PN505.

Sorry, I was on Mr Drayton's statement. Back to yours?---Yes.

PN506.

You've annexed the relevant automotive electrical technology, RW1?---Yes.

**** RUSSELL WOOD XXN MR ENDACOTT

PN507.

What package is that part of - the Automotive industry retail, service and repair training package, yes, I see. The reason that has been annexed is really to relate to your point about all the overlap between auto electricians and electricians only goes one way?---Yes.

PN508.

Where are the auto electricians at Mt Arthur found? Which streams are they found?---Within the maintenance - - -

PN509.

From an operational point of view?---They are found in the maintenance department.

PN510.

Are they in the production department at all?---No, only in the maintenance.

PN511.

MR ENDACOTT: If you in your role as senior electrical engineer - using the terminology from your statement?---Yes.

PN512.

If you're required to keep an extra auto electrician, there would be work for that auto electrician to do, wouldn't there?---There would be auto electrical work.

PN513.

Your evidence is to the effect of inconvenience, is it not? It would be inconvenient should you be required to keep auto electricians that you may wish to get rid of?---Probably not the word "inconvenient", but it's the fact that again an auto electrician cannot do the task of an electrician, whereas it can go the other way.

PN514.

Yes?---Yes.

PN515.

But there is lots of work for auto electricians to do?---There is auto electrical work, yes.

PN516.

That's why you get the high voltage electricians to do a lot of auto electrician work?---No. The high voltage electrician, it falls within their scope of work. Auto electrical work can be done by multiple trades.

PN517.

I just take you back to the work model question; the stream. Auto electric works, when it was being done by a high voltage electrician, it was always in the electrical stream?---Yes.

PN518.

Electrical engineering stream?---Yes, but it was also in the mechanical stream, as well.

**** RUSSELL WOOD XXN MR ENDACOTT

PN519.

I have no further questions of this witness, your Honour.

<RE-EXAMINATION BY MR WARREN [12.43 PM]

PN520.

MR WARREN: Mr Wood, you just indicated that the auto electrical work was also contained in the mechanical stream?---Yes.

PN521.

If I could just take you, please, once again to JMD4. Do you still have Mr Drayton's statement with you there?---Yes.

PN522.

Indeed, to page 33 of that document. Do you have that?---Yes.

PN523.

I think you just gave evidence with respect to the auto electrics being found within the mechanical stream. Do you see that?---Yes.

PN524.

If you look down that document, the first batch are core skills. Is that correct?
---Yes.

PN525.

The core skills that are identified under the electrical stream, are they core skills of an electrician or of an auto electrician?---They're core skills of an electrician.

PN526.

The core skill of an electrician includes auto electrics, basic workshop technology, electronic control systems, high voltage switching and programmable logic controllers?---yes.

PN527.

That's an electrician?---That's an electrician.

PN528.

That is not an auto electrician?---No.

PN529.

I note that auto electrics is found within those core skills?---Yes.

PN530.

Then you go across to the left, to mechanical. I see that auto electrics is found there?---Yes.

PN531.

Also is air-conditioning found there?---Yes.

PN532.

Also are hydraulics and pneumatics, so they're various skills of the mechanical person?---Yes.

PN533.

Is that correct?---That is correct.

PN534.

Not skills of an electrician?---That's right, yes.

**** RUSSELL WOOD RXN MR WARREN

PN535.

But they are skills, nevertheless - at least auto electrics - of an auto electrician?
---Yes.

PN536.

If you move across to the left, please, under the service area there is also found there minor maintenance, electrical. Do you see that?---Yes.

PN537.

Who performs that function?---That was the servicemen.

PN538.

The servicemen?---Yes.

PN539.

So they could be trained in minor maintenance of electrical work?---Yes.

PN540.

It could become a core skill of theirs?---Yes.

PN541.

Not a necessary skill, but could be a core skill?---Yes, if they - - -

PN542.

Pardon?---Sorry, I was going to say if they had the adequate training, yes.

PN543.

Move across to the left again, please. Under "CHPP" towards the bottom of the core skill there, I see, "High voltage systems"?---Yes.

PN544.

That's a core skill of who?---Of the CHPP electrical technicians.

PN545.

Not auto electricians?---No.

PN546.

You move up that line and you will see, "Low voltage power systems"?---Yes.

PN547.

Who is that the core skill of?---Of the CHPP electrical technicians.

PN548.

Do you still have JMD3? Could you go to that, please? Page 43 of that JMD3. You were taken to that as the 2008 agreement, you might recall?---Yes.

PN549.

I think your evidence is that to the best of your knowledge there were no auto electricians employed when the 2011 agreement was negotiated?---To the best of my knowledge, yes. I may be corrected, but to the best of my knowledge they - yes.

PN550.

So the auto electrical work was done by electricians?---Yes.

**** RUSSELL WOOD RXN MR WARREN

PN551.

Indeed, in 2008, were there any auto electricians - - -?---No, there was not.

PN552.

The auto electrical work was done by?---By the electricians and mechanical fitters, yes.

PN553.

Mechanical fitters?---Yes.

PN554.

If you move, please, to page 43 of JMD3 - - -?---Yes.

PN555.

- - - there is table A2. You see that?---Yes.

PN556.

Once again, in the right-hand side, the core skills of electrical are set out there?
---Yes.

PN557.

They are core skills of what sort of an employee?---An electrician - high voltage electrician, yes.

PN558.

A high voltage electrician?---Well, an electrician, yes.

PN559.

An electrician?---Yes.

PN560.

Not the core skills of an auto electrician?---No.

PN561.

Then you see "auto electrics" appears under "mechanic" towards the left?---Yes.

PN562.

Those auto electrics could either be done by an electrician - - -?---Yes.

PN563.

- - - or, on your words, a person who is trained to, such as a fitter?---Yes. A fitter who has done that component in their trade, yes.

PN564.

You move over further to the service core skills and you've got minor maintenance, electrical?---Yes.

PN565.

Who could perform that?---The servicemen.

PN566.

Who have been trained in minor maintenance for electrical work?---Yes.

PN567.

Not an electrician?---No.

**** RUSSELL WOOD RXN MR WARREN

PN568.

But an electrician could do the work?---Yes.

PN569.

Once again, if you move over to "CHPP", the coal handling area, you've got low voltage power systems and electrical control systems?---Yes.

PN570.

Who performs those?---The CHPP electrical technicians.

PN571.

They are electricians?---They are electricians, yes.

PN572.

They're not auto electricians and they're not fitters?---No, they're not electricians - yes.

PN573.

They're electricians?---Yes.

PN574.

Thank you, Mr Wood.

PN575.

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wood. You're now free to leave the witness box and remain within the body of the court, if you wish, or otherwise leave the court?---Okay. Thank you, your Honour.

<THE WITNESS WITHDREW [12.49 PM]

PN576.

MR WARREN: Your Honour, my next witness was to be Mr Murray. It's a question of whether you wish him to be in be cross‑examination over lunch or that we take an early lunch and come back earlier and put Mr Murray in. I'm entirely in your hands.

PN577.

THE SENIOR DEPUTY PRESIDENT: I don't mind. Shall we take a break now then? Is that convenient?

PN578.

MR WARREN: Yes, whatever is convenient to the parties.

PN579.

THE SENIOR DEPUTY PRESIDENT: All right. Is quarter to 2 convenient or not?

PN580.

MR ENDACOTT: Thank you.

**** RUSSELL WOOD RXN MR WARREN

PN581.

THE SENIOR DEPUTY PRESIDENT: We'll adjourn until quarter to 2.

LUNCHEON ADJOURNMENT [12.50 PM]

RESUMED [1.48 PM]

PN582.

THE SENIOR DEPUTY PRESIDENT: Do we need ‑ ‑ ‑

PN583.

MR WARREN: I’ll just go back ‑ ‑ ‑

PN584.

THE SENIOR DEPUTY PRESIDENT: I think you should run through that again.

<DAVID MURRIE [1.50 PM]

<EXAMINATION-IN-CHIEF BY MR WARREN: [1.50 PM]

PN585.

MR WARREN: I’ll just go back. Mr Murrie, your name is David Murrie, your work address you use currently is 14 Martin Place, Sydney?‑‑‑That’s right.

PN586.

Prior to your current engagement you were employed by BHP Billiton in the role, most recently, as head of human resources for New South Wales Energy, Coal, correct?‑‑‑Yes.

PN587.

Mr Murrie, have you prepared a statement for the purpose of these proceedings?‑‑‑Yes, I have.

PN588.

Do you have it with you in the witness box?‑‑‑Yes, I do.

PN589.

Is it a statement of some 25 paragraphs and one attachment, which you signed on 23 January 2015?‑‑‑Yes, that’s correct.

PN590.

Is it your evidence that your statement is correct, to the best of your knowledge, in every matter?‑‑‑Yes, it is.

PN591.

I tender that statement.

PN592.

THE SENIOR DEPUTY PRESIDENT: Yes. The statement of David Murrie will become Mt Arthur 6.

EXHIBIT #MT ARTHUR 6 STATEMENT OF DAVID MURRIE, DATED 23/01/2015

PN593.

MR WARREN: Thank you, your Honour, that’s the evidence of Mr Murrie.

PN594.

THE SENIOR DEPUTY PRESIDENT: Mr Endacott?

**** DAVID MURRIE XN MR WARREN

<CROSS-EXAMINATION BY MR ENDACOTT [1.51 PM]

PN595.

MR ENDACOTT: Mr Murrie, my name is Mr Endacott, I’m employed by the CFMEU and representing them in these proceedings and I’ll be asking you some questions in cross-examination?‑‑‑Okay, thank you.

PN596.

You indicated, in your statement at paragraph 6, that you were involved in the 2008 negotiations, that’s for the 2008 enterprise agreement?‑‑‑Enterprise agreement, that’s correct.

PN597.

You also indicate that you were also involved in the 2011 enterprise agreement?‑‑‑That’s correct.

PN598.

In your role as human resources manager for Mt Arthur Coal, were you the principal human resources manager, or was there a human resources manager at the site, above you?‑‑‑I was the principal human resources person so I was initially brought on at the only human resources person, back in 2002 when I commenced and, effectively, that’s the role I continued to enjoy as the mine grew in its considerable size, through the course of the next 10 years.

PN599.

You indicated - then you moved on to New South Wales Energy, Coal?‑‑‑Yes.

PN600.

So that’s basically only the mine, really, isn’t it, or is there something else involved?‑‑‑Yes. What happened, as the company restructured it picked up - effectively there was more activity as we grew the third port, down in Newcastle. There was also the Caroona coal underground deposit and it also is essentially responsible for the growth. So we were injecting another billion, or so, in the growth of the mine so there was a whole project construction component that I was also keeping an eye on, so it was quite a change that was happening in Muswellbrook at the time.

PN601.

Yes. You indicate, at paragraph 1, that you worked for BHP for a total of 32.5 years. How much of that period in human resources?‑‑‑All of that time in human resources.

PN602.

So your experience in human resources?‑‑‑Is 32 and a half years in that time, yes.

PN603.

I’m not alleging that you’re not experienced, but you have experience and you’re also experienced in negotiating enterprise agreements?‑‑‑In different capacities, in different ways, in different places, yes.

PN604.

Yes, so you have experience?‑‑‑Yes, limited. Yes. Correct.

**** DAVID MURRIE XXN MR ENDACOTT

PN605.

For the 2011 negotiations you formed one of the lead negotiations with Mr White and Mr Thomas?‑‑‑Yes, that’s right.

PN606.

Mr White and Mr Thomas had also worked at the mine site for a number of years, hadn’t they?‑‑‑That’s correct.

PN607.

If I understand, Mr Thomas was the - I don’t use the word production manager, but is that the mine manager, the statutory mine manager?‑‑‑Yes, he was the mine manager, the statutory mine manager and the mining manager, we called him, but there were different titles, so he did hold the statutory responsibility and he was also responsible for the - I guess the management of the production part of the operation.

PN608.

The statutory role is one that’s mandatorily required, isn’t it?‑‑‑That’s my understanding.

PN609.

To perform that role you have to have a certificate of competency, issued by the minister, through the chief inspector, don’t you, once you’re deemed competent?‑‑‑Look, I would expect that’s the case, yes. I can’t talk to it in detail, but ‑ ‑ ‑

PN610.

No, I won’t take you further than that?‑‑‑Yes, thanks.

PN611.

But in that role you’re required to regularly inspect the operation, aren’t you, and all aspects of it, the mine?‑‑‑I would expect so, that’s right.

PN612.

Are you aware if Mr Thomas, for example, would have inspected the bath house regularly?‑‑‑I - I couldn’t actually tell you that. I don’t know what he did day-to-day. My interactions were more in the area of the, you know, the management issues of the mine.

PN613.

Okay. Are you aware that Mr White - Mr White was the general manager and I think you’d indicated he’d been there for quite a while as well?‑‑‑Yes, he had. Yes.

PN614.

Mr White had, I think you’re aware - well, I won’t ask you if you think you were aware. Were you aware that whether or not Mr White had a practice of using the same bathroom as the production and the employees, the mining employees?‑‑‑You know, I don’t ever recall Mr White using the facilities at all at the mine.

**** DAVID MURRIE XXN MR ENDACOTT

PN615.

Okay, thank you for that?‑‑‑I don’t recall Mr Thomas using the facilities at the mine, you know, we didn’t ‑ yes.

PN616.

Now, in addition to yourself and Mr White, who else was part of the negotiating team, elite part of the negotiating team for the 2011 agreement for the employees?‑‑‑2011, so there was, as we say, Michael White, Ray Thomas and myself, we had Bryony Hannett(?), who was an HR assistant who was doing a number of things for us, as well as note taking. Then we would bring in other - by the way, different people would come in and out at different times, as they took leave and other things, that the negotiation kept going. We had Geoff Knuckey who came in at times, as an expert witness. Well, not an expert witness but as a person who could provide expertise in the maintenance area, he was the maintenance manager. We also had Mark Van den Hooval(?), he was the CHPP manager, come in from time to time. I think they were the key ones. Yes, I think they were the key ones.

PN617.

Now, the negotiations were taken seriously by the company?‑‑‑Yes.

PN618.

The negotiations, from the employees perspective, through - were taken seriously?

PN619.

MR WARREN: Well, I object to that. He can’t really speak from the employee’s perspective. I don’t necessarily want to keep jumping up and objecting, but this witness really can’t talk about what the employees ‑ ‑ ‑

PN620.

MR ENDACOTT: Well, from your observations of the negotiations of the 2011 enterprise agreement, were they meaningful negotiations by both parties?‑‑‑Look, you know, for the company’s part they certainly were meaningful, you know. That’s a true statement, in terms of the company endeavouring to pursue the issues, yes.

PN621.

When the company pursued an issue the employees would respond to those issues?‑‑‑Different forms of response, but yes.

PN622.

If I understand, there was a bit of a practice where the companies produced documents that set out their preferred positions, in the negotiations?‑‑‑Look, there were different things What we intended to do was, as a collective, we would use the screen, we would have the agreement up on the screen in the room and we would make changes as we went through the document. Sometimes we would have words that were - in different colours and shades and that was the way that we could put the focus on the document and work through it in a methodical way.

PN623.

And hard copies of those documents would be provided?‑‑‑Every now and again. We weren’t concerned about the environment so we didn’t print them all the time, but there quite a few different iterations and we would do our best to, at times, just keep them on the screen and at other times we’d have them handed out.

**** DAVID MURRIE XXN MR ENDACOTT

PN624.

You’d agree that if the company proposed a particular version to a clause they’d explain why they proposed it and what they wanted from it?‑‑‑You know, generally when both sides were putting forward their clauses they would endeavour to tell the story, it’d just depend on how it happened. Sometimes we would be given documents, for example, about a gym or whatever, and we’d just get the document and say, “Well, thank you very much, we appreciate this” and we wouldn’t necessarily get into detail about it, we’d just accept that that was a document from the union and off we’d go. It just depended on the issue.

PN625.

But the process was one adopted by the company, wasn’t it? If they were proposing a clause or a change to the clause they’d explain why they wanted it?‑‑‑We generally - if they didn’t explain it, we’d be asking for some kind of explanation, that’s true.

PN626.

What about when the employer proposed a clause, they would do the same thing, explain why they would want it, wouldn’t they?‑‑‑Generally we would do that, yes.

PN627.

Is that your recollection of how the 2011 negotiations occurred, that sort of format?‑‑‑More or less, yes.

PN628.

Now, at paragraph - at paragraph 7 you’re still with the negotiations for the 2011 agreement?‑‑‑Yes.

PN629.

You say, in that paragraph, and I think it’s the third sentence:

The company did not want employees growing complacent in the knowledge that the longer they were employed the harder it would become for them to lose their job.

?‑‑‑Yes.

PN630.

The company proposed, didn’t they, in the negotiations, different reduction in hands clauses as a result, didn’t they?‑‑‑My recollection is that initially we proposed deleting the clause all together. So if that’s one proposal, that’s true. On the second occasions we’ve proposed a variation which actually was merit based and the third occasion we proposed a variation that was - it involved, effectively, grandfathering all the existing employees and also having in place a merit based process for new employees that were engaged, so, effectively, after was ratified.

**** DAVID MURRIE XXN MR ENDACOTT

PN631.

Okay. So the grandfathering for the new employees - for the existing employees?‑‑‑That was - that was - if you call that the third - the third occasion in which we tried to put something forward in relation to - to the seniority reduction in hands clause. So one deletion then the two others that I just mentioned.

PN632.

I wish to show the witness the statement of Mr Geoffrey Drayton, specifically annexure JMD8. I should note that the note at the top that says, “Supplied 26 November 2010” is my note, if yours has the same on it?‑‑‑Yes, it does.

PN633.

So discount that, but I’ll put to you that the evidence of Mr Drayton was supplied on 26 November 2010. Now, do you recall - do you recall - could you indicate if this is the form of the document that would have been supplied?‑‑‑This is, effectively, a marked up copy of the enterprise agreement, with various changes and amendments highlighted throughout. So this was quite typical of how we were working on the agreement, yes.

PN634.

Now, if I take you to page 54 of that agreement.

PN635.

THE SENIOR DEPUTY PRESIDENT: It’s a document, not an agreement.

PN636.

MR ENDACOTT: Sorry, page 54 of the document entitled Enterprise Agreement with a line through it “2008”?‑‑‑Yes.

PN637.

Now, you’ll see that the clause at the top of the page is clause 22, Reduction in Hands, and the fact that that’s in black, would that would have meant that was the form of the clause in the previous agreement?‑‑‑Yes.

PN638.

If you go to that clause you see it says - well, I know you’ll know how the agreement works, but it says, “The last to come the first to go-” I should say, I know you’ll know how the agreement with read, “in the respective production stream, mechanical and engineering streams, according to length of service at Mt Arthur Coal.”?‑‑‑Mm.

PN639.

You see it uses the word “in the respective production, mechanical and electrical streams”?‑‑‑“Electrical engineering”

PN640.

MR ENDACOTT: “Engineering streams” you’ll see that?‑‑‑Yes.

PN641.

Now these words here, in orange, what do they indicate?‑‑‑Mine isn’t in orange.

PN642.

Yellow?‑‑‑Mine isn’t yellow, mine’s underlined.

PN643.

THE SENIOR DEPUTY PRESIDENT: Mine’s not coloured at all.

**** DAVID MURRIE XXN MR ENDACOTT

PN644.

MR ENDACOTT: Okay. I have a colour version, it mustn’t have come out. But the ones underlined.

PN645.

THE SENIOR DEPUTY PRESIDENT: Yes, it’s underlined.

PN646.

MR ENDACOTT: Yes, I’ve had mine printed out in coloured. I believe yours are probably in yellow as well?

PN647.

MR WARREN: Yes, they are.

PN648.

MR ENDACOTT: Would you recall whether the form would have been in yellow, was that typical colouring?‑‑‑Yes, although Microsoft probably had many iterate variations on what the colours actually were when we were playing with them at the time, but that’s right.

PN649.

Who prepares this document?‑‑‑We tended to control the actual scribing, as the company, because it was using our company computer and all that sort of stuff, so it would have been the company writing it up, but sometimes words were proposed by both sides of the negotiating table and we would type them up as we went along.

PN650.

Okay. If you ‑ ‑ ‑?‑‑‑I think, actually, just to help clarify, I appreciate your Honour doesn’t have it in colour but the yellow was more likely to be the company change and the green more likely to be a union change, I suspect.

PN651.

Okay. Thank you. Now, you indicated there were - you said there were three proposals, one was the, you know, the deleting of it and two was changes and the third was - I’ll say had grandfathering in it?‑‑‑Yes.

PN652.

What is this? This is the?‑‑‑That’s effectively - my recollection is that’s the first clause that we put on the table, if you like, or the first clause that was proposed, which was other than deletion of the clause all together. This was the proposal about a replacement set of words for the reduction in hands clause.

PN653.

You’ll see there it says:

18 November 2010, union to continue to review further discussions with company.

PN654.

Do you see that?‑‑‑I see that.

PN655.

That means that there would have been further discussions continuing at a later date?‑‑‑Where the union would continue to review and there’d be further discussions, yes.

**** DAVID MURRIE XXN MR ENDACOTT

PN656.

Okay. When this was proposed by the company it would have been explained by the company, how they thought it might operate?‑‑‑Not - the explanation tended to be - we got very philosophical very quickly, I might add, and some certain members of the other party would wax lyrical about all sorts of things. So it was quite a challenging discussion whenever we got to this particular theme, remembering we were talking about many, many themes and questions and claims that were raised on the union side and we had our - the company’s list. But I did not, when it came to this, we got into all sorts of stuff about, you know, seniority and whatever it was and how long it had been around and, you know, et cetera, how simple it was, and all that. Yes.

PN657.

You were aware, were you not, that there was a seniority list posted around the mine site somewhere?‑‑‑Look, I heard this. I’d never actually seen this list, right, but I’d certainly heard that there was a list posed.

PN658.

Okay?‑‑‑My recollection is the first time I’ve actually seen it was I saw a statement, with an attachment, that had a photo of it. So there you go.

PN659.

But you knew there was - you’d heard there was one posted around at the time, don’t you?‑‑‑Yes, I had heard that, but I hadn’t seen it, that’s right.

PN660.

Now, obviously that clause wasn’t - ultimately it wasn’t pressed by the company and wasn’t agreed to by the employees?‑‑‑No. Like we thought it was a pretty good clause because - for a whole lot of reasons and, at the end of the day, I mean at point (e), it did offer at least some, you know, opportunity for the employees length of service to be part of the consideration. So, yes, we thought it was a pretty good clause.

PN661.

Now it says, “Production streams, mechanical and engineering streams” where were the streams mentioned in the document?‑‑‑That’s a good question. Look, it might have been referring to the work model, possibly, as a basis for it, which was essentially, if you like, the model used for the list of training skills and all that sort of stuff, is that ‑ ‑ ‑

PN662.

Yes, thank you?‑‑‑If that’s what it’s referring to. To be perfectly frank, I didn’t turn my mind to it in any detail but just looking at it, I’m suggesting that’s probably the other link I can see to it.

PN663.

Yes. Now, there was a third - so that was the first clause you proposed and sort of the second iteration?‑‑‑Yes.

**** DAVID MURRIE XXN MR ENDACOTT

PN664.

The first being to get rid of immediately - sorry, I’ve got - get rid of it completely, I should say?‑‑‑Yes.

PN665.

I just wish to show you this document, which is the statement of Mr Prosser?‑‑‑Right.

PN666.

Specifically draw your attention to SP2?‑‑‑Mm hm.

PN667.

I put it to you again that’s the sort of form of the document that would have been supplied?‑‑‑Look, we - this is an example of one that we would have printed off at some point and this particular draft was 10 February so whatever changes and updates that have been made to the document at that time, that’s what we printed off.

PN668.

Yes, okay?‑‑‑So the 10th, yes.

PN669.

Now ‑ ‑ ‑?‑‑‑So given that it’s got “draft 10” on it, and it was probably given to them the next time we met, because that would have been - we would have been dealing with it on the overhead screen, making changes and then it would have been presented the next time we met.

PN670.

Have you seen - in the preparation of your statement did you have the opportunity to have a look at SP2?‑‑‑Just - I only looked in a flick through and I looked at the reduction in hands clause. I haven’t looked at any of the other parts of that rather long document.

PN671.

Okay. Now, you’ll agree that this was the - this was - mine’s in yellow again?‑‑‑Mm hm.

PN672.

If you go to page 36 of that document?‑‑‑Yes.

PN673.

You’ll see there’s a reduction in hands clause there?‑‑‑Yes.

PN674.

That’s the one that - the second form of the clause, the third iteration that the company was proposing?‑‑‑Correct.

**** DAVID MURRIE XXN MR ENDACOTT

PN675.

You agree that it was - do you agree that it would have been the normal practice, when they were working on this clause, to explain how the company expected it would operate?‑‑‑With the - actually, with an exception on this one, what happened, in relation to this particular clause, is that the company met with the union on 3 February, and at that time we strongly put a position that the - that we wanted to have another crack at the seniority clause, all right? We raised the, for the very first time, in a serious say, the notion of grandfathering. That, effectively was - the notes that Mr Prosser provided in that first attachment summarise it. The theme was about grandfathering the clause and his notes tell the story of what we raised.

PN676.

Yes?‑‑‑The next time we were due to meet was on 9 February, but prior to meeting on 9 February there was to be a meeting of the workforce and that meeting was to take place at 7.30, at the Muswellbrook Racecourse. So what we undertook, in the meeting on 3 February, was we would get to - given the conversation around grandfathering, we wanted the union to put the company’s position on seniority to the workforce. So at that point of time we said, “We want to give you a clause around grandfathering, we want it to capture all the existing employees and they’ll get excited about the notion that it’s there for them, so what we will do, and given that we’re not meeting again until the 9th, which is after the meeting, we will actually prepare a clause for you.” So we prepared a clause, which is the one that you see there, and we gave it to the union, the union came back to us after the meeting on the 9th, when we met, to get feedback about a whole range of things, and they said to us, “Look, the workforce aren’t interested in it.” That was the end of the conversation there. We met again on the 10th and that was the end of the conversation, we didn’t talk about it. We met again on the 15th, 16th and 17th and, again, the theme wasn’t talked about. So we did insert, for the meeting - at some point we inserted the clause that we handed them into the document, but we didn’t discuss it.

PN677.

You didn’t discuss it?‑‑‑No.

PN678.

But you say that you wanted to have another crack at it?‑‑‑And that was the crack.

PN679.

Yes, obviously the crack was explaining to them what you wanted?‑‑‑No. As Mr Prosser noted, in his handwritten notes there, the key things we’d - we’d already had the go at it, we’d explained it in detail, the grandfathering clause, new people would be on a merit based system and then we said, “Why don’t we put it all together, we want you to put it to the employees” all right? So for our part, as negotiators, we were able to then demonstrate to our company, we’ve done our best, we’ve given it our best, because we hadn’t even started talking about wages and we were at day 30 of the negotiation. It was a real - like we had a long way to go still and we thought, “Oh, my God, the prospect of a protracted stoppage over this, it’s getting in the way of us getting on with it.” So that’s when we made the call, let’s drop it, let’s move on.

PN680.

Okay. This clause is reflective of the position the company desired, wasn’t it?‑‑‑That’s the position we put on the table as our last ditch attempt to get it, couldn’t reach agreement so on the 17th we said, that’s it, we’re taking it - actually we were able to say, “We’re taking it off the table now. If it allows us to get on-” of course the union said we’ll take off the clause that was related to pay as if at work and we were able to then move on to talk about other things, like wages, which was the next key and final key part of the discussion.

**** DAVID MURRIE XXN MR ENDACOTT

PN681.

Yes. The position was that the company wanted to move away, in this clause, the reference to production, electrical and mechanical engineering stream, it might be mechanical and electrical, and wanted to go to a scheme that identified skilled groups, isn’t it?‑‑‑Well, I have no recollection of talking to that part of it. For our part, the - the key message for me, and for the negotiating team, was grandfathering and it was about the notion of having a new merit based system for the employees and that, to me - that was immaterial, because the key thing was to - for us, as a company, the key message was getting away from the notion of seniority because, philosophically we didn’t like it, we thought it was counter-culture, and that was what we were aiming to do.

PN682.

Yes. Well, let’s go to the clause?‑‑‑Yes.

PN683.

We can start at the paragraph that says, “In order to maintain”?‑‑‑Yes.

PN684.

It says:

In order to maintain the required -

This is the first, second, third - the start of the fourth paragraph?‑‑‑Mm hm.

PN685.

It says:

In order to maintain the required skills following any reduction program -

?‑‑‑Redundancy.

PN686.

redundancy program, seniority will be applied within each of the respective skill groups, as listed below.

?‑‑‑Yes.

PN687.

So you say you wanted to get rid of seniority, this was the seniority to apply to the grandfather group, wasn’t it?‑‑‑That’s effectively it, yes.

PN688.

That was the company’s position, that it wanted production, servicing, CHPP mechanical, fabrication and electrical?‑‑‑They were the words that we introduced as our last ditch attempt to - in grandfathering the clause.

PN689.

Yes?‑‑‑So we put that whole position, this was our last crack at it and we weren’t able to achieve agreement.

**** DAVID MURRIE XXN MR ENDACOTT

PN690.

You wanted to go from the previous description of the three streams to six skill groups, didn’t you?‑‑‑We actually wanted to go to grandfathering and to a merit based system. That’s what we were striving to achieve.

PN691.

But the clause you proposed, wasn’t it, you wanted to go from the three streams to the six skill groups?‑‑‑You know, I’ve got no recollection, whatsoever, of discussing any of those with the workforce. So my recollection is that absolutely, as Mr Prosser’s notes say, we talked about grandfathering existing employees, there was nothing - no detail, no discussion around those streams, we just didn’t get into it. It wasn’t the company’s desire and it certainly - I certainly couldn’t talk to those levels of details. I don’t even use the term “fabrication”. I’ve always thought a boilermaker would make this right, it’s just not part of the vocabulary and it’s not how we ‑ ‑ ‑

PN692.

Sorry. “fabrication” is a reference to boilermakers, isn’t it?‑‑‑I’m assuming it is now. Yes, of course it is, but it’s not a term I used to describe it.

PN693.

Okay. But the company - it was rejected by the employees, wasn’t it - it was rejected by the employees, the company just gave up on it and retained the old clause, with the three streams?‑‑‑We just gave up on it all together, that’s right.

PN694.

And you gave up on it going from streams to skills groups, didn’t you?‑‑‑Well, we gave up on the whole clause, that’s it. We just left it as it was. That’s correct, yes.

PN695.

Now, if I take you to paragraph 12, you say ‑ ‑ ‑?‑‑‑Sorry, is this of my statement, is it?

PN696.

Of your statement, yes. It says:

In any case it was very clear the union would not move on the clause.

?‑‑‑Yes.

PN697.

Now, when you used the word “union” you’re talking about the employee negotiating committee?‑‑‑That’s right, and relying on the feedback from that meeting on the 9th. They gave us a very clear message that there was no price. In fact, the district official used pretty words to that, “You can’t afford to get rid of this clause.”

**** DAVID MURRIE XXN MR ENDACOTT

PN698.

Okay. So when that - if I take you to paragraph 13, where it’s also made reference to, it says:

In the above circumstances it became a matter for the company as to whether or not it would pursue changes to these clauses, given the union’s opposition.

And it’s the same - you’re not talking about the union opposition, you’re talking about the negotiating committee and the employee’s position in response? Is that correct, when you use the word “union”? You’re not just meaning the CFMEU, you’re meaning the employee representatives and the ‑ ‑ ‑?‑‑‑Effectively the employee representatives, that’s right. So who else - I think I understand what you’re saying.

PN699.

Yes, yes, yes. Sorry, I was just trying to clarify this wasn’t just the - the committee, yes?‑‑‑Clarifying. Yes, they were there representing the workforce, correct.

PN700.

Now, if I take you to paragraph 17 of the statement, this is where you respond to Mr Prosser’s paragraph 22?‑‑‑Yes.

PN701.

You say there:

The company’s focus was not on the reduction of people in different skills categories, rather it was the elimination of selection-based seniority all together.

PN702.

MR WARREN: Perhaps the witness can see the clause of Mr Prosser that we’re referring to?

PN703.

MR ENDACOTT: If you can just read Mr Prosser’s paragraph ‑ ‑ ‑?‑‑‑So paragraph 22, statement of Mr Prosser, right. Okay, I’ve read the clause.

PN704.

Then it says - it goes on - sorry, have you finished reading Mr Prosser’s ‑ ‑ ‑?‑‑‑Yes, I have, thank you.

PN705.

Thank you. Then your paragraph goes on to say:

Skills categories were totally irrelevant to what was being sought by the company.

?‑‑‑Yes.

**** DAVID MURRIE XXN MR ENDACOTT

PN706.

I take that - that’s not - that can’t be correct, can it, in light of the wording with respect to the six skills groups that the company proposed, in the February 2010 document, can it? You definitely were concerned with skill groups or you wouldn’t have proposed that?‑‑‑You see, we put forward that clause, after we had met on the 3rd, in anticipation of the meeting on the 9th, at the racecourse, were we were stopping the entire mine. So it’s quite a significant meeting when you’ve got all the diggers, all the operating units stopping to meet. So we pulled together what we thought was a clause covering all the issues. And you’ll notice there was something there about contractors in there, there was something there about grandfathering, there was something about merit based system, and there were those streams. So we just got this last ditch attempt to pull together a clause that we believe is something that we wanted to put to the workforce. And we thought, with all the voting members knowing that their jobs were safe and that it was only the people coming on board that they didn’t have to worry about that, it was just that they were right, life would be fine. We also knew, that given the nature of the expansion of the mine, that it shouldn’t have been front of mind for anyone. That’s the view we took.

PN707.

Yes, but if it was totally irrelevant you wouldn’t have made reference to six skills groups, would you? If it was totally irrelevant you wouldn’t have proposed the new system of the six skills groups?‑‑‑We didn’t - we wouldn’t be talking about a redundancy clause either. What we wanted to do was get away from that whole concept of merit based - sorry, of seniority. That’s what we were endeavouring to do.

PN708.

Yes, and you wanted to get away from the three stream ‑ ‑ ‑?‑‑‑It was - it really was a philosophical thing and from a cost point of view, we weren’t seeing anything in it for the company. There was nothing to actually be gained financially, the way we were seeing it. It was all about just taking that away, that whole thing, which wasn’t appearing in modern awards, it wasn’t appearing in most of the agreements around the place, it was just what we’d described as an anachronistic clause that was still hanging about, just like torrents time. Like, for goodness sakes.

PN709.

THE SENIOR DEPUTY PRESIDENT: Just like what?‑‑‑Like torrents time, or bath time, shower time. There it was, it was in the same kind of basket.

PN710.

MR ENDACOTT: Yes. Now, if I take you paragraph 18, and I might get you to read paragraph 30 and 31 of Mr Prosser’s statement, if you can?‑‑‑Yes.

PN711.

I put to you that you did say that you wanted to go - you wanted to reduce hands, on the basis of six skills groups instead of three streams. I put to you that was said at the meeting?‑‑‑I’ve got absolutely no recollection of that being said. I don’t believe it was said. I deny it was said.

**** DAVID MURRIE XXN MR ENDACOTT

PN712.

Fair enough. But you’ll agree with me that the clause did propose going from three streams to six skills, in any event?‑‑‑The clause that we put up and gave to the union, prior to their meeting on the 9th, did have those skill groups, as you call them, but we simply didn’t discuss it. For us it wasn’t the main prize. There were lots and lots of things that we were trying to change in the agreement, other than seniority, and our focus, if anything - we weren’t excited about that, we were excited by grandfathering and a merit based system, because that was our opportunity to make a change in that clause. This wasn’t. This was absolutely a meaningless thing, the way we saw it at the time. We were ready to take on the next thousand employees at Mt Arthur coal, we weren’t getting into a situation where we were going to reduce hands. It’s sad we’re in these situations now, but it’s not where we were then.

PN713.

Yes. Well, I’ll take you to paragraph 35, because that’s where I was - paragraph 19 of your statement, where you refer to paragraph 35 of Mr Prosser’s statement?‑‑‑Yes. Right. Yes.

PN714.

I think this gels with the point you were going to. Now, if I take you back to your paragraph 35?‑‑‑My paragraph 35?

PN715.

Your paragraph 19, sorry, where you respond to Mr Prosser’s paragraph 35?‑‑‑Yes.

PN716.

You respond by saying:

I did not make that statement, Mr Thomas may have made the statement like this.

?‑‑‑Yes.

PN717.

We would have agreed we would drop it.

Okay, so I think you’re saying Mr Thomas may have said it, not yourself?‑‑‑Yes, Mr Thomas did say it. That is my recollection. Mr Thomas did make that statement and we agreed to drop it. That was in the meeting on 17 February, correct.

PN718.

That is effectively where it got to. By giving up on it did not mean that we had turned our minds to how the clause would work in practice, in terms of categories of employees.

?‑‑‑Yes.

PN719.

Now, I put to you, in the negotiation of an enterprise agreement, that becomes binding at law, through want of prosecution if you breach, that’s just not correct for a serious employer not to consider the consequences of a clause they were agreeing to, or, you know, not pressing?‑‑‑Well, you know, in the same way that we hadn’t turned our mind, in detail, to how a merit based system would work either, but we knew that there were some real principles about a merit based system. That’s what we were satisfied with. You know, there was enough there to satisfy. In any case it wasn’t agreed.

**** DAVID MURRIE XXN MR ENDACOTT

PN720.

Yes. But the fact that you were retaining the old clause, it would continue, that you would have turned your mind to how that clause would have operated?‑‑‑You know, we were - the mine was ready to take on another thousand employees. We had engaged someone to help us with the resourcing strategy because the big risk that the company was identifying, at a level well above Mt Arthur coal, was are you going to have the labour to support your workforce as it got over the 2000 mark? So we were advancing, we had 32 million tonne in our mind as we were thinking about that strategy. All of our thinking was about where do we get tradespeople from, in Australia? Because a lot of the other mines were also growing significantly at that time, as you recall, and we were growing at quite a rate. There was a huge investment so all of our thinking and time and even the other clauses we were negotiating, and there were many, and they weren’t easy negotiations about start times, about, you know, the other variations of rosters. It was all about setting us up for growth. That was the key thing that we were aiming for. The last thing in our mind was that we would face redundancy and the last thing we therefore were turning our mind to, in any detail, was how it would work, in practice, because it wasn’t important to us.

PN721.

So you didn’t care how the reduction hands clause would operate, it’s not plausible?‑‑‑We didn’t want a reduction in hands clause.

PN722.

Obviously you agreed to retain the same one. It’s implausible that you wouldn’t have cared about how it operated, even if you were just considering expanding the business. Is that your evidence? You didn’t care how it would operate?‑‑‑Well, you know, we just hadn’t turned our mind to it. You know, you care about how everything operates, but we hadn’t put the detailed attention to it because it wasn’t the priority, we were in such a growth phase. That’s the reality that we all felt.

PN723.

I take you to paragraph 23 of your statement. You’ll see you respond to paragraph 40 of the statement of Mr Drayton there. Do you have Mr Drayton’s statement?‑‑‑I believe I do, yes. I’m reading this, am I?

PN724.

Yes?‑‑‑Sorry. Okay, I’ve completed that.

PN725.

Now, if I’ve got that, you say that you agree with that paragraph, other than the last sentence?‑‑‑Yes, essentially that’s the case, yes.

PN726.

If I direct you to the last sentence, it says - and I’m going to read to you from the last sentence, at paragraph 40 of the statement of Mr Drayton?‑‑‑Yes.

PN727.

It says:

The applicant indicated it might look at breaking up the number of streams currently so they had more flexibility when retrenching.

Can you see that?‑‑‑I do see that.

**** DAVID MURRIE XXN MR ENDACOTT

PN728.

You refute that - denied that was said?‑‑‑Absolutely deny it.

PN729.

You do agree, do you not, that the clause that was proposed did seek to break up the number of streams into different skills categories?‑‑‑The - this was a discussion point on 8 December so when we talked again about - that was later in February, it was a different time and that’s when we did put up a clause that covered a whole range of things. Again, grandfathering was the principle point, yes. Again, if it was something - you know, if there were a change in our thinking, at the time, as we were starting to move away from having no clause at all, you know - it was unlikely to have been signalled then, very unlikely. That’s why I just don’t recall that statement being made at all.

PN730.

Now, the - but you do agree that the clause that was ultimately proposed did go from three - making reference to the three streams to six categories?‑‑‑It did do that, together with the key issue of grandfathering, which was what it was about, and a merit based system.

PN731.

If I take you to paragraph 42 of the statement of Mr Drayton?‑‑‑Mm-hm.

PN732.

It says - I’ll read it to you. It says:

Mr Thomas and Mr Murrie gave a detailed explanation of how they wished the proposed clause to operate. I don’t not recall a written form of the clause being provided at the meeting, the agreement was on the applicant’s computer screen that was linked to the large television screen.

Your response is “I do not recall giving a detailed explanation.”?‑‑‑Yes. My - I believe that that particular discussion that Mr Drayton is referring to took place on 3 February and on 3 February is the same date that Mr Prosser made some notes about the grandfathering clause and that he submitted as one of his attachments to his statement.

PN733.

Yes?‑‑‑So at that stage all that he made a note of in his notes, and I agree with Mr Prosser’s notes, was about a grandfathering and merit based system. There was no discussion at all about different work groups, or whatever we’re referring to them as.

**** DAVID MURRIE XXN MR ENDACOTT

PN734.

But a detailed explanation was given about the clause?‑‑‑Not about the clause, no, that’s what I’m saying. We had a - you see, on 3 February we had a discussion about the grandfathering proposal and what the company undertook to do was to provide the unions with a clause and that we would do that before the racecourse meeting on the 9th. So there was no clause provided, but what we did commit to was preparing a clause. That’s why I’m saying to you, I don’t have a recollection of discussing that clause because I don’t believe it was formally tabled in the actual context of a negotiation meeting. It was tabled in the sense that we gave it to the union prior to the meeting on the 9th so there was a big comprehensive, “This is the company’s seniority position. Here it is, last go, and present it to the workforce.” That’s what we asked them to do. So we didn’t discuss that part of the detail at all, we didn’t discuss it.

PN735.

You say you didn’t discuss the clause at all?‑‑‑That’s correct.

PN736.

So you wanted - it was the last ditch, you wanted the workers to vote on it?
‑‑‑Correct.

PN737.

But you didn’t discuss how you thought it’d operate?‑‑‑Remember, the workers were voting on about 20 things in that agreement. It was a report back meeting. They actually weren’t - I guess they may be voting, I don’t know what they did at the meeting. But it was a report back on all the status and progress of where we got to. They weren’t voting on the agreement. It was the big meeting. It’s a significant thing, you stop the mine, and at that point we said, “Here you are, take this to the meeting, this is our clause, please have a go. There’s something in it, as we discussed in the meeting on the 3rd, about grandfathering. Take it to them, do your best.” And they did their best and came back and said, “Forget it.” Now, we knew that “forget it” there’s no point discussing anything any further. We didn’t want to make an inroad that just had, you know, these streams, that gave us nothing. We wanted a notion of introducing merit based seniority, that’s what we were chasing. So when we got to that point, and I - you know, as we went through it on the - we met again on the - we met on the 9th and we said, “Okay, we note it’s a work in progress.” We met on the 10th, “It’s work in progress.” So we said, “Let’s talk about all the other clauses” which we did and we made some good progress, I’ll admit. We made lots of agreements about, “Okay, we got here on this clause, here on this clause.” 15th, 16th, on the 17th we said, “Right, on the basis of the progress we’ve made we can see that you’re not going to go any further with this, we’ll give up on it.” And we did.

PN738.

Okay. But I put to you ‑ ‑ ‑?‑‑‑And we talked about - you know, in the meeting we said, “Right, overnight and this morning we’ve talked to leadership, management and we’ve come to the conclusion that we now have the authority to drop this clause and we’ll talk about wages.” So on day 30, finally, day 30, we’re talking about wages.

PN739.

Yes. Can I put it to you that there would have been mixed emotion given by either yourself or Mr Thomas about the way they wanted the clause the operate, there would have been?‑‑‑You know, if there were I would have made a note of it and I don’t - I haven’t and I clearly don’t recall it. But what I do recall is discussing it and I see the notes that Mr Prosser made in his attachment, which spelled out the key messages that we were chasing and that is, grandfathering and a merit based system. So I’m - you can see I’m quite - I’m feeling fairly certain about this, because that’s how it was happening.

**** DAVID MURRIE XXN MR ENDACOTT

PN740.

If you just go to paragraph 25?‑‑‑My 25?

PN741.

Your paragraph 25, paragraph ‑ ‑ ‑?‑‑‑My 25, Mr Drayton’s 44.

PN742.

Yes. You say there, when it says:

Mr Thomas explained -

This is the details of Mr Drayton’s statement, it says, at paragraph 44:

When Mr Thomas explained the detail of the clause he said words to the effect, “We no longer wish them to apply seniority -

Sorry:

“We no longer wish, when we apply seniority, to have it based upon the current respective streams, it doesn’t give us the flexibility we require, we want it in skills groups and the skills group that we think are appropriate are the skills, production, service (indistinct) mechanical, fabrication, electrical.”

You deny that?‑‑‑That’s right. My comment there is ‑ ‑ ‑

PN743.

But I put to you, that’s exactly what the clause - what Mr Drayton says something like that was said by Mr Thomas, it was exactly the form of the clause that was provided?‑‑‑Mr Drayton says that, and he says that it was explained, but what I’m saying to you is, it wasn’t.

PN744.

So you’re saying the form of - from your recollection, the form of the clause how you wanted it to operate wasn’t explained to them?‑‑‑Look, we didn’t explain it, we weren’t - that wasn’t the focus of our thinking, you know, it was all about growth. We weren’t going to argue about flexibility on redundancy and get - we’d argued enough about every other clause through the agreement. We were sick of the arguing, right, and we just wanted to resolve the agreement and just get on with growing the mine and having the work - the agreement settled.

PN745.

I put this to you; if it was of no interest to the company and it was irrelevant the company wouldn’t have proposed the amendment?‑‑‑Look, it’s exactly what we did propose and we didn’t reach agreement in the end, so that’s where it got to.

PN746.

Okay. I have no further question of this witness, thank you?‑‑‑Yes, thank you.

**** DAVID MURRIE XXN MR ENDACOTT

PN747.

THE SENIOR DEPUTY PRESIDENT: Mr Warren?

<RE-EXAMINATION BY MR WARREN [2.41 PM]

PN748.

MR WARREN: Mr Murrie, there’s been a fair bit of evidence given as to assert what Mr Thomas may or may not have said, do you know where Mr Thomas is now?‑‑‑I actually haven’t spoken to him since I left the operation, so I don’t know where he is, no.

PN749.

Does he still work with the operation?‑‑‑No, he doesn’t, no. He would have left about two years ago.

PN750.

Thank you.

PN751.

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Murrie, you’re now free to leave the witness box. Remain in the body of the court if you wish or otherwise leave the court?‑‑‑Thank you.

<THE WITNESS WITHDREW [2.42 PM]

PN752.

MR WARREN: I now call Mr Dwayne Jones.

<DWAYNE JONES, SWORN [2.43 PM]

<EXAMINATION-IN-CHIEF BY MR WARREN [2.44 PM]

PN753.

MR WARREN: Mr Jones, your name is Dwayne Jones?‑‑‑Yes.

PN754.

Your work address is Thomas Mitchell Drive, Muswellbrook?‑‑‑Yes.

PN755.

By whom are you employed and in what capacity?‑‑‑I’m employed by Mt Arthur Coal as the qualified mechanical engineer.

PN756.

Mr Jones, have you made a statement, for the purpose of these proceedings?‑‑‑Yes, I have.

PN757.

Do you have it with you in the witness box?‑‑‑Yes, it is.

PN758.

Is it a statement of some 19 paragraphs and three attachments?‑‑‑Yes, it is.

PN759.

Thank you. Could I just take you, please - sorry, and it’s a statement that you signed on 15 December 2014?‑‑‑Yes, that’s true.

**** DAVID MURRIE RXN MR WARREN

**** DWAYNE JONES XN MR WARREN

PN760.

Can I just take you, please, to paragraph 12? The second last line of paragraph 12, towards the end of that line it quotes a qualification details as MEM30205, should that read MEM30305?‑‑‑Yes, it should.

PN761.

You wish to amend it to that?‑‑‑Yes, please.

PN762.

With that amendment, is it your evidence that your statement is true and correct in every detail?‑‑‑Yes.

PN763.

I tender that statement.

PN764.

THE SENIOR DEPUTY PRESIDENT: Mt Arthur 7.

EXHIBIT #MT ARTHUR 7 STATEMENT OF DWAYNE JONES, DATED 15/12/2014

PN765.

MR WARREN: That’s the evidence-in-chief of Mr Jones.

PN766.

THE SENIOR DEPUTY PRESIDENT: Mr Endacott.

<CROSS-EXAMINATION BY MR ENDACOTT [2.45 PM]

PN767.

MR ENDACOTT: I’m Mr Endacott - my name is Mr Endacott, Mr Jones, I work for the CFMEU and I’ll be asking you some questions in cross-examination. Now, you’ve held your current role since July 2014, as you indicate in your first paragraph, Mr Jones?‑‑‑Yes.

PN768.

You give an explanation of the previous engineering role you’ve performed in the coal industry. Can you just recount when you actually physically commenced working for Mt Arthur?‑‑‑As in - as a contractor or as ‑ ‑ ‑

PN769.

Well, start working at the site probably?‑‑‑August 2011 I started as an engineering contractor.

PN770.

Okay. You performed a supervisory role at that time?‑‑‑I had multiple roles, but predominantly it was the project management of building of equipment for expediting of new equipment.

**** DWAYNE JONES XXN MR ENDACOTT

PN771.

Then you were promoted or transferred - employed and transferred to the current role?‑‑‑Yes.

PN772.

When you were working as a contractor what crew were you working on?‑‑‑No, I was working for the project team for Mt Arthur Coal, so I was part of the expansion of RX1.

PN773.

Okay. So when did you start observing the interaction, for example, between mechanical engineering stream employees that may have different trade qualifications, directly?‑‑‑When I took this role, as a qualified mechanical engineer, in July.

PN774.

July last year?‑‑‑Yes.

PN775.

Okay. But do you recall what day in July?‑‑‑I wouldn’t recall the exact day because it was the transitioning of my new role from my last role.

PN776.

But it was after the company indicated it was going to start making redundancies?‑‑‑No, I wasn’t brought into that part of it.

PN777.

That was about 3 or 4 July, I think?‑‑‑It could have been, but I was still in the engineering team.

PN778.

Now you say, at paragraph 7, you say:

Mt Arthur Coal has made a decision that it no longer requires persons employed as boilermakers.

?‑‑‑Yes.

PN779.

Now, who would do the boiler making work that’s required when there were no boilermakers?‑‑‑As in now, or as in ‑ ‑ ‑

PN780.

Okay, well, as in there was no - were you aware that they employ boilermakers currently, 14?‑‑‑Yes.

PN781.

They did boiler making work?‑‑‑Yes.

PN782.

So who would do that work once they were no longer employed?‑‑‑You would use your plant mechanics because predominantly they will pick up basic welding and heating as part of their trade.

PN783.

Okay. And welding that wasn’t basic?‑‑‑You would engage a third party to do it.

**** DWAYNE JONES XXN MR ENDACOTT

PN784.

Which is contractor work?‑‑‑Yes, somebody that had the suitable qualifications, yes.

PN785.

Are you aware that a Mr Luke Turner has provided a statement for these proceedings?‑‑‑Yes.

PN786.

You’ve seen that?‑‑‑Yes.

PN787.

Have you had the opportunity to look at LT2 to that statement? That’s LT2 to the statement of Mr Turner. So if you could just flip to the front pages, that’s not the one that says “Keenan’s copy” on the front, is it? Yes. That’s my one I mark up, I apologise for that. Have you seen that, LT2?‑‑‑No.

PN788.

Which is described as the - Mr Turner describes this document as a work order. He says - I’ll just read what 24 he says - paragraph:

Mr Mark Makin(?), one of the other mechanical stream employees, printed out some of his work orders for the period approximately 11 months.

So that’s that document there. Now, have you - you’ll agree, will you not, in looking through that, that much of that work undertaken would be considered as fitters work?

PN789.

Your Honour, I should identify that I’m looking at the copy that my friend’s working off and my copy has yellow markings on it, where issues have been marked up and that’s the same as the copy that I’ve given to - now, I’m worried that other people don’t have that.

PN790.

THE SENIOR DEPUTY PRESIDENT: Yes, mine does not.

PN791.

MR WARREN: I don’t know where the yellow is either, your Honour.

PN792.

THE SENIOR DEPUTY PRESIDENT: Well, this might be important for me to have a colour copy, so how are we going to do that? What’s quickest? Photocopying something in colour, which we can do, or someone highlighting something?

PN793.

MR ENDACOTT: Well, there’s lots of highlights. It probably should be the option of photocopying in colour would probably be the best.

PN794.

THE SENIOR DEPUTY PRESIDENT: Have you got a clean copy?

**** DWAYNE JONES XXN MR ENDACOTT

PN795.

MR ENDACOTT: I have one clean copy that I’ve given to ‑ ‑ ‑

PN796.

THE SENIOR DEPUTY PRESIDENT: All right. Maybe we should retrieve the copy Mr Jones has there.

PN797.

MR ENDACOTT: Yes, it wouldn’t be appropriate for him to have a copy different to your Honour’s.

PN798.

THE SENIOR DEPUTY PRESIDENT: Can we just copy it on green photocopying paper? Should we photocopy that in colour so we all have it?

PN799.

MR ENDACOTT: I believe so, because the evidence is ‑ ‑ ‑

PN800.

THE SENIOR DEPUTY PRESIDENT: Is anything else going to fall into this category?

PN801.

MR ENDACOTT: Yes, there will be. I wasn’t aware ‑ ‑ ‑

PN802.

THE SENIOR DEPUTY PRESIDENT: Perhaps identify it now.

PN803.

MR WARREN: And perhaps what the colour means as well.

PN804.

MR ENDACOTT: Mr Turner has two - I’ll move on. I might be able to - Mr Turner’s given evidence about what it means and the company’s had the opportunity to reply. It probably doesn’t ‑ ‑ ‑

PN805.

MR WARREN: No. This witness has not addressed that. That, which you just put to him.

PN806.

MR ENDACOTT: We should probably photocopy it, your Honour, because the other one marked in yellow, that has been marked up, is LT4. I believe, if I recall a statement of Mr Turner, he:

Attached is a statement marked up LT -

this is at paragraph 24:

is a copy of the printout marked up by me.

PN807.

THE SENIOR DEPUTY PRESIDENT: Yes. No, well mine isn’t as well, LT4. So should we get a few copies of LT2 and 4 made?

**** DWAYNE JONES XXN MR ENDACOTT

PN808.

MR ENDACOTT: Yes, your Honour.

PN809.

THE SENIOR DEPUTY PRESIDENT: All right. Which copies are the best ones? The ones that are in Mr Jones’ hands at the moment?

PN810.

MR ENDACOTT: I think most likely I’d need to rip the pages out of mine, because my secretary binds them for me.

PN811.

THE SENIOR DEPUTY PRESIDENT: All right. Well, look, we won’t have a look at anything else, other than LT2 and 4, so just flag LT2 and 4, give them to my associate. We’ll only need to adjourn for a few minutes.

PN812.

MR ENDACOTT: Okay, thank you.

PN813.

THE SENIOR DEPUTY PRESIDENT: Is that best?

PN814.

MR ENDACOTT: Yes.

SHORT ADJOURNMENT [2.55 PM]

RESUMED [3.16 PM]

PN815.

THE SENIOR DEPUTY PRESIDENT: Okay, that bundle of documents, annexure LT2 and some documents on A3 paper, which I’m assuming is LT4?

PN816.

MR ENDACOTT: Yes, that’s correct, your Honour.

PN817.

MR WARREN: That’s the new LT4?

PN818.

MR ENDACOTT: Yes, yes.

PN819.

THE SENIOR DEPUTY PRESIDENT: Yes, what you’re identifying there, Mr Warren, is what I understand LT4 to be.

PN820.

MR WARREN: Thank you.

PN821.

MR ENDACOTT: Mr Jones, if I draw your attention to the document being supplied, LT2, which is this one?‑‑‑Yes.

**** DWAYNE JONES XXN MR ENDACOTT

PN822.

Before the adjournment I was taking you to LT2, which was the exact same document, in the attachment of Mr Turner. Now, this is from Mark Makin, for the period, as indicated, in the statement of Mr Turner I took you to before going to LT4. Mr Turners says he’s marked that up, indicating what are fitters duties, or not boilermakers duties and that’s a work order he described. Are you familiar with these codes at all?

PN823.

MR WARREN: I object to that, to the extent to what the statement of Mr Turner says, he doesn’t - he describes:

I’ve taken the opportunity to mark the copies that are particularly described as plant mechanic roles.

He doesn’t say “fitter”. I think my friend just said “fitter”. I just want to be very clear because there’s two different things, as to what’s been asserted here.

PN824.

MR ENDACOTT: Thank you, your Honour, I correct that.

PN825.

Are you familiar with these codes at all?‑‑‑No. I know what they are, but I don’t know what those codes mean. I know they’re generated from work orders but not what that exact code means.

PN826.

Okay?‑‑‑If that makes sense.

PN827.

It does and, in fact, it probably means I won’t need to cross-examine you on it because of that point. If you just go to LT4, and I’ll just get you to confirm the same for LT4 ‑ ‑ ‑?‑‑‑This one.

PN828.

‑ ‑ ‑ which is that the - yes. If I take you to the first one, it says - which is number 2. It says, “Sort field, TKD0507”, or it could be O. Are you familiar with what that is?‑‑‑CJD0507? It generally designates an equipment number.

PN829.

Equipment number. Then the PM01, which - do you know what that is, no?‑‑‑No.

PN830.

Order ‑ ‑ ‑

PN831.

MR WARREN: What was the answer? No?

PN832.

MR ENDACOTT: No, he said. I apologise, you’ll need to answer ‑ ‑ ‑?‑‑‑I don’t live on the maintenance codes, no.

PN833.

Okay. So you don’t know what the order is?‑‑‑No.

**** DWAYNE JONES XXN MR ENDACOTT

PN834.

Okay. What about, “DSS seat vibration motor bucket”?‑‑‑Sounds like the description of the work order, which is what that order, I assume, he means by that.

PN835.

Okay and you’re not familiar with those orders?‑‑‑No. I have a basic understanding of the 1 SAP system, which is generated, so the planned work, which would generate an order, but I don’t live in that world.

PN836.

But it’d be something Mr Turner would know?‑‑‑I would think so, yes.

PN837.

Thank you. No further questions, with respect to that exhibit. That attachment.

PN838.

THE SENIOR DEPUTY PRESIDENT: Now what I need is to put those two annexures in replacement, wholly replacing my LT2 and 4. I’m assuming there’s nothing else in them.

PN839.

MR ENDACOTT: Yes.

PN840.

THE SENIOR DEPUTY PRESIDENT: All right.

PN841.

MR WARREN: Your Honour, I’m sorry to interrupt, can you just explain what the yellow highlighting is?

PN842.

MR ENDACOTT: I’ve clearly not taken this witness anywhere near it, but I’ll seek to get some instructions on that.

PN843.

MR WARREN: What does the yellow mean?

PN844.

MR ENDACOTT: It’s from Mr Turner’s statement, he indicated he’d marked up off those work orders what was either plant, mechanical or fitting work. I can’t recall the exact termination he used, but it’s in his statement what the mark up is.

PN845.

MR WARREN: I see. So the yellow is that which is described or asserted by Mr Turner to be plant mechanic work?

PN846.

MR ENDACOTT: Yes, that’s correct, yes.

PN847.

MR WARREN: Yes.

PN848.

THE SENIOR DEPUTY PRESIDENT: Mr Makin, a mechanical stream employee, did, as I understand it.

**** DWAYNE JONES XXN MR ENDACOTT

PN849.

MR WARREN: On Mr Turner’s evidence he’s saying he’s looked at Makin’s work and he’s saying that’s what Makin did. The yellow being work that Makin did, which he’s saying is plant mechanics work.

PN850.

THE SENIOR DEPUTY PRESIDENT: That’s as I understand it.

PN851.

MR WARREN: As I understand what’s going to be put.

PN852.

MR ENDACOTT: Yes. And LT4 is Mr Turner’s own one. Yes.

PN853.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN854.

MR WARREN: Thank you.

PN855.

MR ENDACOTT: Do you still have Mr Turner’s statement in front of you? I take you to LT5?‑‑‑Yes.

PN856.

You’ll see that that is a document, statement of attainment, statement that confirms that Luke Turner has attended the training in electronic technician?‑‑‑Yes.

PN857.

Do you know what that is?‑‑‑No. It looks like a statement of attendance - that he’s attended a course at WesTrac on electronic technician which could ‑ ‑ ‑

PN858.

Do you know whether that would be boilermakers work or plant mechanics work?‑‑‑It should actually probably be like extra low voltage work, as in electrical work, which is covered in the plant mechanics trade as well.

PN859.

Yes. So you would agree that plant mechanics that would - boilermakers work, do you agree with that?‑‑‑To do the work or do the course?

PN860.

Well, the training that he’s received, the certificate of attainment?‑‑‑Yes, that’s not boilermaker work, yes.

PN861.

Not boilermaker. And that would be work that would normally be undertaken by a plant mechanic?‑‑‑Yes.

**** DWAYNE JONES XXN MR ENDACOTT

PN862.

If the company sent him off to that training course and he does that work, you would say that that would be the undertaking of plant mechanics work?‑‑‑Without knowing the detail of that course, I wouldn’t say that’s undertaking of plant mechanics work, because that could actually be attributed to his actual low voltage work, which he could be an automotive electrician to do that work.

PN863.

Well, it’s not boilermakers work, is it?‑‑‑No.

PN864.

It’s other work?‑‑‑Yes.

PN865.

Engine problem diagnostics?‑‑‑Yes. Again, no, not boilermaker work.

PN866.

Plant mechanics work?‑‑‑Yes.

PN867.

THE SENIOR DEPUTY PRESIDENT: You’re now referring to the ‑ ‑ ‑

PN868.

MR ENDACOTT: The next page, yes.

PN869.

THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑ next page, of the same exhibit?

PN870.

MR ENDACOTT: Yes.

PN871.

If you could just turn over the page? Service literature?‑‑‑I’m not even sure what that is, to be quite honest.

PN872.

Okay. Now, I take you to LT3. Could you identify that document?‑‑‑This is the one that says, from Mark Marshall:

Whom it may concern. This letter is to confirm that Luke Turner has been employed full time as a boilermaker at Mt Arthur Coal for the last 7.5 years. During this period Luke has performed boilermaker work as well as conducting mechanical repairs to machinery on site. Luke has gained extensive knowledge of the mechanical work required to maintain heavy machinery on site.

PN873.

Now, that’s - you’ll agree that document is on company letterhead?‑‑‑Yes.

PN874.

You’ll see that it’s - the signature is identified as Mark Marshall, ancillary superintendent, Mt Arthur Coal?‑‑‑Yes.

PN875.

Do you know who Mark Marshall is?‑‑‑Yes, I do. I know of him, I don’t - again I live in engineering, they’re in the maintenance stream but, yes, I do know who Mark Marshall is.

**** DWAYNE JONES XXN MR ENDACOTT

PN876.

Who is he?‑‑‑He was the ancillary superintendent that looked after the maintenance the CAT products in regards to dozers and graders.

PN877.

And CAT products is mining equipment?‑‑‑Yes.

PN878.

Mining plant and machinery?‑‑‑Yes.

PN879.

That’s a - that is a - well, that’s a staff position, isn’t it, a superintendent?‑‑‑Yes.

PN880.

He’s - the superintendents are statutory qualified, are they, in maintenance?‑‑‑No.

PN881.

Okay. He would be - if he’s signed that letter, you wouldn’t doubt the accuracy of that assessment, would you?‑‑‑Well, yes, I would.

PN882.

You would?‑‑‑Given that he should have consulted with the QME, for starters, given that competency falls under me.

PN883.

Okay. So when did start in that position?‑‑‑Given that wasn’t me, it should have been the person before - the QME before me, sorry.

PN884.

Okay?‑‑‑I was in July, so it should have been the person before me.

PN885.

Okay. And you’re not aware whether he consulted that person or not?‑‑‑No, and I have no records that he has consulted that person to say that he signed him off as being competent in any task either.

PN886.

You know it’s Mr Turner’s evidence that he does, you know, considerable plant mechanics work?‑‑‑Yes.

PN887.

You would agree that this correspondence supports that?‑‑‑Yes.

PN888.

Now, it’s Mr Turner’s evidence that for many months he did the pit fitters role, do you recall that?‑‑‑No.

PN889.

Do you know what a pit fitter is?‑‑‑They’re the ones that live out in the pit, as opposed to the ones that live in the workshop, basically the difference is.

PN890.

Yes Now, with respect to a pit fitter, they do plant mechanics work out on the mine, don’t they?‑‑‑Yes.

**** DWAYNE JONES XXN MR ENDACOTT

PN891.

How much boiler making work would they do?‑‑‑They would do a percentage of it, given the repair works they have to do to their GETs et cetera.

PN892.

So there’d be a small amount, wouldn’t it?‑‑‑I couldn’t validate either way.

PN893.

Okay. I put to you that the way that the maintenance operates that if you’re capable of doing a job then you would do it, is that correct?‑‑‑No.

PN894.

So you would say a boilermaker that had finished his boiler making and there was fitting work to be done, mechanical fitting work to be done, that he wouldn’t go about doing that work?

PN895.

MR WARREN: Well, I object to that. How would this witness know what a person might be - might go about doing? You need to establish that this person knows, to start with, who we’re talking about. Then whether this witness knows who that person is and then knows what that work does, that person does in work.

PN896.

MR ENDACOTT: Well, I ‑ ‑ ‑

PN897.

THE SENIOR DEPUTY PRESIDENT: Just a moment.

PN898.

MR ENDACOTT: So what role do you actually perform again?‑‑‑I am the qualified mechanical engineer on site. So the ‑ ‑ ‑

PN899.

Senior management - a senior supervisory role?‑‑‑No, I wouldn’t call it a senior supervisor role. I sit in the statutory world of compliance.

PN900.

Yes. So you’d be familiar with the work people - in that role you should be familiar with the work people perform?‑‑‑No, not specifically. My assumption would be is if you employ a boilermaker you employ them to do boiler making work. If you employ a plant mechanic that’s the work we’ve employed them to do.

PN901.

Okay. So you haven’t like personally gone around and sort of examined the work that people have been doing for a number of years?‑‑‑No.

PN902.

No. So you’re not in the capacity to refute the accuracy of what Mr Turner says about the work they perform, or Mr Currie?‑‑‑Yes. No, I wouldn’t be in a position to refute it, no.

PN903.

No. Okay.

**** DWAYNE JONES XXN MR ENDACOTT

PN904.

SENIOR DEPUTY PRESIDENT: Paragraph 17 of Mr Jones’ statement seems to arise out of his giving consideration to the skills and qualifications of the 14 boilermakers. It’s not the exact question you asked.

PN905.

MR ENDACOTT: Yes.

PN906.

SENIOR DEPUTY PRESIDENT: But there is an intention to individuals - - -

PN907.

MR ENDACOTT: Yes.

PN908.

SENIOR DEPUTY PRESIDENT: - - - that would have required some consideration of – well, at least their - - -

PN909.

MR ENDACOTT: I’ll go back. I was actually under the impression that he was familiar with the work they undertook. That’s what I took – you say in paragraph 17 – at paragraph 17 you make a comment about your understanding with respect to the experience of the boilermakers?---Yes. I’ve not been shown it but based on the minimum two years’ working full-time (indistinct).

PN910.

But you’re not familiar with the specifics of the work that they perform?---No. Just what the evidence I’ve got – black and white – to that person who does that role.

PN911.

So you’ve assumed that that information you’ve been provided is correct?---Yes.

PN912.

And you’ll agree that the correspondence that Mr Turner provides from the superintendent at LT3 is contrary to your assumption about the work they undertake?---But again, it’s a letter that just states that I don’t have any evidence that’s been provided to me that he has actually been doing that full time for two years.

PN913.

So how did you become aware of the information that none of the boilermakers have two years’ experience at paragraph 17 of your statement. How did you become aware of the information?---Because when I worked in this role was reviewing the mechanical competency for the site was part of that. So basically I pulled all the file history that I had on those people, to what qualifications and what evidence we had on what they’d done and asked to verify that they had done for two years basically. And I haven’t seen that anywhere where somebody has said that to me and say that they have done that work full time for two years.

PN914.

So you looked at the qualification of the boilermaker and you - - - ?---Yes.

**** DWAYNE JONES XXN MR ENDACOTT

PN915.

In doing that review, for example, for Mr Turner identify those courses he had attended?---In the review of Mr Turner’s – yes, I believe he is actually enrolled in the mobile plant trade to actually do that trade off his own bat – to become qualified as a mobile plant trade.

PN916.

And did you check whether or not any of the employees were like working as – well had been allocated the role of the pit sitter at all? Any of the boilermakers?
---I haven’t been informed they were being – as a pit fitter – not that I would either.

PN917.

Okay?---What I did ask for was I requested information from all those people both formally and verbally for any additional training they may have received and the work they’re undertaking.

PN918.

I’ve no further questions.

PN919.

SENIOR DEPUTY PRESIDENT: May I ask a question? Paragraph 16 is one way in which a boilermaker may achieve competency to work as a mobile plant mechanic. The term “plant mechanics” is used, and the term “mobile plant mechanics” is used. Are we talking about the same persons?---Yes. “Plant mechanic” changed to “mobile plant mechanic”. But trades people - - -

PN920.

Mobile plant mechanics are plant mechanics and vice versa. It’s the same?---Yes.

PN921.

Yes. All right. Now, one of the ways of doing that or achieving that is to have been an existing employee with two years’ experience, working full time in the maintenance repair and not undertaking any boilermaker work at all – that’s my words “at all” – not undertaking any boilermaker work during this period. Is that right?---So - - -

PN922.

You disqualify yourself by doing any boilermaking work during two years’ full time engaged on maintenance and repair of plant?---This was based around – when I first went into the pathway of this – if a boilermaker was to become a mobile plant mechanic how would you achieve that if you didn’t have the qualification?

PN923.

Yes?---So I engaged with TAFE on that.

PN924.

Yes?---And with the influence of him and the feedback I got back from those was that the two years of the underpinning is what you’re basically pinning your trade knowledge of that you would normally receive in the plant mechanic trade of doing that work. Without the underpinning knowledge it would be difficult to go through the RPL process for starters because you won’t achieve – recognise prior learning – because you wouldn’t have done the role. And also then training up to fill the gaps between those.

**** DWAYNE JONES XXN MR ENDACOTT

PN925.

Is this your interpretation of advice you received from TAFE?---That’s basically black and white what I got from TAFE.

PN926.

Well, it’s not a document from TAFE, so it’s your interpretation - - - ?---Yes.

PN927.

- - - of what you received from TAFE?---Yes.

PN928.

Thank you. Mr Warren?

PN929.

MR WARREN: Yes, just on that point as well please, Mr Jones.

<RE-EXAMINATION BY MR WARREN [3.36 PM]

PN930.

As I understand your evidence in 16, a person needs to do (a), (b), (c), (d), (e) and (f) – is that correct?---Yes.

PN931.

Before they then become a qualified plant mechanic?---No, they’re not qualified.

PN932.

Right. Let’s just take it in parts then. Her Honour took you to (a) and took you to the words included – up to and including in the brackets – and then says, “And hold a trade qualification.” What trade qualification is that?---You can hold basically any trade in the - - -

PN933.

So boilermaker qualification?---Yes. Metal – and the metal pathway, yes.

PN934.

Right?---Light vehicle mechanic, fitter machiner, fitter turner.

PN935.

Right?---Fitter floor power, heavy vehicle road transport, heavy vehicle agricultural. It’s one of about 10 different trades you’ve got.

PN936.

Right. So together with that trade qualification, they have to have worked full time within the maintenance and repair of plant equipment. Correct?---Yes.

PN937.

And then be endorsed by their supervisor and superintendent?---Yes.

PN938.

I’m looking at your evidence here, Mr Jones?---Yes. That’s to validate that they did that work, yes.

PN939.

And effectively confirming – and then be eligible to commence the RPL process through TAFE?---Yes.

**** DWAYNE JONES RXN MR WARREN

PN940.

And what is the RPL process? What’s “RPL”?---So it’s “recognised prior learning”.

PN941.

Right?---So it’s whatever you’ve done up to this date, into the trade that we would like. Like is the trade to hold – to work a mobile plant.

PN942.

And in addition to that complete all coursework et cetera of the TAFE’s bridging program?---Yes. So you may have gaps in your knowledge which you will need to go to TAFE to fill.

PN943.

And then in (e) be issued with a statement of attaining the 12 core units?---Yes.

PN944.

So they need that?---Yes. They’re the key cores of the mobile plant trade.

PN945.

Right. So they need to have done that as well?---Yes.

PN946.

And then they also need to be eligible for appointment with the attained competencies by the qualified mechanical engineer?---Yes.

PN947.

That’s you?---Yes.

PN948.

Now, speaking about your role. Your role – how many people report to you, Mr Jones?---Nobody.

PN949.

Nobody. Your role – you are the qualified engineer?---yes.

PN950.

It’s a statutory role?---Yes.

PN951.

It’s a governance role?---Yes.

PN952.

Do you allocate work?---No.

PN953.

You don’t allocate work to either boilermakers, or plant mechanics or anyone?---I do not allocate work.

PN954.

You are an internal operator?---Yes, I’m basically there for the health and safety of mechanical plant and setting the standards mentioned in practice for the site.

PN955.

In accordance with your responsibilities under the Act?---Yes.

**** DWAYNE JONES RXN MR WARREN

PN956.

Right. Thank you.

PN957.

SENIOR DEPUTY PRESIDENT: I’m being distracted by the training.

PN958.

MR WARREN: Sorry, your Honour?

PN959.

SENIOR DEPUTY PRESIDENT: Qualification details and I’m going to go back to them again and at some stage you can let me know if this isn’t the correct witness to pursue this with. But you have qualified the Certificate III, level in engineering and fabrication which we understand was traditionally called “boilermakers”?---It’s - - -

PN960.

Sometimes still is?---It’s one of a number of trades that can achieve boiler making.

PN961.

Yes. But that’s where boilermakers fall, is it? They have a Certificate III engineering fabrication trade?---Yes. Yes.

PN962.

Right. And you’ve compared those units of competency with Certificate III in mobile plant technology?---Correct, yes.

PN963.

And I understand mobile plant technology is what you say the certificate is for plant mechanics?---Yes.

PN964.

Are there other certificates held by persons who are called “plant mechanics” at Port Arthur?---Mt Arthur.

PN965.

Port Arthur – goodness, that’s a slip?---The other ones I discussed were the - - -

PN966.

The answer may be right. Yes, or no?---You can have a heavy vehicle road transport, which is your heavy vehicle trade as well and there’s an agricultural part of that stream as well and there’s also a heavy vehicle industrial trade as well which are all similar to the mobile plant one.

PN967.

And they may all fall within the group called “plant mechanics”?---Yes.

PN968.

But I had understood that what I had referred to as “fitters”, fell within the group of plant mechanics?---No.

**** DWAYNE JONES RXN MR WARREN

PN969.

No? I’m going to have to be assisted with this. I had clearly understood from earlier exchange that the persons that were called “fitters” in the diagrams were now incorporated in the group that was to be called “plant mechanics”. If I had that wrong it’s quite possible it’s wholly my mistake. But I thought I got that right.

PN970.

MR ENDACOTT: I did ask an earlier question about – in that group – were there fitters and turners.

PN971.

SENIOR DEPUTY PRESIDENT: Yes. Fitters and turners.

PN972.

MR ENDACOTT: Yes, yes. And I was informed there was in response to that.

PN973.

SENIOR DEPUTY PRESIDENT: Yes. All right.

PN974.

MR ENDACOTT: Yes.

PN975.

SENIOR DEPUTY PRESIDENT: Who will be – I don’t want to lose this opportunity with this witness if I’m not going to be provided with a similar opportunity with a further witness and it’s only fair that we start with the company’s witness and the union then knows what the company asserts as to who comes within which trade and which qualifications they use so that I can make some sense of what is being said. These people aren’t interchangeable. They don’t have the same skills. They can’t operate. They want to take an enormous amount of time to train them up. And none of these boilermakers can start in these plant mechanic roles. I just won’t be able to grasp all of that submission without understanding this a bit better.

PN976.

MR ENDACOTT: Yes. And look - - -

PN977.

SENIOR DEPUTY PRESIDENT: That’s assuming I have to grasp it at all.

PN978.

MR ENDACOTT: Yes.

PN979.

SENIOR DEPUTY PRESIDENT: Because it’s not the first thing I have to look at, that is, I look at what clause 21 means.

PN980.

MR ENDACOTT: I do make this point, your Honour, and I concede this for the benefit of the employee confusion, is that colloquially plant mechanics can be called “fitters” on site. So, in a response to a question about a fitter.

PN981.

SENIOR DEPUTY PRESIDENT: Yes.

**** DWAYNE JONES RXN MR WARREN

PN982.

MR ENDACOTT: The company’s response wouldn’t have misleading. It would have been referring to a colloquial reference, yes.

SENIOR DEPUTY PRESIDENT: I’m not suggesting for a moment.

PN983.

MR ENDACOTT: Yes.

PN984.

SENIOR DEPUTY PRESIDENT: That anyone’s misleading, not at all.

PN985.

MR ENDACOTT: No. So that’s where the confusion comes from – appropriately – he’s referring to a plant mechanic as a fitter.

PN986.

SENIOR DEPUTY PRESIDENT: All right. Now, elsewhere fitters are identified as being a mechanical trade and there’s, of course, certificates for in the mechanical trade specific certificates and when I came in here I rather thought that might have been the relevant certificate, having acquired sufficient knowledge to be dangerous in the apprentices Full Bench case that went for a long, long time so I’ve got a bit of a grasp of all of this but obviously not perfect. So I’m just going to throw this back at you to consider. It might be there’s a number of areas the two of you can agree on but I suspect not all of them.

PN987.

MR ENDACOTT: Yes.

PN988.

SENIOR DEPUTY PRESIDENT: And as I say, I’m still struggling. The extent to which I will actually need to consider all of this because it seems to me this goes very much to the practical implications for the company of the interpretation for which the CFMEU contends. And if I was to accept their interpretation it may be that I don’t need to consider and rule on how many of the boilermakers can perform the work that remains and needs to be done by plant mechanics. I mightn’t need to do that. I don’t know. It’s early days.

PN989.

MR WARREN: Your Honour, when I was opening, your Honour asked me certain questions and you will detect from that that we see that as an important part of your Honour’s consideration, of what the clause means.

PN990.

SENIOR DEPUTY PRESIDENT: Yes.

PN991.

MR WARREN: So to that extent we say it is relevant.

PN992.

SENIOR DEPUTY PRESIDENT: Yes.

**** DWAYNE JONES RXN MR WARREN

PN993.

MR WARREN: And that will be a matter for your Honour. Can I indicate with respect to your earlier questions as to what is a fitter, et cetera? We readily acknowledged in the documents that – I think were attached to Mr Wagner’s statement – may be also to Mr Kelly’s that the word “fitter” is in a box. Mr Kelly would be the person, I feel confident, that your Honour can ask those sort of questions of. This witness, Mr Jones, has given his response and we say that’s a relevant response that there are fitters and there are fitters. There are boilermakers that become a plant fitter or a plant mechanic but the fitter is, it appears to be a generic term to a bunch of people. Now, Mr Kelly will be giving evidence as to what he analysed and how he determined the optimal organisational chart for want of a better word.

PN994.

SENIOR DEPUTY PRESIDENT: Right.

PN995.

MR WARREN: For that situation.

PN996.

SENIOR DEPUTY PRESIDENT: When he does so, as well, would be revisit Cert III and mobile plant technology and Certificate III in engineering and mechanical which I had understood previously was the description of the fitter’s certificate and then this other certificate of mobile plant technology seemed to come in and that’s when I started to think that the preliminary grasp I had of this had faded. So anyway – I’m sorry to have detained you on all of that, Mr Jones.

PN997.

MR WARREN: Your Honour it’s helpful to us to realise where your Honour’s thoughts are going.

PN998.

SENIOR DEPUTY PRESIDENT: Well, that’s where they are at a quarter to 4.00. Now, I don’t know who I interrupted and where I got to.

PN999.

MR WARREN: I think I was re-examining Mr Jones and I had completed re-examining, Mr Jones, and I think then you asked a question.

PN1000.

SENIOR DEPUTY PRESIDENT: Well, I would allow both Mr Endacott or you to ask any further questions of Mr Jones. Mr Endacott?

PN1001.

MR ENDACOTT: I have no further questions.

PN1002.

SENIOR DEPUTY PRESIDENT: Mr Warren?

PN1003.

MR WARREN: Nor am I.

PN1004.

SENIOR DEPUTY PRESIDENT: Thank you, Mr Jones. You’re now free to leave the witness box and the court should you wish to do so.

PN1005.

<THE WITNESS WITHDREW [3.46 PM]

PN1006.

SENIOR DEPUTY PRESIDENT: Mr Warren?

**** DWAYNE JONES RXN MR WARREN

PN1007.

MR WARREN: Your Honour, we have two further witnesses. Mr Sears and Mr Kelly. We now have the replacement LT2 and LT4 and we now understand when it was said in the various statements – or the statement of Mr Turner that they had been marked up I couldn’t see where they had been marked up. I now identify where they have been marked up and what he has asserted was work that is done by a plant mechanic.

To that end I would wish to seek some instructions, by your leave, overnight. And I think the person best to look at that would be Mr Sears, who is an onsite superintendent and has great knowledge of what work these people do and what’s allocated. So I would not want wish to call Mr Sears today and we’ll see if we can do that overnight. But so far as getting some instructions from Mr Sears and perhaps for Mr Sears’ in a position where he can answer some questions.

As for Mr Kelly, I could call Mr Kelly now if that would be of assistance and hopefully we’ll finish him tonight.

PN1008.

SENIOR DEPUTY PRESIDENT: Okay.

PN1009.

MR WARREN: Thank you.

PN1010.

SENIOR DEPUTY PRESIDENT: Before I forget this I don’t think I’ve even formulated this very well but I’ll give it a go. The need for a person to hold a certain qualification as required by the coal industry specific regulations I had been previously taken to that – those two columns.

PN1011.

MR WARREN: Yes.

PN1012.

SENIOR DEPUTY PRESIDENT: There’s the identification of certificate or identification of comparable - - -

PN1013.

MR WARREN: Yes.

PN1014.

SENIOR DEPUTY PRESIDENT: - - - skills. What I want to know is whether is then an overlay by BHP as to any additional requirements that it has of persons to work in these areas? I assume they’re the regs of the legal requirements.

PN1015.

MR WARREN: Yes.

PN1016.

SENIOR DEPUTY PRESIDENT: If there’s any other ones I don’t know of them and then whether BHP has an overlay themselves. So as I say there’s requirements and I don’t mean those that – subsequent to July 2014 the company may require. I know there’s a whole area of argument there as that. But what I mean is what traditionally has been required by the company to be the additional qualifications for those persons. I know I haven’t put that very well. I’ll try and put it a bit better later. But I foreshadowed something that’s worrying me.

PN1017.

MR WARREN: I believe I understand what your Honour is saying and I’ll seek those instructions.

PN1018.

SENIOR DEPUTY PRESIDENT: Thank you. Yes?

<JEFF KELLY, SWORN [3.50 PM]

<EXAMINATION-IN-CHIEF BY MR WARREN [3.51 PM]

PN1019.

MR WARREN: Your Honour, I’m just attempting to get some documents that might be able to assist your Honour for your earlier questions.

PN1020.

SENIOR DEPUTY PRESIDENT: Thank you.

PN1021.

MR WARREN: Mr Kelly, your name is Jeff Kelly?---Yes.

PN1022.

Spelled with a “J”?---Yes.

PN1023.

And your work address is Thomas Mitchell Drive, Muswellbrook?---That’s correct.

PN1024.

Mr Kelly, you are employed by Mt Arthur Coal Proprietary Limited?---Yes.

PN1025.

And your current role is maintenance manager at Mt Arthur Coal?---That’s correct, yes.

PN1026.

And you’ll need to speak up a little bit. It does pick it up?---Right.

PN1027.

But it needs to pick it up?---Yes.

PN1028.

Mr Kelly, have you prepared a statement for the purpose of these proceedings?
---Yes.

PN1029.

Mr Kelly do you have it with you in the witness box?---Yes.

**** JEFF KELLY XN MR WARREN

PN1030.

Is it a statement of some 27 paragraphs that you signed on the 16 December 2014?---That’s correct.

PN1031.

And it has some three attachments. Correct?---Yes.

PN1032.

Right. Mr Kelly, could I just take you to paragraph 22, please, of your statement? Do you have that with you?---Yes.

PN1033.

Do you see the last line of paragraph 22? Do you wish to amend it by deleting the words, “Work Health and Safety legislation” and inserting therein “Coal Mine Health and Safety regulation 2006”?---Yes, that’s correct. Yes.

PN1034.

With that amendment is it your evidence that your statement is true and correct to the best of your knowledge and belief?---Yes.

PN1035.

I tender that statement.

PN1036.

SENIOR DEPUTY PRESIDENT: Yes, that will become Exhibit Mt Arthur 8.

EXHIBIT #MT ARTHUR 8 STATEMENT OF JEFF KELLY

PN1037.

MR WARREN: Now, Mr Kelly, I want to just take you please to attachment JK2 of your statement. That’s a various structure – company structure – were you involved in preparing that document?---Yes.

PN1038.

Did you prepare the document?---Not all of it I didn’t.

PN1039.

Fine. If I could just take you to if you look at the bottom of your pages – page 26? That’s slide 7. Do you see that?---Yes.

PN1040.

Now that variously in green boxes describes in “A crew 7 fitter”; “B crew 7 fitters” et cetera across the page. Do you see that?---Yes.

PN1041.

Do you see also an engine fitter? One engine fitter? Under coordinator?---Yes.

PN1042.

And then fitter, and fitter again. Do you see that? Now, just keep your finger there. If you could go through please to page 34. Do you see that’s under the heading, “Mechanical truck maintenance proposed.” Do you see under the heading of “A crew” there’s “7 plant mechanic”?---Yes.

PN1043.

You’ve got plant mechanic, plant mechanic, plant mechanic, 10 plant mechanic, 13 plant mechanic, 13 plant mechanic. Do you see that?---Yes.

**** JEFF KELLY XN MR WARREN

PN1044.

What is the difference between the fitter you describe on page 26 under “A crew” and the “7 plant mechanic” you describe on page 34 as “A crew”? Is there a difference?---So, a fitter is a generic term, and which covers mechanical trades people. So you could have a different trade. So we used to call mechanical trades people “fitters”. What we found is that what was creating some confusion within our work stream so we changed the wording to “plant mechanic” when we did the propose. So it was very specific around these – this is the type of mechanical trades person we’re looking for and skilled. And so the plant mechanic is a particular trade.

PN1045.

Plant mechanic – is?---Is a particular trade.

PN1046.

And a fitter is more of a generic term?---Yes. So under the fitter terminology you could have been a plant mechanic, you could have been an automotive mechanic, you could have been a fitter and turner. So it was a generic term for mechanical trades people that we were using at the time.

PN1047.

I see. And could I just go across on page 26? There’s the engine fitter?---Yes.

PN1048.

SENIOR DEPUTY PRESIDENT: What’s confusing me at the moment.

PN1049.

MR WARREN: Sorry, your Honour.

PN1050.

SENIOR DEPUTY PRESIDENT: Is the comparison you have previously made was between page 26 and 34 and I thought the comparison was between – should be between 28 and 34. Would you make sure that I haven’t misread something there? The point is made because in both it has originally - - -

PN1051.

MR WARREN: Well, actually 28 and 34, no. Your Honour, your description is more accurate than mine.

PN1052.

SENIOR DEPUTY PRESIDENT: Yes, but in each case the - - -

PN1053.

MR WARREN: For the purpose of your question.

PN1054.

SENIOR DEPUTY PRESIDENT: - - - fitter disappears and the plant mechanic comes in.

PN1055.

MR WARREN: That’s correct.

PN1056.

SENIOR DEPUTY PRESIDENT: But the actual group.

**** JEFF KELLY XN MR WARREN

PN1057.

MR WARREN: Mechanical trucks is better described as page 28 to 34.

PN1058.

SENIOR DEPUTY PRESIDENT: All right. Yes.

PN1059.

MR WARREN: Perhaps we could stick with that, please, Mr Kelly? 28 and 34, and ignore my earlier request. And so, you have 12 fitter under “A crew”. You’ve got 7 plant mechanic at the end of the day. Do you see that?---Yes.

PN1060.

Now, once again, back to my question the fitter referred to there was the then existing structure on page 28 – was the existing structure?---So that was the structure that was – we were putting in place when we first made the redundancy which was that, so hence why the boilermaker is redundant.

PN1061.

Yes?---Yes, and we use the generic term of all the mechanical trades people have been called fitters.

PN1062.

Yes. And then you’re proposed – when did that come into existence?---So this is the proposed structure for what’s happening at the moment.

PN1063.

Right?---And between when we did the first structure and this structure and we had the – we identified the difference of what our mechanical trades people needed to have, we started to identify that people on the shop floor were confused between what is a fitter and what is a plant mechanic. So we then changed the terminology.

PN1064.

I don’t think the people are alone?---Sorry?

PN1065.

I don’t think the people are alone?---Yes. So the plant mechanic lined up with the skills that we required where – so a guy – a person that was a fitter with a term – the generic terminology of fitter may have been a plant mechanic or may have been a fitter and turner.

PN1066.

And if that person was a fitter and turner they would need to do some additional studies? Or gain additional experience to become a plant mechanic?---Yes. So that’s – that’s correct. And if they were to be a plant mechanic. So they’re two different trades – but there’s a gap between a fitter and turner and a plant mechanic – but you can bridge that gap without becoming a plant mechanic.

PN1067.

How?---So there’s competencies that you would have to sit through. So you do the workplace evidence all through and with some further studies at TAFE to bridge that gap and depending on what the gap was.

**** JEFF KELLY XN MR WARREN

PN1068.

Right. And when you say, “without becoming a plant mechanic”, you mean without having a document from TAFE to say Mr “X” is a plant mechanic, but what the person would do – would take their fitting qualifications, add core units – components – which would bring their fitting qualification up to that of a plant mechanic?---There’s certainly in competencies, yes – that the people would need to cover off what a plant mechanic would do without becoming a plant mechanic as such, because if I was a fitter and I want to become a plant mechanic I’d have to do a dual trade – I’d have to do a second trade.

PN1069.

When you say “become a plant mechanic”, do you mean to be formally recognised with a certificate saying, “I’m a plant mechanic.”?---Correct.

PN1070.

Right?---That’s correct.

PN1071.

But?---Yes, so the competencies that we needed – that we need in our business is more aligned to plant mechanics. So to help with people to understand what was required we then said, “Well, let’s call everyone what we need as a plant mechanic and then we can look at the gap between a fitter and a turner” – a current fitter and turner where they were today versus what they need to be a plant – to do the tasks that we need – which would normally be done by a plant mechanic.

PN1072.

SENIOR DEPUTY PRESIDENT: And if I was to ask for documents identifying the certification that a plant mechanic has, which in turn would identify the training packages that they had undertaken, such a document should be able to be found?---Correct. The only - depending upon which TAFE the person went to is to what skills they could – they all get a trade certificate as a plant mechanic. But then they do – they have a core module and they do electives. So depending what electives they have done so – but there is a - - -

PN1073.

I’ll feel I’ll never grasp all of that?---No. So there’s a – so what we do is we map what skills we need to maintain our equipment – our mobile plan and they pretty much align with the plant mechanic, and then we take a fitter and turner as such.

PN1074.

Is a fabrication Cert III?---No, no. It’s a mechanical trade.

PN1075.

Sorry, that’s a boilermaker?---Correct.

PN1076.

Is a mechanical – what was it called? Cert III mechanical - - -?---Correct.

PN1077.

I think it’s – I can’t remember what it is?---So - - -

PN1078.

Sorry, no – I’m on the certificates, yes. Cert III, Engineering Mechanical trade?
---Correct.

**** JEFF KELLY XN MR WARREN

PN1079.

Fitter and turner?---Yes. So then what you do is now, again, depending on what TAFE you went to and what State you’re in, you could do different modules. So what we have to do is find the gap and bridge the gap between those two trades. But the fitter and turner trade is closer aligned to a plant mechanic. Now, there is heavy industrial. There is road transport. There is agricultural. There’s motor mechanics. All of them are mechanical trades and they do certain parts in the modules. So we have been working with the TAFE and we have to do it on an individual person by person basis to get what competencies each person has done but they also have to have workplace experience as well. So as an employer we can then sign off that they have done certain parts of that experience on our site.

PN1080.

Yes?---But even though we’ve bridged the gap between the two, we don’t put them through as a full second trade. So they don’t come out having a dual trade. They just have a fitter turner trade with required competencies to maintain the equipment.

PN1081.

In answer to an earlier question about the term “fitter” being used as a generic term and it was a little bit misleading. It’s better to use the term – sorry – and, in fact it covered mechanical trades people, which could have in fact been fitters and turners, plant mechanics and I thought I wrote down a third – auto mechanics?
---Yes. Automotive mechanic.

PN1082.

Automotive mechanics?---Yes.

PN1083.

Thank you.

PN1084.

MR WARREN: Mr Kelly, you give evidence at paragraph 17 and following with respect to the boilermakers. The core competencies of a boilermaker, compared with the core competencies of a fitter and turner, are they different?---Yes. So there is couple of the core competencies that line up and they, typically, are about planning work and risk assessment of work but the core competency between metal fabrication, which is a boilermaker, and a mechanical trade which is a fitter and turner are different.

PN1085.

When you say – how many core competences are we talking about?---So, typically, there’s around about 22 core competencies that a tradesperson would do and then there’s some electives on top of that that they can do.

PN1086.

And of the 22 core competencies for a fitter and turner and the 22 core competencies for a boilermaker, of those core competencies is it your evidence only two or three of those are common?---Yes. My recollection of that’s correct, yes.

**** JEFF KELLY XN MR WARREN

PN1087.

And then you move from the core competencies of a fitter and turner to the core competencies of a plant mechanic. Are there more core competences common there, than with the boilermaker to the plant mechanic?---Yes, that’s correct.

PN1088.

Can you give some indication of degree?---Yes, again, it depends where the person did their TAFE. But in some instances there can be – well, off the top of my head on some of the people that we’ve got – there’s around about five that they have to bridge the gap on.

PN1089.

So they need five and out of the 22?---Yes.

PN1090.

As opposed to say 20 out of the 22 for boilermaking?---Around about those numbers, yes.

PN1091.

Yes. And it would – sorry, go ahead?---The reason – you’ve got to do on an individual basis. So you just can’t broad-brush it and say, “If you’re a fitter and turner you’re going to have this.” Again, it depends where you went to TAFE, which State you went to TAFE in – all those. They all add together. So you’ve got to do each person individually.

PN1092.

And you see what electives they may have done within those?---Correct.

PN1093.

In the competency strains and those electives might be a core competency that are good cross-reference?---Well, if I take myself, as an example, I’m a fitter and turner by trade and the bulk of my apprenticeship was on heavy plant – similar to what we work on at the moment. But I had to do electives around diesel engines. That was an extra study that I had to do to get that competencies. That wasn’t part of my core trade.

PN1094.

Do you have competencies of plant mechanic?---Do I?

PN1095.

To get the competency of a plant mechanic? You had to do diesel, which you didn’t do as a core competency for a fitting mechanic?---No, I don’t have a competency as a plant mechanic, but I can work on diesel engines because I’ve got a competency for working on diesel engines.

PN1096.

You’re still a fitter and turner?---Correct. I’m a fitter and turner by trade, yes. That’s my first trade.

**** JEFF KELLY XN MR WARREN

PN1097.

Right. And you’ve done additional competencies to be able to let you work on or qualify you to work on diesel engines?---Correct.

PN1098.

Of a large size?---From a – a diesel engine in that competency is a diesel engine. It doesn’t matter how big or small it is.

PN1099.

Yes. Right, thank you.

PN1100.

SENIOR DEPUTY PRESIDENT: Mr Endacott?

<CROSS-EXAMINATION BY MR ENDACOTT [4.08 PM]

PN1101.

Mr Kelly, my name’s Mr Endacott. I work for the CFMEU and I’ll be asking you some questions in cross-examination. Now, you in giving your evidence you spoke about the term “fitter” was a generic classification. And that there are different trades within that. Have you got a breakdown of exactly what trades each person holds that works in the Maintenance Department?---Not – not with me, no.

PN1102.

Not with you. You’re aware of how many trade qualifications there are of the people in the mechanical engineering stream?---I’m aware of most of them.

PN1103.

Okay. Could you just list the ones you’re aware of?---So we have some mechanical fitters.

PN1104.

Yes?---Some plant mechanics. We have some people with road transport qualifications. We have - - -

PN1105.

Okay. Just road transport what does that mean?---Yes, so it’s a plant mechanic, road transport. We have some automotive mechanics. We have some motor cycle mechanics. We have some – I’m not sure of the correct terminology but an industrial aero-dynamics – it’s an aircraft mechanic.

PN1106.

Aircraft mechanic, yes?---We have some – sorry, what’s the question around?

PN1107.

Well, just the difference?---Yes.

PN1108.

So that’s the motor cycle mechanic trade?---Yes. That’s what the person does, yes.

PN1109.

Okay. Aircraft mechanic trade is someone who is a mechanic that works on aircrafts, is that right?---Exactly, yes.

**** JEFF KELLY XXN MR ENDACOTT

PN1110.

Right. Okay. And obviously you have boilermakers?---We have – yes – so there’s – and so in the boilermakers we’ve got some sheet metal workers, we’ve got fabrication. I thought there was one other but I can’t recall it at the moment.

PN1111.

And one other. Okay. Fabrication. And if we just go to your statement and I think I’ve got the note page 28.

PN1112.

SENIOR DEPUTY PRESIDENT: 28 and 34.

PN1113.

MR ENDACOTT: Yes, 34. Now, if you go to – that says, “Mechanical trucks maintenance”, “Mechanical Maintenance Superintendent”?---Yes.

PN1114.

If we take the column at the left it says, “Supervisor A Crew” “Supervisor A Crew”. So you have two supervisors for each crew?---Correct.

PN1115.

And is that because one’s mechanical or one’s electrical or is it just that in case one is off sick or something?---No. So we split the maintenance into two types of work. One is our planned maintenance and one is our breakdown or first response maintenance.

PN1116.

Okay. And if they have breakdowns like when people go out to the mine and fix something is it?---They can either go out to the mine or the piece of equipment will come to the workshop but it’s an unscheduled style.

PN1117.

Yes. Okay. Now, you say there that you have 12 fitters, two electricians and one boilermaker – if we look at the A Crew at page 28?---It’s – sorry, what was the question.

PN1118.

If I go down the left column?---Yes.

PN1119.

You’ve got 12 fitters, two electricians, and one boilermaker. Page 28?---Yes. So – correct. Sorry, I don’t understand your question.

PN1120.

Well, I’m just taking you to the A Crew on this table that you’ve prepared?---Yes.

PN1121.

Now can you just explain what was the purposes of this document?---So the purpose of this document was to show the roles that we were making redundant. That’s why the different colours were there. So the green was the roles that were – the roles that were staying – and the brown, or the browny colour was the role that was being made redundant.

**** JEFF KELLY XXN MR ENDACOTT

PN1122.

Okay?---Or the roles.

PN1123.

SENIOR DEPUTY PRESIDENT: My document isn’t coloured.

PN1124.

MR WARREN: Yours isn’t coloured, your Honour?

PN1125.

MR ENDACOTT: Okay.

PN1126.

SENIOR DEPUTY PRESIDENT: We can attend to this overnight but - - -

PN1127.

MR ENDACOTT: Yes. It’s easy enough. The 12 fitters across the top is all green.

PN1128.

SENIOR DEPUTY PRESIDENT: Yes.

PN1129.

MR WARREN: We’ll get, your Honour a coloured – I’m sorry, I wasn’t aware your Honour didn’t have a coloured attachment. We will get a coloured attachment which is just for the record JK2.

PN1130.

SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN1131.

MR WARREN: I think you may also need – is there a JK3? Or is that - - -

PN1132.

SENIOR DEPUTY PRESIDENT: I think JK2 is – or yes there is.

PN1133.

MR WARREN: Yes, thank you.

PN1134.

SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN1135.

MR WARREN: We’ll obtain that in a moment.

PN1136.

SENIOR DEPUTY PRESIDENT: But in the line – just staying with the far left column.

PN1137.

MR ENDACOTT: Yes.

PN1138.

SENIOR DEPUTY PRESIDENT: The 12 fitters. What colour is that?

PN1139.

MR ENDACOTT: Green.

**** JEFF KELLY XXN MR ENDACOTT

PN1140.

SENIOR DEPUTY PRESIDENT: And what’s happened in between?

PN1141.

MR ENDACOTT: The one below is green.

PN1142.

SENIOR DEPUTY PRESIDENT: They’re both green.

PN1143.

MR ENDACOTT: And the one below is orange.

PN1144.

SENIOR DEPUTY PRESIDENT: Sorry.

PN1145.

MR ENDACOTT: So, green, green, orange.

PN1146.

SENIOR DEPUTY PRESIDENT: All right.

PN1147.

MR WARREN: Or the witness has referred to as brown.

PN1148.

MR ENDACOTT: Brown.

PN1149.

MR WARREN: We’re all a bit challenged may be.

PN1150.

SENIOR DEPUTY PRESIDENT: And are green staying, albeit fitters are going to be renamed and orange is going on the proposed – when I look at the proposal.

PN1151.

MR WARREN: Your Honour, can I perhaps hand this up? A new JK2 and a JK3.

PN1152.

SENIOR DEPUTY PRESIDENT: Thank you.

PN1153.

MR ENDACOTT: I’ve got your copies.

PN1154.

MR WARREN: Thanks.

PN1155.

SENIOR DEPUTY PRESIDENT: Thank you.

PN1156.

MR ENDACOTT: Thank you, Mr Kelly. So if I go down the page 28 I was at?
---Yes.

PN1157.

So you’re there?---Yes.

**** JEFF KELLY XXN MR ENDACOTT

PN1158.

Now, you’ll see – it says – so if we go down the left hand side column?---Mm-hm.

PN1159.

Which to the most left is “A Crew”. So if I understand this you’re saying 12 fitters were to be retrenched? Is that right?---No, that was the new crew was going to be made up of 12 fitters.

PN1160.

Okay?---Yes. The green is what’s staying.

PN1161.

Okay. Two electricians were to stay?---Yes.

PN1162.

And one boilermaker was that the category you wished to get rid of?---Yes. Correct.

PN1163.

Okay. Now, I think of those 12 fitters to be staying, other than the boilermaker those fitter categories could have been any of those trades that we described before?---That’s correct.

PN1164.

So amongst that 12 some could have been mechanical fitters, some plant mechanics, some plant mechanic road transport. Some, it could be motor cycle?
---Yes.

PN1165.

Some could be aircraft mechanics?---Correct.

PN1166.

Okay. Now, is there anything that – you don’t have motor cycles on the mine site, do you?---Not that I’m aware of.

PN1167.

And don’t have any air planes?---No.

PN1168.

No. Okay. But you didn’t divide those up. You just would call them all fitters which you’re now calling plant mechanics? For the purpose of this table - - -

PN1169.

MR WARREN: He was about to answer.

PN1170.

MR ENDACOTT: Yes, sorry. I apologise?---Sorry – so this – page 28 is the proposed structure. That was the structure for after the – with the redundancies down the bottom.

PN1171.

Yes?---Yes. So we at that time we called them all fitters.

PN1172.

Yes. And it didn’t matter to you what they were, as long as they weren’t boiler makers is that right?---No, that’s not correct.

**** JEFF KELLY XXN MR ENDACOTT

PN1173.

Okay?---The – because we had a gap – we knew we had – we needed plant mechanics and we had to then work on – we had all these fitters, that we had to then bridge the gap and we had to work out what each person had and what skills we had to upskill into that.

PN1174.

Okay. And the two electricians that were started?---Yes.

PN1175.

Do you know whether they were high voltage electricians or - - - ?---No. In this group they were auto electricians.

PN1176.

Auto electricians?---Yes.

PN1177.

So they were all auto electricians that were being retained?---Yes.

PN1178.

And where did the high voltage electricians in the category that had been maintained for?---So the high voltage electricians worked in ultra class trucks.

PN1179.

Okay?---And field maintenance and infrastructure.

PN1180.

And they don’t work in mechanical trucks?---No.

PN1181.

It’s not needed?---Not as high voltage electricians.

PN1182.

Now, if we go to page 34, and this is the mechanical trucks – and this is the mechanical maintenance superintendent – and this is, again, the mechanical trucks maintenance?---Correct.

PN1183.

And this is the most current proposal for what you wish to do with the second round of redundancies?---Correct.

PN1184.

Now, you’ve used a slightly different description to be retained. You’ve got seven plant mechanics. And, again, they could be the mechanical fitters, the plant mechanics, the plant mechanics road transport, the automotive mechanics, the motorcycle mechanics, the aircraft mechanics?---Correct.

PN1185.

And you’ve got five service persons?---Yes.

**** JEFF KELLY XXN MR ENDACOTT

PN1186.

Now where do the service person comes in? Because I noticed there was no service person description on the page 28 that I took you to?---Correct. Because in the original structure - - -

PN1187.

Yes?---- - - they were in ancillary and infrastructure.

PN1188.

Okay?---Yes.

PN1189.

They’re still in the mechanical engineering stream? Under the core skills? They’re still mechanical engineering? They’re under the infrastructure?
---Correct.

PN1190.

Yes. Okay?---Sorry, ancillary and infrastructure?

PN1191.

Yes, which is the productions?---Yes, which is slightly - I think it’s page - - -

PN1192.

Yes?---Yes.

PN1193.

Okay, thank you, but there’s no reference to the electricians there?---No. So in this instance – on page 34 you’ve got the auto-electricians under the – to the right‑hand side.

PN1194.

Yes. You’ve got two?---Yes.

PN1195.

Okay. So who does the auto-electrician work for Crew A, that’s not required?
---So the plant mechanics will do that work. So part of the plant mechanics trade is they do auto electrical work.

PN1196.

And they do welding as well, is that correct?---Yes, that is correct.

PN1197.

So the boilermakers – so now, after restructuring the plant mechanics will do the boilermaking work if it’s required and also the auto-electrician work?---Correct.

PN1198.

If we just go back to 34? The reason you indicated – if you go to the right hand side. You’ve got the green on the bottom. You’ve got one auto-electrician and then you’ve got one auto-electrician there. You previously called those electricians and then you have, in this document called them auto-electricians?
---So the – so on 28, where we called them electricians.

PN1199.

Yes?---So there’s a couple of things that change between the two – the two documents – is around trying to eliminate the confusion around, when we’re actually talking about electrician are we talking about a high voltage electrician, or are we talking about an auto-electrician.

**** JEFF KELLY XXN MR ENDACOTT

PN1200.

Okay?---Are we talking about a fitter or are we talking about a plant mechanic. So a couple of other things. If on 28, they call it “mechanical trucks”, and then on 34 we called it “mechanical trucks proposed”.

PN1201.

Yes?---So there was a couple of distinctions we made differently in the second presentation.

PN1202.

And Mr Kelly, that confusion came about because all of the auto-electricians, high voltage electricians were in the electrical engineering stream?---Correct. Yes.

PN1203.

And all of the boilermakers and the other categories of trades were all in the mechanical engineering stream?---Well, there was two things. That is correct. And then the high voltage electrician can do auto-electrical work but an auto-electrician can’t do high voltage work.

PN1204.

Yes?---So that was also creating some confusion.

PN1205.

Okay. And so now the system makes it – your proposal which is making it clear that the company is now drawing distinction within the relative engineering – mechanical engineering stream and the electrical engineering stream. Make a distinction with categories in that stream. That’s why you’ve used the new terminologies?---Sorry?

PN1206.

Well, I put to you before that you were using the word – you were using the word “fitter”?---Yes.

PN1207.

And you were using the word “electrician”. Now, you use the word “plant mechanic” and “auto-electrician”, and I put to you that was because there was the confusion there because everyone fell within the – all the mechanical people fell within the mechanical engineering stream and the electrical people fell within the electrical engineering stream and that now under the proposal you’re seeking to draw a distinction between those different categories?---So what we’re trying to do is make it clear that what trade the person had.

PN1208.

Now, you’re familiar with the specifics of the work that are undertaken by the different trades that are at the mine site – the different groups of maintenance employees?---In what regards?

PN1209.

Well, the differences between the work undertaken by a plant mechanic and the work undertaken by a boilermaker? You’re familiar with that?---Yes, I think.

**** JEFF KELLY XXN MR ENDACOTT

PN1210.

And it’s correct, isn’t it, that mechanical engineering employees – boilermakers in a lot of – you know would it be considered plant mechanic’s work?---There was – so boilermakers did assist the plant mechanics.

PN1211.

Yes. Correct. And they did a lot of plant mechanic’s work?---I’m not sure what a lot would mean but - - -

PN1212.

Okay?---Yes.

PN1213.

Well, what percentage of work would you say was normally sort of plant mechanic’s work as different from boilermaker’s work would a boilermaker undertake during his role?---Well, to look at what a boilermaker did he probably did about 25 percent of his work as a boilermaker. So then the other bit of his work he would be either assisting plant mechanics with inspections or driving forklifts or a number of other tasks.

PN1214.

Yes. And the fitters and turners – well, not the fitters and turners – the mechanical engineering employees that were boilermakers they become proficient at doing that work, don’t they?---They can get experience in doing it. They’ve still got to be able to do it by themselves, they’ve actually got to have a certificate of competency to do that work.

PN1215.

Let me show the witness the statement of Mr Turner? Do you know Mr Turner?
---Yes.

PN1216.

And are you aware of how long Mr Turner’s worked at the mine site for?---Only because I just read it here right now.

PN1217.

Okay, thank you. If I may take you to annexure LT1 of that statement? Mr Turner indicates that - - -

PN1218.

MR WARREN: Perhaps you should describe it.

PN1219.

MR ENDACOTT: Well, you’ll see that that document appears to be a positions vacant, mechanical tradesperson, boilermaker.

PN1220.

MR WARREN: I object to this line in as much as the witness should be taken to paragraph 12 of Mr Turner’s statement where he then refers to LT1 and he gives the background for his reference to LT1.

**** JEFF KELLY XXN MR ENDACOTT

PN1221.

SENIOR DEPUTY PRESIDENT: All right.

PN1222.

MR WARREN: If the witness could be taken - - -

PN1223.

MR ENDACOTT: If my friend wishes I can do that.

PN1224.

MR WARREN: Well, it’s not because it’s a matter of fairness. I mean you’re asking him to comment on LT1 but he should see in the context of paragraph 12.

PN1225.

MR ENDACOTT: Just before I do, are you familiar with that document? The LT - - -?---The position vacant?

PN1226.

Yes?---I haven’t seen this one before.

PN1227.

You haven’t seen this one before?---Yes.

PN1228.

Well, Mr Turner describes it in this fashion?---Mm-hm.

PN1229.

The positions vacant advertisement that the role was for a mechanical tradesperson/boilermaker. The applicants were seeking an experienced - - -

PN1230.

SENIOR DEPUTY PRESIDENT: Well, you probably have to go back even earlier so it’s understood which role. And I think this is the role that brought him into the company in the first instance.

PN1231.

MR ENDACOTT: Yes.

PN1232.

SENIOR DEPUTY PRESIDENT: Rather than something that’s been advertised subsequently.

PN1233.

MR ENDACOTT: Okay.

PN1234.

SENIOR DEPUTY PRESIDENT: May be you understand that fully, Mr Kelly, but I thought it would be put in that context. This is what he saw that presumably led him coming in to the company, I think, is the context that it’s put in?---Right. Okay.

PN1235.

MR ENDACOTT: Okay. I’ll just take you to the statement. It starts at 6 – just to outline the history of it. So you can be familiar with the nature of the document. Mr Turner indicates that he worked for Phillips Engineering at the mine site for 18 months – paragraph 6 of your statement?---Yes.

**** JEFF KELLY XXN MR ENDACOTT

PN1236.

He goes on to indicate that Mr Clydesdale approached me and said there was a job going as a boilermaker. He says they wanted someone experienced in maintenance and servicing open-cuts and that I should think about applying for the role. He then indicates at paragraph 18 – paragraph 7 that – “I recall that same day I was walking through the corridor from the workshop to the crib room and Mr Flock approached me. Mr Flock informed there was a job going and said to me almost exactly the same thing as Mr Clydesdale. Mr Flock said, ‘There’s a job going for a boilermaker and they wanted someone experienced in mechanical and servicing in open-cuts. You should apply for it.’” He indicates at paragraph 8 – this was prior to the position being advertised “And it was around the same time as my wedding and I was going away on my honeymoon. My wedding anniversary is the 3 September. I asked Mr Flock how I would apply as I was going to be away. Mr Flock said, ‘Give me your resume and I’ll take care of it.’ I provided Mr Flock with my resume and he took care of it.’”

PN1237.

MR WARREN: Mr Folpp.

PN1238.

MR ENDACOTT: Mr Folpp. I was later provided with a copy of the position vacant form and I reapplied for it and he attaches this as the form he was provided. Now, you’ll see - - - ?---Sorry, which form?

PN1239.

LT1. So he was provided with that as the position vacant.

PN1240.

SENIOR DEPUTY PRESIDENT: There’s not a form. That’s why I think Mr Kelly is confused.

PN1241.

MR ENDACOTT: Yes. Yes.

PN1242.

SENIOR DEPUTY PRESIDENT: It seems to be an ad.

PN1243.

MR ENDACOTT: An ad. And he was later provided with this document LT – he was later provided with that document LT2. So it was essentially a position he had applied for at the mine. Can you see that? LT1?---That’s the – yes.

PN1244.

Yes?---So this - - -

PN1245.

So that’s how that document came into being?---Right.

PN1246.

Now, you’ll see there that it says – it describes his role as a mechanical tradesperson – boilermakers?---Mm-hm.

**** JEFF KELLY XXN MR ENDACOTT

PN1247.

Well, it’s got heading saying, “Mechanical tradesperson – boilermaker.”?---Yes.

PN1248.

And if you go to the second paragraph it says – the second paragraph of that document, says, “Mt Arthur Coal is seeking experienced mechanical equipment tradespersons who will be responsible for the repair and maintenance of a range of open-cut equipment. In particular we seek people with the boilermaking and welding experience.” See that?---Yes.

PN1249.

And you’ll see that document describes as a mechanical tradesperson. And do you agree with me that on the employment he would fall within the mechanical engineering stream?

PN1250.

MR WARREN: I object to that on the following basis. Does this witness know what a “stream” is? He’s already been taken to “Is it in this stream or that stream?” Perhaps the question could be put if he doesn’t know what the steam is, before he says whether – which stream it falls into.

PN1251.

SENIOR DEPUTY PRESIDENT: Fair enough. Establish the streams and find out what Mr Kelly’s understanding is?

PN1252.

MR ENDACOTT: Okay. Are you aware of the streams in operation at the mine site? Are you aware of any streams being in operation at the mine site?---I’m aware of the reference to the streams as far as redundancies. Yes.

PN1253.

Okay. And what streams are those? They’re in?---So they’re in the – it refers to them as a production stream and mechanical stream – engineering stream which is made up of mechanical and electrical.

PN1254.

Okay. And would you be aware of what stream upon employment as a mechanical trades person that Mr Turner would fall within?---Yes. I’m assuming you - - -

PN1255.

MR WARREN: How does this witness - I mean seriously, your Honour.

PN1256.

WITNESS: Sorry, but this is mechanical - - -

PN1257.

SENIOR DEPUTY PRESIDENT: Well, no in fairness, Mr Warren, he was going to say what he assumed would be the stream he would fall in?---Yes. So he would fall into the mechanical stream as a boilermaker because that’s what the ad says.

**** JEFF KELLY XXN MR ENDACOTT

PN1258.

MR ENDACOTT: Yes. And you’ll see that the ad replied that he would be responsible for the repair and maintenance of a range of open-cut equipment?---Correct.

PN1259.

So it would be that boilermakers did repairs and maintenance on mining open-cut equipment?---Yes, that’s correct.

PN1260.

And if you go down here to the bottom it says, “The additional qualifications viewed favourably.” You’ve got confined spaces?---Yes.

PN1261.

Working at heights. And I only ask this because I’ve seen it a few times. EWP?
---Yes.

PN1262.

What does that stand for?---Elevated work platform.

PN1263.

Elevated work platforms?---Yes.

PN1264.

Okay, thank you?---So – sorry, can I ask a question?

PN1265.

SENIOR DEPUTY PRESIDENT: You may say what you wish.

PN1266.

MR ENDACOTT: Yes.

PN1267.

SENIOR DEPUTY PRESIDENT: And if it’s a question – it depends who you’re asking it off?---Well, I just noticed that this says Friday 20 October 2006.

PN1268.

Yes. Where are you reading from?

PN1269.

MR ENDACOTT: Yes, down the bottom?---On the bottom of the ad.

PN1270.

SENIOR DEPUTY PRESIDENT: Yes, the application date?---Yes.

PN1271.

MR WARREN: At paragraph 3.

PN1272.

WITNESS: Yes. In February 2006. So, I’m assuming – I don’t know – they’re just - - -

PN1273.

SENIOR DEPUTY PRESIDENT: That’s very astute, Mr Kelly.

PN1274.

MR ENDACOTT: Yes, very astute.

**** JEFF KELLY XXN MR ENDACOTT

PN1275.

SENIOR DEPUTY PRESIDENT: Be careful who you cross-examine, Mr Endacott.

PN1276.

MR ENDACOTT: Yes. A very good point, my friend will raise it.

PN1277.

MR WARREN: You’d better believe it.

PN1278.

MR ENDACOTT: Now, if I could take you to LT2?

PN1279.

MR WARREN: Does he have the LT2 which is the replacement?

PN1280.

MR ENDACOTT: No, no. Well, he had the correct version to start with.

PN1281.

MR WARREN: Terrific.

PN1282.

MR ENDACOTT: I’ll just take you to – it’s put in evidence at paragraph 24 of Mr Turner’s statement, so I might just take you to that so that the document is properly identified. It says, Mr Mark Makin, one of the mechanical stream employees printed out some of his work orders for the period of approximately seven months. This work order is representative of the type of work that mechanical stream employees who hold the boilermaking trade are required to undertake. I have taken the opportunity to go through the printout and mark the jobs that would typically be described as plant mechanic’s roles that were undertaken by Mr Makin. Attached to this statement and marked LT2 is a copy of the printout marked up by me. So we’ve got that document there. Now, are you familiar with what Mr Turner referred to as a work order?---Yes, that’s correct.

PN1283.

And so what is that exactly?---So it’s a – so for every task we do in maintenance we create a work order and then we – and that’s what describes what work has to be done.

PN1284.

And are those work orders allocated? Who allocates the work order?---So the supervisor allocates the work order to an individual.

PN1285.

And then when it’s completed does the individual put that in somewhere? Or the supervisor puts it in or - - - ?---So it can be either or – so the individual – so any individual that works on a work order time confirms. So they actually tell me – look, how many hours they worked on that job.

PN1286.

Yes?---So everyone who worked on that job will time confirm.

PN1287.

Okay?---Or the supervisor will do it if in the absence of them doing it.

**** JEFF KELLY XXN MR ENDACOTT

PN1288.

Now, Mr Turner, if we go to the first page is marked on Mark Makin’s. I’ll make sure I’ve got the first page. Order 11643600 SCS truck, CPT rebuild at west track 447?---Yes.

PN1289.

And it’s got the short text. The OPR short text – Recon 447 RHS steer cylinder?
---Yes.

PN1290.

So do we know what that is?---Yes, so that’s - “Recon” – stands for “recondition”. The 447 is the truck number and the “right hand side” is what “RHS” stands for and the steering cylinder.

PN1291.

Okay?---So the descriptions SES truck that means it’s done by an external provider. That’s what the “SES” means. So that’s not done by our own people. It’s done by – it’s done by west track in this instance.

PN1292.

Okay. Then if we go down the next one?---Yes.

PN1293.

So would that be the case? He’s helped out someone from west track? Is that why it would appear in this?---Yes. So if you look over to the far right and normal duration, that’s the amount of time that he’s booked to that job.

PN1294.

Okay?---So he’s booked half an hour to that job.

PN1295.

Now, if we go down the next one – the “100,000 HSV CE CAT truck 9789 C-dump truck TKD 0501 recon 47 LHS steer cylinder.” And I assume that means “left hand side”. You’ll see he’s booked half an hour. Now, is that sort of work boilermaker work?---No, that - - -

PN1296.

Or is that plant mechanic work?---That’s the description of this is plant mechanic type work but if you look at the job number it’s all the same.

PN1297.

Yes?---So it’s all the same work. So it’s all – and the recon – and they’re all the same truck and they’re all the different cylinders and there’s all half an hour booked to that – each one of those.

PN1298.

So he’s been working on the same order – just going through systematically working on different elements. Is that what that represents?---Yes. So in – without – there’s some more detail that we’d need here but we typically break down a work order into operations. So there might be 10 different tasks on that one work order but in this instance all the work orders are the same number, the descriptions change which would indicate that there’s a different operation but they’re all for the same truck.

**** JEFF KELLY XXN MR ENDACOTT

PN1299.

Okay. Yes. But you’d call that sort of typically production work?---Sorry?

PN1300.

You would indicate that would be typically plant mechanic work that he’s marked there?---Correct. But that’s so the – so, in this instance you can have a plant mechanic with a boilermaker assisting or with an apprentice assisting or depending on what they actually – what they were doing at that time.

PN1301.

Okay. Now, I won’t take you through all of them but say we go down to the one that said – and if we go down the middle column – just fuel tank repair 447. Do you see that? Do you know if that’s plant mechanic work or boilermaker work?
---Sorry, I’m not – how far down am I looking?

PN1302.

It’s one, two, three, four, five, six, seven, eight, nine?---Oh, okay. See, well, again by that description it’s a little bit hard to see because it’s the same work order as the one above which is - - -

PN1303.

Okay, yes?---Yes.

PN1304.

If we go down two from that where it says “The four times turbo heat insulator US.” Do you know what that’s reference to?---Yes, so there’s an insulation blanket that goes on turbos, so it’s like a cover that bolts on – wires on to the turbo.

PN1305.

Okay. Is that plant mechanic’s work?---Yes. It’s – those jobs could be done by – it’s a blanket that you tie wire on to a turbo. So it can be done by - - -

PN1306.

Anyone?---Well, yes.

PN1307.

If you go below that, “reported turbo level low alarm”?---Transmission?

PN1308.

Yes. “Reported transmission level low alarm”?---Yes. So - - -

PN1309.

Do you know what that is?---Yes. So, the – that – yes, so that could be – the track has a level alarm on it and tells you that we’re low on oil. So, yes, he could be topping oil up. It could be multiple of things, yes.

PN1310.

But he would look at that and check out what it was and then fix it?---Well, it depends. The first thing you do is check the oil level and if you need oil you top the oil level up and the alarm will go away.

**** JEFF KELLY XXN MR ENDACOTT

PN1311.

Okay?---That’s what it’s for, yes.

PN1312.

But not historically boilermaker’s work, is it? It would be - - - ?---Well, in that instance there – like a truck operator could do that. That’s one of those jobs that, basically – so, people that are operating trucks can – they check their own fluid levels.

PN1313.

The one below that replace RH – outer steer cylinder and ball stub?---Yes.

PN1314.

I should say “CYL and .ball stub”?---Yes. Yes, so in that instance there typically you would give that to a plant mechanic and with someone to assist the plant mechanic.

PN1315.

Replace heating tap. Replace leaking heater tap?---Yes. The same. It could be – I mean that’s typically a tap that just comes off the engine block. So it’s just pull one tap off and put another tap on.

PN1316.

And then it’s got “REPL ball turbo heat insulator”?---Yes. So that’s replace ball turbo heat insulation. That’s a short text for that.

PN1317.

Okay. Well, plant mechanic’s work?---Again, it’s the blanket’s- tying the blankets. Putting the blankets on.

PN1318.

So whoever’s around does it, basically?---Sorry?

PN1319.

Whoever’s around does it?---Oh, again, it’s a job that people can do. It’s – so I mean we could typically get an apprentice to do that type of work or a plant mechanic or whoever’s in that team at the time.

PN1320.

I’ll get this question – I’ll bring this questioning – not much longer because there’s too many pages to go through but the one below it – BCP repair – RHNR high beam light?---Yes.

PN1321.

What’s that? That’s - - - ?---Yes, so that’s a head light on a truck. That’s typically replacing – the BPC is for when we have a blackout.

PN1322.

Okay. That’s not boilermaker work, is it? That’s maintenance work is it? Plant mechanic’s work?---Well, in that instance it could even be – an auto-electrician could have done that work.

**** JEFF KELLY XXN MR ENDACOTT

PN1323.

Okay. And BCP replace H – LHR strut plug. Do you know what that’s - - - ?
---I’m not sure what the plug is but typically what happens – once someone’s done this work they put in some notes about what they found and what they did.

PN1324.

Okay?---And then time confirm it.

PN1325.

Now, taking you through those you’ll agree that a lot of that work wouldn’t be what you’d say was historical boilermaker’s work, would you? Welding up metal, would you?---No.

PN1326.

And it is the case, isn’t it, that while in employment that the boilermakers did a lot of what work that would have fallen to other trades, for example, like plant mechanic performing their role?---Yes. So certainly the boilermakers were part of the crews.

PN1327.

Yes?---And they would assist people to do this work.

PN1328.

Mr Turner indicates in his evidence that he was allocated to the pit fitter’s role. Are you familiar with that role?---Yes.

PN1329.

And what is that role?---It’s a role where a person drives around in the field in a vehicle fixing up breakdowns as they get called up by the operator.

PN1330.

Yes. And that’s plant mechanic’s work?---Predominantly, yes.

PN1331.

And are the person’s buddied-up in a two-man system when forming that role?
---Not always. Sometimes they are but not always.

PN1332.

And you would agree that a person performing that work would be almost exclusively doing plant mechanic’s work that was on breakdown, would they not?---Sorry? And the question?

PN1333.

Well, if Mr Turner’s right and he was allocated pit fitter’s role?---Yes.

PN1334.

Going out there you say that he could be by himself, then he wouldn’t be going out – he’d rarely be going out to do boilermaking work, would he?---That’s correct.

PN1335.

And so he’d be almost exclusively doing fitting work for want of a better description?---Correct.

**** JEFF KELLY XXN MR ENDACOTT

PN1336.

So when – if the company’s successful in the application it can retrench all the boilermakers, who’s going to do the work for the boilermakers – were doing?
---The boilermaking work?

PN1337.

Yes?---Yes, so the – between the – depending on what the role – what the job is – the task so - but if it’s a chassis crack or an adapter replacement we would bring in a contract person to do that work.

PN1338.

And what about other boilermaking work?---So some of it – some of the boilermaking work will be eliminated by change out of it. So if it was a handrail. So we’ve got spare hand rails and spare ladders and things like that, we would change them out. But it was – all the fitters would have to do some of that work.

PN1339.

Because most fitters can do welding can’t they?---The majority of them, yes.

PN1340.

Yes. So the work would be done – some of the work would either be contracted out or done by the fitters?---Yes.

PN1341.

Now, what was your involvement in making the decision of the breakdown of employees to retrenched?---Is it - - -

PN1342.

That you made the decision they wanted to reduce hands?---Yes.

PN1343.

And you were consulted in that?---Yes.

PN1344.

And did you determine numbers?---Yes. I was a part of making that decision. Yes.

PN1345.

Okay. And who else was involved in the determining of the numbers?---So, Mitch Seares, myself did primarily most of the work in that.

PN1346.

Okay. So you did most of the work. So to determine you needed less boilermakers, for example, how did you determine that?---So some of that work had started prior to me taking the role on around the amount of – so part of that was done through our time confirmations of work that the boilermakers had done.

PN1347.

Yes?---In strictly doing boilermaking work?---Yes.

PN1348.

Yes?---So - - -

PN1349.

And who had been doing that?---So there was – so prior to me there was – I know Mitch was involved. There was some of the other superintendents and I come on board. So Troy Wickham is – he was the planning superintendent. He assisted me with some of the data.

**** JEFF KELLY XXN MR ENDACOTT

PN1350.

Okay. And was it the case you looked at the work boilermakers do and say, “Well, we don’t need boilermakers.” Is that - - -?---So when we said with the amount of work that the boilermakers were actually doing doing boilermaking we had too many boilermakers to do that work.

PN1351.

Okay. What about when you include the fitting work they were doing? The plant mechanic’s work or assisting the plant mechanic? Did you look at that work?
---Yes. We looked at where the boilermakers were booking there time to.

PN1352.

Yes?---Yes.

PN1353.

So you made an assessment you didn’t need boilermakers any more?---Correct.

PN1354.

And then you made an assessment to get rid of 14 of them. Is that how that worked? All of them?---All of them.

PN1355.

Okay?---Yes.

PN1356.

And you formed assessment that what they were doing could have been done by the plant mechanics and by contractors?---Yes. So – that’s correct.

PN1357.

Okay. So if I have this right, they were selected – because you made a decision – you just didn’t want boilermakers anymore?---We selected on the amount of boilermaking work that we had and what the boilermakers were doing in boilermaking.

PN1358.

At paragraph 25 of your statement six auto electricians and nine high voltage electricians were surplus to requirements. In addition to the 47 plant mechanics. Annexed to this statement and marked as a copy of the maintenance organisation structure – that you dated 14 November. Now, if you just get to the service person, what roles were they performing?---So the service persons were driving service trucks and doing some services in the work shop.

PN1359.

Okay?---Loop services.

PN1360.

I’ll just show the witness the statement of Mr Drayton. Sorry - and if you go to JMD4 and for the record, I identify that’s the Mt Arthur Coal Enterprise Agreement, 2011, your Honour. And if I take you to page 32 of that. And I apologise, it’s a little bit hard to see and you’ll have to turn the document – the statement upside down – because the table is upside down?---Okay.

**** JEFF KELLY XXN MR ENDACOTT

PN1361.

The service person, I think the terminology is that you use in the statement – the service persons – do you know where they fall in within this examples of relevant skills applying at commencement of the agreement?---Well, they fell under the service in the table.

PN1362.

Under the – if I have this right – where it says “Production”?---Yes, it says “Production”.

PN1363.

As the principle heading and date following the service?---Correct.

PN1364.

Okay. The high voltage, electricians – look, I’ll just go back to your statement – you use the term – the six auto-electricians, where do they fall?---So it was my understanding they fit in this engineering – electrical.

PN1365.

Yes. Okay?---Yes.

PN1366.

And the – did I say auto-electricians just then, or high voltage?---Yes – auto.

PN1367.

Yes. Now, so the high voltage electricians, where do they fall?---They fall in the electrical.

PN1368.

Electrical as well. Okay. Now, if I just take you briefly back to each of the boilermakers, where do they fall in here?---In the mechanical.

PN1369.

Okay. And each of those other categories that I asked you about identifying that fell in the mechanical fitters, the plant mechanics, the plant?---So, I the mechanical.

PN1370.

They’re in the mechanical as well, each of those classifications – even the aircraft mechanic, the motor cycle mechanic?---Correct.

PN1371.

Yes. Okay. I have no further questions of this witness, your Honour.

PN1372.

SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Warren?

<RE-EXAMINATION BY MR WARREN [5.01 PM]

PN1373.

Mr Kelly, just keep that open – the page that you’ve just been giving evidence on which is the core ancillary skills table which is found within the current enterprise agreement. Could you look at, please, under engineering – mechanical – auto-electrics appears there?---Correct.

**** JEFF KELLY RXN MR WARREN

PN1374.

My friend was talking about auto-electricians. There appears to be auto-electrics under mechanical and/or electrics under electrical?---Correct.

PN1375.

An electrician can do auto-electrical work, can’t they?---A high voltage electrician?

PN1376.

Yes?---Yes, that’s correct.

PN1377.

But an auto electrician can’t do high voltage electrical work?---No.

PN1378.

Or, indeed, electrical work per se, other than just auto electrical?---Correct.

PN1379.

So when you say that auto electrics fitted under electrical did you give consideration to what fell under the mechanical stream?---As far as the auto electrics are concerned – auto – not at the time, no.

PN1380.

When you say “not at the time”, not at the time you were doing this?---No, when we were doing the re– no.

PN1381.

You’ve been taken in some detail to LT2 of Mr Turner’s statement. Do you recall that? And you were taken indeed to work, I think you described under work order and I leave off the first several numerals but 6300. Do you see that? On the left hand side?---Yes, I see that.

PN1382.

And you said SES means that it was done off-site?---Yes.

PN1383.

Is that right?---Yes. So SES is a service entry sheet.

PN1384.

Yes?---Which is – it’s how a vendor gets paid by submitting a service entry sheet. So that’s where the – and then the truck CBT rebuild at west track. So that’s where the truck went off site.

PN1385.

So that work would have been done off-site?---Yes. The whole truck goes off site.

PN1386.

Yes?---So there’s – the part of this is around preparing the truck to go off site so you would take the truck over to a loading point where we take the body off it. So we allocate some of our internal labour to prepare that truck to go off site.

PN1387.

And, indeed, when you come down to any of the other entries – I come down to 1148 – which is about a third of the way down, which says four turbo heat insulators. Do you see that?---Yes.

**** JEFF KELLY RXN MR WARREN

PN1388.

That document is recorded apparently Mr Makin’s time that he has put in. Is that correct? That’s what the document appears to purport?---Yes. So, there just seems to be a misalignment somewhere because if I look at the description and it says one week mechanical and then the four in operation – it just sort of doesn’t quite add up.

PN1389.

Right. But can I suggest to you that it appears from the statement of Mr Turner that he is saying that that is to times that Mr Makin has put into those various jobs?---Correct.

PN1390.

Do you agree with that?---Yes.

PN1391.

But that document doesn’t show what someone else may have put in to the same job?---No.

PN1392.

Does it?---No. That’s correct.

PN1393.

So we don’t know from this document on any of those entries whether someone was working with Mr Makin or not, do we?---No. So, there’s a couple of things – in my previous role as a BPDL part of my role was to – and if I look at the dates and they’re all key dates – so the system went live in October and in these dates. And what I found - - -

PN1394.

October when?---In October 2013.

PN1395.

Yes?---And so what we found is a lot of people were booking time to jobs to book their time. So – but this information here doesn’t tell me whether there was more than one person on the job or not. It just tells me this person here booked that time.

PN1396.

And you don’t know from that document whether another person who booked time on the job may have been a tradesperson?---No, that’s correct.

PN1397.

Or whatever. Right. Do you still have Mr Turner’s statement there, Mr Kelly?
---Yes.

PN1398.

Paragraph 6 of Mr Turner’s statement refers to two other people – Kevin Clydesdale and Bruce Folpp – for the record that’s F-o-l-p-p. Do you know those gentlemen?---I know Kevin Clydesdale and I know Bruce - - -

PN1399.

Folpp?---Folpp – yes, I’ve met him once but Kevin is – was a shifts supervisor.

**** JEFF KELLY RXN MR WARREN

PN1400.

You say “was”, is he still?---No, he’s finished with us in the last week.

PN1401.

He’s no longer working there?---Sorry?

PN1402.

He’s no longer working there?---That’s correct.

PN1403.

And how about Mr Folpp?---Mr Folpp, I don’t know when he – I don’t know when he worked at Mt Arthur. I know he worked there but I don’t know when – what the duration – but he’s not there now.

PN1404.

Thank you. Nothing further. Thank you.

PN1405.

SENIOR DEPUTY PRESIDENT: Thank you, Mr Kelly, you’re now free to leave the witness box and I suspect we’ll be adjourning soon so you can leave the court room as well.

<THE WITNESS WITHDREW [5.07 PM]

PN1406.

SENIOR DEPUTY PRESIDENT: What time would be convenient tomorrow? Given that I’d like to try and make up a half an hour or 20 minutes or so if possible.

PN1407.

MR WARREN: Thank you, your Honour. I just need to get some instructions with respect to these now clearer and coloured in – and I may need a little bit of time in the morning. Sorry about that. But we may need to still start at 10.00 o’clock.

PN1408.

SENIOR DEPUTY PRESIDENT: Yes.

PN1409.

MR WARREN: If that’s at all possible so as we can have some time to assess that material. Perhaps we can shorten our lunch break may be.

PN1410.

SENIOR DEPUTY PRESIDENT: Most certainly. But did you just say start at 10.00?

PN1411.

MR WARREN: 10.00 o’clock is fine.

**** JEFF KELLY RXN MR WARREN

PN1412.

SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN1413.

MR WARREN: We should be right by 10.00. You were discussing this morning whether it may be it could have been 9.30.

PN1414.

SENIOR DEPUTY PRESIDENT: Yes, I see what you mean. Yes, as long as we can make up half an hour or so because I’ll need to leave shortly after 4.00.

PN1415.

MR WARREN: Yes.

PN1416.

SENIOR DEPUTY PRESIDENT: So we’ll start at 10.00 am and then we can decide if it’s convenient sit a slightly shorter lunch break than normal.

PN1417.

MR WARREN: Thank you.

PN1418.

SENIOR DEPUTY PRESIDENT: But I must say we’re going through the evidence a little more quickly – well, quite quickly.

PN1419.

MR WARREN: So far.

PN1420.

SENIOR DEPUTY PRESIDENT: So far. We’ll adjourn until 10.00 am tomorrow.

ADJOURNED UNTIL THURSDAY, 29 JANUARY 2015 [5.08 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

XAVIER WAGNER, AFFIRMED [11.24 AM].................................................... PN207

EXAMINATION-IN-CHIEF BY MR WARREN [11.25 AM]............................ PN207

CROSS-EXAMINATION BY MR ENDACOTT [11.26 AM]............................. PN220

RE-EXAMINATION BY MR WARREN [12.14 PM].......................................... PN387

THE WITNESS WITHDREW [12.17 PM]............................................................ PN397

RUSSELL WOOD, SWORN [12.19 PM].............................................................. PN402

EXAMINATION-IN-CHIEF BY MR WARREN [12.19 PM]............................. PN402

CROSS-EXAMINATION BY MR ENDACOTT [12.21 PM].............................. PN415

RE-EXAMINATION BY MR WARREN [12.43 PM].......................................... PN519

THE WITNESS WITHDREW [12.49 PM]............................................................ PN575

DAVID MURRIE [1.50 PM].................................................................................. PN584

EXAMINATION-IN-CHIEF BY MR WARREN: [1.50 PM].............................. PN584

CROSS-EXAMINATION BY MR ENDACOTT [1.51 PM]................................ PN594

RE-EXAMINATION BY MR WARREN [2.41 PM]............................................ PN747

THE WITNESS WITHDREW [2.42 PM].............................................................. PN750

DWAYNE JONES, SWORN [2.43 PM]................................................................ PN752

EXAMINATION-IN-CHIEF BY MR WARREN [2.44 PM]............................... PN752

CROSS-EXAMINATION BY MR ENDACOTT [2.45 PM]................................ PN765

RE-EXAMINATION BY MR WARREN [3.36 PM]............................................ PN929

THE WITNESS WITHDREW [3.46 PM]............................................................ PN1005

JEFF KELLY, SWORN [3.50 PM]...................................................................... PN1018

EXAMINATION-IN-CHIEF BY MR WARREN [3.51 PM]............................. PN1018

CROSS-EXAMINATION BY MR ENDACOTT [4.08 PM].............................. PN1100

RE-EXAMINATION BY MR WARREN [5.01 PM].......................................... PN1372

THE WITNESS WITHDREW [5.07 PM]............................................................ PN1405

EXHIBIT MT ARTHUR 1 STATEMENT OF AGREED FACTS....................... PN173

EXHIBIT MT ARTHUR 2 OUTLINE OF SUBMISSIONS................................ PN175

EXHIBIT MT ARTHUR 3 REGULATIONS........................................................ PN176

EXHIBIT CFMEU 1 OUTLINE OF SUBMISSIONS.......................................... PN200

EXHIBIT MT ARTHUR 4 STATEMENT OF XAVIER WAGNER DATED 15/12/2014 PLUS ATTACHMENTS............................................................................................................................. PN220

EXHIBIT MT ARTHUR 5 STATEMENT OF RUSSELL WOOD SIGNED
15/12/2014........................................................................................................... PN414

EXHIBIT MT ARTHUR 6 STATEMENT OF DAVID MURRIE, DATED
23/01/2015........................................................................................................... PN592

EXHIBIT MT ARTHUR 7 STATEMENT OF DWAYNE JONES, DATED
15/12/2014........................................................................................................... PN764

EXHIBIT MT ARTHUR 8 STATEMENT OF JEFF KELLY............................. PN1036

Fair Work Commission Transcripts

C2014/6428, Transcript of Proceedings [2015] FWCTrans 106 (10 March 2015)